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Himachal Pradesh High Court · body

2020 DIGILAW 837 (HP)

Obi Ram v. State of Himachal Pradesh

2020-11-12

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 her release in case FIR No. 323 of 2019, dated 03.11.2019, under Sections 8, 20, 25 and 29 of the ND&PS Act, registered in Police Station Sadar Kullu, District Kullu, 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 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 03.11.2019, a police team was on patrol duty. At about 04.00 a.m., a police team reached place called Matti Kochar, and was split into two teams. One team proceeded, on foot, towards Pinsoo forest and, when, at about 09:00 a.m., the said team reached place called Kaladhar, there they found some tents and on the nearby fields cannabis was being cultivated. Thereafter, police prepared four different teams and specific roles were assigned to the said teams. Police spotted some standing plants of cannabis and remaining were being cut. At about 09:20 a.m. a police team reached the tents and found four Nepali nationals (two males and two females). On seeing the police, the above persons threw two rucksacks. Police had suspicion that some contraband may be kept inside the rucksacks, so one Shri Yaan Dass, was associated as an independent witness, who was grazing his cattle in the forest. In presence of the independent witness, a couple, residing in one of the tents, divulged their names as, Obi Ram (petitioner herein) and Kumari Buda and both of them, on being asked about the thrown rucksack, could not answer satisfactorily. The said rucksack, on being checked, was found stuffed with pancake shaped blackish substance, which was cannabis. On weighment, it was found to be 730 grams. The couple residing in another tent, on being asked, divulged their names as Athulimaya and Drona Bahadur (co-accused). Both of them, on being asked, about the rucksack, being thrown by them, could not answer satisfactorily. On weighment, it was found to be 730 grams. The couple residing in another tent, on being asked, divulged their names as Athulimaya and Drona Bahadur (co-accused). Both of them, on being asked, about the rucksack, being thrown by them, could not answer satisfactorily. The rucksack, thrown by the petitioner, on being checked, was found stuffed with stick shaped blackish substance, which was cannabis and on weighment it was found to be 730 grams. Thereafter, the police completed the codal formalities. Both the females were given option to be searched before the Gazetted Officer, which they opted, so their personal search was conducted in presence of Superintendent of Police, Kullu, but nothing incriminating was found. Police took into possession some plants of cannabis, as samples, out of the cultivated plants. A case was registered against the petitioner and other co-accused under the apt Sections of the ND&PS Act. Police prepared the spot map, recorded the statements of the witnesses and videographed the proceedings. The petitioner and other co-accused were arrested and were medically examined. During the course of interrogation, the petitioner and other co-accused disclosed that they were employed by one Dharam Chand (co-accused), in his fields, for cutting maize crop and later on, they were directed by him to cut the crop of the fields located near his dhogri (shack). When they reached dhogri, located amidst jungle, Dhram Chand, directed them to extract cannabis from the cannabis plants. As per the co-accused and the petitioner, the cannabis plants were being cultivated by accused Dharam Chand and tents were also of accused Dhram Chand. On 18.11.2019, accused Dharam Chand was arrested and during the course of interrogation he divulged that he directed the accused persons, including the petitioner, to extract cannabis out of the plants of cannabis and he also identified the spot. As per the police, accused Dharam Chand, disclosed that for daily payment of Rs. 500/-, he had given the task of extracting cannabis to petitioner Obi Ram, co-accused Drona Bahadur, Kumari Buda and the petitioner. The sample of recovered contraband, on being chemically examined, was found to be sample of cannabis. As per the police, on 30.12.2019, challan was presented in the learned Trial Court and the same is listed on 11.11.2020. Lastly, it is prayed that the bail application of the petitioner be dismissed, as the petitioner was found in possession of commercial quantity of charas. As per the police, on 30.12.2019, challan was presented in the learned Trial Court and the same is listed on 11.11.2020. Lastly, it is prayed that the bail application of the petitioner be dismissed, as the petitioner was found in possession of commercial quantity of charas. The petitioner is a foreign national, so there is every possibility that in case at this stage, if he is enlarged on bail, he may flee from justice or tamper with the prosecution witnesses, 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 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 investigation is complete, challan stands presented in the learned Trial Court, co-accused Dharam Chand as well as Drona Bahadur, have already been enlarged on bail by the learned Trial Court and co-accused Athulimaya has been enlarged on bail by this Court. He has further argued that the petitioner was working for accused Dharam Chand, now nothing is to be recovered from the petitioner, his custody is not at all required by the police, so the bail application may be allowed and the petitioner be enlarged on bail. Conversely, the learned Additional Advocate General has argued that the petitioner was found involved in a serious offence. He has further argued that in case the petitioner is enlarged on bail, at this stage, he may flee from justice, as he is a foreign national or there is possibility that he may tamper with the prosecution evidence. He has prayed that the bail application of the petitioner be dismissed. 7. He has further argued that in case the petitioner is enlarged on bail, at this stage, he may flee from justice, as he is a foreign national or there is possibility that he may tamper with the prosecution evidence. He has prayed that the bail application of the petitioner be dismissed. 7. In rebuttal the learned Counsel for the petitioner has argued that the petitioner is behind the bars for the last more than eleven months and he cannot be kept behind the bars for an unlimited period, especially when investigation is complete, challan stands presented in the learned Trial Court and rest of the co-accused stand enlarged on bail either by the learned Trial Court or by this Court, the custody of the petitioner is not at all required by the police, so the application be allowed and the petitioner be enlarged on bail. 8. At this stage, considering the quantity of charas recovered from the petitioner, which is 730 grams, the fact that the petitioner is behind the bars for last more than eleven months and he cannot be kept behind the bars for an unlimited period, investigation in the matter is complete, nothing remains to be recovered at the instance of the petitioner, challan has also been presented before the learned Trial Court, custody of the petitioner is not at all required by the police, considering the fact that all other co-accused have already been enlarged on bail either by the learned Trial Court or by this Court, the fact that the petitioner was deployed by accused Dharam Chand to extract cannabis, and also considering the fact that the petitioner is ready and willing to abide by the terms and conditions of bail, in case granted, he is neither in a position to tamper with the prosecution evidence nor in a position to flee from justice, considering the overall material, which has come on record, and without discussing the same at this stage, 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. 323 of 2019, dated 03.11.2019, under Sections 8, 20, 25 and 29 of the ND&PS Act, registered in Police Station Sadar Kullu, District Kullu, H.P., shall be released on bail forthwith in this case, subject to his furnishing personal bond in the sum of Rs.50,000/- (rupees fifty 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. 9. In view of the above, the petition is disposed of. Copy dasti.