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2022 DIGILAW 110 (HP)

Manoj v. State of Himachal Pradesh

2022-03-16

SATYEN VAIDYA

body2022
ORDER : Petitioner is an accused in case FIR No. 16/2021, dated 24.02.2021, registered at Police Station Swarghat, District Bilaspur, Himachal Pradesh, under Sections 20 and 29 of Narcotic Drugs and Psychotropic Substances Act, 1985 ( for short "ND&PS Act"). 2. Petitioner has approached this Court for the grant of bail under Section 439 of the Code of Criminal Procedure in the above noted case, on the grounds that the petitioner is innocent and has nothing to do with the case. Petitioner is stated to be a young person of 30 years, having no criminal antecedents. It is submitted on behalf of the petitioner that he is a businessman and had a Fast Food business at Model Town Rohtak. He was also running his business at Kasol in District Kullu, H.P. under the name and style of “Daily Chap and Kathiroll”. Earlier co-accused Vikas @ Vicky and Hitesh were running the said business from whom petitioner had taken over the same. It is further submitted that there is no legal evidence to connect the petitioner with the alleged crime. Simply because he has business dealings with co-accused Vikas @ Vicky and Hitesh, he can not be said to be a partner in crime, if any, with them. Petitioner has undertaken to abide by all the conditions as may be imposed against him. He has also undertaken not to make any threat, promise or inducement to the prosecution witnesses. 3. The respondent-State has filed status reports from time to time during the pendency of the instant petition. As per the case of the respondent-State, on 24.02.2021, police party had laid 'Nakka' near ‘Thakur Bhojnalya’, Baner, District Bilaspur, H.P.. A car with registration No. HP49-2697(i-20) approached from the Bilaspur side, which was stopped for checking. The driver of the car got perplexed on noticing police party. Tek Ram was the Driver of the car and another person named Bobby Sharma was sitting besides him on the front seat. Independent witnesses were associated. Car was checked and charas weighing 1 kg 790 grams was recovered. During interrogation, accused Tek Ram and Bobby Sharma disclosed that they were carrying the contraband on the asking of Vikas @ Vicky and Hitesh, who had engaged them to transport the same beyond the Borders of Himachal Pradesh, in lieu of Rs. 20,000/-. Independent witnesses were associated. Car was checked and charas weighing 1 kg 790 grams was recovered. During interrogation, accused Tek Ram and Bobby Sharma disclosed that they were carrying the contraband on the asking of Vikas @ Vicky and Hitesh, who had engaged them to transport the same beyond the Borders of Himachal Pradesh, in lieu of Rs. 20,000/-. It was also disclosed that both these persons (Vikas @ Vicky and Hitesh) had travelled in advance in their vehicle No. DL-8CNA-7974 and were scheduled to meet them near Toll Plaza beyond place known as Garamoura. On this information, Vikas @ Vicky and Hitesh alongwith vehicle No. DL-8CNA-7974, were apprehended near Garamoura, Toll Barrier. All the accused persons were formally arrested after completion of preliminary investigation. 4. The case of the respondent-State further is that during investigation accused Hitesh disclosed the complicity of petitioner in the crime. As per respondent-State, accused Hitesh disclosed that he alongwith Vikas @ Vicky and petitioner had handed over the contraband to Tek Ram and Bobby Sharma for transportation beyond the Borders of the State. Petitioner was arrested on 03.03.2021. It is alleged that petitioner was found in company of Hitesh and Vikas @ Vicky in a hotel/restaurant near Garamoura sometimes before the apprehension of accused Vikas @ Vicky and Hitesh. Such fact is stated to have been confirmed from CCTV footage of the said hotel/restaurant. Some financial transactions have also been stated to have taken place between Hitesh and petitioner. It is also alleged that petitioner had been making and receiving calls to and from accused Hitesh and Vikas @ Vicky. 5. The challan is stated to have been filed after completion of investigation. 6. I have heard learned counsel for the petitioner and also learned Additional Advocate General for the respondent/State and have also gone through the contents of the status report as well as the record of the investigation. 7. The contraband recovered in the case is of commercial quantity, therefore, rigors of Section 37 of NDPS Act are applicable. However, at this stage, this Court is not precluded from looking into the material placed before it in order to have prima facie assessment of the nature and gravity of allegations against the petitioner and the material collected by the investigating agency to substantiate the same. 8. However, at this stage, this Court is not precluded from looking into the material placed before it in order to have prima facie assessment of the nature and gravity of allegations against the petitioner and the material collected by the investigating agency to substantiate the same. 8. It is borne out from the records that the accused Tek Ram and Bobby Sharma, even as per the case of respondent-State, had not named the petitioner to be one of the persons who had handed over the contraband to them for