Reserved On: 04.01.202 vs Narcotic Control Bureau
2021 Latest Caselaw 393 HP

                                                      1




              IN THE HIGH COURT OF HIMACHAL PRADESH
                              SHIMLA

                                         Cr.M.P.(M) No. 1833 of 2020




                                                                                .

                                         Reserved on: 04.01.2021
                                         Date of Decision: January 7, 2021
    Bhagat Singh alias Bagga                                                        ...Petitioner.





                                                  Versus

    Narcotic Control Bureau, Chandigarh                                             ..Respondent.
    Coram:





    The Hon'ble Mr. Justice Vivek Singh Thakur, Judge.
    Whether approved for reporting?1
    For the Petitioner:                  Mr. O.C. Sharma,                 Advocate,        through
                           r             Video Conferencing.

    For the Respondent:                  Mr. Ashwani Pathak, Senior Advocate,
                                         alongwith Mr.Sandeep Sharma, Advocate,
                                         through Video Conferencing.


    Vivek Singh Thakur, J.

Petitioner herein is an accused in NDPS Case Crime

No.38 of 2019 dated 05.08.2019, lodged under Sections 8, 20, 29

and 60 of Narcotic Drugs and Psychotropic Substances Act, 1985

(hereinafter referred to as 'NDPS Act' in short) in Police Station

Narcotics Control Bureau, Chandigarh, for having been found in

possession of 1.945 kilograms charas on 05.08.2019 at about

7.30 p.m. near Nalagarh, which was recovered from a Car White

Creta bearing registration No.HR-30U-3100, wherein petitioner

was travelling alongwith co-accused.

2. As per status report, filed on behalf of the

respondent, on 05.08.2019 an Intelligence Officer, NCB, Mandi

Whether reporters of the local papers may be allowed to see the judgment?

Sub-Zone, had provided a specific information that three

persons named Bhagat Singh @ Bagga (petitioner), Rajvir @ Raju

and Ravi, would buy a considerable amount of charas from one

.

person Surinder Singh of Himachal Pradesh, somewhere between

Swarghat and Nalagarh and purchasers will go to Faridabad

through a white coloured Creta Car bearing registration No.HR-

30U-3100 via Nalagarh, Himachal Pradesh. Whereupon, team of

NCB, Sub-Zone Mandi was constituted and directed to conduct

surveillance and carry out search and seizure operation under

supervision of the Superintendent, NCB, Mandi Sub-Zone and in

pursuance thereto, NCB team reached Nalagarh Bus-stand and

tried to associate independent witnesses in search and seizure

process, but none agreed for that. At about 8.30 p.m., the team

noticed above referred car coming on Swarghat-Nalagarh-Baddi

road, which was signaled to stop by the team, whereupon, car

was stopped, but all the three occupants alighted from the car

and locked it and tried to run, however, two persons namely

Bhagat Singh (petitioner) and Rajvir @ Raju were apprehended

by the team and they told that car had been locked by third

person named Ravi, who had escaped from the spot alongwith

keys of the car. The car was opened by the NCB team with the

help of a Mechanic Sanjeev Kumar and the said Mechanic had

also witnessed the Panchnama proceedings. During search,

white coloured polythene kept on back seat of car was

recovered, wherein seven packets wrapped with brown scotch

tape having black coloured finger shaped substance, were found.

On verification with Drug Detection Kit, it was detected as

charas. On weighing, weight of contraband was found to be

1.945 kilograms.

.

3. During investigation, Call Detail Records (CDRs) of

Bhagat Singh (petitioner), Rajvir @ Raju and Surinder Singh were

also obtained and it has been found that Bhagat Singh was in

constant touch with Surinder Singh on his Mobile No.86288-

80330 and another Mobile bearing No.7807554818, which

though was issued in the name of Mohar Singh cousin of Surinder

Singh, but being used by Surinder Singh and on 4 th and 5th

August, 2019 petitioner had conversation with Surinder Singh

about ten times. The complaint has been submitted by NCB

before Special Judge, Nalagarh, against the petitioner and co-

accused, which is pending consideration.

