Himachal Pradesh High Court
Reserved On: 30.09.2024 vs State Of Himachal Pradesh on 4 October, 2024
Author: Virender Singh
Bench: Virender Singh
2024:HHC:9529
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
Cr.MP(M) No.2116 of 2024
Reserved on: 30.09.2024
Decided on : 4.10.2024
Manga Singh ...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. Arun Kaushal, Advocate.
For the respondent : Mr. Mohinder Zharaick, Addl.
A.G.
Virender Singh, Judge
Applicant-Manga Singh, has filed the present
application, under Section 483 of Bharatiya Nagarik
Suraksha Sanhita (for short "BNSS") for releasing him on
bail in case FIR No.42 of 2023, dated 16.03.2023, under
Sections 15, 21, 25, 29 and 61 of the Narcotic Drugs &
Psychotropic Substances Act (hereinafter referred to as
1 Whether Reporters of local papers may be allowed to see the judgment? Yes.
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the 'NDPS Act'), with Police Station Indora, District
Kangra, H.P.
2. According to the applicant, he is innocent
person and has falsely been implicated, in the present
case.
3. According to the applicant, the said case is
primarily registered against three other accused
persons, namely, Aman Kumar, Shibba and Sonu
Kumar. In the said FIR, the applicant has been booked
under Section 29 of the NDPS Act.
4. In the present case, the applicant was
arrested on 18.3.2023 and thereafter, he is stated to be
in judicial custody.
5. The investigation, in this case, is stated to be
complete and the police has submitted the report,
under Section 173(2) Cr.PC. and cognizance has
been taken by the competent Court of law.
6. The bail has been sought on the ground that
there is undue delay in the completion of the trial, as
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there are 41 witnesses in this case. This fact has been
highlighted to show that the chances of conclusion of
trial, against the applicant, in near future are not so
bright.
7. The applicant has also asserted that on the
statement of one accused Aman Kumar, in which he
has disclosed that the contraband was purchased on
the instructions of another accused, namely Sonu
Kumar, and the said contraband is stated to be
purchased from one Gopi Foreman. On the basis of
the said statement, the FIR, in question, was lodged
against Sonu Kumar, Aman Kumar and Shibba.
8. During investigation of the case, according
to the applicant, accused Sonu Kumar has stated that
he used to buy contraband from one Gopi and on
15.3.2023, Sonu Kumar sent the aforesaid accused
Aman Kumar and Shibba for purchasing the
contraband from Gopi. Accused Sonu Kumar did not
mention the name of applicant to be associated in the
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alleged crime. Thereafter, on the statement made by
accused Sonu Kumar, police official had visited the
house of the applicant, from where, an amount of
Rs.2,23,000/- and poppy husk weighing 9.154 kgs were
allegedly recovered.
9. The applicant himself has given the detail of
the cases, which have been registered against him by
pleading that although a stand has been taken by the
police before the learned Special Judge about the
registration of six cases against the applicant but
according to him, he is not the primary accused in
those cases. According to him, out of these six cases,
he has not been named as accused in four cases and
in remaining two cases, his name has been mentioned
as Manga Singh @ Manga. As such, he is not known by
the name of Gopi as alleged. This fact has been
highlighted to show that in the statement of accused
Aman Kumar, he has named one Gopi Foreman.
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10. According to the applicant, he was not
involved in the alleged crime, for which, he has been
arrested by the police, in this case.
11. The applicant has also tried his luck before
the learned Special Judge, Nurpur, District Kangra, H.P.,
by filing bail application, however, the said bail
application was dismissed by the learned Special
Judge, vide order, dated 12.7.2023. Thereafter, he has
tried his luck by moving bail application, i.e., Cr.MP(M)
No.2857 of 2023 before this Court, which has also been
dismissed on 14.12.2023.
12. Apart from this, the learned counsel
appearing for the applicant, has given certain
undertakings, on behalf of the applicant, for which, the
applicant is ready to abide by, in case, ordered to be
released, on bail, during the pendency of the trial.
13. On the basis of the above facts, a prayer has
been made to allow the application.
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14. When put to notice, police has filed the
status report, disclosing therein that on 15th March, 2023,
ASI Chaman Singh, alongwith other police official, was
present near SDM office, Indora. At about 10.00 p.m.,
I.O. ASI Chaman Singh received a secret information
regarding the fact that two boys, namely, Aman and
Child in Conflict with Law (CCL) are doing the business
of heroin/chitta and they are coming from Kathgarh
side to Indora in car No. HP-12J-7996. As per the
information, if the said car is intercepted and searched,
then, contraband in large quantity could be
recovered. On this information, I.O complied with the
provisions of Section 42(2) of the NDPS Act and
submitted the report to the SDPO Nurpur, through
constable Paramjeet.
