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Himachal Pradesh High Court · body

2014 DIGILAW 889 (HP)

Vikrant Chauhan v. State of Himachal Pradesh

2014-07-11

P.S.RANA

body2014
ORDER: P.R.Rana, Judge. Present petition filed under Section 438 of the Code of Criminal Procedure 1973 for grant of anticipatory bail in connection with case FIR No. 127 of 2014 dated 23.06.2014 registered under Sections 15 and 61 of the Narcotic drugs and psychotropic substance act 1985 at Police Station Sadar District Bilaspur HP. 2. It is pleaded that applicant is innocent and he has been falsely implicated in the present case. It is further pleaded that there is no direct or indirect evidence connecting the applicant with the alleged crime. It is further pleaded that applicant is a permanent resident of village Sungal Post Office Binloa Tehsil Sadar District Bilaspur HP. It is further pleaded that applicant is deeply rooted in the society and there is no apprehension of his fleeing from justice. It is further pleaded that applicant is the sole bread earning member of his family. It is further pleaded that the detention of the applicant will not advance the cause of justice in any manner. It is further pleaded that applicant has been falsely roped in the present case at the instance of vested interested persons. It is further pleaded that applicant had left his house at village Sungal Tehsil Sadar District Bilaspur at about 11 AM to drop his parents at Chandigarh Airport as they were to board a flight for Hyderabad at 4.55 PM as their other son was admitted in the hospital at Hyderabad. It is further pleaded that applicant will join investigation as and when required by the Investigating Agency. It is further pleaded that no recovery is required to be made from the applicant by the investigating agency. Prayer for acceptance of anticipatory bail filed under Section 438 Code of Criminal Procedure 1973 sought. 3. Per contra police report in connection with case FIR No. 127 of 2014 dated 23.06.2014 registered under Sections 15 and 61 of the Narcotic drugs & psychotropic substance act 1985 at Police Station Sadar District Bilaspur HP filed. There is recital in police report that on dated 23.06.2014 at about 4 PM secret information was received by investigating agency that applicant who is running a restaurant on rent basis used to sale poppy husk to the truck drivers and other persons who used to pass through his restaurant. There is recital in police report that on dated 23.06.2014 at about 4 PM secret information was received by investigating agency that applicant who is running a restaurant on rent basis used to sale poppy husk to the truck drivers and other persons who used to pass through his restaurant. There is recital in police report that independent witnesses were associated with the raiding party and restaurant of the applicant was searched at 4.45 PM. There is further recital in police report that in the kitchen room of the restaurant a plastic bag in which ACC was written was found and the same was checked. There is further recital in police report that 2 Kg 560 grams of poppy husk was found and the same was sealed in a parcel with seal impression ‘T’ and NCB Form in triplicate was also prepared. There is further recital in police report that cash to the tune of Rs.3000/- (Rupees Three thousand) also found and the same also took into possession in a sealed parcel. There is further recital in police report that thereafter the contraband was resealed and information under Section 42(2) of the ND&PS Act was sent. There is further recital in police report that site plan was prepared and photography also took place qua recovery of the contraband. There is further recital in police report that statements of the witnesses were recorded as per their versions. There is further recital in police report that applicant was arrested under Sections 15 and 61 of the ND&PS Act 1985. There is further recital in police report that applicant did not join investigation of the present case. There is further recital in police report that another case under Sections 15 and 61 of the ND&PS Act 1985 has already been registered against the servant of the applicant in FIR No. 145 of 2013 dated 2.7.2013. There is further recital in police report that applicant is concealing himself. There is further recital in police report that applicant is residing outside the State of HP and if anticipatory bail is granted then applicant will not appear in the trial of the case. Prayer for rejection of bail application sought. 4. Court heard learned Advocate appearing on behalf of applicant and Court also heard learned Assistant Advocate General appearing on behalf of State. 5. Prayer for rejection of bail application sought. 4. Court heard learned Advocate appearing on behalf of applicant and Court also heard learned Assistant Advocate General appearing on behalf of State. 5. Submission of learned Advocate appearing on behalf of the applicant that applicant is innocent and he has been falsely implicated in the present case and on this ground present anticipatory bail application be allowed is rejected being devoid of any force for the reason hereinafter mentioned. The fact whether applicant is innocent or not cannot be decided at this stage. The same fact will be decided when the case shall be decided on its merits by learned trial Court after giving due opportunity of hearing to both the parties. 