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2016 DIGILAW 1430 (HP)

Ajay Dhiman v. State of Himachal Pradesh

2016-07-19

CHANDER BHUSAN BAROWALIA

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JUDGMENT : Chander Bhusan Barowalia, J. The present bail application is maintained by the petitioner under Section 439 of the Code of Criminal Procedure for releasing him on bail in case FIR No.43 of 2016, dated 9.3.2016, registered under Sections 21 and 29 of the ND & PS Act, Police Station, Ghumarwin, District Bilaspur, H.P. As per the petitioner, he is innocent and is falsely implicated in this case and nothing has been recovered from him. 2. As per the prosecution story, 30 bottles of Relaxcof were recovered from the conscious and exclusive possession of accused Ayush Ratwan son of Shri Jitender Ratwan 100 ml. each having codeine phosphate. Accused Ayush Ratwan was also found in possession of 60 strips of Tramadol Hydrochloride Paracetamol tablets containing 10 tables in each strip i.e. 600 tables. The said bottles and tablets were purchased by accused Ayush Tatwan from accused Subhash Chand and Ajay Dhiman. During the course of investigation, two bottles of Relaxcof were also recovered at the instance of accused Subhash Chand son of Ram Parkash without any valid licence or permit. Total 32 bottles of Relaxcof containing 100 ml. each recovered alongwith 600 tablets. 3. Learned counsel for the petitioner has argued that the petitioner is innocent, falsely implicated in this case and may be released on bail. 4. To support his arguments learned counsel for the petitioner has relied upon the judgment in (2016) 1 SCC 152 titled Bhadresh Bipinbhai Sheth vs. State of Gujarat and another. 5. Learned Additional Advocate General has argued that the petitioner has committed serious crime and in fact is spoiling the atmosphere of new generation by supplying narcotics to the small children and otherwise also the quantity is commercial in nature. 6. 5. Learned Additional Advocate General has argued that the petitioner has committed serious crime and in fact is spoiling the atmosphere of new generation by supplying narcotics to the small children and otherwise also the quantity is commercial in nature. 6. The Hon’ble Supreme Court of India in (2016) 1 SCC 152 titled Bhadresh Bipinbhai Sheth vs. State of Gujarat and another, has held as under : “(x) The following factors and parameters need to be taken into consideration while dealing with anticipatory bail : (a) The nature and gravity of the accusation and the exact role of the accused must be properly comprehended before arrest is made; (b) The antecedents of the applicant including the fact as to whether the accused has previously undergone imprisonment on conviction by a court in respect of any cognizable offence; (c) The possibility of the applicant to flee from justice; (d) The possibility of the accused’s likelihood to repeat similar or other offences; (e) Where the accusations have been made only with the object of injuring or humiliating the applicant by arresting him or her; (f) Impact or grant of anticipatory bail particularly in cases of large magnitude affecting a very large number of people; (g) The courts must evaluate the entire available material against the accused very carefully. The court must also clearly comprehend the exact role of the accused in the case. The court must also clearly comprehend the exact role of the accused in the case. The cases in which the accused is implicated with the help of Sections 34 and 149 of the Penal Code, 1860 the court should consider with even greater care and caution, because over implication in the cases is a matter of common knowledge and concern; (h) While considering the prayer for grant of anticipatory bail, a balance has to be struck between two factors, namely, no prejudice should be caused to free, fair and full investigation, and there should be prevention of harassment, humiliation and unjustified detention of the accused; (i) The court should consider reasonable apprehension of tampering of the witness or apprehension of threat to the complainant; (j) Frivolity in prosecution should always be considered and it is only the element of genuineness that shall have to be considered in the matter of grant of bail and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused is entitled to an order of bail.” 7. After going through the record of this case, this Court finds that the petitioner is involved in the crime which is affecting the society. It has also come on record that so many cases were registered against one of the co-accused by the police for the similar offences. 8. Taking into consideration the above facts, it is clear that the offence is affecting a very large number of people and there is every possibility that accused shall repeat such offence. This Court finds that the present is a fit case where the judicial discretion to admit the petitioner on bail is not required to be exercised in favour of the petitioner. Accordingly, the petition, being devoid of merits, is dismissed.