Kalath vs State Of Himachal Pradesh
2022 Latest Caselaw 363 HP

        IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA

                         ON THE 24th DAY FEBRUARY, 2022




                                                                          .
                              BEFORE





          HON'BLE MR. JUSTICE CHANDER BHUSAN BAROWALIA

             CRIMINAL MISC. PETITION (MAIN) No. 1831 of 2021





    Between:­

    VED PRAKASH S/O SMT. JINDU
    DEVI, R/O WARD NO. 7, PO





    KALATH, SHALEEN, TEHSIL &
    DISTRICT KULLU, H.P., AGED
    ABUT 27 YEARS.     r                                                  ......PETITIONER

    (BY MR. JAGAT PAL AND MS.
    PARUL, ADVOCATES.)


    AND

    STATE OF HIMACHAL PRADESH.




                                                                        ......RESPONDENT





    (BY MR. SHIV PAL MANHANS,
    ADDITIONAL       ADVOCATE
    GENERAL,     WITH     MR.





    BHUPINDER THAKUR, DEPUTY
    ADVOCATE GENERAL.)

    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.




                                                         ::: Downloaded on - 24/02/2022 20:13:30 :::CIS
                                       2



                                ORDER

The instant bail application has been maintained by

the petitioner under Section 438 of the Code of Criminal Procedure

.

for grant of bail, in the event of his arrest, in case FIR No. 155 of

2021, dated 08.09.2021, under Sections 21 and 29 of NDPS Act,

registered at Police Station Bhuntar, District Kullu, H.P.

2. As per the petitioner, he is innocent and has been

falsely implicated in the present case. He is permanent resident of

the place, thus neither in a position to tamper with the prosecution

evidence nor in a position to flee from justice, so he may be

released on bail.

3. Police report stands filed. As per the prosecution, on

08.09.2021 a police team had laid a nakka near TCP, Bajaura,

wherein, around 07:00 a.m., the police team received a secret tip­

off that in a bus of Haryana Roadways, enroute Delhi­Manali,

Rohit and Nikhil are transporting heroin. At about 07:45 a.m., a

bus of Haryana Roadways, enroute Delhi­Manali, bearing

registration No. HR 55AC­6738, was stopped. Thereafter, the

checking of the luggage of the passengers of the bus was started

and the persons sitting on seats No. 11 and 12 turned perplex on

seeing the police. On being asked, persons sitting on seats No. 11

and 12, divulged their names as Rohit and Nikhil, respectively. On

being inquired, Rohit divulged that the bag kept above his seat, on

a shelf, belongs to Nikhil and Nikhil divulged that the bag belongs

to Rohit. On the basis of suspicion, police checked the bag and

found a transparent polythene packet, which contained some

.

yellowish substance, which was heroin and on weighment it was

found to be 51 grams. Thereafter, the police completed all the

codal formalities. Police registered a case under the apt Sections of

ND&PS Act, prepared the spot map and recorded the statements of

the witnesses. Both the accused persons were arrested and

medically examined. During the course of investigation, the

accused persons disclosed that they wanted to give the contraband

to a person at Manali, but they did not disclose from where they

purchase the contraband. During the course of interrogation,

accused Rohit divulged that in the year 2020 he used work in a

Hotel at Manali, where he came in contact with a Taxi driver,

namely Ved Prakash (petitioner herein), who on 5.9.2021 told him

to bring heroin from Delhi. The petitioner, as per co­accused Rohit,

assured to give Rs.55,000/­ in advance, Rs.5,000/­ for journey

expenses and Rs.50,000/­ for heroin, so accused Rohit agreed to

bring heroin from Delhi. Co­accused Rohit further divulged that on

6.9.2021 he telephoned his friend, co­accused Nikhil to accompany

him. The petitioner transferred Rs.500/­ in the Google Account of

co­accused Nikhil and the petitioner gave Rs.55,000/­ to co­

accused Rohit. From the day of arrest of both the co­accused, the

petitioner fled away from his native place and started evading his

arrest. Both the co­accused, in their interrogation, divulged that

they purchased the contraband from a Nigerian at Delhi. The

.

petitioner filed the instant petition seeking bail and this Court on

31.12.2021 granted interim protection to him. As per the police,

investigation in the case is still going on and report of Chemical

Analysis of recovered contraband is awaited. Lastly, it is prayed

that the instant bail application may be dismissed, as the

petitioner has committed a serious offence and in case, at this

stage, he is enlarged on bail, he may tamper with the prosecution

evidence and may also flee from justice, so it is prayed that the

instant bail petition may 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 is innocent and has been falsely implicated in the

instant 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, as he is permanent resident of the

place. He has further argued that the petitioner may be enlarged

on bail, as nothing is to be recovered from him or at his instance

and the petitioner is joining and co­operating in the investigation.

Moreover, the petitioner has been arrested only on the

allegations/statements made by the co­accused persons. He has

prayed that the bail application be allowed in the above backdrop.

.

Conversely, the learned Additional Advocate General has argued

that there is sufficient material, which has come in the police

investigation, which clearly indicates that the petitioner has an

important role in the alleged offence and he was instrumental in

sending the co­accused persons to Delhi for bringing the

contraband. He has further argued that the petitioner is the main

kingpin and he has also given Rs.50,000/­ to co­accused Rohit for

bringing the contraband. He has prayed that the petitioner has

committed a serious offence and, in case, if he is enlarged on bail,

at this stage, he may tamper with the prosecution evidence and

flee from justice, so the present bail application may be dismissed.

6. In rebuttal, the learned Counsel for the petitioner has

argued that the petitioner is neither in a position to tamper with

the prosecution evidence nor in a position to flee from justice, as

he is a permanent resident of the place and now nothing is to be

recovered either from him or at his instance. Moreover, the

petitioner has been booked by the police only on the statements

made by the co­accused persons, so in the above backdrop, the

instant petition may be allowed and the petitioner may be enlarged

on bail.

7. At this stage, considering the manner in which the

offence is alleged to have been committed by the petitioner and the

age of the petitioner who is only 27 years old, the fact that no other

.

case has been registered against him, he is the resident of the

place, thus he is neither in a position to tamper with the

prosecution evidence nor in a position to flee from justice, the

custody of the petitioner is not at all required by the police, he is

joining and co­operating in the investigation and ready and willing

to abide by the terms and conditions of bail, in case granted, the

fact that sending the petitioner behind the bars will not serve any

fruitful purpose, also considering that the petitioner has been

booked by the police only on the statements made by the co­

accused persons and the overall facets of the case and without

discussing them elaborately, this Court finds that the present is a

fit case where the judicial discretion to admit the petitioner on bail,

in the event of his arrest, in this case, is required to be exercised in

his favour. Accordingly, the petition is allowed and it is ordered

that the petitioner, in the event of his arrest, in case FIR No. 155 of

2021, dated 08.09.2021, under Sections 21 and 29 of NDPS Act,

registered at Police Station Bhuntar, District Kullu, 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

Cr.MP(M) No. 1831 of 2021

Investigating Officer. 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. It goes without saying that the observations made

hereinabove are only confined for the adjudication of the instant

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

the main case, which shall be adjudicated on its own merits.

Copy dasti.

                                                     ( Chander Bhusan Barowalia )
    24   th
              February, 2022                                         Judge





              (virender)