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Himachal Pradesh High Court · body

2018 DIGILAW 649 (HP)

Beli Ram v. State Of Himachal Pradesh

2018-04-16

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 23.20.2016, under Section 18 of ND&PS Act, registered at Police Station Kullu, District Kullu, H.P. 2. As per the averments made in the petition, the petitioner 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 be released on bail. 3. Police report stands filed. As per the prosecution story, on 23.10.2016, at about 03:55 a.m., when a police party was at place Sishamaati, they spotted the petitioner coming on foot. The petitioner, on seeing vehicle of the police threw a bag, which he was carrying on his shoulder. On the basis of suspicion, the petitioner was apprehended and inquired. Due to odd hours no witness could be associated, so in presence of official police witnesses the bag, which was thrown by the petitioner, was searched. The said bag contained some black liquid substance. The police personnel, on the basis of experience, found it to be opium and on weighment it was 826 grams. Thereafter, police conducted all sampling and sealing formalities. Photographs were also taken from personal mobile. During the course of investigation, the police prepared the spot map and also recorded the statements of the witnesses. The petitioner was arrested. Sample of contraband was sent to SFSL for forensic analysis and the same was opined to be of opium. The petitioner divulged that he cultivated the opium on a government land and he wanted to sell it to truck drivers of Kullu Truck Union. On 17.01.2017, after conclusion of investigation, the challan stands presented in the learned Trial Court. Lastly, the prosecution has prayed that the bail application may be dismissed. 4. I have heard the learned Counsel for the petitioner, learned Additional Advocate General for the State and gone through the record, including the police report, carefully. 5. The learned counsel for the petitioner has argued that the petitioner is innocent. He is neither in a position to tamper with the prosecution evidence nor in a position to flee from justice. I have heard the learned Counsel for the petitioner, learned Additional Advocate General for the State and gone through the record, including the police report, carefully. 5. The learned counsel for the petitioner has argued that the petitioner is innocent. He is neither in a position to tamper with the prosecution evidence nor in a position to flee from justice. He has further argued that no fruitful purpose will be served by keeping him behind the bars for an unlimited period. The petitioner is though convicted earlier, but the case was under Section 376 IPC. He has argued that in the present case the recovered quantity is not commercial quantity, thus he be enlarged on bail. The learned Senior Counsel for the petitioner has also placed reliance on the following judicial pronouncements: 1. Tejinder Singh @ Teja vs. State of Punjab and others, CRM-M No. 21934 of 2015, decided by Hon''ble High Court of Punjab and Haryana; 2. Shambhu Singh vs. State of Rajasthan, Cr. Misc. Bail application No. 1461 of 1987, decided by Hon''ble High Court of Rajasthan (Jaipur Bench) : & 3. Gurcharan Singh and others vs. State(Delhi Administration) , (1978) 1 SCC 118 . Conversely, the learned Additional Advocate General has argued that the petitioner has a criminal history and earlier also he has been convicted under Section 376 IPC and now he is involved in the Narcotics Act for possessing narcotics. He has further argued that in case the petitioner is enlarged on bail he may tamper with the prosecution evidence and may also flee from justice, so he be not released on bail. He has argued that taking into consideration seriousness of the offence, the application of the petitioner may be dismissed. 6. In rebuttal the learned Senior Counsel for the petitioner has argued that the petitioner cannot be kept behind the bars for an unlimited period. He has further argued that the petitioner is neither in a position to tamper with the prosecution evidence nor in a position to flee from justice, so he may be enlarged on bail. 7. The Hon''ble High Court of Punjab and Haryana in Tejinder Singh @ Teja vs. State of Punjab and others, CRM-M No. 21934 of 2015, has held asunder: "42. 7. The Hon''ble High Court of Punjab and Haryana in Tejinder Singh @ Teja vs. State of Punjab and others, CRM-M No. 21934 of 2015, has held asunder: "42. A perusal thereof reveal that he was first arrested on 31.12.2014 in FIR No. 155 and after giving him the benefit of concurrence of undertrial detention it transpires that he has undergone 01 year and more than 02 months detention as on 16.03.2016. The alleged recovery is of noncommercial quantity i.e. 2 k.g. opium. These facts have not been denied by the learned Additional Advocate General. 43. Keeping in view the facts and circumstances of this case, I do not deem it appropriate to deny him the concession of regular bail. Bail to the satisfaction of the trial Court/Duty Magistrate." 