Virender Kumar vs State Of Himachal Pradesh
2023 Latest Caselaw 18851 HP

Himachal Pradesh High Court

Virender Kumar vs State Of Himachal Pradesh on 5 December, 2023

Author: Virender Singh

Bench: Virender Singh

    IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.

                                           Cr.MP (M) No.2900 of 2023
                                     Decided on : 5th December, 2023

Virender Kumar                                                            ...Applicant

                                          Versus

State of Himachal Pradesh                                              ...Respondent

Coram
The Hon'ble Mr. Justice Virender Singh, Judge.
Whether approved for reporting?1


For the applicant                 : Mr. Vijay Kumar Arora, Advocate.

For the respondent : Mr. Mohinder Zharaick, Mr. Tejasvi
                     Sharma,    Additional    Advocate
                     General with Ms. Leena Guleria,
                     Deputy Advocate General, assisted
                     by HC Vivek No.28, I.O., Police
                     Station Parwanoo, District Solan,
                     H.P.

Virender Singh, Judge (oral)

Applicant­Virender Kumar, has filed the present

application, under Section 439 of the Code of Criminal

Procedure (hereinafter referred to as the 'Cr.PC'), with a

prayer to release him on bail, in case FIR No.113 of 2023,

dated 30.09.2023, registered under Section 39 (1) (A) of the

Whether Reporters of local papers may be allowed to see the judgment? Yes.

H.P. Excise Act, with Police Station Parwanoo, District

Solan, H.P.

2. According to the applicant, he is innocent

person and has falsely been implicated, in the present

case.

3. According to the applicant, investigation, in the

present case, is complete and he is no longer required by

the police for further investigation, in this case.

4. Applicant has put forward his age, which has

been pleaded, in the application, as 33 years, as one of the

grounds, to release him on bail. According to him, he is

having his old parents to support, as, he is the only son

and there is none to lookafter them.

5. Apart from this, learned counsel appearing for

the applicant, has given certain undertakings, on behalf of

the applicant, for which, the applicant is ready to abide by,

in case, ordered to be released, on bail, during the

pendency of the trial.

6. Applicant has also tried his luck before the

learned Special Judge­II, Solan, District Solan, H.P., by

moving Bail Application No.122­S/22 of 2023. However,

the said bail application has been dismissed, vide order,

dated 6th November, 2023.

7. On the basis of the above facts, a prayer has

been made to allow the application.

8. When put to notice, the police has filed

the status report disclosing therein, that on 29.9.2023,

I.O./ASI Daleep Singh, along with, other police officials,

was on patrolling duty.

8.1. At about, 11.00 p.m., when, the said police

team, under the leadership of I.O., was present at TTR

Chowk, then, he received a secret information that

Virender Kumar son of Shri Rajinder Kumar, is involved in

the sale of illicit liquor.

8.2 According to the information, said Virender

Kumar is moving from Chandigarh to Shimla, along with

large quantity of liquor, in his vehicle and in case, the said

vehicle is checked, then, large quantity of liquor, can be

recovered. The said information was found to be authentic

and reliable.

8.3. Thereafter independent witness Shashi Kumar

was associated, in the raiding party, after apprising him

about the secret information.

8.4. At about, 12.20, in the midnight, on 30.9.2023,

one Pick­up, registration number of which was applied for,

being driven by its driver, came there from Chandigarh

side and reached at picketing point. The said vehicle was

signalled to stop. Consequently, the driver parked the

vehicle by the side of the road.

8.5. On inquiry, the driver disclosed his name as

Virender Kumar (applicant). In the presence of witnesses,

when, the said vehicle was checked, it was found

containing 8 carton boxes of Indian Made Foreign Liquor

and 45 boxes of beer.

8.6. Brand of the Indian Made Foreign Liquor was

'Officer Choice' and each box was containing 12/12 bottles,

total 96 bottles. In the 45 boxes of the beer, total 540

bottles of beer were found. The said bottles were made 'for

sale in UT Chandigarh only'. The applicant could not

produce any permit or licence to carry those bottles.

Consequently, the said liquor, as well as, beer was taken

into possession, along with the vehicle.

9. On the basis of the above facts, the FIR, in

question, has been registered. All other codal formalities

were completed, by the police, on the spot and the accused

was arrested.

10. It is the further case of the Police that applicant

is very clever person and having criminal history. To

elaborate the same, the police has filed the list of the

following cases, registered against the applicant:

i) FIR No.112/12, dated 6.6.2012, under Section 61­1­14 Excise Act, Police Station East Shimla, District Shimla.

ii) FIR No.26/12, dated 13.2.2012, under Section 61­1­14 Excise Act, Police Station East Shimla, District Shimla.

iii) FIR No.65/14, dated 29.4.2014, under Section 39 HP Excise Act, Police Station Boileauganj Shimla, District Shimla.

iv) FIR No.287/14, dated 21.12.2014, under Section 39 HP Excise Act, Police Station Boileauganj Shimla, District Shimla.

v) FIR No.82/2015, dated 11.4.2015, under Section 39 HP Excise Act, Police Station Boileauganj Shimla, District Shimla.

vi) FIR No.20/12, dated 11.03.2012, under Section 61­1­14 Excise Act, Police Station Kandaghat, District Solan.

vii) FIR No.75/16, dated 15.3.2016, under Section 39 HP Excise Act, Police Station Boileauganj Shimla, District Shimla.

