Reserved On : 08.11.2023 vs State Of H.P
2023 Latest Caselaw 17905 HP

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.

                                             Cr.M.P(M) No. 2787 of 2023
                                               Reserved On : 08.11.2023
                                          Decided on: 10th November, 2023
        Harinder Manta                                                   .......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. Ajay Kochhar, Senior Advocate assisted by Mr. Anubhav Chopra, Advocate

For the respondent: Mr. Mohinder Zharaick, Mr. Tejasvi Sharma, Addl. A.Gs with Ms. Leena Guleria, Dy. A.G assisted by SI Yash Pal Singh, PS, Sadar, Distt. Solan H.P.

Virender Singh, Judge.

By way of present application, under Section 439

of the Code of Criminal Procedure (hereinafter referred to as

'Cr.PC'), applicant-Harinder Manta has sought his release, on

bail, during the pendency of trial, in case FIR No. 183 of

2023, dated 4th September, 2023, registered with Police

Station Sadar, District Solan, H.P., under Sections 21 and 29

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

the Narcotic Drugs and Psychotropic Substances Act

(hereinafter referred to as 'NDPS Act').

2. According to the applicant, he is an innocent

person and has falsely been implicated, in the present case,

on the basis of disclosure statement made by one of the co-

accused namely, Kushal Chauhan.

3. According to the applicant, no recovery has been

affected from the applicant, as, he has nothing to do with the

aforementioned offence, for which, he has arrested by the

police in this case.

4. It is the further case of the applicant that he is in

judicial custody and, as such, his custodial inteerogation is

no longer required by the police. The contraband alleged

recovered in the present case is stated to be intermediate

quantity, as such, according to the applicant, rigors of

Section 37 of the NDPS Act are not applicable in the present

case.

5. The applicant has earlier tried his luck before the

learned Special Judge-II, Solan, District Solan, H.P., by filing

a bail application, however, the said application was

dismissed by the learned Special Judge vide order dated

03.10.2023.

6. 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.

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

report, disclosing therein, that I.O. HC Shubham No. 80 has

submitted a rukka to the Police Station Solan, disclosing

therein that on 04.09.2023 he along-with other police

officials, was on patrolling and duty to detect the crime with

regard to the narcotics. He along-with other police officials

after visting Kotlanallah, old DC office when reached at Barog

road bifurcation of NH-05 near Congress Bhawan, then at

about 1.10 p.m. mid night, he received a secret information

about the fact that two persons namely, Ashish and Kushal

are coming to Solan from Barog side in vehicle No.HP-09C-

6441 and both of them have indulged in illegal sale and

purchase of chitta/heroin. Both of them are carrying the large

quantity of chitta/heroin for supply and the said vehicle is to

be reached at the spot known as "Dohari Dewar".

7.1. As per the information, if the said vehicle is

intercepted and searched, then, the contraband i.e.

chitta/heroin in large quantity could be recovered from the

possession of Ashish and Kushal. The said information was

found to be authentic and reliable. The I.O has also

mentioned in the rukka that in case, efforts were made to

obtain the search warrant, in the said process, the

contraband could be removed. As such, he has complied with

provisions of Section 42(2) of the NDPS Act and submitted the

information to the Supervisory Officer, Solan. Thereafter, he

had put the picketing. Since, it was odd hours of the night,

as such, no independent witness was available, therefore, he

has associated two police officials in the team.

7.2. At about 1.40 p.m., vehicle bearing No. HP-09C-

6441 reached there the point of picketing from Deonghat. The

said vehicle was signaled to be stopped. Two persons were

found in the car. On inquiry, the person, on the wheel

disclosed his name as Ashish, whereas, the other person has

disclosed his name as Kushal Chauhan. Thereafter, the

vehicle was searched. During the search, from the dash

board, a transparent interlocked plastic pouches were found,

which was found containing light brown shaped substance.

Total 11 pouches were found. The contraband, so found in

the plastic pouches, was checked with the drug detection kit.

The same was found to be chitta. The same was taken into

possession, On weighment, the chitta was found to be 10.64

grams.

7.3. The contraband, so recovered, was taken into

possession. Other codal formalities were completed and the

FIR in question was registered. Thereafter, the accused

person were arrested and produced before the Court from

where they were remanded to police custody. In the police

custody, both the accused had disclosed that on 03.09.2023

accused Kushal Chauhan had contacted Harinder Manta

(applicant) on his phone, upon which, Harinder Manta

(applicant) directed him to come to Star View Hotel, Deonghat

(Solan), upon which, accused Kushal Chauhan has requested

Ashish to go to Solan side from Kotkhai. At about 11.30 p.m.

they reached at Star View Hotel, Deonghat, where, Harinder

Manta (applicant) had handed over the contraband to Kushal

Chauhan and thereafter, accused Kushal Chauhan has

transferred a sum of Rs. 25,000/- from his mobile No.

9805271051 to mobile No. 98052-94325 of Harinder Manta

(applicant). This fact was also verified from the statement of

account obtained from PNB Kotlanallah.

7.4. On the basis of above, fact, on 05.09.2023,

accused Harinder Manta (applicant) was arrested. The

contraband so recovered was sent to SFSL, Junga from

where, positive result has been received the police has

submitted the challan, which is pending in the Court of

learned Special Judge-II, Solan for 6.11.2023.

7.5. Apart from this, it has also been pleaded that case

FIR No. 175 of 2022 under Section 21 and 29 of the NDPS Act

has also been registered against the applicant with Police

Station, Dharampur.

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

made to dismiss the application.

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. The investigation, in the present case, is complete

and this fact can be deduced from the stand of the police

according to which, the report under Section 173(2) Cr.P.C.

has been prepared and submitted, which is pending

adjudication before the learned Special Judge-II.

11. The applicant is in judicial custody, as such, it

can be said that his custodial interrogation is no longer

required by the police. The chances of commencement and

conclusion of trial against the applicant, in near future, are

not so bright, as such, no useful purpose would be served by

keeping the applicant in judicial custody, that too, for the

indefinite period. Even otherwise, the pre-trial punishment is

prohibited under the law.

12. So far as the registration of another case is

concened, this fact is too short to decline the relief to the

applicant, as, 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.

13. The applicant is permanent resident of District

Shimla and 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.

14. Considering all these facts, especially the fact that

the investigation in the present case is complete and the

challan has been filed, this Court is of the view that the

application of the applicant deserves to be allowed.

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

case in case FIR No. 183 of 2023, dated 4th September, 2023,

registered with Police Station Sadar, District Solan, H.P.,

under Sections 21 and 29 of NDPS Act, on his furnishing

personal bail bond, in the sum of ₹30,000/-, with one surety

of the like amount, to the satisfaction of learned trial

Court/CJM Solan/JMFC Solan. 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.

16. 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.

17. 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.

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

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

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

e-prison software.

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

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

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

the Secretary, DLSA, Solan. The Superintendent of 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.

November 10, 2023                               ( Virender Singh )
      (naveen)                                        Judge




      Digitally signed by RAJNI
      Date: 2023.11.10 16:41:36 IST