Himachal Pradesh High Court
Date Of Decision: 10.05.2023 vs State Of Himachal Pradesh on 10 May, 2023
Bench: Ajay Mohan Goel
1
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr. MPM No. 855 of 2023
Date of Decision: 10.05.2023
__________________________________________________________
Anil Kumar ....Petitioner.
.
Vs.
State of Himachal Pradesh .....Respondent.
Coram:
The Hon'ble Mr. Justice Ajay Mohan Goel, Judge
Whether approved for reporting?
For the petitioner: M/s Kush Sharma & Mohit Dogra,
Advocates.
For the respondent: M/s Jitender Sharma, Tejesvi Sharma,
r Pushpender Jaswal and Baldev Negi,
Additional Advocate Generals, with Mr.
Gautam Sood, Deputy Advocate General.
Ajay Mohan Goel, Judge (Oral):
By way of this petition filed under Section 439 of the
Code of Criminal Procedure, the petitioner has prayed for grant of bail in FIR
No. 61/2023, dated 02.03.2023, registered under Section 21 of the Narcotic
Drugs & Psychotropic Substances Act, 1985 (hereinafter referred to as 'the
NDPS Act') at Police Station Sadar, District Mandi, H.P.
3. The petitioner is in custody having been arrested by the
Police in FIR No. 61/2023, dated 02.03.2023, in terms whereof, heroin
weighing 10.25 grams, was recovered from the conscious possession of the
petitioner. Learned counsel for the petitioner has submitted that the petitioner
is innocent and he has been falsely implicated in the case. He further
submitted that the petitioner has no previous history of being involved for
commission of offences punishable the provisions of NDPS Act. He further
submitted that the petitioner happens to a permanent resident of Village
Halyatar, Post Office Dasehra, Tehsil Balh, District Mandi and he is a Cheaf
by profession and thus, if released on bail, there is no possibility of his
.
jumping the bail and thus being not available for the purpose of trial. He
further submitted that as no recovery etc. is otherwise to be made from the
petitioner, therefore, it would be in the interest of justice in case he is ordered
to be released on bail, more so, keeping in view the fact that the quantity of
heroin allegedly recovered from the petitioner is intermediate.
3. Learned Additional Advocate General has opposed the bail
petition on the ground that the investigation is at its initial stage and if the
petitioner is released on bail, there is every possibility that he may create
impediment in the course of investigation. He further argued that as more
than 10 grams of heroin was recovered from the conscious possession of
the petitioner, he deserves no compassion from the Court, as it is apparent
that he was in conscious possession of the said contraband with a
commercial intent. Learned Additional Advocate General has pointed out
that as the earlier bail petition filed by the petitioner stood rejected by the
Court of learned Special Judge, Mandi, H.P. and learned counsel for the
petitioner has not been able to point out any change in circumstances as
from the date of dismissal of the earlier bail petition, therefore, the present
petition deserves dismissal.
4. I have heard learned counsel for the parties and have also
carefully gone through the documents appended with the petition, earlier
order passed by the learned Special Judge, Mandi as also the status report
filed by the State.
5. It is not much in dispute that the alleged recovery of contraband
from the petitioner is of 10.25 grams of heroin, which is intermediate in
.
nature. The case of the prosecution as can be born out from the status report
is that the police party was on petrol duty and it stopped one Volvo Bus
bearing registration No. HR63D-0082 for checking. When the police party
reached near Seat No. 41(W), the person occupying the same got perplexed
and as the police party apprehended that he was in possession of some
contraband, which he was hiding in a blue cap being held by him, he was
searched as per law and search revealed that he was in possession of 10.25
grams of heroin.
6. A perusal of the order passed by the learned Special Judge,
Mandi, H.P., in terms whereof, bail petition of the petitioner was rejected,
demonstrates that what weighed with learned Trial Court was the fact that
the petitioner was having criminal history, as there was an FIR registered
against him under Sections 325, 323, 341, 147, 149, 504 and 506 of the
Indian Penal Code. Though this Court is not questioning the wisdom of the
learned Special Judge, in terms whereof, learned Special Judge was pleased
to reject the said bail petition, but all that this Court can observe at this stage
is that this Court can independently consider the request of the petitioner as
to whether his prayer for grant of bail should be allowed or not. Taking into
consideration the fact that the petitioner happens to be 28 years old man,
who has no previous criminal history of being involved for commission of
offences punishable under the provisions of the NDPS Act and that he is in
custody for more than two months and now no recovery etc. is to be effected
from him, this Court is of the view that it would be in the interest of justice to
order his bail, as detaining him further in custody is not going to serve any
.
purpose. As far as the apprehension of the learned Additional Advocate
General is concerned, the same can be taken care of by giving liberty to the
State to approach this Court for cancellation of the bail in case the petitioner
breaches any of the conditions that may be imposed upon him.
7. Accordingly, the petition is allowed and the petitioner is
ordered to be released on bail in FIR No. 61/2023, dated 02.03.2023,
registered under Section 21 of the Narcotic Drugs & Psychotropic
Substances Act, 1985 (hereinafter referred to as 'the NDPS Act') at Police
Station Sadar, District Mandi, H.P., subject to his furnishing bail bonds in the
sum of rupees fifty thousand with one surety of the like amount to the
satisfaction of concerned Chief Judicial Magistrate/ Additional Chief Judicial
Magistrate/Judicial Magistrate First Class. The petitioner shall also abide by
the following conditions:-
"(a) He shall 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 promise to any person acquainted with
the facts of the case so as to dissuade him/her
from disclosing such facts to the Court or the
Police Officer; and
.
(d) He will not leave the territorial
jurisdiction of the Trial Court without the leave of
the Court."
8. It is clarified that the findings which have been returned
by this Court while deciding this petition are only for the purpose of
adjudication of the present bail application and learned Trial Court shall not
be influenced by any of the findings so returned by this Court in the
adjudication of this petition during trial of the case. It is further clarified that
in case the petitioner does not comply with the conditions which have been
imposed upon him while granting the present bail, the State shall be at liberty
to approach this Court for the cancellation of bail. The petition stands
disposed in above terms.
Downloaded copy of this judgment is valid for compliance.
(Ajay Mohan Goel)
Judge
May 10, 2023
(bhupender)
