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2018 DIGILAW 200 (HP)

Manohar Lal v. State Of Himachal Pradesh

2018-02-20

VIVEK SINGH THAKUR

body2018
JUDGMENT Vivek Singh Thakur, J —Petitioner has filed this application under Section 439 Cr.P.C. for his release on bail in case FIR No. 41 of 2017, dated 26.6.2017 registered at Police Station Panchrukhi, District Kangra, H.P. under Sections 20 and 29 of Narcotic Drugs and Psychotropic Substances Act, 1985 (for short NDPS Act) . 2. Petitioner has been arrayed as co-accused on the basis of statement made by main accused Chander Shaker, who was apprehended by the police during naka for having found in possession of 1.4 Kilograms charas during patrolling duty of police party at place Moli Chak. During interrogation the said Chander Shaker disclosed that he had received the recovered contraband from present petitioner Manohar Lal, whereupon petitioner was arrested and it was found that three FIRs i.e. FIR No. 86/08 dated 28.3.2008 under Section 20-61-85 NDPS Act, FIR No. 195/13 dated 8.10.2013 under Section 20-61-85 NDPS Act and FIR No. 156/15 dated 20.8.2015 under Section 20/29 NDPs Act had also been registered against him and in FIR No. 156 of 2015 contraband involved was 1 Kilogram charas. As per prosecution case, during investigation, Manohar Lal had further disclosed that he had procured the charas in question from one Suresh Kumar R/o Barot and had led the police party to the house of said Suresh Kumar. However, the said Suresh Kumar was not found at his residence and it came in the notice of police from local habitants that he was in custody in Dharamshala jail since last one month in connection with a case of charas and his shop (tea stall) was being run by his wife Veena Devi, who was also not found in the village and during search of shop (tea stall) of Suresh Kumar, in presence of his brother, no narcotic drug or incriminating material was found in the said shop. Relying upon call details of mobile bearing No. 82610-59088 being used by Chander Shaker and 82639-59647 being used by Manohar Lal, it is the case of prosecution that both of them were having proximity with each other and on the date of incident, immediately before recovery of contraband from Chander Shaker, they had numerous talks with each other. 3. Recovered contraband was send for chemical examination were after weighing it without polythene wrapper, actual weight of it was found 1.001 kilograms and as such the recovered contraband was found commercial in quantity. 4. 3. Recovered contraband was send for chemical examination were after weighing it without polythene wrapper, actual weight of it was found 1.001 kilograms and as such the recovered contraband was found commercial in quantity. 4. For involvement in a case of recovery of commercial quantity of charas, provisions of Section 37 of NDPS Act are necessary to be considered in present case and relevant portion i.e. Section 37 (b) reads as under:- "37 (b) No person accused of an offence under Section 19 or section 24 or section 27A and also for offences involving commercial quantity shall be released on bail or on his own bond unless:- (i) the Public Prosecutor has been given an opportunity to oppose the application for such release, and (ii) where the Public Prosecutor opposes the application, the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail." 5. Pronouncements of the Apex Court in Prasanta Kumar Sarkar versus Ashis Chatterjee and another , (2010) 14 SCC 496 , is also relevant here, wherein after considering numerous previous judgments, has held that amongst other circumstances, the factors to be borne in mind while considering an application for bail are: "(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, behavior, 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." 6. These factors have also been reiterated by the Apex Court in Kanwar Singh Meena Vs. State of Rajasthan and Anr , (2013) AIR(Supreme Court) 296. 7. Learned counsel for the petitioner has relied upon . Harcharan Kurmi, Jogia Hajam Vs. State of Bihar , (1964) AIR(Supreme Court) 1184, Param Hans Yadav and Sadanand Tripathi Vs. State of Bihar and others , (1987) AIR(Supreme Court) 955, Abhaya Parichha Vs. State of Orissa, 2015 2 DC(Narcotics) 405, Sohan Lal Vs. State of Punjab, Cr. Misc. No. 28704 of 2015, decided on 3.9.2015, Stynder Singh Vs. Harcharan Kurmi, Jogia Hajam Vs. State of Bihar , (1964) AIR(Supreme Court) 1184, Param Hans Yadav and Sadanand Tripathi Vs. State of Bihar and others , (1987) AIR(Supreme Court) 955, Abhaya Parichha Vs. State of Orissa, 2015 2 DC(Narcotics) 405, Sohan Lal Vs. State of Punjab, Cr. Misc. No. 28704 of 2015, decided on 3.9.2015, Stynder Singh Vs. State of Himachal Pradesh , (2010) 1 ShimLC 490, Prem Chand Vs. State of Himachal Pradesh, Cr.MPM No. 579 of 2017, decided on 26.7.2017, Nanda @ Parmanand Vs. State of Himachal Pradesh, 2016 1 DC(Narcotics) 500 and Amarjeet Singh Vs. Director Revenue Intelligence, bail application No. 673 of 2007, decided on 29.5.2009. 