Nawal Kishore vs State Of Hp R
2021 Latest Caselaw 280 HP

                                                                             .
        IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA





                                      Cr.MP(M) No. 1939 of 2020
                                     Judgment Reserved on 31st Dec.,2020





                                     Date of Decision             06      Jan., 2021
    ________________________________________________________

    Nawal Kishore                                                        ...Petitioner





                                                   Versus

    State of HP           r                                              ....Respondent

    Coram

    The Hon'ble Mr. Justice Vivek Singh Thakur, J.

Whether approved for reporting?1 Yes ______________________________________________________________

For the Petitioner: Mr. Bhupinder Ahjua, Advocate, through Video Conferencing.

For the Respondent: Mr. Desh Raj Thakur, Additional

Advocate General, through Video Conferencing.

__________________________________________________________________ Vivek Singh Thakur, J.

Petitioner has been implicated in present case under

Sections 20 and 29 of Narcotic Drugs and Psychotropic

Substances Act, 1985 (in short 'NDPS Act') in case FIR No. 20 of

2020 dated 25.01.2020 registered in Police Station Patlikuhal,

District Kullu (H.P.).

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

2 As per status report, filed on behalf of the

respondent/State, petitioner has been named as a supplier by

.

main accused Ajit Singh when he was arrested for having been

found in possession of 1.78 Kg. Charas on 25.1.2019. Disclosure

statement of main accused, naming the petitioner as supplier,

has been substantiated by Call Detail Reports (CDRs) of mobile

numbers of petitioner as well as main accused Ajit Singh. It is the

case of prosecution that main accused Ajit Singh had purchased

charas from petitioner for selling it further in retail.

Learned counsel for petitioner submits that main

accused is denter by profession and petitioner is owner of Bolero

Pickup and main accused had contacted petitioner on 24.1.2020

in connection with repair work of his Bolero and his conversation

with main accused for that purpose cannot be considered to be a

conversation for selling and purchasing the charas recovered

from main accused. It is submitted on behalf of petitioner that no

charas has been recovered from him and, therefore, reverse

burden of proof under Sections 35 and 54 of NDPS Act is not

applicable to petitioner and further that there is no conclusive

and admissible evidence available on record against petitioner.

Further that as petitioner has been roped in the case only on the

basis of statement of main accused, which, under law, is not

admissible against petitioner and, therefore, there is every

likelihood of his acquittal and therefore, judicial custody of

.

petitioner during trial is unwarranted in this case.

4 It is also submitted by learned counsel for petitioner

that bail petition of petitioner filed earlier bearing Cr.MP(M) No.

1535 of 2020 was dismissed by a Coordinate Bench of this Court

on 16.9.2020 but, in that rejection order, it has been

categorically stated that bail petition, at that stage, was

dismissed and thereafter sufficient time has elapsed and as of

now petitioner has completed about one year behind the bars

that too for his alleged involvement under Section 29 of NDPS

Act on the basis of confessional statement of main accused,

which, in fact, is not admissible against petitioner even under

Section 30 of Indian Evidence Act.

5 Petitioner has placed reliance upon judgment dated

24.9.2020 passed by the Supreme Court of India in Cr. Appeal

No. 630 of 2020, titled Mohan vs. State of Madhya Pradesh,

wherein, by referring Section 120-A IPC, it has been observed

that conspiracy cannot be assumed from a set of unconnected

facts or from a set of conduct at different places and times

without a reasonable link. Referring this observation, he has

canvassed that in present case also there is no evidence to

establish sale of charas by petitioner to main accused Ajit Singh

on 24.1.20202 and there is nothing to link the Call Detail Reports

.

with alleged transaction of charas from petitioner to main

accused Ajit Singh.

6 Other judgments passed by Supreme Court in cases

Bhagwan Swarup Lal Bishan Lal vs. State of Maharashtra,

reported in AIR 1965 SC 682; Sujit Tiwari vs. State of Gujarat and

another, reported in AIR 2020 SC 667; and State (NCT of Delhi)

vs. Navjot Sandhu alias Afsan Guru reported in (2005)11 SCC 600

have also been referred by learned counsel for petitioner in

support of his plea that ingredients of conspiracy under Section

120B of IPC are missing in present case.

7 Learned counsel for petitioner has also put reliance

on judgment of Coordinate Bench dated 29.6.2020, passed in

Cr.MP(M) No. 299 of 2020, titled Satish Singh vs. State of HP,

whereby accused therein, who was under incarceration for about

one year for purchasing 6.324 Kg. Charas and 413 grams opium,

was enlarged on bail.

