Namely Sarla Devi vs Unknown
2022 Latest Caselaw 2014 HP

     IN THE HIGH COURT OF HIMACHAL PRADESH AT
                       SHIMLA
                  ON THE 19TH DAY OF APRIL, 2022
                               BEFORE




                                                           .
           HON'BLE MR. JUSTICE VIVEK SINGH THAKUR





          CRIMINAL MISC. PETITION (MAIN) No. 2388 OF 2021
    Between:-





       TANUJ KUMAR, /O SH. DEVI
       SINGH, R/O VILLAGE NAGRAUN,
       P.O. AND SUB TEHSIL PANGNA,
       DISTT. MANDI, HP., SINCE IN
       JAIL, THROUGH HIS MOTHER





       NAMELY SARLA DEVI, SH.DEVI
       SINGH, R/O VILLAGE NAGRAUN,                       ...PETITIONER
       P.O. AND SUB TEHSIL PANGNA,
       DISTT. MANDI, H.P.

       (BY SH. JEET SINGH, ADVOCATE, VICE
       MR.DEWA NAND SHARMA, ADVOCATE.)

       AND
       STATE OF H.P.                                  ...RESPONDENT

       (BY MR.HEMANT VAID, ADDITIONAL


       ADVOCATE GENERAL.)

       Whether approved for reporting?




       Reserved on: 4.4.2022
       Decided on: 19.4.2022





                 This petition coming on for pronouncement this day,
    the Court passed the following:





                              ORDER

Petitioner has approached this Court seeking bail in

case FIR No. 13 of 2021, dated 19.2.2021, registered in Police

Station Janjheli, District Mandi, H.P. under Sections 20, 25 and

Cr.M.P. (M) No. 2388 of 2021 ...2...

29 of Narcotic Drugs and Psychotropic Substances Act (in short

"NDPS").

2. Status Report stands filed. Record was also made

.

available.

3. Prosecution case in brief is that on 18.2.2021, Police

Party was going to Chiyuni for laying naka and when they

reached at Nihari at about 8:25 P.M., a faithful informer had

informed that one person, namely Jai Singh having mobile No.

98163-27507, was coming from Chakudhar Jungle towards

Chiyuni Road with charas in his bag and that he had to transport

the charas in Alto Car No. HP-87-0138 of his friends. At 8:34

P.M., Head Constable Nek Ram while moving towards

Chakudhar Jungle, from his mobile number 94184-34000, had

sent this information on Whatsapp to Sub Divisional Police Officer

on his mobile number 93172-21006 in the shape of an application

under Section 41(2) for authorization letter to search the Alto Car.

In response, SDPO had communicated authorization to Head

Constable Nek Ram at 8.54 P.M. In the meanwhile Head

Constable had also informed SDM Thunag about it with request

to send his subordinate Officers as independent witnesses by

sending a notice under Section 56 of NDPS Act on Mobile of

SDM. At about 8:48 P.M., SDM had deputed two Officers,

through Whatsapp, as independent witnesses. At about 8:50

P.M., Head Constable reached near scissors curve i.e. 'V' curve

Cr.M.P. (M) No. 2388 of 2021 ...3...

(Kanchi Mod) and found an Alto Car HP87-0138 parked near the

cliff. Interior lights of the Car were on and three persons were

sitting in it. The moment Police vehicle stopped near the Alto Car

.

and Police Head Constable, in dress, came out of the Police

vehicle, a person sitting alongwith driver on the front seat, opened

the door of the Car and jumped from the cliff and ran away from

the spot by taking benefit of dark. Inspector Kamlesh Kumar had

asked the persons of Police Party not to chase the said person,

as there were deep gorges all around. However, persons sitting

in the Car were inquired. Driver had disclosed his identity as

petitioner, whereas lady sitting on rear seat of the Car had

disclosed her name Naina Devi. From the mobile Phone of Naina

Devi call was made on the mobile of person who had fled from

the spot, but his phone was reported to be switched off, but

Truecaller reflected his name as Jai Chand. At 9.50 P.M. Naib

Tehsildar Ved Prakash and Field Kanungo Kuran Chand, deputed

by SDM Thunag, reached on the spot in a private vehicle. During

search of the Car, a bag was recovered kept in front of co-driver's

seat wherefrom 6.674 Kilograms of charas was recovered in

presence of independent witnesses, Ved Prakash and Kuran

Chand. Due to darkness and drizzling on the spot further

proceedings were not possible on the spot. Therefore, recovered

charas was handed over to Naib Tehsildar Ved Prakash till

completion of written proceeding at some safe place. Thereafter,

Cr.M.P. (M) No. 2388 of 2021 ...4...

Head Constable Nek Ram contacted Forest Guard Balwant Singh

on Mobile and narrating the circumstances asked him about

appropriate place to carry our further written proceedings.

