Neeraj Sharma vs State Of Himachal Pradesh
2023 Latest Caselaw 13897 HP

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

.

                                                 Cr. MP(M) No. 1839 of 2023





                                                  Reserved on: 05.09.2023
                                                  Decided on: 16.09.2023

    Neeraj Sharma                                               ....Petitioner





                                      Versus
        State of Himachal Pradesh                                  ....Respondent





    Coram

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

Whether approved for reporting?1 For the petitioner r : Mr. Kush Sharma, Advocate.

For the respondent : Mr. B.N. Sharma, Additional Advocate General.

Sushil Kukreja, Judge

By way of instant petition, filed under Section

439 of the Criminal Procedure Code, the petitioner is

seeking bail in case F.I.R. No. 152/2023, dated

15.07.2023, registered at Police Station West, District

Shmla, H.P., under Section 21 of the Narcotic Drugs and

Psychotropic Substances Act (hereinafter referred to as

"NDPS Act") and Section 194D of the Motor Vehicles Act

(hereinafter referred to as "MV Act".

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

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

.

15.07.2023, the police had laid a nakka at Police barrier

Shoghi. At about 7:05 P.M., they saw a person coming on

a Scooty, bearing registration No. HP52C-2479, from

Shoghi side. Since the rider of the Scooty was driving the

Scooty without helmet, as such, he was signaled to stop.

The rider was asked to produce the documents of the

Scooty, however, he could not produce any document. On

asking, the rider disclosed his name as Neeraj Sharma

(petitioner herein). On further inquiry by the police, the

petitioner got perplexed. On suspicion, the police party

associated Narender Kumar, Constable Rohit and

Constable Manish as witnesses in the proceedings. In the

presence of the aforesaid witnesses, when dickey of the

Scooty was opened, a carry bag, digital weighing

machine, silver foil paper and plastic pouch were

recovered. On opening of the plastic pouch, chitta/heroin

was recovered. On weighment, it was found to be 7.31

grams. Thereafter, the police completed all the codal

formalities and FIR as detailed hereinabove was

registered against the petitioner and he was arrested.

3. The bail petition has been filed on the ground

.

that the petitioner is innocent and has been falsely

implicated in this case. Learned counsel for the petitioner

has contended that investigation in this case is complete

and nothing remains to be recovered at the instance of

the petitioner, as such, he is required to be released on

bail.

    4.         Per   contra,
                     r             to
                               learned   Additional

General opposed the bail application on the ground that Advocate

keeping in view the gravity of the offence alleged to have

been committed by the petitioner, he is not entitled to be

enlarged on bail. He further contended that the petitioner

is a habitual offender and many other cases have been

registered against him, as such, he does not deserve to

be released on bail.

5. 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 7.31 grams,

which is an intermediate quantity. Therefore, rigors of

Section 37 of the NDPS Act are not applicable in the

.

present case. The petitioner was arrested on 15.07.2023

and since then he is behind the bars. There is no evidence

on record to suggest that the petitioner 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 petitioner is kept behind the bars for an

unlimited period.

6. The learned Additional Advocate General

contended that petitioner is a habitual offender as many

other cases have been registered against him, therefore,

he is not entitled to be released on bail. However, this

contention of the learned Additional Advocate General

cannot be accepted, as registration of some cases in the

past against the petitioner is no ground to deny bail to

him in the present case, as the said cases will be decided

by the concerned Courts on their own merits. In Maulana

Mohammed Amir Rashadi Vs. State of Uttar Pradesh

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:-

"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."

7. Considering the overall facts and

circumstances of the case and since the quantity of heroin

involved in this case is 7.31 grams, which is an

intermediate quantity, this Court finds that the present is

a fit case where judicial discretion to admit the petitioner

.

on bail is required to be exercised in his favour.

Accordingly, the bail application is allowed and it is

ordered that the petitioner, who has been arrested by the

police, in case F.I.R. No. 152/2023, dated 15.07.2023,

registered at Police Station West, District Shimla, District

Shimla, H.P., under Section 21 of NDPS Act and Section

194D of the MV Act, shall be forthwith released on bail,

subject to his furnishing personal bond to the tune of Rs.

50,000/- (Rupees fifty thousand), with one surety in the

like amount, to the satisfaction of learned Trial Court. This

bail order is subject, however, to the following conditions:-

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

(ii) that he 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 he will not tamper with the prosecution evidence nor he will try to win over the Prosecution witnesses or terrorise them in any manner;

(iv) that he will not repeat the offence, as is alleged to have been committed by him.

(v) that he will not deliberately and intentionally act in a manner which may tend to delay the investigation or the trial of the case.

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

8. Needless to say that the Investigating agency

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shall be at liberty to move this Court for cancellation of

the bail, if any of the aforesaid conditions is violated by

the petitioner.

9. 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)
    September 16, 2023                           Judge
         (raman)