Between vs Unknown
2022 Latest Caselaw 6957 HP

                                         1


IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA

                  ON THE 18th DAY OF AUGUST, 2022




                                                                         .
                                   BEFORE





            HON'BLE MR. JUSTICE AJAY MOHAN GOEL
                   CRIMINAL MISC. PETITION (MAIN) No. 1429 of 2022





      Between:-
      CHET RAM, S/O SH. LAL DASS,
      AGED ABOUT 44 YEARS,





      RESIDENT     OF    VILLAGE
      BHANVADI,   POST    OFFICE
      THACHI, TEHSIL BALICHOWKI,
      DISTRICT    MANDI      (HP),
      PRESENTLY LODGED IN JAIL,
      BILASPUR (HP).


                                                                ...PETITIONER
     (BY SHRI N.K. TOMAR, ADVOCATE, VICE
     MR. RAJINDER SINGH CHANDEL,
     ADVOCATE)



      AND

     STATE OF H.P. THROUGH




     SECRETARY (HOME).
                                      ...RESPONDENT





     (M/S SUMESH RAJ & DINESH THAKUR,
     ADDITIONAL ADVOCATE GENERALS, WITH
     MR. AMIT KUMAR DHUMAL, DEPUTY





     ADVOCATE GENERAL & MR. MANOJ
     BAGGA,      ASSISTANT   ADVOCATE
     GENERAL).
     Whether approved for reporting? Yes.
__________________________________________________________
            This petition coming on for orders this day, the Court passed the following:-

                                   ORDER

By way of this petition filed under Section 439 of the Code of

Criminal Procedure, the petitioner has prayed for his release in FIR No.

336/20, dated 07.11.2020, registered at Police Station Kullu, in terms

whereof, the petitioner is being prosecuted for commission of an offence

.

punishable under Sections 20 & 29 of the Narcotic Drugs and Psychotropic

Substances Act.

2. Mr. N.K. Tomar, learned counsel for the petitioner submits that

the petitioner has been falsely implicated in the case and he has no

connection whatsoever with the other accused in the case and, therefore,

the petitioner deserves to be released on bail. He contends that the

petitioner is an agriculturist by profession, who otherwise also is not

involved in the commission of such kind of matters and he has been falsely

implicated in the case at the behest of Police. He further states that the

petitioner has no past criminal history and there is not even a remote

possibility of the petitioner having committed the offence alleged against

him and in these circumstances, if released on bail, he will comply with all

such conditions as may be imposed by the Court.

3. The bail petition is opposed by the learned Additional Advocate

General, who states that on the fateful day, i.e., 7th November, 2020, a huge

hall of contraband, i.e., charas weighing 3 Kg. 850 grams was recovered

from a bag which was kept in the rack just above Seat Nos. 25 and 26 of a

KTC Transport Bus bearing No. HP66-1742, which was on its way from

Manikaran to Bhuntar. The bag was grey in colour and none in the bus

claimed the ownership thereof. The contraband was discovered in the

course of a routine checking of the bus by the police officials. When the bag

was opened in the presence of witnesses, the same was found containing

.

besides other articles, as have been mentioned in the status report, five

packets, inside which, the contraband was found. These when weighed,

were found to be 3 Kg. 850 grams and on the basis of experience, it was

discovered that the same was charas. After recovery of the contraband,

investigation was carried by the Police and the same revealed that on

06.11.2020, in Room No. 101 of one Sharma Guest House at Manikaran,

three persons, namely, Piare Singh, Chet Ram and Gita Nand had stayed

together, who checked out of the Room on 07.11.2022 at 8:00 a.m. At the

relevant time, the bag which was recovered from the bus was being carried

by one of the said three persons, namely, Gita Nand. Incidentally,

investigation further revealed that one of these three persons, Piare Singh,

was one of the passengers of the bus, from which the contraband was

recovered. Investigation also revealed that the bag was kept in the rack of

the bus by Chet Ram and Gita Nand, who had paid an amount of Rs.5,000/-

to Piare Singh to take care of the bag, from whom the same was to be

collected by the other accused at Bhuntar, who had already left for Bhuntar

prior in time before the bus was to reach there. It is in this backdrop and in

the course of what was revealed in the investigation that the accused were

arrested, which includes Chet Ram also. Accordingly, learned Additional

Advocate General has argued that it is not as if the petitioner has been

taken into custody on the basis of some confessional statement only, made

by the co-accused, as the involvement of the petitioner stands clearly

.

spelled out by the investigation which was carried in the matter, which

includes the statements of employee of the Guest House and also one

Dhabha owner, who had disclosed that all these three persons were

together on the night before the fateful day when the charas was recovered

from the bus. The bag in issue was also identified by these two persons,

i.e., the employee of the Guest House as well as the owner of the Dhabha.

Learned Additional Advocate General thus submits that as the petition is

devoid of any merit, the same be dismissed.

