Vishal Banyal vs State Of H.P
2023 Latest Caselaw 17294 HP

     IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.

                                             Cr.M.P(M) No. 2677 of 2023
                                          Decided on: 1st November, 2023

        Vishal Banyal                                                    .......Applicant

                                                 Versus

        State of H.P.                                                         ...Respondent
        Coram
        The Hon'ble Mr. Justice Virender Singh, Judge.
        Whether approved for reporting?1
        For the applicant:                      Mr. Atul Kumar, Advocate

        For the respondent:                     Mr. Tejasvi Sharma, Addl. A.G
                                                with Mr. Mohinder Zharaick,
                                                Addl. A.G.

        Virender Singh, Judge. (Oral)

By way of present application, under Section 439

of the Code of Criminal Procedure (hereinafter referred to as

'Cr.PC'), applicant-Vishal Banyal has sought his release, on

bail, during the pendency of trial, in case FIR No. 85 of 2023,

dated 11th July, 2023, registered with Police Station Gagret,

District Una, H.P., under Sections 21 and 8C of the Narcotic

Drugs and Psychotropic Substances Act (hereinafter referred

to as 'NDPS Act').

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

2. According to the applicant, he has falsely been

implicated, in the present case, as, nothing has been

recovered from his possession. He has termed the case of the

prosecution case as false. The investigation, in the present

case, is also stated to be complete.

3. The applicant has earlier tried his luck before the

learned Special Judge-I, Una, District Una, H.P., by filing a

bail application, however, the said application was dismissed

by the learned Special Judge vide order dated 04.09.2023.

4. The applicant has also asserted that he is the only

bread earner of his family and due to the fact that he is in

judicial custody, his entire family is at the verge of starvation.

5. On the basis of above facts, the applicant has

given, certain undertakings, for which, he is ready to abide

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

pendency of the trial.

6. When put to notice, the police has filed the status

report, disclosing therein, that on 11.07.2023, I.O. HC

Manzoor Akhtar No. 56, along-with other police officials, was

on patrolling duty. When, he was present at Gagret Chowk,

then, he received a secret information with regard to the fact

that one person, while riding motorcycle No. HP28A-6533, is

coming from Hoshiarpur side and moving towards Gagret.

The said person is stated to be dealing in the business of sale

and purchase of chitta/heroin.

6.1. It has also been informed that if the said vehicle is

intercepted and searched, then, the contraband in large

quantity could be recovered. The said information was found

to be authentic and according to the I.O. in case, efforts were

made to obtain the search warrant, in the said process, the

contraband could be removed from there. As such, he has

complied with provisions of Section 42(2) of the NDPS Act and

submitted the information to the SDPO, Amb. Thereafter,

Up-pradhan, Gram Panchayat, Upper Gagret Sh. Ashish

Sharma was apprised and requested to come to the spot. He

was associated in the raiding party and thereafter the

picketing was done.

6.2. At about 6.30 p.m., one motorcycle bearing No.

HP28A-6533 was found coming from Hoshiarpur side. The

motorcyclist was directed to stop. Thereafter, the said

person, after stopping the motorcycle, had made efforts to flee

away towards jungle and in that process, he had thrown away

one packet of cigarette in the bushes. He was nabbed.

Thereafter, the cigarette packet was searched and on opening

the same, it was found containing chitta/heroin. On

weighment, the chitta was found to be 6.31 grams.

6.3. The contraband, so recovered, was taken into

possession. Other codal formalities were completed and the

FIR in question was registered. Thereafter, the accused

person was arrested. The contraband was sent to SFSL, from

where, positive result has been received.

6.4. It is the case of the police that after the completion

of the investigation, report under Section 173(2) Cr.P.C has

been submitted against the applicant, and the case, is now

stated to be fixed on 03.11.2023 for consideration on charge.

6.5. Apart from this, the detail of another case, which

has been registered against the applicant, has also been

mentioned by stating that FIR No. 39 of 2023 dated

05.03.2023 under the NDPS Act, has also been registered

against the applicant in Police Station, Sarkaghat, District

Mandi, H.P.

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

made to dismiss the application.

8. Heard.

9. The contraband, allegedly recovered from the

possession of the applicant, does not fall within the definition

of 'commercial quantity', as such, rigors of Section 37 of the

NDPS Act are not applicable, in the present case.

10. So far as the registration of another case, as

highlighted by the learned Additional Advocate General,

during the course of arguments is concerned, admittedly, no

conviction has been inflicted upon the applicant by the

competent Court of law. Mere registration of case does not

take away the presumption of innocence, which is still

available to the applicant.

11. The applicant, in this case, has been arrested on

11.07.2023. Considering the fact that report, under Section

173(2) Cr.P.C, has already been filed, this Court is of the view

that dismissal of the application, at this stage, would be

nothing, but, punishing the applicant prior to the conclusion

of trial, which is prohibited under the law.

12. Considering all these facts, especially, the age of

the applicant, this Court is of the view that no purpose would

be served by keeping the applicant in the judicial custody,

that too, for the indefinite period.

13. Considering all these facts, this Court is of the

view that the bail application is liable to be allowed and is

accordingly allowed.

14. The applicant is ordered to be released on bail in

case in case FIR No. 85 of 2023, dated 11th July, 2023,

registered with Police Station Gagret, District Una, H.P.,

under Sections 21 and 8C of NDPS Act, on his furnishing

personal bail bond, in the sum of ₹50,000/-, with one surety

of the like amount, to the satisfaction of learned trial

Court/CJM, Una. This order, 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 Officer; and

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

15. Any of the observations, made hereinabove, 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.

16. It is made clear that the respondent-State is at

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

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

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

the bail order to the Superintendent of Jail, Una through e-

mail, with a direction to enter the date of grant of bail in the

e-prison software.

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

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

Superintendent of Jail, Una is directed to inform this fact to

the Secretary, DLSA, Una. The Superintendent of Jail, Una 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.

November 01, 2023                                                ( Virender Singh )
      (naveen)                                                         Judge



                          Digitally signed by RAJNI




       RAJ
                          DN: C=IN, O=HIGH COURT OF
                          HIMACHAL PRADESH, OU=HIGH
                          COURT OF HIMACHAL PRADESH
                          SHIMLA, Phone=
                          a8cebe955d82fa83f77f59dbe2b1b1f1
                          9db88b15bd754658045e967bb7b7cb
                          da, PostalCode=171001, S=Himachal
                          Pradesh, SERIALNUMBER=
                          4798760d48b04a815c33901090aafe7




        NI
                          ff1d5ce9a300dd6bf3b57c25d0170ca0
                          d, CN=RAJNI
                          Reason: I am approving this document
                          Location:
                          Date: 2023.11.01 14:21:39+05'30'
                          Foxit PDF Reader Version: 2023.2.0