.

Balwant Singh suggested to complete further proceedings in his

rented room at Lamba Thach whereupon Police Party alongwith

witnesses and accused-persons started to Lamba Thach. On the

way, engine of car of accused persons stopped and could not be

restarted due to low battery, whereupon car in custody of HHG

Kapil was left on the road and rest all moved to Lamba Thach in

other two vehicles and further proceedings were completed with

the help of Laptop, printer and weighing machine brought by

Police Party. The recovered contraband was taken in possession

by following the procedure prescribed and thereafter rukka was

sent to Police Station. After registration of FIR, petitioner

alongwith Naina Devi were arrested on 19.2.2021 at 9:20 A.M.

Jai Chand could not be traced and apprehended, however after

availing anticipatory bail from the High Court on 19.7.2021, he

joined the investigation. His bail application was rejected on

20.7.2021, thereafter Jai Chand was arrested and subjected to

interrogation. All these accused are now in judicial custody.

4. Learned counsel for the petitioner has submitted that

petitioner is innocent person and he has been implicated on

wrong notion whereas he has no role in commission of offence as

he had been requested by co-accused Naina Devi to help her to

Cr.M.P. (M) No. 2388 of 2021 ...5...

bring a person known to her, i.e. Jai Chand in his Car and for that

purpose petitioner had borrowed Car from his maternal uncle

(Mama) and was accompanying Naina Devi to help her, but on

.

the way when Police Party noticed them in the Car, Jai Chand,

after throwing the bag in the Car had run away from the spot, but

petitioner was not having any knowledge about contraband in the

bag. It has been further submitted that there is no evidence

against the petitioner with respect to his involvement in

commission of offence.

5. Learned counsel for the petitioner has also referred

pronouncement of co-ordinate Bench of this Court in Cr.MMP(M)

No. 1768 of 2021, titled as Prem Sagar @ Pema Vs. State of

H.P., decided on 22.9.2021, wherein an under trial accused under

NDPS Act was released on bail.

6. He has also referred para 15 of the judgment of the

Supreme Court in Supreme Court Legal Aid Committee

representing Undertrial Prisoners Vs. Union of India and

others, reported in (1994) 6 SCC 731.

7. Learned Additional Advocate General has submitted

that petitioner has committed a heinous crime, which is not only

damaging the youth and their families, but also society at large

and, therefore, petitioner is not entitled for bail. It has further

been submitted that Call Details Report indicates that petitioner

Tanuj Kumar, accused Naina Devi and Jai Chand were in regular

Cr.M.P. (M) No. 2388 of 2021 ...6...

contact with each other and petitioner was also involved in

commission of offence and, therefore, prayer for rejection of bail

has been made. It has been further stated by learned Additional

.

Advocate General that on 18.2.2021 there were number of talks

between Jai Chand and Naina Devi and Tanju Kumar and Naina

Devi as well as Tanuj and they were in constant touch of each

other and, therefore, involvement of petitioner is apparent from

his conduct being reflected from record.

8. It has been submitted on behalf of petitioner that

keeping in view the provisions of Article 21 of the Constitution of

India, petitioner deserves to be enlarged on bail to give due

regard to his right of personal liberty as no one can be punished

by refusing the bail during trial.

9. Learned Additional Advocate General has submitted

that NDPS Act is a special enactment casting reverse onus upon

the accused to prove his innocence when he is found in

conscious possession of narcotic drugs and psychotropic

substances, and in present case petitioner has been caught red

handed alongwith contraband in his vehicle. Therefore, normal

rule and parameters are not applicable in present case.

10. In Prem Sagar @ Pema's case, petitioner was

behind the bars for more than three years for having found in

possession of commercial quantity of Tramadol Hydrochloride

capsules and prosecution evidence had not commenced and

Cr.M.P. (M) No. 2388 of 2021 ...7...

petitioner was suffering from serious ailment. The facts in present

case are not similar to Prem Sagar's case. Similarly, in Supreme

Court Legal Aid Committee's case, referred supra, the

.

observation made by the Supreme Court was regarding delay in

disposal of case under the Act involving Foreigners. In Supreme

Court Legal Aid Committee's case also facts were entirely

different from the present case. Therefore, these pronouncements

are not applicable in present case.

11. In view of aforesaid facts and circumstances,

quantify of recovered contraband, weighing the personal interest

of the petitioner viz-a-viz the impact of his release on the society,

but without commenting upon the merits of rival contention of

parties and considering factors and parameters required to be

taken into consideration at the time of adjudication of bail

application, I find that petitioner is not entitled for bail, at this

stage.

Accordingly, petition is dismissed.

                                               (Vivek Singh Thakur),
    19th April, 2022                                   Judge.
            (Keshav/sd)