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Himachal Pradesh High Court · body

2019 DIGILAW 1659 (HP)

Sanjay Patidar v. State of Himachal Pradesh

2019-11-06

CHANDER BHUSAN BAROWALIA

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JUDGMENT : Chander Bhusan Barowalia, J. 1. The present bail application has been maintained by the petitioner under Section 439 of the Code of Criminal Procedure seeking his release in NCB Crime No. 15 of 2016, dated 15.04.2016, under Sections 8, 18, 29 and 60 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter called as "the ND&PS Act") registered in Narcotics Control Bureau, Chandigarh. 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. No fruitful purpose will be served by keeping him behind the bars for an unlimited period, so he be released on bail. 3. Tersely, the facts giving rise to the present petition can be encapsulated as under: On 14.04.2016 Intelligence Officer, Narcotic Control Bureau (hereinafter called as "NCB") got a secret tip off that the petitioner, who is en route Madhya Pradesh to Mandi in a Force traveler bus is to deliver a consignment of opium. The petitioner was likely to avoid entry into Punjab and he may choose route from Shahbad to Panchkula to Nalagarh. NCB had the information that the petitioner usually, during night, halts at Dashmesh Dhaba, Joghon, Nalagarh and will reach at the dhaba before midnight of 14.04.2016. NCB acted upon the secret information and a team was constituted, which went to Police Post Joghon where two independent witnesses were associated. Thereafter, the team reached Dashmesh Dhaba, Joghon, where a yellow Force Traveler, having registration No. MP-11TR-N-6107, was spotted. The door of the vehicle was locked from inside and a person was sleeping inside the vehicle. On being knocked, the door was opened and the person, who was inside the vehicle, disclosed his name as Sanjay Patidar (petitioner herein). The petitioner disclosed that he is a driver and has taken Force Traveler vehicle from Force India Ltd. Pitampur, Madhya Pradesh to deliver it at Force Motor Ltd. Depot, Rani Ke Bain, VPO Gutkar, Tehsil Sadar, District Mandi, H.P. Thereafter, the petitioner was informed that the NCB team suspects that he is transporting some contraband and all the codal formalities were completed. The petitioner, thereafter, voluntarily produced a polythene bag and disclosed that opium is concealed in this bag. The petitioner, thereafter, voluntarily produced a polythene bag and disclosed that opium is concealed in this bag. On being checked, the team found some black substance in two packets, which were contained in the polythene bag. The substance was examined through drug detection kit and found to be opium and on weighment it was 03.00 kgs (three kgs). Thereafter, all the codal formalities were completed. On 15.04.2016 the petitioner was arrested and was medically examined. During the course of investigation it was unearthed that the vehicle was dispatched from force India Ltd. Pitampur, Dhar to Force Motors Ltd. and Ram Hari Motors, Mandi, H.P. and Capital Transport Convey Contractor is responsible for safe transportation of the vehicles. On further investigation it was found that the petitioner was deployed to deliver the vehicle to Ram Hari Motors, Mandi, H.P. NCB team procured all the records qua dispatch of vehicle and deployment of the petitioner in the said vehicle. Forensic report revealed that the contraband is opium. One Sharif Khan, whose mobile number was disclosed by the petitioner and who was arrested in another case of NCB, Chandigarh, in connection with seizure of 02.800 kgs of opium in NCB Crime No. 37 of 2016, disclosed in his statement, recorded under Section 67 of the Act that he is the actual owner of 03.00 kgs opium recovered from the petitioner and it was being delivered at Panchkula and Nalagarh. Sharif Khan recognized petitioner's photo and signed thereon. Accused Sharif Khan was also arrested in the present case and was medically examined. The call details of accused Sharif Khan and the petitioner show that they were in constant touch with each other. During the course of investigation it was unearthed that the petitioner and accused Sharif Khan connived with each other and Sharif Khan handed over the opium to the petitioner for delivering it at various places and for delivering the contraband the petitioner used Force Traveler bus. Lastly, it is prayed that the bail application of the petitioner be dismissed, as the quantity of recovered contraband is commercial quantity, the petitioner is resident of Madhya Pradesh and in case he is enlarged on bail, he may flee from justice. 