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2019 DIGILAW 1196 (HP)

Sunil Kumar v. State Of Himachal Pradesh

2019-08-21

CHANDER BHUSAN BAROWALIA

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JUDGMENT : Chander Bhusan Barowalia, J. The present bail application has been moved by the petitioner under Section 438 of the Code of Criminal Procedure for releasing him on bail, in the event of his arrest, in case FIR No. 122 of 2019, dated 14.07.2019, under Section 21 of the Narcotic Drugs and Psychotropic Substances Act, registered in Police Station Joginder Nagar, District Mandi, 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 resident of the place and 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 story, on 13.07.2019 Constable Diwan Chand brought a rukka to Police Station, Joginder Nagar. As per the said rukka, on 13.07.2019 a police team laid a nakka at place known as Kash Haar Link, Bhararu Rain Shelter. At about 11:36 p.m., police spotted a person coming from the side of Kash. Police focused search light on the said person and police personnel identified him. The petitioner, on seeing the police party got perplexed and tried to flee. While fleeing, the petitioner threw a packet from his pocket. Ultimately, taking advantage of bushes, the petitioner succeeded in absconding. The police team extensively searched him, but he could not be traced. As the petitioner was earlier also found involved in drug sale and purchase, so the police had suspicion on the petitioner. Despite best efforts, police could not associate any independent witnesses. The packet thrown by the petitioner was checked and it was found containing some powder like substance, which was white and black in color and the said packet also contained brownish solid substance. The said substance was heroin (chitta) and on weighment it was found to be 5 grams. Thereafter, the police completed all the codal formalities and on the basis of the rukka FIR was registered. Police prepared the spot map and also recorded the statements of the witnesses under Section 161 Cr.P.C. The recovered contraband was sent to SFSL, Junga, for forensic analysis and the report is awaited. The petitioner moved the present application seeking his pre arrest bail and on the Directions of Hon'ble High Court, he joined the investigation. Police prepared the spot map and also recorded the statements of the witnesses under Section 161 Cr.P.C. The recovered contraband was sent to SFSL, Junga, for forensic analysis and the report is awaited. The petitioner moved the present application seeking his pre arrest bail and on the Directions of Hon'ble High Court, he joined the investigation. The petitioner, during the course of interrogation, divulged that 5-6 months back he purchased 15 grams heroin from auto driver, of which he had already sold 10 grams. He has further disclosed that he used to sell 1 (one) gram heroin for Rs.2500/3000. On 13.07.2019 he received a telephonic call from one Topnu from Baijnath, who wanted to purchase 5 grams heroin, so he was coming to deliver the contraband to him. As per the police, the petitioner is habitual offender and many cases have been registered against him. Lastly, it is prayed that the bail application of the petitioner be dismissed, as the petitioner is very clever person and he has committed a serious offence. The police found the involvement of the petitioner in many other cases also, so in case the petitioner, if enlarged on bail at this stage, he may tamper with the prosecution evidence and may also flee from justice. It is prayed that the bail application of the petitioner 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 resident of the place and 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 petitioner is joining and co-operating in the investigation, so he may be released on bail. Conversely, learned Additional Advocate General, has argued that the petitioner was found involved in a serious offence and in case at this stage he is enlarged on bail, he may tamper with the prosecution evidence and may also flee from justice, as he was found involved in other cases as well. He has further argued that at this stage the petitioner may not be released on bail and his application be dismissed. 6. He has further argued that at this stage the petitioner may not be released on bail and his application be dismissed. 6. At this stage, considering the recovered quantity of the contraband, i.e., only 5 grams, the fact that the petitioner is under medical treatment for drug addiction and is recuperating, he is resident of the place and is neither in a position to tamper with the prosecution evidence nor in a position to flee from justice, he is joining and cooperating in the investigation and also considering the overall material, which has come on record, and without discussing the same at this stage, this Court finds that the present is a fit case where the judicial discretion to admit the petitioner on bail, in the event of his arrest, is required to be exercised in his favour. Under these circumstances, it is ordered that the petitioner be released on bail, in the event of his arrest, in case FIR No. 122 of 2019, dated 14.07.2019, under Section 21 of the Narcotic Drugs and Psychotropic Substances Act, registered in Police Station Joginder Nagar, District Mandi, H.P., on his furnishing personal bond to the tune of Rs.20,000/- (rupees twenty thousand only) with one surety in the like amount to the satisfaction of the Investigating Officer. The bail is granted subject to the following conditions: (i) That the petitioner will join investigation of the case as and when called for by the Investigating Officer in accordance with law. (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. 7. In view of the above, the petition is disposed of.