8 Learned counsel for petitioner also submits that

rigors of Section 37 of NDPS Act are also not applicable in

present case for the reason that there is nothing on record so as

to reasonably believe that petitioner was involved in alleged

commission of offence as petitioner is not connected in any

manner with charas allegedly recovered from Ajit Singh. Further

.

that petitioner is not involved in selling and purchasing the

charas and the said fact is substantiated from status report

wherein it is stated that there is no previous history of

involvement of petitioner in any other case.

9 It is also submitted on behalf of petitioner that

recovered charas is about 1.078 Kg., which is almost equivalent

to 1 Kg. and as such that may be considered as intermediate

quantity, not commercial quantity and thus, rigors of Section 37

of NDPS Act should not be applied in present case.

10 Learned Additional Advocate General has opposed

the grant of bail on the ground that quantity of charas, recovered

in present case, is commercial quantity and petitioner has been

arrayed as an accused in present case not only on the basis of

confessional or disclosure statement of main accused, but also

on the basis of evidence of CDRs substantiating and

corroborating the disclosure of main accused and, therefore, it is

wrong to say that it is a case of 'no evidence' or 'inadmissible

evidence' against the petitioner.

11 So far as case law referred by petitioner is

concerned, in bail petition, as has also been observed by

Coordinate Bench at the time of deciding Cr.MP(M) No. 1535 of

2020, each case has to be examined on the basis of its own

.

facts. Submissions of learned Additional Advocate General, as

also observed by Coordinate Bench that in instance case, besides

disclosure statement of main accused, the Investigating Agency

has also obtained CDRs of mobile phones of Ajit Singh as well as

petitioner, which indicate that both of them have been in

constant contact with each other through mobile phones on

24.1.2020 i.e. the day when main accused Ajit Sigh has allegedly

purchased the contraband from petitioner, have some force.

12 Therefore, it cannot be said that there is no prima-

facie reason to believe about involvement of petitioner in present

case and it cannot be said that ex-facie there is no evidence at

all against the petitioner on record. However, considering the

facts in entirety i.e. quantity of recovered contraband, alleged

role of petitioner, evidence available against him and also period

of his custody, petitioner may be enlarged on bail without

commenting upon the rival contentions of parties on merits and

without assessing the evidence on record either way, which is to

be evaluated and considered by the trial Court during trial.

Accordingly, petitioner is ordered to be enlarged on bail subject

to furnishing personal bond in the sum of Rs. 1 lac with one

surety in the like amount to the satisfaction of learned trial Court,

within two weeks from today, and also subject to further

.

conditions enumerated hereinafter, in addition to other or further

conditions imposed by trial Court as deemed fit by that Court:-

(i) That the petitioner shall make himself available during investigation as well as the trial on each and every date as and when required;

(ii) That the petitioner shall not directly or indirectly make any inducement, threat or promise to any person acquainted

with the facts of the case so as to

dissuade her from disclosing such facts to Court or to any police officer or tamper with the evidence. She shall

not, in any manner, try to overawe or influence or intimidate the prosecution

witnesses;

(iii) That he shall not obstruct the smooth

progress of the investigation as well as trial;

                (iv)     That he shall not jump over the bail;
                (v)     That he shall inform, in writing, regarding
                         change of address, land line number
                         and/or mobile number, if any,                     in
                         advance, to concerned Police Station.
                (vi)     That the petitioner shall not commit
                         the offence similar to the offence to










                        which he is accused or suspected or
                        the   commission      of    which       he      is
                        suspected;




                                                               .

               (vii)    That petitioner shall not misuse his
                        liberty in any manner;

(viii) That he shall not leave the country

without prior permission of Court.

13 It will be open to the prosecution to apply for

imposing any such other or further condition on the petitioner as

deemed necessary in the facts and circumstances of the case

and in the interest of justice and thereupon it will also be open

to the trial Court to impose any other or further condition on the

petitioner as it may deem necessary in the interest of justice.

14 In case the petitioner violates any condition imposed

upon them, his bail shall be liable to be cancelled. In such

eventuality, prosecution may approach the competent Court of

law for cancellation of bail in accordance with law.

15 Learned trial Court is directed to comply with the

directions issued by the High Court, vide communication No.

HHC/VIG/Misc.Instructions/93-IV.7139 dated 18.3.2013.

16 Any observation made in this order shall not

affect the merits of case in any manner and will strictly confine

for the disposal of this bail application filed under Section 439 of

Code of Criminal Procedure 1973.

.

17 It is directed that trial Court shall not insist for

certified copy of order and can verify the same from High Court

Website and from Registry before accepting the bail bonds to be

furnished by petitioner.

Petition stands disposed of.

Dasti copy on usual terms.

    January 06, 2021                    (Vivek Singh Thakur)

     (ms)                                      Judge