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2023 DIGILAW 88 (HP)

Sandeep Thakur v. State of Himachal Pradesh

2023-02-24

SATYEN VAIDYA

body2023
JUDGMENT : Satyen Vaidya, J. Petitioner has approached this Court for grant of bail in case FIR No. 171/2022, dated 24.11.2022, registered under Sections 21 & 29 of Narcotic Drugs and Psychotropic Substances Act, 1985 (for short ‘ND&PS’ Act), at Police Station Dhalli, District Shimla, H.P 2. Petitioner is in custody since 24.11.2022. 3. Brief facts necessary for adjudication of the petition are that on 24.11.2022, a police party had laid ‘Nakka’ near Chhrabra, within the jurisdiction of police Dhalli. They received a secret information that one Car No. HP-95-2257 (Alto) was on way from Chandigarh to Rampur with two persons namely Anuj Sirkek and Sandeep travelling therein and in case, the vehicle was searched Chitta/Heroin could be recovered. Proceedings under Section 42(2) of ND&PS, Act, were drawn and information was sent to the Supervising Officer, Police Station Dhallli. At about 9:00 am, two independent witnesses were associated. Car No. HP-95-2257 (Alto) was noticed by the police party at 9:30 am with two persons occupying the same. The vehicle was stopped. Accused Anuj Sirkek was on the wheel and petitioner was occupying the front passenger seat. The vehicle was searched. 10.54 grams of Chitta/Heroin was recovered from beneath the foot mat of the driver seat. After preliminary interrogation, the case was registered. Petitioner alongwith other co-accused namely Anuj Sirkek were arrested. On completion of investigation, challan has been presented before the Court against both the accused persons including petitioner. 4. Petitioner has prayed for grant of bail, on the ground that, he is innocent as he was not aware about the contraband in the vehicle. According to the petitioner, the vehicle belonged to Anuj Sirkek and petitioner had taken lift from the co-accused. It is further submitted that petitioner has never remained involved in any similar offence. He has no criminal history. 5. On the other hand, the prayer for bail on behalf of the petitioner has been opposed by learned Additional Advocate General, on the ground that the substantial quantity of ‘heroin’ has been recovered from the vehicle, which was occupied by both the accused persons. Petitioner was aware about the carriage of contraband in the vehicle. It is further submitted that in case of grant of bail to the petitioner, he may abscond from the course of justice with a view to evade punishment. 6. Petitioner was aware about the carriage of contraband in the vehicle. It is further submitted that in case of grant of bail to the petitioner, he may abscond from the course of justice with a view to evade punishment. 6. I have heard learned counsel for the petitioner as well as learned Additional Advocate General and have also gone through the status report. 7. The status report submitted by respondent/State reveals that the petitioner has no criminal antecedents. No case of similar nature or for any other offence has been found against the petitioner. However, co-accused Anuj Sirkek has been involved in nine criminal cases in the past, out of which, three were under ND&PS Act. First case against co-accused Anuj Sirkek was registered under Section ND&PS, Act in the year 2015. The co-accused Anuj Sirkek had also filed a separate bail petition for grant of bail. This Court had shown its disinclination to grant bail to said Anuj Sirkek in view of his repeated indulgence in offences and the learned counsel representing the accused Anuj Sirkek had withdrawn the petition on 22.02.2023. 8. Since, the petitioner in the instant petition has no criminal background, his petition has been considered separately. 9. The quantity of ‘heroin’ recovered in the case is intermediate and thus, the rigors of Section 37 of ND&PS, Act, will not be applicable. Admittedly, petitioner is not the owner of the vehicle. The vehicle, from which contraband has been recovered, is registered in the name of the wife of co-accused Anuj Sirkek. The allegation against petitioner of having knowledge about the contraband in the vehicle is subject to proof during trial. 10. Though, the allegations against petitioner are serious, but it cannot be taken to be sole criteria to reject the bail application. The right of liberty available to the petitioner is to be weighed and balanced against public interest. Keeping in view the fact that there is no criminal history attach to the petitioner, it cannot be said with certainty that petitioner is either consumer of ‘heroin’ himself or a dealer. 11. Petitioner is permanent resident of Village and Post Office Jahu, Tehsil Nankhari, District Shimla, H.P. and there is no likelihood of his absconding or fleeing from the course of justice. The apprehension expressed by learned Additional Advocate General regarding possibility of petitioner influencing the prosecution witnesses is not supported by any tangible material. 11. Petitioner is permanent resident of Village and Post Office Jahu, Tehsil Nankhari, District Shimla, H.P. and there is no likelihood of his absconding or fleeing from the course of justice. The apprehension expressed by learned Additional Advocate General regarding possibility of petitioner influencing the prosecution witnesses is not supported by any tangible material. In any case, for ensuring free and fair trial, petitioner can be put to appropriate terms. 12. No fruitful purpose shall be served by detaining the petitioner in custody for indeterminate period. The conclusion of trial is likely to take considerable time. 13. Keeping in view the peculiar facts of the case, the bail petition is allowed and petitioner is ordered to be released on bail in case FIR No. 171/2022, dated 24.11.2022, registered under Sections 21 and 29 of ND&PS, Act, at Police Station Dhalli, District Shimla, H.P., on his furnishing personal bond in the sum of Rs. 50,000/- with one surety in the like amount to the satisfaction of learned trial Court. This order shall, however, be subject to the 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) That the petitioner shall 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 from disclosing such facts to the Court or to the Police. (iii) That the petitioner shall not in any manner tamper with the prosecution evidence. iv) That any indulgence of petitioner in criminal activities during the continuance of this order shall entail cancellation of the bail granted to the petitioner. (v) That the petitioner shall not leave India till conclusion of trial without permission of the learned trial Court. 14. 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.