4. Learned counsel for the petitioner submits that

petitioner is not connected with commission of offence, in any

manner, and he has relied upon unsigned letter dated

10.01.2020 purported to be issued by Jatinder Rana, Proprietor of

Master Hotel, Nalagarh, wherein he has stated that one person

namely Ravi Chand Tanwar had made entry in the register of

Hotel at 10.20 a.m. on 05.08.2019 who had come alongwith

another person and both of them had entered in the Hotel in

Room No.108 and after sometime, Ravi Chand Tanwar had left

the Hotel at 10.50 a.m. for getting some medicine for his friend,

who was suffering from fever.

5. Referring copy of extract of register of Hotel, learned

counsel for the petitioner has submitted that there is overwriting

in the entry pertaining to Ravi Chand Tanwar, which has been

.

manipulated by the Investigating Agency to rope the petitioner in

commission of offence falsely.

6. Learned counsel for the petitioner has submitted that

alleged recovery of charas was effected from idle parked car and

petitioner was not in the car, but has been implicated falsely,

whereas, car belongs to someone else and petitioner had nothing

to do with the said car much less with the contraband alleged to

have been recovered from the car.

7. Learned counsel for the petitioner submits that as

nothing was recovered from the petitioner, but from a car parked

on the road, rigours of Section 37 of NDPS Act, are not applicable

to him.

8. It is also submitted by learned counsel for the

petitioner that as per para 40 of the complaint, filed by NCB,

phone No.86288-80330 is in the name of Surinder Singh alleged

seller of contraband, whereas, Mobile No.78075-54818 is in the

name of Mohar Singh and there is no record of conversation

between mobile number of petitioner i.e. 95885-61660 and

86288-80330 and, therefore, prosecution story that Bhagat Singh

@ Bagga (petitioner) was in constant touch of seller Surinder

Singh, is not substantiated from the CDRs.

9. Learned counsel for the petitioner has also submitted

that as per NCB form, charas was recovered at 10.20 p.m. on

05.08.2019, however, arrest of the petitioner has been shown at

02.14 a.m. on 06.08.2019, which reflects that the petitioner was

not on the spot, where alleged contraband was recovered, but he

.

has been implicated later on by creating evidence against him.

10. Learned counsel for NCB has submitted that

unsigned letter issued by the Proprietor of Master Hotel, wherein

he has stated that two persons had come to his Hotel on

05.08.2019 is of no consequence as in the extract of register in

entry against Room No.108, name of Ravi Chand Tanwar plus two

persons, has been mentioned and further that there are more

than ten conversations between petitioner and seller Surinder

Singh during 4th and 5th August, 2019 through Mobile No.95885-

61660 and 78075-54818 and he further submits that it is

specifically mentioned in the complaint on the basis of evidence

collected, that though Mobile No.78075-54818 was issued in the

name of Mohar Singh, cousin of Surinder Singh, but the same

was being used by Surinder Singh. Further that submissions of

learned counsel for the petitioner that contraband was recovered

from an idle parked car on the road and petitioner has been

implicated on the basis of suspicion only and nothing has been

recovered from him, are far away from the truth as it has been

unambiguously stated in the complaint that there were three

persons sitting in the car, who on signal stopped the car, but

thereafter they locked it and tried to run away, but out of three,

two were apprehended and one of them is petitioner.

11. It is submitted by learned counsel for NCB that it is

wrong to suggest that nothing was recovered from Bhagat Singh

@ Bagga (petitioner), but he was one of the occupants of the car,

.

wherefrom commercial quantity of charas was recovered and,

therefore, Section 37 of NDPS Act is applicable to the petitioner.

12. Learned counsel for NCB submits that there is no

irregularity and illegality in arresting the accused after four hours

of recovery of charas, as petitioner has been arrested after

completing codal formalities after recovery of charas at 10.20

p.m. and in completing those codal formalities, time spent about

four hours, is not unusual but natural and, therefore, arrest of the

petitioner at 2.14 a.m., i.e. about four hours after recovery of the

contraband, substantiates that search and seizure proceedings

on the spot were conducted in the prescribed manner.

13. Without evaluating rival contentions of parties and

avoiding evaluation of material on record on merit, but

considering quantity of contraband so recovered and period of

detention, nature and gravity of offence and also impact thereof

on the society, I find that at this stage, balance of interest is in

favour of societal interest in comparison to personal interest of

petitioner. Therefore, I am of the considered opinion that at this

stage petitioner is not entitled for bail. Accordingly, petition is

dismissed.

(Vivek Singh Thakur), Judge.

January 7, 2021 (Purohit)