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2019 DIGILAW 1512 (HP)

Avinash @ AVI v. State Of Himachal Pradesh

2019-10-15

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. 235 of 2018, dated 01.09.2018, under Section 22 of the ND&PS Act, registered in Police Station Indora, 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 permanent 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 keeping him behind the bars for an unlimited period, so he be released on bail. 3. Police report stands filed. As per the prosecution story, on 01.09.2018 a Special Nacotics Team, comprising of police personnel, was present near Annpurna Restaurant and they spotted a person (petitioner herein) coming from the bushes and cannabis plants. On seeing police, the petitioner tried to flee. He was carrying a red carry bag and on suspicion he was nabbed. Police associated two independent witnesses and in their presence the carry bag was checked and the same was found stuffed with 8 pouches of Provon Spas Capsule. Each pouch contained 100 capsules, total 800 capsules were recovered. On being weighed, the contraband was found to be 617 grams. Thereafter, the police completed all the codal formalities. Statements of the witnesses were recorded and the spot map was prepared. The contraband was sent to SFSL for forensic analysis and as per the report, the sample was of Tramadol Hydrochloride Capsules and each capsule contained 50.63 mg Tramadol Hydrochloride. Thus, in 800 capsules of Provon Spas, Tramadol Hydrochloride was found to be 40.51 grams and the total weight of the capsules was 617 grams. On 15.11.2018 the petitioner was arrested and was medically examined. As per the police, the petitioner is spoiling the youth and children in the society and there is anger in the area. On 16.01.2019 police presented the challan in the Court and now the testimonies of prosecution witnesses are being recorded. The case is now listed for prosecution witnesses on 18.10.2019. Lastly, it is prayed that the bail application of the petitioner be dismissed, as the petitioner was involved in a serious crime. On 16.01.2019 police presented the challan in the Court and now the testimonies of prosecution witnesses are being recorded. The case is now listed for prosecution witnesses on 18.10.2019. Lastly, it is prayed that the bail application of the petitioner be dismissed, as the petitioner was involved in a serious crime. There is possibility that in case at this stage the petitioner is enlarged on bail, he may flee from justice. The petitioner can also tamper with the prosecution evidence, so his 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. He has further argued that the petitioner is permanent resident of the place and neither in a position to tamper with the prosecution evidence nor in a position to flee from justice. He has argued that the petitioner is behind the bars for the last eleven months and the recovered quantity of contraband has ultimately, upon being chemically tested, came to be 40.51 grams, which is non-commercial quantity. He has further argued that the independent witnesses have turned hostile in the Court and they did not support the prosecution case, so no fruitful purpose will be served by keeping the petitioner behind the bars for an unlimited period. He has argued that keeping in view the material, which has come on record, the bail application be allowed. Conversely, the learned Additional Advocate General has argued that the petitioner was found involved in a serious offence, 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 cannot be kept behind the bars for an unlimited period, especially when the investigation is complete and the challan stands presented in the Court, so the application be allowed and the petitioner be enlarged on bail. 7. 6. In rebuttal the learned Counsel for the petitioner has argued that the petitioner cannot be kept behind the bars for an unlimited period, especially when the investigation is complete and the challan stands presented in the Court, so the application be allowed and the petitioner be enlarged on bail. 7. At this stage, considering the quantity of the recovered contraband, which, upon chemical examination, came to be 40.51 grams, which is non-commercial quantity, the fact that the independent witnesses have turned hostile while they were being examined in the learned Trial Court, 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, the petitioner is ready and willing to abide by the conditions of bail, if so granted, the fact that the investigation is complete and challan stands presented in the Court, the petitioner is behind the bars for the last eleven months, considering the overall facts, which have come on record, and without discussing the same at this stage and also the fact that the petitioner cannot be kept behind the bars for an unlimited period, so this Court finds that 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 case FIR No. 235 of 2018, dated 01.09.2018, under Section 22 of the ND&PS Act, registered in Police Station Indora, District Kangra, H.P., shall be released on bail forthwith in this case, subject to his furnishing personal bond in the sum of Rs.20,000/- (rupees twenty thousand) with one surety in the like amount to the satisfaction of the learned Trial 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.