14.1 Thereafter, two persons, namely, Mohan
Singh and Roshan Lal, who were found near SDM
office, Indora were associated in the raiding party, as
independent witnesses. Thereafter picketing was done
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at place Kathgarh Road, which is stated to be 50 mtrs.
away from the SDM office.
14.2 At about 10.25 p.m., I.O noticed one Alto
Car, bearing registration No.HP-12J-7996, being driven
by its driver, coming from Kathgarh side, in which,
besides the driver, one person was sitting on the front
seat. The police gave signal to stop the car.
Consequently, the car was parked on the brim of the
road. On inquiry, both the persons have disclosed their
names as Aman Kumar and CCL. Both these persons
were apprised about the reason for search of their
vehicle, upon which, both of them had given their
consent to search.
14.3 After giving their personal search, IO ASI
Chaman Singh conducted the search of the car.
When, bonnet of the car was opened, it was found that
the contraband, i.e., heroin/chitta weighing 260 grams
was kept concealed in the bonnet. The contraband
was taken into possession. Other codal formalities were
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completed. The said vehicle was found to be
registered in the name of one Man Singh, S/o Amar
Singh.
14.4 Accused Aman has disclosed that recovered
heroin was purchased by him for a sum of Rs.3 lacs on
15.3.2023 from a person at Jalandhar, whose name, the
accused has saved in his mobile phone as "Gopi
Formen" (applicant). The said amount was given to
him by Sonu, S/o Sham Lal. On the earlier occasion
also, Sonu, on the reference made by accused, used to
purchase heroin/chitta from the said person and also
assured to give Rs.15000/- to them for transporting the
heroin from Jalandhar.
14.5 After completion of the codal formalities, the
FIR, in question, was registered, against the applicant as
well as his co-accused.
14.6 After the registration of the FIR, SI Naresh
Kumar has been deputed as second IO in this case,
who has recorded the statements of the witnesses
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under Section 161 Cr.PC. Thereafter, accused-Aman
Kumar was arrested on 16.3.2023 at about 4.40 a.m.
However, CCL was found juvenile, as such, he was not
arrested. The contraband, so recovered, was
produced before the Inspector SHO alongwith both the
accused.
14.7 During investigation, third accused namely,
Sonu, S/o Sham Lal was associated in the investigation
and accused Sonu was arrested on 16.3.2023 at about
8.30 a.m. Accused-Aman Kumar and Sonu were
produced before the court on 16.3.2023 and they were
remanded to police custody till 18.3.2023.
14.8 As per the status report, during investigation,
accused Sonu Ram has made the statement under
Section 27 of the Indian Evidence Act, disclosing therein
that he used to purchase heroin/chitta from Gopi, R/o
Kartarpur, Distt. Jalanadhar and on 15.3.2023, he
deputed Aman and CCL to bring heroin/chita from
Gopi from his village Kartarpur and they were sent
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through his vehicle No.HP-12J-7996. According to him,
he can identify the lanterposh house of Gopi and also
identify Gopi.
14.9 On 18.3.2023, accused Sonu identified
accused Manga Singh alias Gopi (applicant), as the
person, from whom, he used to purchase heroin/chitta.
Real name of accused was found as Manga Singh @
Gopi, S/o Dalip Singh. After giving personal search by
the raiding party, residential quarter of Manga Singh @
Gopi was conducted.
14.10 During search of the room, a black coloured
envelop was recovered from the right drawer of the
bed box. On checking, currency notes of the
denomination of Rs.2000/-, 500/-, 200/- and 100/- were
recovered. One plastic sack was also recovered from
the kitchen of the applicant, which, on checking was
found containing poppy husk. On counting, currency
notes were found to be Rs.2,23,000/- and poppy husk,
on wheighment, was found to be 9.514 kilograms. After
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finding sufficient material against applicant Manga
Singh, he was also arrested.
14.11 After completion of the investigation, report
under Section 173(2), Cr.PC has been submitted before
the learned Trial Court.
14.12 It is further case of the police that on
15.3.2023 when, accused Aman Kumar and Sonu Ram
have disclosed, on inquiry, that they were deputed by
accused Sonu to bring heroin/chitta from Manga Singh
@ Gopi (applicant), accused Sonu had paid a sum of
Rs.3 lacs in cash to them. Accused Aman and CCL
had gone in the car owned by Sonu and purchased
260 grams heroin against this amount.
15. Apart from this, the police has given the
history of the applicant, which is reproduced as under:-
Sr. No. DETAIL OF FIR NAME OF PS STATE
15 U/S 21, 22-61-1985
ND&PS Act.
09/06/17 U/S 22-61-
1985 ND&PS Act.
12 2024:HHC:9529
17 U/S 22-61-1985
ND&PS Act.