viii) FIR No.60/16, dated 31.8.2016, under Section 39 HP Excise Act, Police Station Sunni, District Shimla.

ix) FIR No.77/17, under Section 39 Excise Act, Police Station New Shimla, District Shimla.

x) FIR No.61/17, dated 14.07.2017, under Section 39 HP Excise Act, Police Station Chirgaon, District Shimla.

xi) FIR No.75/18, dated 1.4.2018, under Section 39 HP Excise Act, Police Station Boileauganj Shimla, District Shimla.

xii) FIR No.120/18, dated 18.7.2018, under Section 39 HP Excise Act, Police Station Karsog, District Mandi.

xiii) FIR No.10/19, dated 11.1.2019, under Section 39 HP Excise Act, Police Station Boileauganj Shimla, District Shimla.

xiv) FIR No.35/19, dated 9.2.2019, under Section 39 Excise Act, Police Station Sadar Shimla, District Shimla.

xv) FIR No.18/2020, dated 17.3.2020, under Section 39 HP Excise Act, Police Station Kandaghat, District Solan.

xvi) FIR No.56/16, dated 29.4.2014, under Section 39 HP Excise Act and Section 181, 192, 196 of

M.V. Act, Police Station East Shimla, District Shimla.

xvii) FIR No.78/18, dated 3.7.2018, under Section 379, 411, 34 IPC, Police Station East Shimla, District Shimla.

xviii) FIR No.38/19, dated 4.4.2019, under Section 279, 337 IPC & 196, 192, 181 M.V. Act, Police Station East Shimla, District Shimla.

xix) FIR No.45/20, dated 24.4.2020, under Section 39 HP Excise Act, Police Station East Shimla, District Shimla.

xx) FIR No.164/22, dated 9.11.2022, under Section 39(1)(A) of HP Excise Act, Police Station, Dhalli Shimla.

11. It is the further case of the police that the

samples, out of the recovered liquor, as well as, beer, were

sent for chemical examination, to State Forensic Science

Laboratory, Junga, from where, the report is still awaited.

12. The challan, in the present case, is stated to

have been filed on 28.11.2023, before the Court of learned

Additional Chief Judicial Magistrate, Kasauli.

13. On all these submissions, a prayer has been

made to dismiss the application.

14. Heard.

15. First of all, coming to the objection, which has

vehemently been raised by learned Additional Advocate

General, qua registration of number of cases, against the

applicant, is concerned, no doubt, in the status report, the

details of the cases, which have been registered against the

applicant have been given, but admittedly, in none of the

cases, which have been registered against him, from the

year 2012 till date, any of the competent Court has

inflicted any punishment upon the applicant.

16. Moreover, there is nothing in the status report

to demonstrate that any efforts have been made by the

prosecution to get the bail granted to the applicant

cancelled in the above cases.

17. Considering the fact that the investigation, in

the present case is complete, this Court is of the view that

no useful purpose would be served by keeping him, in

judicial custody, that too, for indefinite period.

18. The bail application cannot be rejected, as a

matter of punishment, as, pre­trial punishment is

prohibited under the law and punishment can only be

imposed, after the full fledged trial, by competent Court of

law.

19. Applicant is permanent resident of District

Shimla, as such, it cannot be concluded, at this stage, that

in case, he is ordered to be released on bail, he may not be

available for the trial.

20. Considering all these facts, this Court is

of the view that the bail application is liable to be

allowed and is accordingly allowed. The applicant is

ordered to be released on bail in case FIR No.113 of 2023,

dated 30.09.2023, under Section 39(1)(A) of the H.P. Excise

Act, registered with Police Station, Parwanoo, District

Solan, H.P., on his furnishing personal bond in the sum of

Rs.1,00,000/­, with two sureties, each of the like amount,

to the satisfaction of learned Additional Chief Judicial

Magistrate, Kasauli or any Judicial Magistrate, stationed at

Solan, H.P.

21. This order of release, however, shall be subject

to the following conditions :­

"a) He shall make himself available for the purpose of interrogation, if so required and regularly attend the trial Court on each and every date of hearing and if prevented by any reason to do so, seek exemption from appearance by filing appropriate application;

b) He shall not tamper with the prosecution evidence nor hamper the investigation of the case in any manner whatsoever;

c) He shall not make any inducement, threat or promises to any person acquainted with the facts of the case so as to dissuade them from disclosing such facts to the Court or the Police Office; and

d) He shall not leave the territory of India without the prior permission of the Court."

22. Any of the observations made herein above shall

not be taken as an expression of opinion on the merits of

the case as these observations are confined only to

the disposal of the present bail application.

23. It is made clear that the respondent­State is at

liberty to move an appropriate application, in case, any of

the bail conditions is found to be violated by the applicant.

24. The Registry is directed to forward a soft copy of

the bail order to the Superintendent Jail, District Jail,

Solan, through e­mail, with a direction to enter the date of

grant of bail in the e­prison software.

25. In case, the applicant is not released within a

period of seven days from the date of grant of bail,

the Superintendent Jail, District Jail, Solan, is directed to

inform this fact to the Secretary, DLSA, Solan. The

Superintendent Jail, District Jail, Solan, is further directed

that if the applicant fails to furnish the bail bonds, as per

the order passed by this Court, within a period of one

month from today, then, the said fact be submitted to this

Court.

( Virender Singh ) Judge December 05, 2023(ps)