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2018 DIGILAW 2292 (HP)

Ajay Kumar v. State of H. P.

2018-12-26

VIVEK SINGH THAKUR

body2018
JUDGMENT : Vivek Singh Thakur, J. Petitioner has preferred this petition under Section 439 of the Code of Criminal Procedure (hereinafter referred to as ‘Cr.P.C.’) for grant of regular bail in case FIR No. 169 of 2018 dated 6.9.2018 registered at P.S. Dharamshala, District Kangra, under Section 21 of the Narcotic Drugs and Psychotropic Substances Act. 2. Status report stands filed and record of the investigation has also been produced. 3. Petitioner is a co-accused in a case of recovery of 29.99 grams of herion (chitta/diacetyl morphine) from room taken on rent by accused persons in house of one Rajiv Puri, known as Gulmohar Residency situated at Gurdwara road, Dharamshala. 4. As per prosecution story, the said room was rented by its owner Rajiv Puri on 3.9.2018 to one Ruby (co-accused), who is wife of Ajay Kumar (present petitioner/accused) on monthly rent of Rs. 11,000/- per month. According to him, the room was taken on rent by Ruby introducing her as wife of Ajay Kumar whereas Aman, Amit and Babita, other co-accused, were introduced by her as her relatives, who were stated to be engaged in a business/work of shuttering. 5. On 6.9.2018 on the basis of secret information received, room rented to these persons was raided and 29.99 grams herion was recovered from a bag. 6. Co-accused Ruby and Babita respectively are wife and sister of petitioner, whereas Amit is nephew of petitioner. Co-accused Aman is a friend of these persons who are relatives of each other. 7. For enlarging the petitioner on bail, it has been canvassed that even if the prosecution case is admitted to be true as it is, there is no firm and reliable evidence on record to connect the petitioner with recovered contraband and there is nothing on record to show that the petitioner was in actual possession of recovered contraband. 8. It is further argued that commercial quantity for herion is 250 grams, whereas contraband alleged to have been recovered is far less than the commercial quantity. Further that general rule is grant of bail and not jail and presumption of innocence being a fundamental postulate of criminal jurisprudence is in favour of petitioner particularly keeping in view the fact that there is no positive evidence on record to link the bag with petitioner, from which contraband is alleged to have been recovered. Further that general rule is grant of bail and not jail and presumption of innocence being a fundamental postulate of criminal jurisprudence is in favour of petitioner particularly keeping in view the fact that there is no positive evidence on record to link the bag with petitioner, from which contraband is alleged to have been recovered. It is further pointed out that co-accused Babita, Ruby and Amit have already been released on bail by learned Special Judge, Kangra, whereas bail application of the petitioner despite having been similar situated to the said co-accused has been dismissed by the Special Judge Kangra at Dharamshala vide judgment dated 24.10.2018. Therefore, bail on the ground of parity has also been pleaded. 9. While considering the presumption of innocence in favour of the accused till prove guilty, the statutory provisions of Sections 35, 37 and 54 of NDPS Act are also to be taken into consideration which provide certain presumptions against the accused by putting a reverse onus upon him to disprove that presumption and it is for the fact, which cannot be ignored, that drug addiction is increasing especially in youth day to day and persons involved in the drugs supply business are not only spoiling the life of one person, but are responsible for causing irreparable loss to the family of victim as well as to the nation and society at large and it is well settled that in such cases, the yardstick for considering the bail application is a little bit different. 10. Plea of the petitioner, that he was not found in conscious possession of recovered contraband, is to be considered on merits by the trial Court. However, at this stage, on the basis of evidence on record, it is apparent that co-accused Ruby is wife of present petitioner, co-accused Babita is his sister. The house was taken on rent by Ruby wife of Ajay Kumar and other occupants of room were close relatives of Ruby and Ajay Kumar, whereas Aman Verma is friend of Ajay Kumar. Therefore, Ajay Kumar is also a tenant in Gulmohar Residency and all of the occupants are closely related to each other and have taken one room for residing. Therefore, ex-facie it cannot be said that Ajay Kumar was not having the knowledge of herion (chitta) in his bag. 11. Therefore, Ajay Kumar is also a tenant in Gulmohar Residency and all of the occupants are closely related to each other and have taken one room for residing. Therefore, ex-facie it cannot be said that Ajay Kumar was not having the knowledge of herion (chitta) in his bag. 11. Learned counsel for the petitioner has also relied upon Cr.MP(M) No. 151 of 2017 whereby the accused alleged to have been found in possession of 900 grams of charas was released on bail by the Coordinate Bench of this Court. The case of said judgment is not similar to one as in that case the bail was declined by learned Special Judge on the ground that petitioner was permanent resident of Punjab and there was every chance of petitioner for extending and threatening the witnesses and Coordinate Bench of this Court, in considering the entire facts of the case, has found that apprehension of learned Special Judge was not sustainable, whereas in present case petitioner is already involved in another case under NDPS Act and there are two similar cases against co-accused Aman who had been residing together with family and relatives of present petitioner. During his enlargement on bail in the previous case, he has repeated the commission of offence. 12. Petition for bail of petitioner, as claimed by the petitioner, has not been rejected by learned Special Judge only on the ground that another case under NDPS Act has been registered against him. But also for impact of the offence alleged to have been committed by the petitioner/accused coupled with his previous involvement in similar offence. Plea of the petitioner that he has been discriminated on the ground that other co-accused have been released on bail is not sustainable as the case of the present petitioner is different from the case of other co-accused as they were first offenders, whereas present petitioner has repeated the commission of offence after his bail in case No. 310 of 2016 dated 27.12.2016, which was also under Section 20 of NDPS Act. 13. Plea raised by the petitioner that he was not found in conscious possession of contraband, is to be considered by the trial Court during trial. 14. 13. Plea raised by the petitioner that he was not found in conscious possession of contraband, is to be considered by the trial Court during trial. 14. At this stage, bail of petitioner has rightly been dismissed by Special Judge-I in the facts and circumstances of the case, as not only the petitioner has been found to be involved in case FIR No. 310 of 2016 registered under Section 20 of NDPS Act, but co-accused Aman has also been found to be accused in FIR Nos. 152 of 2016 and 29 of 2018 registered under Section 21 of NDPS Act. It is informed that next date of hearing in present case is fixed on 27.12.2018 and recording of evidence has also not started yet. 15. In view of above, considering the cumulative effect of entire circumstances, without entering upon the merits of the evidence and keeping in view nature and gravity of offence and its impact on the society and the fact that petitioner is already involved in similar case in P.S. Indora, petitioner is not entitled for bail at this stage. Hence the petition is dismissed. Needless to say that petitioner will have the right to file successive bail application before the appropriate Court at the appropriate stage, if advised so based upon circumstances. 16. Any observation made herein above shall not be taken as an expression of opinion on the merits of case and shall be construed to have been made for limited purpose of deciding this application and the trial Court shall decide the matter uninfluenced, by any observation made herein above.