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2017 DIGILAW 575 (HP)

Beli Ram v. State of Himachal Pradesh

2017-05-23

CHANDER BHUSAN BAROWALIA

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JUDGMENT : Chander Bhusan Barowalia, J. The present bail application has been maintained by the petitioner under Section 439 of the Code of Criminal Procedure seeking his release in case FIR No. 218 of 2016, dated 23.10.2016, under Section 18 of the Narcotic Drugs & Psychotropic Substances, Act (hereinafter referred to as “NDPS Act”), registered at Police Station Kullu, District Kullu, H.P. 2. As per the petitioner, he is innocent and has been falsely implicated in the present case. He is neither in a position to tamper with the prosecution evidence nor in a position to flee from justice, so he may be released on bail. 3. Police report stands filed. As per the prosecution, on 23.10.2016, around 03:30 a.m., when police personnel were on patrol duty and at place Suma Ropa, they spotted a person with a bag and on seeing the police he threw his bag and also tried to flee. He was apprehended and he divulged his name as Beli Ram (petitioner herein). The bag, which he threw on seeing the police, was searched and it contained black liquid material. The material on smell and on experience was found to be opium. Police completed all the necessary codal formalities. An FIR was registered and the petitioner was arrested. Sample of recovered contraband has been sent for chemical analysis to SFSL, Junga. The petitioner divulged to the police that he had himself cultivated and collected the contraband and he wanted to sell the same to the truck drivers. The recovered contraband, on weighment, was found to be 826 grams. The prosecution has prayed for rejection of the bail of the petitioner on the ground that the petitioner is likely to indulge in such kind of activities again. The petitioner is spoiling the society. Lastly, the prosecution has prayed that the bail application of the petitioner may be dismissed. 4. Heard. The learned counsel for the petitioner has argued that the petitioner may be released on bail as he is innocent and the quantity of the recovered contraband is not commercial quantity. He has further argued that the provisions of Section 437 Cr.P.C. are not applicable to him, as earlier in the case registered under Section 376 IPC he was sentenced for five years and some days only. He has further argued that the provisions of Section 437 Cr.P.C. are not applicable to him, as earlier in the case registered under Section 376 IPC he was sentenced for five years and some days only. Conversely, the learned Additional Advocate General has argued that the petitioner was found in possession of huge quantity of opium, i.e., 826 grams and the trial against him is pending before the learned Trial Court and the witnesses are yet to be examined. He has further argued that the present is not a fit case where the judicial discretion to admit the petitioner on bail is required to be exercised in his favour, thus the petition may be dismissed. 5. I have gone through the rival contentions of the parties and the police report in detail. 6. Manifestly, the petitioner was convicted under Section 376 IPC and his sentence was ultimately reduced to five years and eight months. Though the provisions of Section 437(2) Cr.P.C. are not strictly applicable, but in the present case taking into consideration the quantity of recovered substance, i.e., 826 grams of opium and the manner in which the petitioner was apprehended as well as after going through the record that the petitioner is likely to tamper with the prosecution evidence and flee from justice, this Court finds that the present is not a fit case where the judicial discretion to admit the petitioner on bail is required to be exercised in his favour. The petition, which is devoid of merits, deserves dismissal and is accordingly disposed of. 7. The learned Trial Court is expected to decide the case expeditiously.