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2019 DIGILAW 1533 (HP)

Suresh Kumar v. State Of Himachal Pradesh

2019-10-17

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. 13 of 2016, dated 09.03.2016, under Section 20 of the ND&PS Act, registered in Police Station Rajgarh, district Sirmour, 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 Himachal pradesh 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 09.03.2016 a police team had laid a nakka at near Petrol Pump, Giripul, and at about 10:00 a.m. they intercepted a Maruti car, having registration No. CH01Z-7135. There were three occupants in the said car and they disclosed their names as Dharam Singh, Ajay Kumar and Baljinder Singh. Police recovered a carry bag from the case, which on checking contained a clothe parcel, which contained some black substance. The said substance was found to be charas and on weighment it was found to be 1.978 grams. Thereafter, the police completed all the codal formalities. The vehicle was seized alongwith its documents and a case was registered against the said persons under the apt provisions of ND&PS Act. Police prepared the spot map and also recorded the statements of the witnesses. The contraband was sent for forensic analysis to SFSL, Junga and it was found to be extract of cannabis. During the course of investigation and interrogation, accused Baljinder Singh divulged that the petitioner traveled with them and he disclosed his mobile number. Police found that the petitioner was in touch with accused Baljinder and he is using his cell phone in the area of Theog, but on 10.03.2016 the said phone was switched off. The petitioner, on being traced, was found absconding and accused Ajay Kumar and Dharam Singh had also absconded. So, relevant proceedings were initiated against them in the Court. On 29.08.2016 challan was presented in the learned Trial Court and on 13.09.2017 accused Baljinder Singh was convicted. On 20.09.2017 accused Ajay Kumar and Dharam Singh were declared as proclaimed offenders. The petitioner, on being traced, was found absconding and accused Ajay Kumar and Dharam Singh had also absconded. So, relevant proceedings were initiated against them in the Court. On 29.08.2016 challan was presented in the learned Trial Court and on 13.09.2017 accused Baljinder Singh was convicted. On 20.09.2017 accused Ajay Kumar and Dharam Singh were declared as proclaimed offenders. On 31.08.2019 accused Ajay Kumar was arrested and on 12.09.2019 accused Dharam Singh was also arrested. During the course of investigation accused Baljinder Singh divulged that he purchased the charas from one Rinku and he disclosed his cell number. The said number was found to be in use by the petitioner and it was also found that from this cell number several calls were made to accused Baljinder Singh. As per the police, in the instant case the quantity of charas recovered is commercial and the petitioner deliberately evaded his arrest for substantial time. Lastly, it is prayed that the bail application of the petitioner be dismissed, as the petitioner was involved in a serious offence and he deliberately evaded his arrest for considerable time. The quantity of contraband recovered is commercial and one of the accused, Baljinder Singh, stands convicted from the learned Trial Court, so there is possibility that the petitioner in case at this stage enlarged on bail, he may flee from justice, 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. He has further argued that the petitioner is resident of Himachal Pradesh and 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 sending the petitioner behind the bars, as he is resident of Himachal and neither in a position to tamper with the prosecution evidence nor in a position to flee from justice. He has argued that the custody of the petitioner is not at all required by the police, so the bail application be allowed. He 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 commercial quantity of charas is involved in the present case, the petitioner was found involved in a serious offence and for considerable time he deliberately evaded his arrest. He has further argued that one of the accused in the instant case has been convicted by the learned Trial Court, so at this stage, in case he is enlarged on bail, he may 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 is permanent resident of Himachal and not in a position to flee from justice. His custodial interrogation is not at all required by the police, as he is resident of Himachal and ready and willing to abide by the terms and conditions of the bail, in case so granted, so the application be allowed and the petitioner be enlarged on bail. 7. At this stage, considering the fact that the petitioner was in touch with accused Baljinder Singh through his mobile phone and the learned Trial Court has convicted accused Baljinder Singh in the instant case, the petitioner in order to prevent his arrest, absconded for considerable time, the recovered contraband is of commercial quantity, i.e., 1.978 grams, the fact that in case the petitioner is enlarged on bail, at this stage, he may again flee from justice 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 not a fit case where the judicial discretion to admit the petitioner on bail is required to be exercised in his favour. 8. In view of the above, the petition, which sans merits, deserves dismissal, and is accordingly dismissed.