8. Undisputedly, it is settled as referred by learned counsel for the petitioner in judgments of the Apex Court in Harcharan Kurmi''s and Param Hans Yadav''s case that confession of co-accused cannot be treated as substantive evidence against other co-accused person in the same trial and could only be used for lending reassurance if there is any substantive evidence to be utilized and acted upon and the Court is inclined to accept the said evidence and feels the necessity of seeking assurance in support of its conclusion deducible from the said evidence. The same principle has been reiterated in the judgment passed by Orissa High Court in Abhaya Parichha''s case, referred on behalf of petitioner. 9. In the judgment of Delhi High Court passed in bail application No. 673 of 2009, it has been re-iterated that involuntary and unreliable statement of co-accused cannot be relied upon against a person. In this case, investigation was also found to be lacking confidence for riddled with contradictions, improbabilities and irregularities. 10. In Prem Chand''s case bail was granted to the person made accused on the basis of statement made by accused from whom charas was recovered, but in the said case at the time of grant of bail person from whom charas was recovered had already been acquitted by the trial Court. Whereas in the present case trial is yet to be completed and case has been fixed for consideration of charge on 26.2.2018. Similarly, in Nanda @ Parmanand''s case main accused from whom contraband was recovered had already been released on bail before release of petitioner therein, who was arrayed as co-accused on the basis of statement of person from whom contraband was recovered. 11. Similarly, in Nanda @ Parmanand''s case main accused from whom contraband was recovered had already been released on bail before release of petitioner therein, who was arrayed as co-accused on the basis of statement of person from whom contraband was recovered. 11. Judgment in Stynder Singh''s case is also distinguishable on facts, as in that case on the basis of facts Court was of the opinion that involvement of the petitioner in the offence, prima facie was yet to be established during trial, whereas in present case, ex facie, there is involvement of the petitioner. 12. In my opinion, in judgment passed by Punjab and Haryana High Court in Sohan Lal''s case, no reasoning for grant of bail has been given, except that trial would take long time to conclude. 13. In none of aforesaid cases, provisions of Section 37 of NDPC Act have been considered. 14. Section 37 of NDPS Act provides that notwithstanding anything contained in Code of Criminal Procedure, 1973, no person, accused of an offence punishable for offences involving commercial quantity where the Public Prosecutor opposes the application, shall be released on bail or on his own bond, unless the Court despite opposition of the Public Prosecutor, is satisfied that there are reasonable ground for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail. Apart from the provision of Section 37 of NDPS Act, relevant factors as referred by the Apex Court in Prasanta Kumar Sarkar and Kanwar Singh Meena''s case, are also necessary to be considered. 15. In present case, perusal of call details indicates that Chander Shaker and Manohar Lal were not only on the date of recovery of contraband, but even prior to that also were in contact with each other and out of 23 calls made before recovery of contraband on 26th June, 2017, 8 calls are between petitioner and Chander Shaker. Out of last 4 calls, 3 calls were made by Chander Shaker at mobile No. 28054-02570 and as per arrest memo, this number was of the wife of accused Chander Shaker. Petitioner has been made accused not only on the basis of statement of co-accused, but there is also substantive evidence of call details regarding involvement of petitioner in the offence and main accused has neither been acquitted nor enlarged on bail. Petitioner has been made accused not only on the basis of statement of co-accused, but there is also substantive evidence of call details regarding involvement of petitioner in the offence and main accused has neither been acquitted nor enlarged on bail. Not only Suresh Kumar, source of contraband disclosed by petitioner, but petitioner himself was also found involved in other case recovery of charas. Though registration or pendency of earlier cases cannot be sole ground for rejecting the bail application, however, that can be taken in to account to ascertain character and behavior of accused and his possibility of indulging in repetition of commission of such offence. 16. Keeping in view the provisions of law, nature and gravity of offence, accusation and material available on record, I am of the opinion that, ex facie, no case is made out for grant of bail to the petitioner at this stage. Accordingly the present petition is dismissed. However, petitioner is at liberty to file fresh bail application in the changed circumstances, if any. 17. Any observation made hereinabove shall not be taken as an expression of opinion on the merits of the case and the trial Court shall decide the matter uninfluenced by any observation made hereinabove. Petition stands disposed of.