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Himachal Pradesh High Court · body

2019 DIGILAW 1424 (HP)

Darbari Lal v. State of Himachal Pradesh

2019-09-20

CHANDER BHUSAN BAROWALIA

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JUDGMENT : Chander Bhusan Barowalia, J. The present bail application has been maintained by the petitioner under Section 438 of the Code of Criminal Procedure seeking his release, in the event of his arrest, in case FIR No. 106 of 2019, dated 04.09.2019, under Sections 21 and 29 of the ND&PS Act, registered in Police Station Damtal, District Kangra, 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. No fruitful purpose will be served by sending him behind the bars, so he be released on bail. 3. Police report stands filed. As per the prosecution story, on 04.09.2019 at about 06:30 p.m. a police team was on routine patrol duty near Bhadroa, Toll Tax Barrier. Police spotted a person coming on foot and when he saw the vehicle of police he took a slew and started hastily walking backwards. He threw a packet from his pocket of the pants. The said person, on suspicion, was nabbed by the police and he disclosed his name as Ankush Sharma. The packet, which was thrown by him was recovered and checked from drug-detection kit and found to be heroin. On weighment, it was found to be 5.49 grams. Thereafter, the police completed all the codal formalities. Rukka was drawn and sent to police station, whereupon FIR was registered and the investigation ensued. Police recorded the statements of the witnesses and prepared the spot map. Accused Ankush Sharma was arrested and he, during the course of interrogation and investigation divulged that he purchased the contraband from one Darbari Lal (petitioner herein). On 06.09.2019 police raided the house of the petitioner, but he was not found there. Nothing was recovered from the house of the petitioner. Police also obtained the mobile records of the petitioner and co-accused Ankush Sharma, which revealed that they were in contact. During the course of investigation it was found that on 04.09.2019 co-accused Ankush Sharma purchased 5.49 grams of heroin from the petitioner for Rs. 8,000/-. The petitioner filed the present petition seeking his bail in the event of his arrest and this Court vide order dated 11.09.2019 granted him interim bail till today. On 18.09.2019 the petitioner joined the investigation. During the course of investigation it was found that on 04.09.2019 co-accused Ankush Sharma purchased 5.49 grams of heroin from the petitioner for Rs. 8,000/-. The petitioner filed the present petition seeking his bail in the event of his arrest and this Court vide order dated 11.09.2019 granted him interim bail till today. On 18.09.2019 the petitioner joined the investigation. As per the police the petitioner is not producing the mobile phone and SIM used by him. The petitioner is very clever person and many criminal cases have been registered against him. Lastly, it is prayed that the bail application of the petitioner be dismissed, as the petitioner was found involved in a serious offence. There are many criminal cases registered against him and he is dealing in contraband. In case he is enlarged on bail at this stage, there is possibility that he may flee from justice and may also tamper with the prosecution evidence, so the bail application 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 has been falsely implicated in the present case. She has further argued that the petitioner is resident of the place and neither in a position to tamper with the prosecution evidence nor in a position to flee from justice. She has further argued that no fruitful purpose will be served by sending the petitioner behind the bars for, as he is joining and co-operating in the investigation. She has argued that the custody of the petitioner is not at all required by the police, so the bail application be allowed. Conversely, the learned Additional Advocate General has argued that the petitioner was found involved in a serious crime and he is a habitual offender. The petitioner was found involved in many other criminal cases, including the cases of ND&PS. He is very clever person, so at this stage, in case he is enlarged on bail, he may tamper with the prosecution evidence and may also flee from justice. He has prayed that the bail application of the petitioner be dismissed. 6. The petitioner was found involved in many other criminal cases, including the cases of ND&PS. He is very clever person, so at this stage, in case he is enlarged on bail, he may tamper with the prosecution evidence and may also flee from justice. He has prayed that the bail application of the petitioner be dismissed. 6. In rebuttal the learned Counsel for the petitioner has argued that the petitioner resident of the place and neither in a position to flee from justice and nor in a position to tamper with the prosecution evidence. His custody is not at all required by the police, as he is joining and co-operating in the investigation, so the application be allowed and the petitioner be enlarged on bail. 7. At this stage, considering the fact that the alleged contraband was recovered from the co-accused and the co-accused named the petitioner also considering the quantity of the contraband recovered, i.e. 5.49 grams, the manner in which the offence is alleged to have taken place, the age of the petitioner, the fact that he is resident of the place, neither in a position to tamper with the prosecution evidence nor in a position to flee from justice, he is joining and co-operating in the investigation, he is ready and willing to abide by the conditions of bail, if so granted, considering the overall facts, which have 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. Accordingly, the petition is allowed and it is ordered that the petitioner, in the event of his arrest in case FIR No. 106 of 2019, dated 04.09.2019, under Sections 21 and 29 of the ND&PS Act, registered in Police Station Damtal, District Kangra, H.P., 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 the Investigating Officer. The bail is granted subject to the following conditions: (i) That the petitioner will appear before the learned Trial Court/Police/authorities as and when required. (ii) That the petitioner will not leave India without prior permission of the Court. The bail is granted subject to the following conditions: (i) That the petitioner will appear before the learned Trial Court/Police/authorities 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. 8. In view of the above, the petition is disposed of.