4. I have heard the learned Counsel for the petitioner, learned Senior Counsel for the NCB and gone through the records. 5. 4. I have heard the learned Counsel for the petitioner, learned Senior Counsel for the NCB and gone through the records. 5. The learned Counsel for the petitioner has argued that the bail petition be allowed as the independent witnesses examined by the NCB deposed contradictory versions qua material aspects of the case. He has further argued that a harmonious reading of the evidence, recorded till date, shows that no case is made out against the petitioner, as the evidence against the petitioner is slippery and shaky. He has argued that the petitioner is likely to be acquitted by the learned Trial Court as the evidence against the petitioner is weak. Conversely, the learned Senior Counsel for the NCB has argued that considering the quantity of the recovered contraband, which is 03.00 kgs (commercial quantity), the petitioner is resident of Madhya Pradesh and in case at this stage he is enlarged on bail he may flee from justice, the bail application may be dismissed. 6. In rebuttal the learned Counsel for the petitioner has argued that the independent witnesses have given contradictory versions with respect to the place of recovery, memos etc. so the petitioner is likely to be acquitted by the learned Trial Court. He has further argued that the petitioner cannot be kept behind the bars for an unlimited period, so the present petition be allowed and the petitioner be enlarged on bail. In order to support his arguments he has placed reliance on the following judicial pronouncements: 1. Himanshu Chopra vs. State of Punjab, Criminal Misc. No. M-36772 of 2018, decided on 12.11.2018, by Punjab and Haryana High Court. 2. State of Himachal Pradesh vs. Jasmer Singh and Another, Criminal Appeal No. 479 of 2018, decided on 29.04.2016, by Himachal Pradesh High Court. 3. Dharambir vs. State, Criminal Appeal No. 658 of 2017, decided on 13.11.2018, by Delhi High Court. 7. At first it would be apt to examine the above judicial pronouncements. As far as the judgments rendered in appeals by Hon'ble High Court of Himachal Pradesh and Delhi High Court (Criminal Appeal No. 479 of 2018 and Criminal Appeal No. 658 of 2017) are concerned, this Court finds that the judgments in appeals are not applicable to the facts of the present case, as the present is case for grant of bail in commercial quantity of contraband. So, these judgments are of no help to the cause of the petitioner. As far as the judgment rendered by Hon'ble Punjab and Haryana High Court (Criminal Misc. No. M-36772 of 2018) is concerned, as there is no ratio whether bail can be granted in case of commercial quantity of contraband, so even this judgment cannot be considered and it has no persuasive force to the facts of the present case, hence not applicable to the facts of the present case. 8. Now, at this stage, considering commercial quantity of contraband involved in the present case, some of the witnesses are yet to be examined, considering that the rigors of Section 37 of the Act are applicable to the present case, the fact that the petitioner is resident of Madhya Pradesh and in case he is released on bail, he may flee from justice and also considering the overall facts, which have come on record, 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, so the petition, which sans merits, deserves dismissal and is accordingly dismissed. 9. At this moment, Mr. Malkit Singh Jandiala, Advocate, submits that the trial is pending for the last more than three and half years and the petitioner is behind the bars as an under trial. In spite of trial being ordered to be expedited, the NCB is not producing the witnesses and taking unnecessary adjournments. In view of what has been submitted by Mr. Jandiala, it is made clear that NCB shall make every effort to produce the witnesses got served through the process of the Court for the date fixed. The Trial Court will fix the case on priority basis, as the petitioner is behind the bars for the last more than three years and taking into consideration his right of speedy trial. 10. Needless to say that the observations made hereinabove shall not be construed to have expressed as an opinion on the merits of the main case and the same shall be adjudicated on its own merits by the learned Trial Court.