Nikka Ram vs State Of Himachal Pradesh
2021 Latest Caselaw 958 HP

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

Cr.MP(M) No.29 of 2021 Reserved on:January 22, 2021.

.

Date of Decision: February 4, 2021.

    Nikka Ram                                                              ...Petitioner.

                                   Versus





    State of Himachal Pradesh                                             ...Respondent.

    Coram:

The Hon'ble Mr. Justice Anoop Chitkara, Judge.

Whether approved for reporting?1 NO

For the petitioner: rMr. Varun Rana, Advocate.

For the respondent: M/s. Narender Guleria and Vikas Rathour, Addl. Advocate Generals with M/s. Bhupinder Thakur, Gaurav Sharma

and Ms. Divya Sood, Deputy Advocate Generals.

                             THROUGH VIDEO CONFERENCE



        FIR No. Dated            Police Station               Sections
        28    of 5.12.2012       State CID, Bharari, District 20, 29 of ND&PS




        2012                     Shimla, H.P.                 Act.





    Anoop Chitkara, Judge.

The petitioner, who was arrested after eight years of registration of FIR and

arrest of the other accused, incarcerating upon his arrest, for possessing commercial

quantity of Charas, has come up before this Court under Section 439 of Cr.PC,

seeking regular bail, on the grounds that the co-accused who were arrested earlier

had been acquitted by a Division Bench of this Court and SLP whereof is also

dismissed.

2. Earlier, the petitioner had filed a petition under Section 439 Cr.PC before the

concerned Sessions Court. However, vide order dated 14.10.2020, learned Special

Whether reporters of Local Papers may be allowed to see the judgment?

Judge-(I) Mandi, District Mandi, H.P., dismissed the petition because the quantity

involved is commercial.

.

3. In Para 9(xvii) of the bail application, the petitioner declares having no

criminal history relating to the offences prescribing sentence of seven years and

more, or when on conviction, the sentence imposed was more than three years.

4. Briefly, the allegations against the petitioner are that the Police arrested Padam

Singh, Ravi Kumar and Sanjay Kumar for possessing 15.450 Kilograms of Charas in

their car, some where on 4.12.2012. The interrogation revealed involvement of bail

petitioner, Nikka Ram. However, he absconded and was fugitive till the end of July,

2020. On 31st July, 2020, he had filed an application for anticipatory bail, which was

withdrawn and on 3.9.2020, the Police arrested him and he is in judicial custody.

5. Learned counsel for the petitioner contends that the petitioner is a first offender

and incarceration before the proof of guilt would cause grave injustice to the

petitioner and family.

6. On the contrary, the State contends that the Police have collected sufficient

evidence against the bail petitioner and the co-accused. Another argument on behalf

of the State is that the crime is heinous, the accused is a risk to law-abiding people,

and bail might send a wrong message to society.

REASONING:

7. As far as arguments that Division Bench of this Court acquitted the co-accused

in Cr. Appeal No.352 of 2014, Cr. Appeal No.353 of 2014 and Cr. Appeal No.354 of

2014, titled as Padam Singh vs. State, Ravi Kumar vs. State and Sanjay Kumar vs.

State, respectively and SLP against those was dismissed, is concerned, those people

faced trial and were acquitted on merits. The argument that since the persons from

whose possession Charas was recovered were acquitted as such petitioner cannot be

convicted, would arise at the time of framing of charges. If the Special Judge would

not find any evidence against the petitioner, then obviously he would not frame

.

charge against him and close the prosecution, but to raise such argument is not

satisfaction of Section 37 of the ND&PS Act because the contraband is commercial

quantity. The conduct of the accused to remain fugitive for eight years itself is a

circumstance which prima facie goes against him.

8. Learned counsel for the petitioner referred to certain statements and memos

from the police report, prepared under section 173(2) CrPC, copies of which the

accused had duly received in compliance to S. 207 CrPC. However, the documents

which the leanrd counsel referred were neither filed with the petition, nor its copies

supplied to the Court and the State. Thus, the Court cannot base any finding on a

document in the Counsel's brief and not on Court's file.

9. Counsel for the petitioner has also made several other arguments. Still, given

that this Court is not inclined to grant bail, on the reasons mentioned above,

discussion of the same will be an exercise in futility. Any detailed analysis of the

evidence may prejudice the case of the prosecution or the accused.

10. Given above, in the facts and circumstances peculiar to this case, at this stage,

the petitioner fails to make out a case for bail. The petition is dismissed with liberty

to file a new bail application.

11. Any observation made hereinabove is neither an expression of opinion on the

merits of the case, nor shall the trial Court advert to these comments.

The petition is dismissed.

Anoop Chitkara, Vacation Judge.

February 4, 2021 (ks).