Sauned vs State Of Himachal Pradesh
2022 Latest Caselaw 8708 HP

                                    1


                                REPORTABLE/NON-REPORTABLE
       IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
                ON THE 20th DAY OF OCTOBER 2022
                              BEFORE




                                                         .
              HON'BLE MR. JUSTICE SATYEN VAIDYA





        CRIMINAL MISC. PETITION MAIN NO. 2212 OF 2022
    Between:-





    SAUNED S/O SH. ORMOU,
    AGED ABOUT 29 YEARS,
    RESIDENT OF ANAMBRA NIZERIA,
    PRESENTLY RESIDING AT FLAT NO. 182,
    NEAR PRATAP DAIRY SARSWATI VIHAR,
    NORTH WEST, DELHI.





                                                   ....PETITIONER

    (BY SH. MANDEEP CHANDEL, ADVOCATE)
                          AND


    STATE OF HIMACHAL PRADESH.
                                                   ....RESPONDENT

    (BY SH. DESH RAJ THAKUR, ADDITIONAL
    ADVOCATE GENERAL WITH MR. NARENDER


    THAKUR, DEPUTY ADVOCATE GENERAL.

    Reserved on      : 17.10.2022
    Date of decision: 20.10.2022




               This petition coming on for pronouncement of





    judgment this day, the Court passed the following:

                    ORDER

Petitioner is an accused in case registered vide FIR

No. 107 of 2022, dated 24.03.2022, registered at Police

Station, Kullu, District Kullu, H.P. under Sections 21 and 29

of the Narcotic Drugs and Psychotropic Substance Act, 1985

and Section 14 of the Foreigners Act. Petitioner is in custody

since 31.03.2022.

2. Brief facts for adjudication of the petition are that

.

on 24.3.2022, Special Investigation Unit of Police Station,

Kullu, on secret information, searched the rented

accommodation of one Ajay Maghar and found the said Ajay

Maghar and one Pasang, present in the premises. 11 grams

of heroin was recovered on the search of the premises. Both

Ajay Maghar and Pasang were arrested after registration of

case. During investigation, accused Ajay Maghar disclosed

that the contraband had been brought by them from Delhi

from some Nizerian citizen for their own consumption. Mobile

No.7518745921 was found saved in the mobile of accused

Ajay Maghar in the name of SAM and repeated whatsapp chat

was found exchanged with the said mobile number. The police

party visited Delhi alongwith accused Ajay Maghar on

30.3.2022. On 31.3.2022 the petitioner alongwith another

Nizerian citizen named Tochukwu were tracked and nabbed.

The co-accused of the petitioner threw a packet on the road.

On checking the packet so thrown by co-accused Tochukwu,

23 grams heroin was recovered. The petitioner and one

Tochukwu were also arrested in the case and are in custody

since then.

3. Petitioner has made a prayer for grant of bail on

.

the grounds that he is innocent and is not involved in any

offence. It is averred on behalf of the petitioner that no

material on record is there to prima-facie show the

involvement of petitioner in any offence of abetment or

conspiracy save and except the bald statements of the co-

accused. The investigation is stated to be complete. Petitioner

has undertaken to abide by all the terms and conditions as

may be imposed against him.

4. Respondent has submitted status report. The

accused Ajay Maghar and Pasang are stated to be resident of

Nepal and petitioner and other accused named Tochukwu are

stated to be resident of Nizeria. After completion of

investigation, challan is stated to have been filed in the Court

on 26.5.2022.

5. I have heard learned counsel for the parties and

have also gone through the records of the case carefully.

6. The quantity of heroin involved in the case is

intermediate and, as such, rigors of Section 37 of the NDPS

Act will not be applicable.

7. The petitioner has been involved in the case on the

basis of confessional statement made by co-accused, which is

not admissible in law. Except such statement, the implication

.

of petitioner is being sought on the basis of alleged recovery of

23 grams of heroin from his co-accused at Delhi. The

contraband was recovered from co-accused Ajay Maghar and

Pasang on 24.3.2022. The alleged recovery of 23 grams of

heroin from co-accused of petitioner was made at Delhi on

31.3.2022. It is highly doubtful that both the recoveries can

be said to be part of the same offence or transaction. The

recovery as allegedly effected from the co-accused of petitioner

at Delhi would prima-facie be an offence cognizable at Delhi.

8. Though at the time of deciding bail petition, this

Court will not minutely scan the material collected by the

Investigating Agency, however, the same can be looked into

only for the purposes of assessing seriousness and gravity of

allegations against the bail petitioner. The observations made

hereinabove are only for such purpose.

9. The co-accused Ajay Maghar and Pasang are

already on bail. The allegations against the petitioner are yet

to be proved. Pre-trial incarceration cannot be ordered as a

matter of rule. No fruitful purpose shall be served by keeping

the petitioner in custody.

10. It has been submitted on behalf of the respondent

.

that petitioner is a foreign national and he should not be

released on bail. The co-accused Ajay Maghar and Pasang are

also foreign nationals and are already on bail. For the purpose

of procuring the presence of bail petitioner during

investigation, he can be put to appropriate terms. It is not the

case where the petitioner may be able to influence the

prosecution witnesses in case of grant of bail.

11.

In the peculiar facts and circumstances of the

case, the application is allowed and the petitioner is ordered

to be released on bail in case FIR No. No. 107 of 2022, dated

24.03.2022, registered at Police Station, Kullu, District Kullu,

H.P. under Sections 21 and 29 of the NDPS Act and Section

14 of the Foreigners Act, on his furnishing personal bond in

the sum of Rs.1,00,000/- (Rupees One lac) with one surety in

the like amount, who necessarily should have immoveable

property in India, to the satisfaction of learned trial Court.

This order is subject to following conditions: -

i) Petitioner shall not leave India. He shall

surrender his passport before learned trial Court,

if not already submitted before any other

authority and the release of his passport will be

subject to outcome of the trial.

.

ii) Petitioner shall not directly or indirectly make

any inducement, threat or promise to any person

acquainted with the facts of the case and shall

not tamper with prosecution evidence.

iii) Petitioner shall provide his mobile number, if

any, at Police Station Kullu.

iv) Petitioner shall not delay the trial of the case and

shall regularly attend the hearings, except in

circumstances beyond his control.

v) Upon his re-indulging in criminal activities, it

shall be open to the respondent, to move this

Court for cancellation of bail.

12. Any observation made in this order 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 herein above.

                                            (Satyen Vaidya)
    20th October, 2022                             Judge
          (GR)