Balak Ram vs State Of Tamil Nadu
2022 Latest Caselaw 197 HP

                                  1


                               REPORTABLE/NON-REPORTABLE
       IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
                ON THE 27th DAY OF JANUARY, 2022
                             BEFORE




                                                       .
              HON'BLE MR. JUSTICE SATYEN VAIDYA





        CRIMINAL MISC. PETITION( MAIN) NO. 156 OF 2022
    Between:-





    BALAK RAM S/O SH. KARMU,
    AGED 39 YEARS,
    R/O VILLAGE TAHULA, P.O. THALOUT,
    TEHSIL AUT, DISTRICT MANDI, H.P.
    AT PRESENT UNDER JUDICIAL CUSTODY
    IN SUB JAIL, MANDI, DISTT. MANDI, H.P.





                                           ....PETITIONER
    (BY SH. H.S. RANGRA, ADVOCATE).
                         AND

    STATE OF HIMACHAL PRADESH                ....RESPONDENT

    (BY SH. RAJINDER DOGRA, SENIOR ADDL. ADVOCATE
    GENERAL, WITH SH. DINESH THAKUR, ADDL. A.G. AND
    SH. MANOJ BAGGA, ASSTT. A.G., FOR THE RESPONDENT).


    ASI RAM SINGH, POLICE STATION, AUT, DISTRICT MANDI,
    PRESENT ALONGWITH RECORDS.

              This petition coming on for orders this day, the




    Court passed the following:





                    ORDER

Petitioner is an accused in case registered vide

FIR No.132 of 2021 dated 05.08.2021 at Police Station, Aut,

District Mandi, H.P. under Sections 20 and 29 of the

Narcotic Drugs and Psychotropic Substances Act, 1985 (for

short "NDPS Act"). Petitioner is in custody since

09.08.2021.

2. Petitioner has approached this Court for grant of

.

bail, in above noted case, under Section 439 Cr. P.C., on the

grounds that he is innocent and has committed no offence.

His implication in the case is without any evidence. As per

petitioner, there is no link between the petitioner and the

alleged main accused from whom the contraband has been

recovered. Petitioner has been implicated in the case with

the aid of Section 29 of the NDPS Act. In case the petitioner

is released on bail, he will not tamper with the prosecution

evidence. Petitioner has undertaken that he will attend the

proceedings before the learned trial Court on each and every

date. It is further undertaken by petitioner that he will abide

by all the terms and conditions as may be imposed against

him. Petitioner has also sought the bail on the ground of

parity, as the other co-accused are stated to have been

released on bail. Petitioner has also pleaded his family

circumstances as one of the grounds for taking lenient view

against him.

3. In response, the status report has been filed. It

is stated that on 5.8.2021, the police officials of Police

Station, Aut, District Mandi were on routine patrol. At about

.

4.25 p.m., they noticed one Nano Car bearing Registration

No. HP-33C-7695 parked on Tahula link road near 'Shalla-

Nallah Tahula Link'. It was noticed that two persons were

sitting in the car and on noticing the presence of police, one

of them ran towards the cliff and the other remained sitting

in the car. Suspicion was entertained. Independent

witnesses were associated and on search of vehicle No.

HP-33C-7695, 3.501 Kg. Charas was recovered. Seizure

procedure was conducted. Preliminary investigations were

conducted. Rukka was sent to the Police Station on the

basis of which FIR No. 132 of 2021 was registered. The

occupant sitting in the car was found to be a juvenile, who

on interrogation disclosed that the person, who had fled

away from the scene was his father, Balak Ram i.e. the

petitioner. It is stated that the petitioner had fled away from

the scene alongwith the keys of the car. On 9.8.2021, the

petitioner is stated to have surrendered before the police.

Further investigations were carried. Complicity of two other

accused namely Vijay Kumar and Mohan Verma was also

found. They were also arrested. On chemical analysis, the

contraband recovered from the car was found to be Charas.

.

One accused named Harfi Ram is yet to be arrested. The

challan is in the process of preparation.

4. I have heard learned counsel for the petitioner

and learned Additional Advocate General for the State and

have also gone through the status report as well as police

file.

5. to It has been argued on behalf of the petitioner

that there is no link evidence to connect the petitioner with

alleged crime. It has been argued that the car from which

contraband was allegedly recovered did not belong to the

petitioner. No recovery has been effected from the petitioner

and the petitioner was not even found on the spot. Counsel

for the petitioner has placed reliance on the judgment

passed by the Hon'ble Supreme Court in Tofan Singh vs.

State of Tamil Nadu, (2021) 4 SCC 1 in support of his

argument that any statement made by a co-accused during

investigation is not admissible. The right of petitioner for

grant of bail has also been asserted on the ground of parity

with other co-accused.

6. The quantity of Charas recovered in the case is

.

3.501 Kg. and thus is commercial quantity. The rigors of

Section 37 of the NDPS Act will be applicable in the case.

7. Though the Court is not to minutely scan the

evidence collected during investigation, at the stage of bail,

still the material so collected can always be assessed for

8. to judging prima-facie seriousness and gravity of allegations.

It is not in dispute that the person found sitting

in the car No. HP-33C-7695 at the time of recovery of

contraband from said vehicle was none other than the minor

son of petitioner. On 5.8.2021, the minor son of petitioner

was taken into custody and after having been found to be a

juvenile, was released to the custody of a near relation. No

explanation has come forward from the side of petitioner as

to why he did not come forward to have the custody of his

minor son. Despite the fact that the son of the petitioner

was found involved in a serious crime on 5.8.2021,

whereabouts of petitioner were not known till 9.8.2021on

which date he surrendered before the police. Such conduct

of petitioner is highly suspicious. Police has also collected

the material during investigation, which prima-facie reveals

that though the Nano Car No. HP-33C-7695 was registered

.

in the name of Beeru Ram (brother of petitioner), but the

petitioner was de-facto owner of car. It is also the case of

respondent that petitioner had fled from the scene with the

keys of the car and the car had to be removed from the spot

for being transported to the premises of Police Station, Aut

with the help of a crane. On 9.8.2021, when the petitioner

surrendered, the keys of the car in question were also

recovered from him. In view of this matter, it cannot be said

that the implication of petitioner in the offence involving

commercial quantity of Charas is without any justification.

This is not a case where the Court may be in a position to

hold even prima-facie that no case is made out against the

petitioner.

9. As far as the ground of parity raised by the

petitioner is concerned, the case of petitioner is clearly

distinguishable from the case of other co-accused. As

noticed above, one of the co-accused is a juvenile and the

other two are the persons, who were named only by the

petitioner. Such other two persons were neither found in

possession of the contraband nor were the occupants of the

vehicle. Petitioner also cannot derive any benefit from the

.

ratio of the judgment in Tofan Singh's case (supra) as the

complicity of petitioner in the case in hand is prima-facie

established under Section 20 of the NDPS Act. Even

otherwise, a person accused of commission of offence under

Section 29 of the NDPS Act, cannot be exempted from the

10. to rigors of Section 37 of the NDPS Act.

In light of above discussion, petitioner has failed

to make out a case for grant of bail. The petition is

accordingly dismissed.

11. Any observation made hereinabove shall not be

taken as an expression of opinion on the merits of the case

and the trial Court shall decide the matter uninfluenced by

any observation made hereinabove.

Petition stands disposed of.

                                           (Satyen Vaidya)
    27th January, 2022                      Vacation Judge
          (GR}