transportation. They had named only accused Vikas @ Vicky and Hitesh. It is only on the basis of alleged statement of accused Hitesh made during investigation that the implication of the petitioner came to be known to the police. Such material can not be used as evidence as is held by Hon’ble Supreme Court in Tofan Singh Vs. State of Madras, 2021 (4) SCC 1 . Confessional statement of an accused, during the investigation under NDPS Act has been held to be inadmissible. In Bharat Chaudhary Vs. Union of India, Special Leave to Appeal (Crl.) No. 5703 of 2021, the three Judges Bench of Hon'ble Supreme Court in almost identical situation has held asunder:- “11. In the absence of any psychotropic substance found in the conscious possession of A-4, we are of the opinion that mere reliance on the statement made by A-1 to A-3 under Section 67 of the NDPS Act is too tenuous a ground to sustain the impugned order dated 15th July, 2021. This is all the more so when such a reliance runs contrary to the ruling of Tofan Singh (supra). The impugned order qua A-4 is, accordingly, quashed and set aside and the order dated 2nd November, 2020 passed by the learned Special Judge, EC & NDPS Cases, is restored. As for Raja Chandrasekharan (A-1), since the charge sheet has already been filed and by now the said accused has remained for over a period of two years, it is deemed appropriate to release him on bail, subject to the satisfaction of the trial Court.” 9. It is not denied that petitioner is running his business at village Kasol, District Kullu, H.P. It is also not denied that he was previously known to accused Vikas @ Vicky and Hitesh. It is not denied that petitioner is running his business at village Kasol, District Kullu, H.P. It is also not denied that he was previously known to accused Vikas @ Vicky and Hitesh. Petitioner, as a matter of fact, is stated to have taken over the business of Fast Food at Kasol which earlier was being run by accused Hitesh. In these circumstances, there is nothing abnormal about the phone calls between petitioner and co-accused Vikas @ Vicky and Hitesh as also some financial transactions in between them. Whether they are related to the matter in issue, is a question that will be decided during the course of trial. The Constitutional guarantee of personal liberty of an individual can not be curtailed on vague and indefinite allegations. As regards, the allegation that petitioner was in the company of Vikas @ Vicky and Hitesh at hotel/restaurant near Garamoura again cannot be said to be a circumstance pointing towards complicity of petitioner in the alleged crime, especially the Vikas @ Vicky and Hitesh, were known to him. 10. Thus, in the facts and circumstances of the case, this Court is satisfied that the complicity of the petitioner in the alleged crime is not prima facie made out. There is no criminal history attributable to the petitioner, therefore, it can also not be said that in case of his release on bail, he is likely to commit the offence again. 11. In the given facts and circumstances of the case, pre trial incarceration of the petitioner is not going to serve any fruitful purpose. Petitioner is permanent resident of 8/4 New Netaji Nagar, Line Par, Nizampur Road, Bahadurgarh, Jhajjar, Haryana and there is no likelihood of his absconding from the course of justice. No such circumstance has been brought to the notice of this Court by the respondent-State which may lead to reasonable inference of petitioner tampering with the prosecution evidence. It is also not the case of the respondent that release of the petitioner on bail is likely to affect the trial of the case adversely. 12. No such circumstance has been brought to the notice of this Court by the respondent-State which may lead to reasonable inference of petitioner tampering with the prosecution evidence. It is also not the case of the respondent that release of the petitioner on bail is likely to affect the trial of the case adversely. 12. In the peculiar facts and circumstances of the case, the instant petition is allowed and the petitioner is ordered to be released on bail in case FIR No. 16/2021, dated 24.02.2021, registered at Police Station Swarghat, District Bilaspur, Himachal Pradesh, under Sections 20 and 29 of Narcotic Drugs and Psychotropic Substances Act, 1985, on his furnishing personal bond in the sum of Rs. 2 lacs/- with one surety in the like amount, who necessarily will be of a person belonging to the State of Himachal Pradesh, to the satisfaction of the learned Trial Court, This order is subject to following conditions :- i) Petitioner shall regularly attend the trial of the case, before learned Trial Court and shall not cause any delay in its conclusion. ii) Petitioner shall not tamper with the prosecution evidence in any manner, whatsoever and shall not dissuade any person from speaking the truth in relation to the facts of the case in hand. iii) Petitioner shall be liable for cancellation of bail in the instant case in the event of petitioner violating the conditions of this order. (iv) Petitioner shall not leave India without permission of learned trial Court till completion of trial. 13. Any expression of opinion herein-above shall have no bearing on the merits of the case and shall be deemed only for the purpose of disposal of this petition.