6. Another submission of learned Advocate appearing on behalf of the applicant that applicant is the sole bread earning member of his family and on this ground anticipatory bail application be allowed is also rejected for the reason hereinafter mentioned. It is well settled law that at the time of granting bail following factors are to be considered such as (i) Nature and seriousness of offence (ii) The character of the evidence (iii) Circumstances which are peculiar to the accused (iv) Possibility of the presence of the accused at the trial or investigation (v) Reasonable apprehension of witnesses being tampered with (vi) The larger interests of the public or the State. See AIR 1978 SC 179 titled Gurcharan Singh and others Vs. State (Delhi Administration. Also see AIR 1962 SC 253 titled The State Vs. Captain Jagjit Singh. In the present case allegations against the applicant are very grave and serious nature qua recovery of 2 Kg 560 grams of poppy husk from the restaurant of applicant. The quantity of poppy husk alleged to be recovered from the restaurant of applicant does not fall within small quantity as per Narcotic Drugs & Psychotropic Substances Act 1985. Even in the present case as per report submitted by Investigating Agency applicant has not joined investigation of the present case till date and servant of the applicant namely Deepak Chauhan is in custody in the present case till date. 7. Submission of learned Advocate appearing on behalf of the applicant that in view of the order passed by Hon’ble High Court of HP in Cr.MP(M) No. 204/2013-D decided on 25.4.2013 titled Shashi Mehta Vs. 7. Submission of learned Advocate appearing on behalf of the applicant that in view of the order passed by Hon’ble High Court of HP in Cr.MP(M) No. 204/2013-D decided on 25.4.2013 titled Shashi Mehta Vs. State of Himachal Pradesh and in view of the order passed by Hon’ble High Court of HP in Cr.MP(M) No. 203/2013-D decided on 25.4.2013 titled Manoj Chauhan Vs. State of Himachal Pradesh and in view of the order passed by Hon’ble High Court of HP in Cr.MP(M) No.11600/2013 titled Naveen Kumar Vs. State of Himachal Pradesh decided on 31.10.2013 applicant is entitled to be released on bail in the present case is rejected being devoid of any force for the reason hereinafter mentioned. Court has carefully perused the order passed by Hon’ble High Court of HP in Cr.MP(M) No.204/2013-D decided on 25.4.2013 titled Shashi Mehta Vs. State of Himachal Pradesh and the Court has also carefully perused the order passed in Cr.MP(M) No. 203/2013-D decided on 25.4.2013 titled Manoj Chauhan Vs. State of Himachal Pradesh. Court has also carefully perused order passed by Hon’ble High Court of HP in Cr.MP(M) No.11600/2013 titled Naveen Kumar Vs. State of Himachal Pradesh. The facts of the present case and the facts of the case enumerated in Cr.MP(M) No. 204/2013-D and Cr.MP(M) No. 203/2013-D and Cr.MP(M) No.11600/2013 are entirely different and distinguishable. In Cr.MP(M) No.204/2013-D titled Shashi Mehta Vs. State of Himachal Pradesh and Cr.MP(M) No. 203/2013-D Manoj Chauhan Vs. State of Himachal Pradesh learned Additional Advocate General submitted that main accused already stood granted bail and investigation was almost complete. But in the present case learned Assistant Advocate General has submitted that applicant has not joined investigation of the present case till date and investigation is in the initial stage. Even other co-accused has not been released as of today by any competent Court of law. In case number Cr.MP(M) No.11600/2013 titled Naveen Kumar Vs. State of Himachal Pradesh contraband substance was only 50 grams. Hence it is held that it is not expedient in the ends of justice to release the applicant on bail in the present case due to dissimilarity of facts in Cr.MP(M) No. 204/2013-D titled Shashi Mehta Vs. State of Himachal Pradesh and Cr.MP(M) No. 203/2013-D titled Manoj Chauhan Vs. State of Himachal Pradesh and Cr.MP(M) No.11600/2013 titled Naveen Kumar Vs. State of Himachal Pradesh. State of Himachal Pradesh and Cr.MP(M) No. 203/2013-D titled Manoj Chauhan Vs. State of Himachal Pradesh and Cr.MP(M) No.11600/2013 titled Naveen Kumar Vs. State of Himachal Pradesh. Narcotic drugs and psychotropic substance act 1985 is a special act and there are additional special provisions for bail under Section 37 of Narcotic drugs and psychotropic substance act 1985. It is well settled law that the business of Poppy husk cannot be allowed to continue keeping in view the welfare of the Nation and the welfare of the youth. It is well settled law that the youth are the wealth of the Nation and no one can be allowed to spoil the career of the youth of Nation by way of performing the commercial business of Poppy Husk. Hence it is held that in the present case custodial investigation of the applicant is essential for fair and proper investigation of the present case in order to ascertain source of receiving of contraband substance falls under ND&PS Act. 8. In view of the above stated facts present anticipatory bail application filed under Section 438 of the Code of Criminal Procedure 1973 is rejected being devoid of any force so also the pending application(s) if any.