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2020 DIGILAW 795 (HP)

Pradeep Kumar v. State of Himachal Pradesh

2020-11-02

CHANDER BHUSAN BAROWALIA

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JUDGMENT Chander Bhusan Barowalia, J. - The matter is taken up through video conference. 2. 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. 5 of 2020, dated 30.01.2020, under Sections 20, 25 and 29 of the ND&PS Act, registered in Police Station State CID, Bharari Shimla, Himachal Pradesh 3. 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 District Mandi, 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 keeping him behind the bars for an unlimited period, so he be released on bail. 4. Police report stands filed. As per the prosecution story, on 29.01.2020, a police team, in their official vehicle, was cruising on NH3 and when they were passing nearby Hadimba Restaurant, they spotted a parked Alto car, wherein two persons were showing something to each other. The police cordoned-off the above vehicle, having registration No. HP65A-7500, and two persons were found sitting. On the floor of a seat a transparent bag was lying, which was stuffed with stick shaped blackish substance, which was charas and on weighment it was found to be 1.340 kgs. Thereafter, the police completed all the codal formalities. Police associated two independent witnesses and asked about the whereabouts of the above two persons. Out of them, one disclosed his name as Pradeep Kumar (petitioner herein) and another disclosed his name as Sarvdyal (co-accused). The vehicle was seized alongwith its documents and key. Sample of charas was separated and later on sent for chemical analysis. Police recorded the statements of the witnesses and prepared the spot map. Both the petitioner and the co-accused were arrested and report under Section 57 of the NDPS Act was sent to Crime Branch Shimla. During the course of investigation, co-accused Sarvdyal divulged that he purchased some of the charas from Nepalis and rest was extracted by him and the petitioner from the cannabis plants. He further divulged that on being asked by the petitioner, he brought the charas for selling. On chemical examination, the sample of contraband was found to be sample of charas. During the course of investigation, co-accused Sarvdyal divulged that he purchased some of the charas from Nepalis and rest was extracted by him and the petitioner from the cannabis plants. He further divulged that on being asked by the petitioner, he brought the charas for selling. On chemical examination, the sample of contraband was found to be sample of charas. As per the police, the petitioner is very clever person and in case, at this stage, if he is enlarged on bail, he may intimidate the prosecution witnesses and may also commit some offence. On 04.06.2020, after completion of investigation, challan was presented in the learned Trial Court. Lastly, it is prayed that the bail application of the petitioner be dismissed, as the petitioner was found in exclusive and conscious possession of huge quantity of charas. The petitioner, at this stage, in case enlarged on bail, may tamper with the prosecution evidence and may also flee from justice, so the bail application may be dismissed. 5. 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. 6. 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 District Mandi, Himachal Pradesh and neither in a position to tamper with the prosecution evidence nor in a position to flee from justice. He has argued that no fruitful purpose will be served by keeping the petitioner behind the bars for an unlimited period, especially when nothing remains to be recovered at the instance of the petitioner, investigation is complete, challan stands presented in the learned Trial Court, the custody of the petitioner is not at all required by the police, so the bail application may be allowed and the petitioner be enlarged on bail. He has argued that the petitioner was not in possession of the contraband and he was simply driving the vehicle. The learned counsel for the petitioner has drawn the attention of this Court to a decision of Hon'ble Suprme Court, rendered in Mohan Lal vs. State of Punjab, (2018) AIR SC 3853 . Conversely, the learned Additional Advocate General has argued that the petitioner was found involved in a serious offence. The learned counsel for the petitioner has drawn the attention of this Court to a decision of Hon'ble Suprme Court, rendered in Mohan Lal vs. State of Punjab, (2018) AIR SC 3853 . Conversely, the learned Additional Advocate General has argued that the petitioner was found involved in a serious offence. He has further argued that the petitioner was caught redhanded in exclusive and conscious possession of huge quantity of charas. The petitioner, in case enlarged on bail, may flee from justice or may tamper with the prosecution evidence, as the trial is yet to begin, so the bail application of the petitioner be dismissed. 7. In rebuttal the learned Counsel for the petitioner has argued that the petitioner is permanent resident of District Mandi, H.P., thus neither in a position to tamper with the prosecution evidence nor in a position to flee from justice, now nothing remains to be recovered at his instance, custody of the petitioner is not at all required by the police, investigation is complete and challan stands presented in the learned Trial Court, so the application be allowed and the petitioner be enlarged on bail. 8. At the very outset, it would be profitable to discuss the judgment rendered by Hon'ble Supreme Court in Mohan Lal vs. State of Punjab, (2018) AIR SC 3853 , apt para thereof is extracted hereunder for ready reference: "10. Unlike the general principle of criminal jurisprudence that an accused is presumed innocent unless proved guilty, the NDPS Act carries a reverse burden of proof under Sections 35 and 54. But that cannot be understood to mean that the moment an allegations is made and the F.I.R. recites compliance with statutory procedures leading to recovery, the burden of proof from the very inception of the prosecution shifts to the accused, without the prosecution having to establish or prove anything more. The presumption is rebutable. Section 35 (2) provides that a fact can be said to have been proved if it is established beyond reasonable doubt and not on preponderance of probability. The stringent provisions of the NDPS Act, such as Section 37, the minimum sentence of ten years, absence of any provision for remission, do not dispense with the requirement of the prosecution to establish a prima facie case beyond reasonable doubt after investigation, only after which the burden of proof shall shift to the accused. The stringent provisions of the NDPS Act, such as Section 37, the minimum sentence of ten years, absence of any provision for remission, do not dispense with the requirement of the prosecution to establish a prima facie case beyond reasonable doubt after investigation, only after which the burden of proof shall shift to the accused. The case of the prosecution cannot be allowed to rest on a preponderance of probabilities." True it is that there is presumption of innocence until a person is held guilt and the prosecution cannot be allowed to rest its case on preponderance of probabilities. However, for grant of bail each case has to be examined on vital contours, viz., to secure the presence of the accused for trial, his being in a position to tamper the prosecution evidence, his chances of fleeing etc. and this list of contours can be stretched depending upon facts and circumstances of each case. Thus, the judgment (supra) is of no help to the petitioner and is not applicable to the facts of the instant case. 9. At this stage, this Court finds that the accused was in conscious and exclusive possession of 1.340 Kgs of charas, which is commercial quantity, the contraband was recovered from the floor of the car and thus, it cannot be presumed that the petitioner was not aware about the presence of the contraband in the car, there is reasonable apprehension that the petitioner was well aware qua the contraband, its quantity and it being transported in the said car, thus he had active role in the commission of the offence, being accomplice of co-accused. Thus, this Court also finds that there exists prima facie case against the petitioner, as he, alongwith the co-accused, was in exclusive and conscious possession of the contraband. As discussed above, the judgment (supra) is of no help to the petitioner, so, this Court finds that rigors of Section 37 of the NDPS Act are applicable. The petitioner is also in a position to tamper with the prosecution evidence and may also flee from justice, in case enlarged on bail, as the trial is yet to begin. Therefore, 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. 10. The petitioner is also in a position to tamper with the prosecution evidence and may also flee from justice, in case enlarged on bail, as the trial is yet to begin. Therefore, 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. 10. In view of what has been discussed hereinabove, the petition, which sans merits, deserves dismissal and is accordingly dismissed. 11. Needless to say that the observations made hereinabove are only confined to the adjudication of the instant petition and shall have no bearing on the merits of the main case, which shall be adjudicated on its own.