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2017 DIGILAW 1171 (HP)

Joginder Singh v. State of Himachal Pradesh

2017-10-13

SANDEEP SHARMA

body2017
JUDGMENT : Sandeep Sharma, J. (oral): 1. By way of instant bail petition filed under Section 438 of the Cr.PC, prayer has been made for grant of pre-arrest bail in FIR No.77/2017 dated 2.5.2017, registered under Sections 20, 21, 29, 61 and 85 ND&PS Act, at PS. Kullu, District Kullu, H.P. 2. Sequel to orders dated 1.9.2017 and 8.9.2017, ASI Dhani Ram Thakur, P.S. Sadar Kullu, District Kullu, H.P., has come present alongwith records. Record perused and returned. Mr. M.L. Chauhan, learned Additional Advocate General, has also placed on record status report prepared on the basis of investigation carried out by the Investigating Agency. 3. Vide order dated 1.9.2017, this Court granted interim bail to the bail petitioner with direction to join investigation. On 8.9.2017, learned Additional Advocate General, while placing on record status report categorically stated that petitioner has joined investigation in terms of order dated 1.9.2017, but he is not disclosing the source, from where he had actually procured the contraband and as such, at this stage, interim bail may not be made absolute, rather he be directed to join investigation on day today basis so that investigating agency is able to find out the source of contraband. 4. Today, during the proceedings of the case, learned Additional Advocate General, while placing reliance upon the status report, again reiterated that though bail petitioner has joined investigation but source has not been declared by him till date and as such, he shall not be released on bail rather his custody be given to the police for his interrogation. 5. Perusal of status report/reply suggests that the aforesaid FIR came to be registered against the petitioner on the allegation that on 2.5.2017, police party comprising of Head-Constable, Brij Bhushan, Constable Ramesh Kumar and Constable Vishwa Nath, saw a person namely Jai Chand going towards Manikaran side. After having seen police, the said person got perplexed and threw one packet towards hill (dhank). Aforesaid police party stopped the above named person, who later on got that packet recovered from the place where it was actually thrown and disclosed that material/contraband contained in the packet, belonged to bail petitioner Joginder Kumar (Jackey), who happened to be the owner of the hotel namely ‘Blue Diamond”. Jai Chand, on whose behest, contraband was recovered, claimed himself to be a Manager of Hotel owned by the bail petitioner namely Joginder Kumar. Jai Chand, on whose behest, contraband was recovered, claimed himself to be a Manager of Hotel owned by the bail petitioner namely Joginder Kumar. Police allegedly recovered 61 grams charas/cannabis, 6gms cocaine, and 3 gms of MDMA. It also emerge from the record that above named Jai Chand, on whose behest, contraband was recovered, was subsequently enlarged on bail by the learned District Sessions Judge, Kullu on 02.5.2017. As per police report bail petitioner, who is actual culprit, as has been disclosed by the Jai Chand, is not disclosing the source and as such, he is not entitled to be released on the interim bail. 6. Shri Maan Singh, learned counsel representing the bail petitioner while refuting averments contained in the Status report as well as submissions having been made by the learned Additional Advocate General invited attention of this court to the status report dated 2.5.2017, filed by the SHO P.S. Kullu, before the learned CJM, Kullu, to demonstrate that as per own case of the police, Jai Chand, who had actually got contraband recovered, disclosed to the police that he had himself prepared that charas/cannabis and he was handed over MDMA and cocaine by a person namely Thomas, who while leaving for Bombay told him that he shall be coming back after two months and thereafter, would pay Rs. 50,000/- in lieu of contraband handed over by him to the said Jai Chand. 7. This Court after having carefully perused the status report dated 5.5.2017 filed by SHO Kullu P.S. Kullu juxtaposing same with latest status report filed today before this Court, sees substantial force in the argument of Mr. Maan Singh learned counsel representing the bail petitioner that police is not actually coming out with true facts with a view to help somebody. It clearly emerge from the status report dated 25.5.2017, filed by the police before the learned Chief Judicial Magistrate, Kullu/Special Judge, Kullu, that contraband allegedly recovered at the behest of Jai Chand belonged to person namely Thomas and accordingly, taking note of the same, learned court below released said Jai Chand, on bail but interestingly, same SHO, who had filed status report before CJM/ Special Judge, Kullu, has filed altogether different status report before this Court, which suggests that contraband recovered by the police at the best of Jai Chand actually belonged to the bail petitioner Jogindar alias Jacky. After having carefully perused both the status reports as well as submissions having been made by the learned Additional Advocate General that nothing is required to be recovered from the bail petitioner at this stage, this Court sees no reason for custodial interrogation of the bail petitioner, who has otherwise made himself available for investigation. 8. Careful perusal of the aforesaid reports submitted by the prosecution clearly suggests that Jai Chand, on whose behest contraband was recovered from hill/Dhank, repeatedly changed his statement with regard to the name of the source. It is quite evident from the status report filed before the learned CJM Kullu and thereafter, before the learned Special Judge, Kullu, that above named Jai Chand initially disclosed to the police that person namely Thomas from Mumbai had handed over the contraband to him, but subsequently, changed his statement by getting it recorded in his statement that contraband belonged to the bail petitioner namely Joginder Singh alias Jackey. Though aforesaid aspect of the matter is to be considered by the court below during trial but definitely, petitioner has carved out a case for bail at this stage. 9. Needless to say object of the bail is to secure the attendance of the accused in the trial and the proper test to be applied in the solution of the question whether bail should be granted or refused is whether it is probable that the party will appear to take his trial. Otherwise, bail is not to be withheld as a punishment. Otherwise also, normal rule is of bail and not jail. Court has to keep in mind nature of accusations, nature of evidence in support thereof, severity of the punishment which conviction will entail, character of the accused, circumstances which are peculiar to the accused involved in that crime. Petitioner is local resident of District Kullu, and he shall remain available to face the trial and to undergo imprisonment, if any, imposed upon him. 10. Petitioner is local resident of District Kullu, and he shall remain available to face the trial and to undergo imprisonment, if any, imposed upon him. 10. The Hon’ble Apex Court in Prasanta Kumar Sarkar v. Ashis Chatterjee and Another (2010) 14 SCC 496 , has laid down the following principles to be kept in mind, while deciding petition for bail: (i) whether there is any prima facie or reasonable ground to believe that the accused had committed the offence; (ii) nature and gravity of the accusation; (iii) severity of the punishment in the event of conviction; (iv) danger of the accused absconding or fleeing, if released on bail; (v) character, behaviour, means, position and standing of the accused; (vi) likelihood of the offence being repeated; (vii) reasonable apprehension of the witnesses being influenced; and (viii) danger, of course, of justice being thwarted by grant of bail. 11. Consequently, in view of the above, order dated 1.9.2017 passed by this Court, is made absolute, subject to the following conditions: a. He shall make himself available for the purpose of interrogation, if so required and regularly attend the trial Court on each and every date of hearing and if prevented by any reason to do so, seek exemption from appearance by filing appropriate application; b. He shall not tamper with the prosecution evidence nor hamper the investigation of the case in any manner whatsoever; c. He shall not make any inducement, threat or promises to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or the Police Officer; and d. He shall not leave the territory of India without the prior permission of the Court. 12. It is clarified that if the petitioner misuses his liberty or violates any of the conditions imposed upon him, the investigating agency shall be free to move this Court for cancellation of the bail. 13. Any observations made hereinabove shall not be construed to be a reflection on the merits of the case and shall remain confined to the disposal of this application alone. 14. The bail petition stands disposed of accordingly. Copy dasti.