20 U/S 21, 22, 27, 29-
61-1985 ND&PS Act.
22 U/S 21, 22-61-1985
ND&PS Act.
05-21 U/S 22, 29-61-
1985 ND&PS Act.
21 U/S 22, 29-61-1985
ND&PS Act.
365, 379, 411 IPC BARADARI
16. As per the stand taken by the police, the
applicant, who is described as Manga Singh @ Gopi is
stated to be the main kingpin of the illegal business of
narcotics. According to the police, the applicant has
sold 260 grams of heroin/chita, which is commercial
quantity. Contraband was sold to accused Aman
Kumar on the demand being made by accused Sonu.
In the search of his quarter, currency notes worth
Rs.2,23,000/- was found.
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17. Lastly, it has been apprehended that in case,
the applicant is released on bail, he may coerce the
witnesses and allure them to depose in his favour and
may again indulge in the same activities. The mobile
phones of all the accused are stated to be sent to RFSL,
Dharamshala for retrieving the data and report has
been received on 11.6.2023.
18. So far as the stand of the applicant for delay
in trial is concerned, according to the status report, out
of 39 witnesses, 8 witnesses have been examined. One
official witness has unfortunately been expired and the
case is now been fixed for 11th to 14th November, 2024
for recording the evidence of PWs.
19. On all these submissions, a prayer has been
made to dismiss the application.
20. Heard.
21. So far as the ground, upon which the
applicant has sought his release on bail, i.e., delay in
the trial, is concerned, learned counsel, appearing on
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behalf of the applicant, has relied upon the decision of
Hon'ble Supreme Court in Criminal Appeal No.Nil of
2024 arising out of SLP(Criminal) No.8781 of 2024 titled
as Manish Sisodia Vs Directorate of Enforcement. With
due respect to the law laid down by the Hon'ble Apex
Court in the said case, the same, in no way, applicable
to the case of the applicant, as, the applicant before
the Hon'ble Apex Court was arrested in a case, which
was registered under the provisions of Prevention of
Corruption Act and Indian Penal Code, as well as,
under Section 3 of Prevention on Money Laundering
Act, whereas, in the present case, the applicant has
been named as accused in a case, where, the
punishment, which has been provided by the
legislature in its wisdom, is not less than 10 years and
which may extend upto 20 years and fine. Also, in the
case before the Hon'ble Apex Court, the trial has not
commenced, whereas, in the present case, trial has not
only been commenced, but, eight witnesses have
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been examined and the learned Special Judge has
now fixed the case for recording the evidence of PWs
from 11th to 14th November, 2024. In such situation, this
Court is fully satisfied with the pace of the trial.
22. So far as the decision of this Court in
Cr.MP(M) No.432 of 2024 titled as Inder Dev Vs State of
Himachal Pradesh, which has also been relied upon, is
concerned, the accused, in the said case, was arrested
for possessing the contraband, which does not fall
within the definition of 'commercial quantity' and as
such, despite registration of the case against the
accused in the said case, he was ordered to be
released on bail. As such, on the basis of the said
decision, no benefit could be derived by the applicant.
23. So far as the decision of a Co-ordinate
Bench in Cr.MP(M) No.189 of 2024 titled as Paridutt @
Pari Vs. State of Himachal Pradesh, as relied upon by
the learned counsel for the applicant is concerned, in
the said case, the accused was arrested, on the basis
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of the disclosure, made by the person, from whose
possession, the contraband was recovered, whereas in
the present case, as per the stand of the police, the
police has not only recovered an amount of
Rs.2,23,000/-, but, the recovery of poppy husk weighing
9.514 kg has also been alleged by the police. As such,
no relief can be given to the applicant on the basis of
the said decision.
24. Admittedly, the contraband, recovered in
this case, as per the story of the police, is commercial in
nature and if, it has been held that the said
contraband falls within the definition of 'commercial
quantity', in that case, rigors of Section 37 of the NDPS
Act are fully applicable, in the present case.
25. When, the rigors of Section 37 of the NDPS
are applicable, in that eventuality, before releasing the
accused (applicant) on bail, this Court has to satisfy the
twin conditions as per Section 37(b) of the NDPS Act by
holding that the accused (applicant) has not
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committed the offence and in case, he is ordered to
be released on bail, he will not commit any offence.
26 Keeping in view the facts and circumstances
narrated above, the twin conditions as per Section
37(b) of NDPS Act are not in favour of the applicant.
27 At the time of deciding the question of bail,
a delicate balance between the individuality and the
larger interest of the society is to be maintained.
28. Considering all these facts, the applicant is
not able to make out a case for grant of bail, at this
stage. Consequently, the bail application is dismissed.
29. 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.
( Virender Singh )
Judge
October 4, 2024 (mamta)
