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2020 DIGILAW 83 (HP)

Chander Negi v. State Of Himachal Pradesh

2020-01-07

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. 287 of 2019, dated 10.12.2019, under Sections 21 and 29 of the ND&PS Act, registered in Police Station Boileauganj, District Shimla, 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 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. 3. Police report stands filed. As per the prosecution story, on 09.12.2019 a police team was on patrol duty Near Sankatmochan Temple, Shimla, and at about 9.15 p.m. police stopped a pickup, having registration No. HP63-9348, for checking. There were two occupants in the vehicle. On suspicion, police associated an independent witness and in his presence the driver of the vehicle disclosed his name as Chander Kumar Negi (petitioner herein) and other occupant disclosed his name as Raj Kumar (co-accused). Thereafter, the police conducted search of the vehicle and recovered two white plastic pouches, which contained some substance. The said substance on checking, through drug detection kit, was found to be heroin and on weighment it was 38.47 grams. Thereafter, the police completed all the codal formalities. A case under the apt Sections of ND&PS Act was registered and the petitioner and co-accused were arrested. Police recorded the statements of the witnesses and prepared the spot map. The recovered contraband, on being chemically examined, was found to be diacetylmorphine (heroin). Co-accused Raj Kumar has already been enlarged on bail by the learned Trial Court. As per the police, one more case under the ND&PS Act is pending against the petitioner. Investigation in the case is complete and now the custody of the petitioner is not required, as nothing is to be recovered at his instance. Lastly, it is prayed that the bail application of the petitioner be dismissed, as the petitioner has committed a serious crime. Investigation in the case is complete and now the custody of the petitioner is not required, as nothing is to be recovered at his instance. Lastly, it is prayed that the bail application of the petitioner be dismissed, as the petitioner has committed a serious crime. In case the petitioner is enlarged on bail, at this stage, he may tamper with the prosecution evidence and may also flee from justice, so the bail application of the petitioner 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 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 keeping the petitioner behind the bars for an unlimited period. The petitioner is a drug addict and not a drug peddler and the coaccused has already been enlarged on bail by the learned Trial Court, so the petition may be allowed and the petitioner may be enlarged on bail. Conversely, the learned Additional Advocate General has argued that the petitioner has committed a serious crime and in case he is enlarged on bail, he may tamper with the prosecution evidence and may also flee from justice, so it is prayed that the bail application of the petitioner may 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 investigation is complete and in the wake of the fact that the custody of the petitioner is not required by the police and the fact that the petitioner is a drug addict and not a drug peddler, so the petition be allowed and the petitioner be enlarged on bail. 7. 7. At this stage, considering the age of the petitioner, who is only 27 years of age, the fact that the petitioner had kept the contraband for his self consumption, the petitioner is a drug addict, not a drug peddler, as nothing has come on record, which could show that the petitioner was dealing in sale of the contraband, the fact that the petitioner is permanent resident of Himachal Pradesh and neither in a position to tamper with the prosecution evidence nor in a position to flee from justice, custody of the petitioner is not at all required by the police, the fact that the co-accused has already been enlarged on bail by the learned Trial Court, considering the overall material, which has come on record, and without discussing the same at this stage, the petitioner is ready and willing to abide by the terms and conditions of bail, in case so granted, 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. 287 of 2019, dated 10.12.2019, under Sections 21 and 29 of the ND&PS Act, registered in Police Station Boileauganj, District Shimla, H.P., shall be released on bail forthwith in this case, subject to his furnishing personal bond in the sum of Rs.25,000/- (rupees twenty five 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. Copy dasti.