Krishan Gopal Saini vs State Of Himachal Pradesh
2023 Latest Caselaw 8357 HP

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

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Cr. MPs(M) No. 1038 & 1039 of 2023

Reserved on: 13.06.2023 Decided on: 23.06.2023

(1) Cr. MP(M) No. 1038 of 2023

Krishan Gopal Saini ....Petitioner Versus

State of Himachal Pradesh ....Respondent

(2) Cr. MP(M) No. 1039 of 2023

Jaswinder Singh ....Petitioner

Versus State of Himachal Pradesh ....Respondent

Coram The Hon'ble Mr. Justice Sushil Kukreja, Judge.

Whether approved for reporting?1 For the petitioner(s) : Mr. Sanjeev K. Suri, Advocate.

For the respondent : Mr. B.N. Sharma, Mr. Raj Kumar Negi and Ms. Ayushi

Negi, Additional Advocates General.

Sushil Kukreja, Judge

Since both these petitions arise out of a

common FIR, they are heard together and are being

disposed of by this common order.

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

2. By way of instant petitions, filed under

.

Section 439 of the Criminal Procedure Code, the

petitioners are seeking bail in case F.I.R. No. 05/2023,

dated 03.01.2023, registered at Police Station Sadar

Una, District Una, H.P., under Sections 21 & 29 of the

Narcotic Drugs and Psychotropic Substances Act

(hereinafter referred to as "NDPS Act").

3. The prosecution story, in brief, is that on

02.01.2023, while the police party was on routine

patrolling duty at place Pir Nigaah Road and around

11:15 p.m., reached near railway crossing, they saw

two persons coming from Una side and asked them as

to where they were going in night, upon which, they

got perplexed and started running from the spot.

While running, one of them threw a polythene packet

from his left pocket of jacket on the road, however, at

some distance the police party managed to stop

them. On suspicion, the police party associated one

Gurdayal Singh and HC Sunil Kumar as witnesses in

the proceedings. The persons disclosed their names

as Krishan Gopal Saini and Jaswinder Singh

.

(petitioners herein). In presence of the aforesaid

witnesses, the thrown polythene packet was checked

and on opening of the said polythene packet, brown

coloured solid substance was found, which was

chitta/heroin. On weighment, the recovered

contraband was found to be 6.70 grams. Thereafter,

the police completed all the codal formalities and FIR

as detailed hereinabove was registered against the

accused persons and they were arrested.

4. The bail petition has been filed on the

ground that the petitioners are innocent and have

been falsely implicated in this case. Learned counsel

for the petitioners has contended that investigation in

this case is complete and nothing remains to be

recovered at the instance of the petitioners, as such,

the petitioners, who are in judicial custody since their

arrest are required to be released on bail, as no

fruitful purpose would be served by keeping them

behind the bars for an unlimited period.

5. Per contra, the learned Additional Advocate

.

General opposed the bail application on the ground

that keeping in view the gravity of the offence alleged

to have been committed by the petitioners, they are

not entitled to be enlarged on bail. He further

contended that the petitioners are habitual offenders

and many cases in the past have been registered

against them at different police stations, as such,

they do not deserve to be released on bail.

6. I have heard the learned counsel for the

petitioner as well as learned Additional Advocate

General and have also gone through the record of the

case. The perusal of the record indicates that the

quantity of chitta/heroin, involved in the present case

is 6.70 grams, which is an intermediate quantity.

Therefore, rigors of Section 37 of the NDPS Act are not

applicable in the present case. The petitioners were

arrested on 03.01.2023 and since then they are

behind the bars. There is no evidence on record to

suggest that the petitioners will tamper with the

prosecution evidence or will flee from justice, if

.

released on bail. Moreover, the trial may take

sufficiently long time to conclude. Therefore, no

fruitful purpose will be served if the petitioners are

kept behind the bars for an unlimited period.

7. Learned Additional Advocate General

contended that many cases in past have been

registered against petitioner Krishan Gopal Saini and

he is not entitled to be released on bail, as he is

habitual offender. However, this contention of the

learned Additional Advocate General cannot be

accepted as registration of some cases in the past

against petitioner Krishan Gopal Saini is no ground to

deny bail to him in the present case, as guilt of the

petitioner in those cases is yet to be proved and those

cases will be decided by the concerned Court(s) on

their own merits. In Maulana Mohammed Amir

Rashadi Vs. State of Uttar Pradesh and another,

MANU/SC/0029/2012: (2012) 2 Supreme Court

Cases 382, it has been held that merely on the basis

of criminal antecedents, the claim of the bail cannot

.

be rejected as it is the duty of the Court to find out

the role of the accused in the case in which he has

been charged and other circumstances such as

possibility of fleeing away from the jurisdiction of the

Court etc. Relevant portion of the aforesaid judgment

reads as under:- r "10. It is not in dispute and highlighted that

the second respondent is a sitting Member of Parliament facing several criminal cases. It is also not in dispute that most of the cases

ended in acquittal for want of proper witnesses or pending trial. As observed by the High Court, merely on the basis of criminal antecedents,

the claim of the second respondent cannot be

rejected. In other words, it is the duty of the Court to find out the role of the accused in the case in which he has been charged and other

circumstances such as possibility of fleeing away from the jurisdiction of the Court etc."

8. Considering the overall facts and

circumstances of the case and since the quantity of

chitta/heroin involved in this case is 6.70 grams,

which is an intermediate quantity, this Court finds

.

that the present is a fit case where judicial discretion

to admit the petitioners on bail is required to be

exercised in their favour. Accordingly, the bail

applications are allowed and it is ordered that the

petitioners, who have been arrested by the police, in

case F.I.R. No. 05/2023, dated 03.01.2023, registered

at Police Station Sadar Una, District Una, H.P., under

Sections 21 & 29 of the NDPS Act, shall be forthwith

released on bail, subject to their furnishing personal

bond to the tune of Rs. 50,000/- (Rupees fifty

thousands) each, with one surety in the like amount

each, to the satisfaction of learned Trial Court. This

bail order is subject, however, to the following

conditions:-

(i) that the petitioners will appear before the Court and the Investigating Officer whenever required ;

(ii) that they 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 any facts to the Court or the police;

(iii) that they will not tamper with the prosecution evidence nor they will try to win over the

Prosecution witnesses or terrorise them in any manner;

.

(iv) that they will not repeat the offence, as is alleged

to have been committed by them.

(v) that they will not deliberately and intentionally act in a manner which may tend to delay the

investigation or the trial of the case.

(vi) that they will not leave India without prior permission of the Court.

9. Needless to say that the Investigating

agency shall be at liberty to move this Court for

cancellation of the bail, if any of the aforesaid

conditions is violated by the petitioners.

10. Be it stated that any expression of opinion

given in this order does not mean an expression of

opinion on the merits of the case and the trial Court

will not be influenced by any observations made

therein.

                                                 (Sushil Kukreja)
    June 23, 2023                                    Judge
          (raman)