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2025 DIGILAW 357 (HP)

Tilak Bohra v. State of Himachal Pradesh

2025-03-12

SANDEEP SHARMA

body2025
JUDGMENT : (Sandeep Sharma, J.) Bail petitioner, namely Tilak Bohra, who is behind the bars since 03.07.2024, has approached this Court in the instant proceedings filed under Section 483 BNSS, 2023, for grant of regular bail in case FIR No.94 of 2024, dated 03.07.2024, under Sections 18 & 19 of NDPS Act, registered at Police Station Theog, District Shimla, Himachal Pradesh. 2. Respondent/State has filed status report and SI Sunil Kumar, I/O, Police Station Theog, has come present along with record. Record perused and returned. 3. Close scrutiny of status report/record reveals that on 03.07.2024, Police after having received secret information that persons namely Tilak Bohra i.e. petitioner herein and co-accused namely Kal Bhadur indulge in illegal trade of narcotics, intercepted car bearing registration No.HP-95-3535 (Alto K-10), which at relevant time was being driven by present bail petitioner and allegedly recovered 1.516 kilogram of opium from the dickey of car in the presence of independent witnesses. Since no plausible explanation ever came to to be rendered on record qua possession of aforesaid intermediate quantity of contraband, Police after having completed necessary codal formalities, lodged FIR, detailed hereinabove. 4. During investigation, it emerged that apart from person namely Tilak Bohra and Kal Bhadur, Ravi Giri was also involved, who was allegedly selling contraband through present bail petitioner and co-accused Kal Bhadur. Both the co-accused namely Ravi Giri and Kal Bhadur already stands enlarged on bail and as such, petitioner herein has approached this Court in the instant proceedings for grant of regular bail on the ground that Challan stands filed in the competent Court of law and nothing remains to be recovered from him. 5. While fairly admitting factum with regard to filing of Challan in the competent Court of law, Mr. B.C. Verma, learned Additional Advocate General states that though nothing remains to be recovered from the bail petitioner, but keeping in view the gravity of offence, alleged to have been committed by him, he does not deserve any leniency. He states that since it is not in dispute that at the time of recovery, bail petitioner was found driving the car, from where contraband was recovered, he cannot be permitted to claim innocence. Mr. He states that since it is not in dispute that at the time of recovery, bail petitioner was found driving the car, from where contraband was recovered, he cannot be permitted to claim innocence. Mr. Verma, while making this Court peruse record, states that there is overwhelming evidence available on record, suggestive of the fact that petitioner herein had been indulging in illegal transportation of narcotics for the last so many years. He states that record with regard to financial transaction, collected on record by the Investigating Agency, clearly reveals that petitioner herein, after selling the contraband, had been depositing the amount in the Bank account of co- accused Ravi Giri. Mr. Verma states that since petitioner has committed heinous crime having adverse impact on the society, it may not be in the interest of justice to enlarge him on bail, because in that event, he may not only flee from justice, but may again indulge in these activities. He further states that since petitioner is a Nepali citizen, it may be difficult to secure his presence in the event of his being enlarged on bail. 6. Having heard learned counsel representing the parties and perused material available on record, this Court is not persuaded to agree with Mr. Manoj Pathak, learned counsel representing the petitioner that petitioner herein has been falsely implicated. Record/status report clearly reveals that intermediate quantity of contraband was recovered from the car being driven by the petitioner in the presence of independent witnesses. Moreover, petitioner himself disclosed to the Police that he had been transporting the narcotics at the instance of co-accused Ravi Giri, who happens to be his brother-in-law. Record of financial transaction placed on record suggests that some amount has been transferred in the Bank account of Ravi Giri from the Bank account of the petitioner, but there is no concrete evidence to suggest that amount transferred by the petitioner herein in the Bank account of Ravi Giri were proceeds of crime or same was deposited by sale & purchase of narcotics. Since it is admitted case of the prosecution that co-accused Ravi Giri, who is allegedly a drug peddler, is brother-in-law of the petitioner, factum of transfer of money, if any, by the petitioner cannot be sufficient to conclude involvement of the petitioner. Since it is admitted case of the prosecution that co-accused Ravi Giri, who is allegedly a drug peddler, is brother-in-law of the petitioner, factum of transfer of money, if any, by the petitioner cannot be sufficient to conclude involvement of the petitioner. Though, as per the status report, huge amount of money has been found in the Bank account of co-accused Ravi Giri, but certainly there is nothing on record to suggest that in past, case, if any, under NDPS Act stands registered against the petitioner. Rigors of Section 37 of the Act are not attracted in the present case for the reason that intermediate quantity of contraband was recovered from the car being driven by the petitioner. Since this Court has already enlarged co-accused Kal Bhadur and Ravi Giri on bail, petitioner herein being similarly situate also deserves similar treatment. Moreover, this Court finds that till date, prosecution has been able to examine only one prosecution witness out of eighteen, meaning thereby, considerable time is otherwise likely to be consumed in recording the statement of remaining prosecution witnesses. 