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2017 DIGILAW 1095 (HP)

Pawan Kumar v. State Of Himachal Pradesh

2017-09-19

CHANDER BHUSAN BAROWALIA

body2017
JUDGMENT Chander Bhusan Barowalia, J. (Oral) - The present bail applications have been moved by the petitioners under section 438 of the Code of Criminal Procedure, 1973 for releasing them on bail, in the event of their arrest, in case FIR No. 80 of 2017, dated 03.05.2017, registered under Sections 20, 25 and 29 of Narcotic Drugs and Psychotropic Substances Act, 1985 (for short "ND&PS Act"), at Police Station Shahpur, District Kangra, H.P. 2. As per the learned counsel for the petitioners, the petitioners are innocent and have been falsely implicated in the present case. They are neither in a position to tamper with the prosecution evidence nor in a position to flee from justice, thus they may be released on bail. 3. Police reports stand filed. As per the prosecution story, on 03.05.2017, at about 06:45 p.m., police party was on patrol duty at place Cahuri Drini. Police party spotted a white coloured pickup coming from Drini and going towards Shahpur. On seeing police party, the driver of the vehicle suddenly turned his vehicle towards Drini and also tried to flee. Two persons jumped out of the vehicle and fled away in the jungle. The driver of the vehicle also jumped out of the vehicle and he was overpowered by the police. The driver disclosed his name Ghanshyam. The driver disclosed the names of the persons who fled from the spot as Bindu Pathania and Pawan Kumar. On suspicion, the vehicle was searched, whereupon underneath the driver''s seat one black carry bag was recovered, which contained black coloured substance and on smelling it was found to be charas. On weighment, the contraband was found to be 1 (one) kg and 16 grams. Police completed all the codal formalities. Police also recovered a plastic box containing 3 tabs, 19 small mobiles, 2 big mobiles. On the said box it was written "Harvinder Singh Pathania (one of the petitioner herein), Pathania Communication, Main Bazar Bhanjraru". Police recorded the statements of the witnesses and sample of recovered substance was sent for forensic analysis and report revealed that the recovered substance was "the quantity of purified resin". During the course of investigation it was unearthed that on 02.05.2017 they started from Tissa, Chamba in pickup No. HP73-2026 and one more person came with them on applied for motorcycle. During the course of investigation it was unearthed that on 02.05.2017 they started from Tissa, Chamba in pickup No. HP73-2026 and one more person came with them on applied for motorcycle. It has also come that all of them stayed in Rajat Hotel, Kangra and on 03.05.2017 they were intending to sell the charas. The petitioner, in order to avoid their arrest, absconded from their homes and could not be arrested. On 17.05.2017 the petitioners participated in the investigation. The applied for motorcycle was also recovered, which as per petitioner (Harbinder Singh), was purchased by him in 2014 from Shah Automobile. Petitioner, Harbinder Singh, further stated that on 03.05.2017 his motorcycle broke down and he took lift in vehicle No. HP73-2026. On mechanical examination of the recovered motorcycle, the same was found free from any mechanical defect. Hotel Manager also identified the petitioner that on 02.05.2017 he alongwith three others stayed in the hotel. The petitioner did not tell anything about accused Dipu @ Dalip Kumar. As per the prosecution, the petitioners are not revealing truth. Accused Dalip Kumar is yet to be arrested. Lastly, the prosecution has prayed that the bail applications of the petitioners may be dismissed. 4. I have heard the learned counsel for the petitioner, learned Law Officer for the State and gone through the record, including the police reports, carefully. 5. The learned counsel for the petitioners has argued that the petitioners are joining and co-operating in the investigation and their custodial interrogation is not at all required. He has also argued that petitioners are neither in a position to tamper with the prosecution evidence nor in a position to flee from justice, so they may be released on bail. The learned counsel for the petitioner has relied upon the following judicial pronouncements: 1. Stynder Singh vs. State of Himachal Pradesh, 2010 (1) SLC 490; & 2. Parmanand alias Pawan vs. State of Himachal Pradesh, Cr.MP(M) No. 191 of 2017 Conversely, the Law Officer appearing for the respondent/state has argued that the petitioners were caught red handed with substantial quantity of charas and they are prima facie found involved in the offence of transporting charas. He has further argued that in case the petitioners are enlarged on pre arrest bail there is every likihood that they may tamper with the prosecution evidence and also flee from justice. He has further argued that in case the petitioners are enlarged on pre arrest bail there is every likihood that they may tamper with the prosecution evidence and also flee from justice. He has prayed that the bail applications of the petitioners may be dismissed. 