4. In rebuttal, Mr. Tomar has submitted that assuming what has

been stated by the learned Additional Advocate General is correct, even

then by no stretch of imagination, it can be said definitely that the bag

allegedly identified by the employee of the Guest House as also the owner

of the Dhabha was the same bag which was recovered from the bus in issue

and the bag which was seen by these two persons in the possession of one

of the accused was the same containing the contraband. Learned counsel

submits that otherwise also, the petitioner deserves to be released on bail

in view of the judgment of the Hon'ble Supreme Court in Tofan Singh Vs.

State of Tamil Nadu, (2021) 4 Supreme Court Cases 1 as well as Narcotics

Control Bureau Vs. Mohit Aggarwal, Criminal Appeal Nos. 1001-1002 of

2022 (Arising out of Petitions for Special Leave to Appeal (Crl.) No. 6128-

29 of 2021), as the sole basis of the arrest of the petitioner appears to be

some kind of a confessional statement made by the other accused.

.

5. I have heard learned counsel for the parties and also gone

through the petition as well as the status report which has been filed by the

State.

6. As the factual matrix already stands spelled out in the

submissions of leaned Additional Advocate General, which have been

recorded hereinabove, this Court will not repeat the same for the sake of

brevity. It is not in dispute that from the bag in issue, 3 Kg. 850 grams charas

has been recovered, which admittedly, is a commercial quantity. A perusal

of the status report demonstrates that it was in the course of investigation

which was carried by the Police after the recovery of contraband from the

bag in issue that the same revealed the involvement of the accused, which

includes the present petitioner also. It is apparent from the status report that

the investigation revealed that on the night before the charas was recovered

from the bag in the bus concerned, the petitioner as well as other two

accused had stayed together in the 'Sharma Guest House' at Manikaran,

District Kullu, H.P. and they had checked out of the room next morning. It

has also been found in the course of the investigation that incidentally

though no one claimed the ownership of the bag when the bus was stopped

by the Police and checking of the same was carried out, however, one of

the three accused was travelling in the said bus. Now, all these things

cannot be said to be a mere coincidence or a figment of imagination of

prosecution, as the petitioner wants this Court to believe. Therefore, this is

.

not a case, wherein, the petitioner has been taken into custody only on the

basis of some confessional statement made by one of the accused, as

argued on behalf of the petitioner. There is one more fact which requires

mention at this stage and said fact is that whereas the contraband was

recovered from a bag which was placed in a bus which was on its way from

Manikaran to Bhuntar, both of which areas are in District Kullu, all the three

accused happen to be the residents of Post Office Thachi, Tehsil

Balichowki, District Mandi, H.P. In other words, the presence of all these

three persons at Manikaran in the same room in same Guest House on a

day before the contraband was recovered from the bus again cannot be

said to be a co-incidence. In terms of the provisions of Section 37 of the

Narcotic Drugs and Psychotropic Substances Act, 1985, no person

accused of an offence punishable inter alia for offences involving

commercial quantity shall be released on bail or on his own bond unless

the Public Prosecutor has been given an opportunity to oppose the

application for such release and where the Public Prosecutor opposes the

application, the Court is satisfied that there are reasonable grounds for

believing that he is not guilty of such offence and that he is not likely to

commit any offence while on bail. In the facts of the present case at this

stage, this court is not in a position to record its satisfaction that there are

reasonable grounds for believing that the accused is not guilty of such

offence.

.

7. Coming to the judgments relied upon by learned counsel for

the petitioner, this Court is of the considered view that the judgment of the

Hon'ble Supreme Court in Tofan Singh's case (supra) is of no assistance

to the petitioner at this stage for the reason that involvance of the petitioner

in the offence is not on the basis of sole confessional statement of a co-

accused, as their is other material on record to corroborate the case against

the accused.

8.

As far as the judgment of the Hon'ble Supreme Court in

Narcotic Control Bureau's case (supra) is concerned, this Court is of the

considered view that a perusal of paras-14, 16 and 18 of the same

demonstrate that it has been clearly laid down by the Hon'ble Supreme

Court in this judgment that the expression "reasonable grounds" used in

Clause (b) of Sub-section (1) of Section 37 would mean credible and

plausible grounds for the Court to believe that the accused person is not

guilty of the alleged offence and for arriving at any such conclusion, such

facts and circumstances must exist in a case that can persuade the Court

to believe that the accused person would not have committed such an

offence. Hon'ble Supreme Court by referring to its judgment in Tofan

Singh's case (supra) has held that in Tofan Singh's case, a confessional

statement recorded under Section 67 of the NDPS Act has been held to be

inadmissible in the trial of an offence under the NDPS Act, but if de hors the

confessional statement, other circumstantial evidence is brought on record

.

by the prosecution, then the Court is justified in exercising its discretion not

to release the accused on bail. This Court again reiterates that in view of

what is contained in the status report, prima facie, satisfaction to the effect

that the accused is not guilty of the offence alleged to have been committed

by him, cannot be recorded by this Court in the present case and, therefore,

as this Court finds no merit in the present petition, the same is dismissed.

                         r                             (Ajay Mohan Goel)
                                                           Judge

August 18, 2022
  (bhupender)