Nihalgarh Tehsil Panota vs State Of Himachal Pradesh
2022 Latest Caselaw 219 HP

         IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA

                         ON THE 4th DAY OF FEBRUARY, 2022

                                BEFORE




                                                                           .
            HON'BLE MR. JUSTICE CHANDER BHUSAN BAROWALIA





                CRIMINAL MISC. PETITION (MAIN) No. 233 of 2022





    Between:-

    SHAHJAD ALI AGED 42 YEARS,
    SON OF SH. ABDUL GAFFAR R/O
    VILLAGE     AMARKOT,      P.O





    NIHALGARH, TEHSIL PAONTA
    SAHIB DISTRICT SIRMOUR, H.P.
    (NOW CONFINED IN JAIL AT
    NAHAN) THROUGH HIS WIFE
    SMT. SEEMA W/OF SH. SHAJAD

    ALI R/O VILLAGE AMARKOT, PO

    NIHALGARH TEHSIL PANOTA
    SAHIB, DISTRICT SIRMAUR, H.P.

                                                                           ......PETITIONER



    (BY    MR.     SERVEDAMAN
    RATHORE, ADVOCATE)




    AND





    STATE OF HIMACHAL PRADESH.

                                                                         ......RESPONDENT





    (BY MR. Shiv Pal Manhans,
    Addl.A.G with Mr. Vikrant
    Chandel and Mr. Raju Ram Rahi,
    Dy.A.Gs      and Mr. Shriyek
    Sharda, Sr. Assistant A.G for the
    respondent.)

    1    WHETHER APPROVED FOR REPORTING? Yes.
    This petition coming on for orders this day, the Court passed the following:

    1
        Whether reporters of Local Papers may be allowed to see the judgment? Yes.




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                                ORDER

.

The present bail application has been maintained by

the petitioner under Section 439 of the Code of Criminal Procedure

seeking his release in case FIR No. 12/22, dated 6.1.2022, under

Sections 22-61-85 of the ND&PS Act, registered at Police Station

Paonta Sahib, District Sirmaur, H.P.

2. As per the averments made in the petition, the

petitioner is innocent and has been falsely implicated in the

present case. He is neither in a position to tamper with the

prosecution evidence nor in a position to flee from justice. No

fruitful purpose will be served by keeping him behind the bars for

an unlimited period, so he be released on bail.

3. Police report stands filed. As per the prosecution

story, on 16.1.2022 at about 11.02 A.M, a police team was on

routine patrol duty and then at about 11.40 a.m. near Primary

School, Amarkot, Paonta Sahib, they received a secret information

that the accused is indulged in the business of selling Drugs

(narcotic capsules). On finding the information genuine, the police

party proceeded to Amarkot. At about 12.05 p.m. they have

reached to the house of accused and search of the house of the

accused was conducted. During search, they found a knotted

polythene bag from a steel almirah. On opening the polythene bag,

they recovered 18 packets of restricted/narcotic tablets in which

total 180 capsules were found. In each packet of

restricted/narcotic tables, " Parvion Spas Composition: Each Hard

.

Geletin Capsule contains: Diclomine Hydrochloride I.P 10 mg.

Tramadol Hydrochloride I.P 50 Mg, Acelaminophen, I.P 325 mg."

was written. When the police asked about theses tablets, the

accused could not produce any permit for keeping these tablets.

On weighing the 180 tablets so recovered from the accused, it was

found to be 132.73 grams. Police completed all the codal

formalities and the petitioner was arrested. A case under the apt

Section of ND&PS was registered and the investigation ensued.

Police recorded the statements of the witnesses and prepared the

spot map. It is prayed that at this stage, the bail application of the

petitioner be dismissed.

4. I have heard the learned Counsel for the petitioner,

learned Additional Advocate General for the State and gone

through the records, including the police report, carefully.

5. The learned Counsel for the petitioner has argued that

the petitioner has been falsely implicated in the present case. He

has further argued that the petitioner is neither in a position to

tamper with the prosecution evidence nor in a position to flee from

justice. No fruitful purpose will be served by keeping the petitioner

behind the bars for an unlimited period, as investigation is

complete; nothing remains to be recovered at the instance of the

petitioner and challan stands presented in the learned Trial Court.

The custody of the petitioner is not at all required by the police for

.

investigation, so the petitioner is required to be enlarged on bail by

allowing the instant bail application. Conversely, the learned

Additional Advocate General has argued that the petitioner was

found involved in a serious offence and considerable quantity of

narcotic substance was recovered from his possession, so in case

the petitioner is enlarged on bail, at this stage, he may tamper with

the prosecution evidence and may also flee from justice. It is

prayed that the bail application of the petitioner be dismissed.

6. In rebuttal the learned Counsel for the petitioner has

argued that the petitioner is neither in a position to flee from

justice nor in a position to tamper with the prosecution evidence.

His custody is not at all required by the police, as the investigation

is complete, nothing remains to be recovered at the instance of the

petitioner, even challan stands presented in the learned Trial

Court. Moreover, the petitioner is behind the bars for about one

month and cannot be kept behind the bars for an unlimited period,

so the petitioner may be enlarged on bail by allowing the instant

bail petition.

7. At this stage, considering the fact that the alleged

recovered quantity of contraband is less than commercial quantity,

so rigors of Section 37 of the ND&PS Act are not applicable to the

instant case, the fact that the petitioner is first time offender,

considering age of the petitioner, who is 42 years old, the fact that

.

now the investigation is complete, even challan stands presented in

the learned Trial Court, the custody of the petitioner is not at all

required by the police, as nothing remains to be recovered at the

instance of the petitioner, the petitioner is neither in a position to

tamper with the prosecution evidence nor in a position to flee from

justice and also considering all the facets of the case and without

discussing them elaborately at this stage, this Court finds that the

present is a fit case where the judicial discretion to admit the

petitioner on bail, is required to be exercised in his favour.

Accordingly, the petition is allowed and it is ordered that the

petitioner, in case FIR No. 12 of 2022, dated 6.1.2022, under

Sections 22-61-85 of the ND&PS Act, registered at Police Station

Paonta Sahib, District Sirmaur, H.P., shall be released on bail

forthwith in this case, subject to his furnishing personal bond in

the sum of Rs.50,000/- (rupees fifty thousand) with one surety in

the like amount to the satisfaction of the learned Trial Court. The

bail is granted subject to the following conditions:

(i) That the petitioner will appear before the learned Trial Court/ Police/ authorities as and when required.

(ii) That the petitioner will not leave India without prior permission of the Court.

(iii) That the petitioner will not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him/her

.

from disclosing such facts to the Investigating

Officer or Court.

8. In view of the above, the petition is disposed of.

9. Needless to say that the observations made

hereinabove are only confined for adjudication of the present case

and the same shall have no bearing on the merits of the main case,

which shall be adjudicated on its own.

Copy dasti.

                                              ( Chander Bhusan Barowalia )
    4th   February , 2022                                   Vacation Judge
           (Priti)