7. Hon’ble Apex Court as well as this Court in catena of cases have repeatedly held that one is deemed to be innocent till the time guilt, if any, of his/her is not proved in accordance with law. In the case at hand also, guilt, if any, of the accused is yet to be proved in accordance with law, by leading cogent and convincing material on record, coupled with the fact that he is behind bars for more than eight months, as such, his incarceration in jail for indefinite period is clear cut violation of fundamental rights guaranteed under Article 21 of the Constitution of India. Apprehension expressed by the learned Additional Advocate General that in the event of petitioner’s being enlarged on bail, he may flee from justice, can be best met by putting the bail petitioner to stringent conditions as has been fairly stated by the learned counsel for the petitioner. 8. Hon'ble Apex Court in Criminal Appeal No. 227/2018 , Dataram Singh vs. State of Uttar Pradesh & Anr decided on 6.2.2018 has held that freedom of an individual cannot be curtailed for indefinite period, especially when his/her guilt is yet to be proved. 8. Hon'ble Apex Court in Criminal Appeal No. 227/2018 , Dataram Singh vs. State of Uttar Pradesh & Anr decided on 6.2.2018 has held that freedom of an individual cannot be curtailed for indefinite period, especially when his/her guilt is yet to be proved. It has been further held by the Hon'ble Apex Court in the aforesaid judgment that a person is believed to be innocent until found guilty. 9. Hon’ble Apex Court in Sanjay Chandra versus Central Bureau of Investigation (2012)1 Supreme Court Cases 49 has held that gravity alone cannot be a decisive ground to deny bail, rather competing factors are required to be balanced by the court while exercising its discretion. It has been repeatedly held by the Hon’ble Apex Court that object of bail is to secure the appearance of the accused person at his trial by reasonable amount of bail. The object of bail is neither punitive nor preventative. 10. In Manoranjana Sinh alias Gupta versus CBI, (2017) 5 SCC 218 , Hon'ble Apex Court has held that the object of the bail is to secure the attendance of the accused in the trial and the proper test to be applied in the solution of the question whether bail should be granted or refused is whether it is probable that the party will appear to take his trial. Otherwise also, normal rule is of bail and not jail. Apart from above, Court has to keep in mind nature of accusations, nature of evidence in support thereof, severity of the punishment, which conviction will entail, character of the accused, circumstances which are peculiar to the accused involved in that crime. 11. The Apex Court in Prasanta Kumar Sarkar versus Ashis Chatterjee and another (2010) 14 SCC 496 , has laid down various principles to be kept in mind, while deciding petition for bail viz. prima facie case, nature and gravity of accusation, punishment involved, apprehension of repetition of offence and witnesses being influenced. 12. In view of the aforesaid discussion as well as law laid down by the Hon’ble Apex Court, petitioner has carved out a case for grant of bail. prima facie case, nature and gravity of accusation, punishment involved, apprehension of repetition of offence and witnesses being influenced. 12. In view of the aforesaid discussion as well as law laid down by the Hon’ble Apex Court, petitioner has carved out a case for grant of bail. Accordingly, present petition is allowed and the petitioner is ordered to be enlarged on bail in aforesaid FIR, subject to his furnishing personal bond in the sum of Rs.5,00,000/- with two local sureties in the like amount to the satisfaction of concerned Chief Judicial Magistrate/trial Court, with following conditions: (a) he shall make himself available for the purpose of interrogation, if so required and regularly attend the trial Court on each and every date of hearing and if prevented by any reason to do so, seek exemption from appearance by filing appropriate application; (b) he shall not tamper with the prosecution evidence nor hamper the investigation of the case in any manner whatsoever; (c) he shall not make any inducement, threat or promises to any person acquainted with the facts of the case so as to dissuade him/her from disclosing such facts to the Court or the Police Officer; and (d) he shall not leave the territory of India without the prior permission of the Court. 13. It is clarified that if the petitioner misuses the liberty or violates any of the conditions imposed upon him, the investigating agency shall be free to move this Court for cancellation of the bail. 14. Any observations made hereinabove shall not be construed to be a reflection on the merits of the case and shall remain confined to the disposal of this application alone. The petition stands accordingly disposed of. 15. The petitioner is permitted to produce copy of the order downloaded from the High Court Website and the trial court shall not insist for certified copy of the order, however, it may verify the order from the High Court website or otherwise.