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Himachal Pradesh High Court · body

2009 DIGILAW 1009 (HP)

SATISH KUMAR v. STATE OF HIMACHAL PRADESH

2009-11-09

KULDIP SINGH

body2009
JUDGMENT Kuldip Singh, J.(Oral)-This is an application under Section 439 Cr.P.C. for releasing the petitioner on bail in FIR No. 68 of 2009 dated 15.8.2009 registered at Police Station, Nirmand, District Kullu, H.P. under Sections 279, 337 and 304-A IPC read with Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short ‘Act’). Status report has been filed. 2. Heard and perused the record. The learned counsel for the petitioner has submitted that the petitioner has been falsely implicated in the case, no charas was recovered from the possession of the petitioner nor any connection between the petitioner and the Charas allegedly recovered has been established. The petitioner is innocent and he has committed no offence. The vehicle met with an accident and all occupants of the vehicle died except the petitioner and, therefore, petitioner has been falsely implicated in the case. There is no legal evidence to connect the petitioner with the Charas allegedly recovered. It has been submitted that alleged resin content in the contraband is 32.76 % and, therefore, even as per the prosecution case the case does not fall in the category of commercial quantity, hence rigor of Section 37 of the Act is not applicable. The petitioner had earlier filed bail application which was rejected by the learned Sessions Judge, Kinnaur Sessions Division at Rampur Bushahr on 21.10.2009. The learned counsel for the petitioner has submitted that the petitioner is ready to furnish bail bonds in accordance with the directions of this Court. The learned counsel for the petitioner has ultimately prayed for grant of bail to the petitioner. 3. The learned Additional Advocate General has opposed the bail application and has submitted that 2 kg Charas was recovered from the vehicle owned by the petitioner. The petitioner being the driver and owner of the vehicle is to explain the Charas found in his vehicle. As per investigating agency black Wagnor HR-51Y-4488 had rolled down 150 feet down below. The injured Satish Kumar driver and owner of the vehicle was lying near the vehicle. The nearby areas were searched and two dead bodies of Aman Mann and Arya Mitter Aantil were found there. Satish Kumar identified the dead bodies of two persons. On search of the vehicle from the back side pocket of driver seat 2 kg Charas was recovered, sampling and sealing was done on the spot. The nearby areas were searched and two dead bodies of Aman Mann and Arya Mitter Aantil were found there. Satish Kumar identified the dead bodies of two persons. On search of the vehicle from the back side pocket of driver seat 2 kg Charas was recovered, sampling and sealing was done on the spot. Satish Kumar was found driving the vehicle rashly 3 and negligently as a result of which Aman Mann and Arya Mitter Aantil died. It has been submitted that challan has been prepared and will be filed shortly in the Court. 4. The learned counsel for the petitioner has submitted that recovery is highly suspicious. It is not the case of the prosecution that investigating agency had suspected that the car was carrying some contraband and therefore, the occasion for searching the vehicle has not been explained. In any case, the alleged contraband is 2 kg. with resin content 32.76%. It has been contended that the quantity of Charas in the alleged contraband in view of percentage of resin falls within small quantity and not in commercial quantity. Therefore, bar of Section 37 is not applicable. It has also been submitted that continuing detention of the petitioner is not necessary. The learned counsel for the petitioner has submitted that the petitioner is a serving personnel of army. 5. There were in all three persons in the vehicle when it met with an accident, out of them two have died and surviving occupant is the accused in the case. How all of them were traveling in the remote area that has not been explained. At the time of hearing of the bail application also, nothing has been said that under what circumstances, the petitioner and two other occupants were traveling in that area. The learned counsel for the petitioner has seriously questioned the necessity of searching the vehicle and has also submitted that the story of search has been introduced by the police in order to implicate the petitioner. The case of the investigating agency is that the petitioner in injured condition was lying near the vehicle and two other had died. In normal course nothing unusal was done by the investigating agency to search the vehicle when it came to the notice of the investigating agency that accident had taken place and two occupants of the vehicle had died and one was lying in injured condition. 6. In normal course nothing unusal was done by the investigating agency to search the vehicle when it came to the notice of the investigating agency that accident had taken place and two occupants of the vehicle had died and one was lying in injured condition. 6. The petitioner was the driver and owner of the vehicle at the time of accident. It has come to the notice of this Court that in Kullu area the cases under the Act are increasing and in many cases the accused are residents of the places outside the State of Himachal Pradesh. This creates suspicion. The case of the prosecution is that the entire quantity of contraband is Charas. The prosecution has shown apprehension that in case petitioner is released on bail, he is likely to commit similar type of offence keeping in view the facts and circumstances of the present case. This possibility cannot be ruled out more particularly when it has not at all been shown how the petitioner who is resident of outside the State was at the place of occurrence in remote area with two occupants in the vehicle who were also residents of outside the State and from the vehicle 2 kg of Charas was recovered. The petitioner has failed to make out a case for grant of bail. Resultantly, the petition is dismissed. 7. The observations made in this order are for disposal of this application only and the same shall not be treated as expression of opinion on the merits of the case.