8. The Hon''ble High Court of Rajasthan (Jaipur Bench) in Shambhu Singh vs. State of Rajasthan, Cr. Misc. Bail application No. 1461 of 1987, has held, as under: "4. I have considered the contentions raised on behalf of both the sides. The powers of the High court or a Sessions Court under Section 439 are wider than Section 437 Criminal Procedure Code. The considerations which have been provided in Section 437 Criminal Procedure Code are to be looked into while disposing an application under Section 439, but the discretion of the High Court is very vide. Conditions can be imposed while granting bail in order to see that the liberty of the accused is not missed. As far as the facts of the present case are concerned, there can be no doubt that the petitioner can be released on bail and it will not be proper to refused the same merely because he has been involved in other incidents and on other occasions and has been convicted. It is therefore, ordered that if the petitioner furnishes a personal bond in the sum of Rs. 10, 000/- and two sureties in the sum of Rs. 5,000/- each on condition that he shall appear before the court below on all dates of hearing and further that he will not tamper with the witnesses and will present himself at the Police Station, Alwar Gate, Ajmer once a month in the first week of every month. He shall be released forthwith." 9. 5,000/- each on condition that he shall appear before the court below on all dates of hearing and further that he will not tamper with the witnesses and will present himself at the Police Station, Alwar Gate, Ajmer once a month in the first week of every month. He shall be released forthwith." 9. The Hon''ble Supreme Court of India in Gurcharan Singh and others vs. State (Delhi Administration) , (1978) 1 SCC 118 , vide para 24 has held as under: "24. Section 439 (1) , Criminal Procedure Code of the new Code, on the other hand, confers special powers on the High Court or the Court of Session in respect of bail. Unlike under Section 437 (1) there is no ban imposed under Section 439 (1) , Criminal Procedure Code against granting of bail by the High Court or the Court of Session to persons accused of an offence punishable with death or imprisonment for life. It is, however, legitimate to suppose that the High Court or the Court of Session will be approached by an accused only after he has failed before the magistrate and after the investigation has progressed throwing light on the evidence and circumstances implicating the accused. Even so the High Court or the Court of Session will have to exercise its judicial discretion in considering the question of granting of bail under Section 439(1) , criminal Procedure Code of the new Code. The overriding considerations in granting bail to which we adverted to earlier and which are common both in the case of Section 437 (1) and Section 439 (1) criminal Procedure Code of the new code are the nature and gravity of the circumstances in which the offence is committed; the position and the status of the accused with reference to the victim and the witnesses; the likelihood, of the accused fleeing from justice; of repeating the offence, of jeopardizing his own life being faced with a grim prospect of possible conviction in the case; of tampering with witnesses; the history of the case as well as of its investigation and other relevant grounds which, in view of so many variable factors, cannot be exhaustively set out. 10. After carefully going through the records and also considering the law as extracted hereinabove, this Court finds that the petitioner was convicted for a case which was not registered under the ND&PS Act. 10. After carefully going through the records and also considering the law as extracted hereinabove, this Court finds that the petitioner was convicted for a case which was not registered under the ND&PS Act. The petitioner is behind the bars for the last more than a year and there is remote possibility that he will commit the same offence time and again. Therefore, this Court, after analyzing the record and keeping in view the law, as cited above, finds that the petitioner is neither in a position to tamper with the prosecution evidence nor in a position to flee from justice, so the petitioner cannot be kept behind the bars for an unlimited period. Thus, the present is a fit case where the judicial discretion to admit the petitioner on bail is required to be exercised in his favour. Accordingly, the petition is allowed and it is ordered that the petitioner, who has been arrested by the police, in connection with FIR No. 218 of 2016, dated 23.20.2016, under Section 18 of ND&PS Act, registered at Police Station Kullu, District Kullu, H.P., he shall be released on bail forthwith in this case, subject to his furnishing personal bond in the sum of ''25, 000/- (rupees twenty five thousand) with one surety in the like amount to the satisfaction of learned Trial Court. The bail is granted subject to the following conditions: (i) That the petitioner will appear before the learned Trial Court as and when required. (ii) That the petitioner will not leave India without prior permission of the Court. (iii) That the petitioner 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. 11. In view of the above, the petition is disposed of. Copy dasti.