Himachal Pradesh High Court

Ashish vs State Of H.P on 21 November, 2023

Author: Virender Singh

Bench: Virender Singh

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.


                                               Cr.M.P(M) No. 2901 of 2023
                                              Decided on: 21st November, 2023
        Ashish                                                          .......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. Hitender Thakur with Mr. Rahul Gautam, Advocates.

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-Ashish 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 the

Narcotic Drugs and Psychotropic Substances Act (hereinafter

referred to as 'NDPS Act').

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

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 interrogation 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

25.09.2023. The applicant has also filed a bail application,

bearing Cr.M.P(M) No. 2615 of 2023 before this Court, which

was dismissed as withdrawn.

6. The applicant has sought the relief of bail on the

ground of parity as his co-accused has already been released

on bail by this Court while allowing Cr.M.P(M) No. 2787 of

2023 titled as Harinder Manta vs. State of H.P.

7. 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.

8. 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 (applicant)

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".

8.1. 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 (applicant) 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.

8.2. 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 (applicant), 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.

8.3. 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 on

his phone, upon which, Harinder Manta directed him to come

to Star View Hotel, Deonghat (Solan), upon which, accused

Kushal Chauhan has requested Ashish (applicant) to go to

Solan side from Kotkhai. At about 11.30 p.m. they reached at

Star View Hotel, Deonghat, where, Harinder Manta 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. This fact was also verified

from the statement of account obtained from PNB

Kotlanallah.

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

accused Harinder Manta 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.

8.5. 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.

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

made to dismiss the application.

10. 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.

11. 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.

12. 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.

13. Learned counsel appearing for the applicant has

also prayed that on the ground of parity, the applicant is

entitled to be released on bail, as, his co-accused namely,

Harinder Manta, has already been released on bail by this

Court, vide order, dated 10.11.2023, passed in Cr.M.P(M) No.

2787 of 2023.

14. 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.

15. 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.

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

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

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.

17. 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.

18. 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.

19. 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.

20. 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 21, 2023                                              ( Virender Singh )
   (Tarun)                                                           Judge







    KARAN
                     DN: C=IN, O=HIGH COURT OF HIMACHAL
                     PRADESH, OU=HIGH COURT OF HIMACHAL
                     PRADESH SHIMLA, Phone=

84c56a3b8f7868712974087154d73f59e80c39f 7c3c3b2c96099a032dbd3936c, PostalCode=

SINGH 171001, S=Himachal Pradesh, SERIALNUMBER= 9b72faf266a1e783d9d187288c6909df3236ec1 9407465bd50727f28fe45a07c, CN=KARAN SINGH KANWAR

KANWAR Reason: I am approving this document Location: