Himachal Pradesh High Court

Tinku vs State Of Himachal Pradesh on 10 January, 2024

Author: Virender Singh

Bench: Virender Singh

IN THE HIGH COURT OF HIMACHAL PRADESH,

SHIMLA.


                                               Cr. MP (M) No. 13 of 2024
                                                   Reserved on: 8.1.2024
                                                Decided on : 10.1.2024


Tinku                                                              ...Applicant

                                         Versus

State of Himachal Pradesh                                        ...Respondent


Coram

The Hon'ble Mr. Justice Virender Singh, Judge. Whether approved for reporting?1

For the applicant:Mr. Sangram Singh Chandel, Advocate.

For the respondent:Mr. Tejasvi Sharma, Additional Advocate General, for the respondent-State.

Virender Singh, Judge

Applicant- Tinku has filed the present

application, under Section 439 of the Code of Criminal

Procedure (hereinafter referred to as the 'Cr.PC'), with

1 Whether Reporters of local papers may be allowed to see the judgment? Yes.

a prayer to release him on bail, in case FIR No. 44 of

2023, dated 10.6.2023, registered under Sections 21,

25 and 29 of the Narcotic Drugs & Psychotropic

Substances Act (hereinafter referred to as the 'ND & PS

Act'), with Police Station Kandaghat, District Solan,

H.P.

2. According to the applicant, he is innocent

person and has nothing to do with the offences, for

which, he has been arrested, in this case.

3. The alleged contraband/chitta/heroin,

weighing 50.29 grams, is stated to be not recovered,

from his conscious possession. As such, according to

him, nothing was found, against him, in the

investigation.

4. The applicant has tried his luck by moving

application, before the Court of learned Special Judge,

Solan, on 27.9.2023, however, the same was

dismissed, on 7.10.2023.

5. Thereafter, the applicant has also sought the

relief of bail, by filing Cr. M.P. (M) No. 2749 of 2023,

which was dismissed by this Court, on 3.11.2023. He

has again sought relief of bail, by moving bail

application, before the learned Special Judge, Solan,

District Solan. However, the same was again

dismissed, on 27.12.2023.

6. On the basis of above facts, learned counsel

for the applicant has highlighted the fact that there are

changed circumstances, as investigation, in the

present case, is complete and report under Section

173(2) Cr. P.C. has been filed by the Police in the

Competent Court of law. However, trial has yet not

been commenced, against him.

6. To buttress his contention, order dated

22.12.2023, passed by the learned Special Judge,

Solan, has been placed on record, and it has been

highlighted that although, the charges, in this case,

has been framed on 22.12.2023, but, the case is now

adjourned, for 19.1.2024, for fixing the date(s), for

prosecution evidence, which document has heavily

been relied upon to show that the chances of

conclusion of trial, against the applicant, are not so

bright.

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

been made to allow the application.

8. When put to notice, the police has

filed the status report disclosing therein, that Sub

Inspector Prem Singh has sent a rukka to Police

Station, Kandaghat, for registration of FIR, mentioning

therein that on 10.06.2023, he, along with other police

officials, had left the Police Station towards Shimla

Shoghi, Vaknaghat, Solan, Kandaghat side, for

patrolling and in order to detect crime relating to ND &

PS Act.

8.1. At about, 7.05 p.m., the I.O., along with

other police officials, was present at Kandaghat Chail

Chowk, in their private vehicle, then, he received a

secret information, with regard to the fact that some

persons, in a white coloured swift car No.HR34J-9878,

are selling Chitta/ Heroin, at Solan, Kandaghat and

Shimla.

8.2. It has also been apprised that the said

vehicle, being driven by its driver, is coming towards

Kandaghat side to supply the Chitta. It has also been

apprised that in case, the said vehicle is searched,

large quantity of Chitta can be recovered.

8.3. Finding the said information to be authentic,

the provisions of Section 42(2) of ND & PS Act were

complied with, by submitting report through HHC

Virender to SDPO Solan. Thereafter, independent

witnesses Puneet Shandil and Mahender Kumar were

associated in investigation of the case.

8.4. Thereafter, all of them, have proceeded

towards Solan side, in search of the said persons.

When, they reached at Ghalai Mod near Ded Gharat,

then, the said vehicle was found parked on the side of

the road. The said vehicle was checked. Four persons

were found in it.

8.5. On inquiry, the person, on the wheel, has

disclosed his name as Sunil S/o Shri Balraj, the

person sitting in the front seat disclosed his name, as

Nishant, whereas, the persons sitting on the rear seat

disclosed their names as Tinku and Sunil son of Shri

Chudiya Ram. All the four persons were found to be

the residents of Haryana. In the presence of all the

four persons, the vehicle was searched.

8.6. During the search of the vehicle, from the

dash board of the vehicle, a transparent envelope,

containing six transparent packets was found, having

light yellow coloured stoneshape substance, which, on

checking, and on experience, as well as, on the basis of

disclosure by all the persons, was found to be Chitta.

8.7. On weighment, on electronic weighing

machine, the said Chitta was found to be 50.29 grams.

The contraband, so recovered, was taken into

possession, along with vehicle.

8.8. After completion of the codal formalities, the

FIR, in question, was registered, against the applicant,

as well as, his co-accused.

8.9. The contraband, so recovered, was sent to

SFSL Junga and after receiving the positive report,

final report, under Section 173(2) Cr.P.C., has been

registered against the applicant.

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

been made to dismissed the application.

10 Apart from this, it has also been mentioned

in the status report that against applicant, two cases

have been found to be registered, particulars of which

have been mentioned, in the status report, as under:

i) FIR No. 85 of 2023, dated 23.3.2023, under Sections 20(a), 21 (B) NDPS Act, Police Station Kalayat.

ii) FIR No. 716 of 2021, dated 15.12.2021, under Sections 21(B), 29 of the NDPS Act, registered with Police Station Pundari.

11. In FIR No. 85 of 2023, registered with Police

Station, Kalayat, the contraband weighing 9.90 grams

is stated to have been recovered. Apart from this,

charas, weighing 22.70 grams is also stated to have

been found, from his possession. In the second case,

contraband/chitta/heroin weighing 5.36 grams was

allegedly recovered, from his possession. In both the

cases, the contraband is non-commercial quantity.

12. The bail application of the applicant was

dismissed by this Court, on 3.11.2023. The bail

application has been filed again before this Court,

mainly, on the ground that there are changed

circumstances, and the chances of commencement of

the trial, against the applicant, are not so bright.

13. In this case, there are total four accused.

Co-accused Sunil Kumar, in this case, has been

released on bail, by the learned trial Court, on

14.9.2023, whereas, co-accused of the applicant,

namely Nishant and Sunil Kumar were also released

on bail, on 25.9.2023, by the learned trial Court.

14. In this case, charges were framed on

22.12.2023. On said date, the matter is now fixed for

19.1.2024, for fixing the date(s) of prosecution

evidence.

15. The term 'changed circumstances' has

nowhere been defined in the IPC, but everyday spent

by the applicant in the judicial custody is 'changed

circumstance'.

16. The bail applicant has tried his luck by

moving application, before the learned Special Judge,

Solan, on 14.12.2023. However, his application has

been dismissed, vide order dated 17.12.2023.

17. Considering the cumulative effect of the

above facts, this Court is satisfied that there are

substantial 'changed circumstances'. As such, prayer

of the applicant, for releasing him on bail, can be

considered.

18. The contraband, allegedly recovered, in this

case, does not fall, within the definition of 'commercial

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

Act, are not applicable, in this case.

19. Other three accused has already been

released on bail, by the learned trial Court.

Considering the total period of detention, this Court is

of the view that no useful purpose would be served by

keeping the applicant in judicial custody, that too, for

indefinite period, as chances of conclusion against the

applicant, in near future, are not so bright.

20. So far as the registration of other two cases,

against the applicant, are concerned, admittedly, both

the cases are still pending adjudication. As such,

presumption of innocence, is still available to him.

21. Considering all these facts, this Court

is of the view that the bail application is liable

to be allowed and is accordingly allowed. The

applicant is ordered to be released on bail in case FIR

No. 44 of 2023, dated 10.6.2023, under Sections 21,

25 and 29 of the ND & PS Act, registered with Police

Station, Kandaghat, District Solan, H.P., on his

furnishing personal bond in the sum of Rs. 50,000/-,

with one surety in the like amount, to the satisfaction

of learned trial Court.

22. This order of release, 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 Office;

and

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

23. Any of the observations made herein above

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.

24. 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/ petitioner.

25. The Registry is directed to forward a soft

copy of the bail order to the Superintendent Jail,