6. The learned counsel for the petitioners has relied upon Stynder Singh vs. State of Himachal Pradesh, 2010 (1) SLC 490 ; wherein it has been held as under vide paras 2, 3 and 5: "2. Precisely the prosecution story is that on 27th August, 2009, at about 5 a.m., the police party headed by ASI Man Singh was putting a ''naqa'' near ''naglari pool''. In the meantime, a Bolera vehicle bearing registration No. HP-34A-0213 came from the side of village Gushaini. It was stopped. Main accused Shyam singh was sitting on the steering wheel. One person sitting beside him seeing police opened the window of the vehicle and fled away. Shyam Singh was apprehended on the spot on suspicion and on checking the said vehicle, police recovered 19 kgs charas. On his interrogation Shyam Singh aforesaid disclosed that the person who had escaped was Mahinder son of Ram Rattan resident of village Pekhari, Tehsil Banjar. He was further interrogated intervally even on 28th August 2009 and he told that the escapee was said Mahinder, however it was only on 29th August, 2009, when the police remand was obtained, he then disclosed during the interrogation that said person as not Mahinder but the present petitioner. 3. On 29th August, 2009, Stynder Kumar was not found in his village, but on 31st August, 2009 he was arrested from village Gushiani. Phone call details of Stynder and Shyam Singh, co-accused were taken into possession in the month of October, 2009 to link the petitioner with the alleged offence. As per the computer generated phone-call details of the cell phones of the petitioner and Shyam Singh co-accused, it came to the notice of the police that till 12.51 a.m during the intervening night of 26th and 27th August, 2009 they were in contact with each other. The place from where the calls were allegedly made is only stated to be located at a distance of 10 k.m. from the place where the naqa was laid. Co-accused Shyam Singh is resident of village Pekhari which is about 20 k.m. on the other side. The place from where the calls were allegedly made is only stated to be located at a distance of 10 k.m. from the place where the naqa was laid. Co-accused Shyam Singh is resident of village Pekhari which is about 20 k.m. on the other side. The road of both the villages goes at Banjar, leading to ''naglari pool'', the place of alleged ''naqa''. As per the investigation there is only one BSNL tower in operation in that area from where these calls were registered. 5. In view of the above situation, in my opinion on the strength of the evidence collected to connect the petitioner the petitioner has a case for bail as his involvement in the said offence requires determination during the trial. He is a local resident having roots in society and prima-facie appears to have not commited the alleged offence. Therefore, it is ordered that the petitioner be enlarged on bail on his furnishing the bail bonds to the tune of Rs. 50,000/- with one surety of the like amount to the satisfaction of learned Chief Judicial Magistrate, Kullu and this bail shall be subject to the following conditions that the petitioner:" The judgment (supra) is fully applicable to the case in hand, as the present case has also similar fact. 7. The learned counsel for the petitioner has further relied upon a decision of Hon''ble Coordinate Bench of this High Court rendered in Parmanand alias Pawan vs. State of Himachal Pradesh, Cr.MP(M) No. 191 of 2017, where vide para 4 it has been held as under: "4. In the given facts and circumstances, the petitioner can not be denied bail only on the ground that whole of drug i.e. 1 kg and 700 grams was found in the custody of his co-accused, who is alleged to have been his driver. The question whether the petitioner had knowledge regarding the alleged contraband being carried by the coaccused is a matter, which is required to be determined during the course of trial, but then the same cannot be a ground to deny bail to the petitioner." Again, the judgment (supra) is fully applicable to the facts of the present case. 8. In the present case, as far as the role of the petitioners are concerned, as per the prosecution story they were accomplices, but as per the petitioners, they were not present on the spot. 8. In the present case, as far as the role of the petitioners are concerned, as per the prosecution story they were accomplices, but as per the petitioners, they were not present on the spot. At this moment, taking into consideration the law, as cited above, the fact that the petitioners are joining and co-operating in the investigation, also keeping in view the material which has come on record and without discussing the same at this moment, this Court finds that no recovery is to be effected at the instance of the petitioners. Therefore, applying the ratio of the above cited law and also keeping in view the above facts, this Court finds that the present is a fit case where the judicial discretion to admit the petitioners on bail is required to be exercised in their favour. Under these circumstances, it is ordered that the petitioners be released on bail, in the event of their arrest, in case FIR No. 80 of 2017, dated 03.05.2017, registered under Sections 20, 25 and 29 of ND&PS Act, Police Station Shahpur, District Kangra, H.P., on their furnishing personal bond to the tune of Rs. 10,000/- (rupees ten thousand only) each with one surety each in the like amount to the satisfaction of the Investigating Officer. The bail is granted subject to the following conditions: (i) That the petitioners will join investigation of the case as and when called for by the Investigating Officer in accordance with law. (ii) That the petitioners will not leave India without prior permission of the Court. (iii) That the petitioners will not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him/her from disclosing such facts to the Investigating Officer or Court. 9. In view of the above, the petitions are disposed of.