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Himachal Pradesh High Court · body

2010 DIGILAW 761 (HP)

EGRAJ CHETRY v. STATE OF HIMACHAL PRADESH

2010-04-23

JYOTSNA REWAL DUA

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JUDGMENT : Jyotsna Rewal Dua, J. 1. The bail petitioner is an accused in FIR No.66/2020, registered on 19.03.2020 at Police Station Aut, District Mandi, under Sections 18 and 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short 'NDPS Act') and as such has preferred the instant petition under Section 439 of the Code of Criminal Procedure for grant of regular bail. 2. I have heard Mr. Jyotirmay Bhatt, learned counsel for the bail petitioner and Mr. Nand Lal Thakur, learned Additional Advocate General, on behalf of the respondent-State, through video conference and gone through the status report filed today by the respondent-State. 3. The gist of the case against the bail petitioner is that:- (i) On 19.03.2020, a police party was on patrolling duty at place 'Army' and 'Jhalogi'. (ii) The patrolling party stopped a private Bus bearing No.HP 65A 7444, coming from Kullu side and going towards Mandi. (iii) The bus was searched by the patrolling party and its Driver and Conductor were associated as independent witnesses during the search operation, besides Constable Gulzar Mohammad. (iv) The passengers and their luggage were checked. Occupant of Seat No.25 appeared to be perplexed. A blue coloured bag held by him on his lap was searched in presence of the witnesses. Following was recovered from the bag during search carried out in accordance with law:- (a) black coloured substance from an orange coloured bag, which on the basis of experience, was determined as 'Charas/Cannabis' by the patrolling party. (b) black coloured substance kept in a polythene envelope, which in turn was kept in a blue pajama, which on the basis of experience of the patrolling party, was determined as 'Opium'. (v) On electronic scale, the recovered cannabis weighed 421 grams and opium weighed 502 grams. The procedure in accordance with law was followed and the FIR was registered against the bail petitioner under Sections 18 and 20 of the NDPS Act. The bail petitioner was arrested on 19.03.2020 and is in custody ever since then. 4. Learned counsel for the bail petitioner submitted that the petitioner had been residing in the respondent-State for last many years. He is in custody w.e.f. 19.03.2020. Investigation of the aforesaid case is complete and nothing is to be recovered from the bail petitioner. The bail petitioner was arrested on 19.03.2020 and is in custody ever since then. 4. Learned counsel for the bail petitioner submitted that the petitioner had been residing in the respondent-State for last many years. He is in custody w.e.f. 19.03.2020. Investigation of the aforesaid case is complete and nothing is to be recovered from the bail petitioner. Bail petitioner will co-operate with the investigating agency as and when required and will not flee from the criminal proceedings and justice. It is further submitted that the bail petitioner will undertake to abide by all the terms, which may be imposed upon him in case of grant of bail. Per contra, learned Additional Advocate General has submitted that the bail petitioner is not a permanent resident of the State of Himachal Pradesh and might evade the trial and justice. Investigation of the case is going on. Therefore, he has opposed the grant of bail to the petitioner. 5. The status report filed today by the respondent-State itself clearly states that cannabis weighing 421 grams and opium weighing 502 grams allegedly recovered from the bail petitioner falls in the intermediate quantity, i.e. above small, but less than commercial. This is in terms of Entry No.23 and 92 of the table notified under sub-clause vii(a) and xxiii(a) of Section 2 of the NDPS Act. The status report does not indicate any other criminal history of the bail petitioner. The petitioner is in custody w.e.f. 19.03.2020 and nothing is to be recovered from him. The investigation insofar as the bail petitioner is concerned, is almost complete. Learned Additional Advocate General has submitted that the Chemical Analysis Report from State Forensic Science Laboratory, Junga has not been received so far due to nationwide lockdown imposed because of spread of COVID-19. It has not been disputed by the learned Additional Advocate General that the opium measuring 502 grams allegedly recovered from the bail petitioner was pure opium, falling in intermediate quantity. In the facts and circumstances of the case, the petitioner cannot be kept behind the bars for an indefinite period pending trial. Since he does not belong to the State of Himachal Pradesh, therefore, interest of justice can be protected by insisting upon furnishing of local surety. Accordingly, the present petition is allowed. In the facts and circumstances of the case, the petitioner cannot be kept behind the bars for an indefinite period pending trial. Since he does not belong to the State of Himachal Pradesh, therefore, interest of justice can be protected by insisting upon furnishing of local surety. Accordingly, the present petition is allowed. Petitioner is ordered to be released on bail in the aforesaid FIR on his furnishing personal bond in the sum of Rs.75,000/- (Rupees Seventy Five Thousand only) with one local surety in the like amount to the satisfaction of the learned District Judge/Additional District Judge, Mandi, subject to the following conditions:- (i) The petitioner is directed to join the investigation of the case as and when called for by the Investigating Officer in accordance with law. (ii) The petitioner shall not temper with the evidence or hamper the investigation in any manner whatsoever. (iii) The petitioner will not leave India without prior permission of the Court. (iv) The petitioner shall not make any inducement, threat or promise, directly or indirectly, to the Investigating Officer or any person acquainted with the facts of the case to dissuade him/her from disclosing such facts to the Court or any Police Officer. (v) In case the petitioner is put to trial, then he shall attend the trial on every hearing, unless exempted in accordance with law. (vi) Petitioner shall inform the Station House Officer of the concerned police station about his place of residence during bail and trial. Any change in the same shall also be communicated within two weeks thereafter. Petitioner shall furnish details of his Aadhar Card, Telephone Number, E-mail, PAN Card, Bank Account Number, if any. (vii) It is made clear that in case the petitioner is arraigned as an accused in future, in any FIR under NDPS Act, then his bail is liable to be cancelled. It is open for the Investigating Agency to move appropriate application in that regard. 6. In case of violation of any of the terms & conditions of the bail, respondent-State shall be at liberty to move appropriate application for cancellation of the bail. It is made clear that observations made above are only for the purpose of adjudication of instant bail petition and shall not be construed as an opinion on the merits of the matter. 7. It is made clear that observations made above are only for the purpose of adjudication of instant bail petition and shall not be construed as an opinion on the merits of the matter. 7. With the aforesaid observations, the present petition stands disposed of, so also the pending miscellaneous applications, if any. 8. Certified copy of this order be not insisted upon. Authenticated copy of the aforesaid order be supplied by the Secretary to the learned counsel for the parties.