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2021 DIGILAW 179 (HP)

Pradeep Kumar v. State of Himachal Pradesh

2021-03-25

CHANDER BHUSAN BAROWALIA

body2021
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 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, 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 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. 3. At the very outset it is pertinent to mention that the present petition is second attempt, within a span of 4-5 months, of the petitioner seeking bail. Earlier on 02.11.2020 this Court dismissed his bail application (Cr.MP(M) No. 1724 of 2020). 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 the team was passing nearby Hadimba Restaurant, they noticed an Alto car, which was parked, 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 in it. 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 (coaccused). The vehicle was seized alongwith its documents and key. Sample of charas was separated and 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. 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. As per the police, the petitioner is very clever person and in case, at this stage, if he is enlarged on bail, he may threaten the prosecution witnesses and may also indulge in the same office. On 04.06.2020, after completion of investigation, challan was presented in the learned Trial Court and the matter is listed on 06.04.2021. 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. He has further argued that the quantity, which is allegedly recovered from the petitioner is intermediate quantity and not the commercial quantity. He has further argued that the quantity, which is allegedly recovered from the petitioner is intermediate quantity and not the commercial quantity. He has argued that it was not a case of chance recovery, as the charas, which is alleged to be recovered from the petitioner only when the police officers came to know after seeing the transparent plastic wrapper in the car that it is charas, so it cannot be said to be chance recovery. In order to support his arguments, the learned counsel for the petitioner has relied upon the following judicial pronouncements: 1. State of Rajasthan vs. Jag Raj singh @ Hansa, (2016) 11 SCC 687 ; 2. Sarija Banu (A) Janarthani @ Janani & another vs. State through Inspector of Police; 3. Rupai Kumar Das SLV Partners vs. State of Karnataka, (2018), 1 DC(Narcotics) 269; and 4. Deepak Kumar and another and Simone Nobili and another vs. State of H.P., (2010) Latest HLJ(HP) 39. Conversely, the learned Additional Advocate General has argued that it was a chance recovery and the petitioner was found in possession of 1.340 kgs of charas, which is commercial quantity. He has further argued that the petitioner was caught red-handed 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. This Court has carefully gone through the judicial pronouncements, which the learned counsel for the petitioner has relied upon. All the above judgments are not applicable to the facts of the present case, as in bail petitions there can never be a straightjacketed formula or fixed pre-drawn line of law for granting or refusing bail. 8. This Court has carefully gone through the judicial pronouncements, which the learned counsel for the petitioner has relied upon. All the above judgments are not applicable to the facts of the present case, as in bail petitions there can never be a straightjacketed formula or fixed pre-drawn line of law for granting or refusing bail. Each and every petition, seeking bail, has to be seen with the magnifying lenses of facts and circumstances of that particular case. The vital aspects in granting or refusing bail can be the possibility of accused’s fleeing, in case the bail is granted, the possibility of the accused’s tampering with the prosecution evidence, the gravity and seriousness of the offence, the manner in which the same is alleged to have been committed etc. etc. and there may be innumerable other aspects/reasons for granting or refusing bail. Thus, no straight-lined formula can be adhered to in granting or refusing bail and each case has to be tested with the valuable aid of its own facts and circumstances, vis-à-vis, some other important aspects and law. 9. At this stage, this Court finds that trial is yet to commence and not even a single prosecution witness has been examined, 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 and prima facie it is a case of chance recovery. 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 judgments (supra) are 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 commence. As discussed above, the judgments (supra) are 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 commence. 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, whatsoever, on the merits of the main case, which shall be adjudicated on its own.