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2025 DIGILAW 373 (HP)

Shami Kumar v. State of Himachal Pradesh

2025-03-13

VIRENDER SINGH

body2025
JUDGMENT : (Virender Singh, J.) By way of the present application, filed under Section 483 of the Bharatiya Nagarik Suraksha Sanhita , 2023 (hereinafter referred to as ‘ BNSS ’), applicant-Shami Kumar has sought his release, on bail, during the pendency of the trial, in case FIR No.73 of 2023, dated 13.07.2023, registered under Sections 21 and 29 of the Narcotic Drugs & Psychotropic Substances Act (hereinafter referred to as the ‘NDPS Act’), with Police Station East Shimla, District Shimla, H.P. 2. According to the applicant, he is innocent person and has falsely been implicated, in the present case, by the police, on the ground that the contraband, weighing 13.63 gms of chitta/heroin, was recovered from the vehicle, being driven by Kuldeep Kumar and it has allegedly been revealed by accused Kuldeep Kumar that he has purchased chitta from one Shami, R/o Panchkula (applicant). 3. It is the case of the applicant that the story of the prosecution is highly improbable and police has not considered the fact that the applicant is doing the business and also paying Income Tax Returns. 4. It is the further case of the applicant that he is having no other case, registered against him and the investigation, in the present case, is complete and charge- sheet has been filed, before the Court of learned Additional Sessions Judge, CBI Court, Shimla (hereinafter referred to as the ‘trial Court’). The case is now stated to be fixed for prosecution evidence for 03.03.2025. 5. According to the applicant, he had earlier tried his luck by moving similar application, before the Court of learned Special Judge, (CBI Court), Shimla, Himachal Pradesh. However, the same was dismissed vide order dated 22.02.2025. 6. Apart from this, Mr. Mukesh Sharma, Advocate, appearing for the applicant, has given certain undertakings, on behalf of the applicant, for which, the applicant is ready to abide by, in case, ordered to be released on bail, during the pendency of the trial. 7. On the basis of the above facts, a prayer has been made to allow the bail application. 8. When, put to notice, the police has filed the status report, disclosing therein, that on 12.07.2023, ASI Ambi Lal, Incharge, Special Investigation Unit, Shimla, submitted a ruqqa, through Ct. 7. On the basis of the above facts, a prayer has been made to allow the bail application. 8. When, put to notice, the police has filed the status report, disclosing therein, that on 12.07.2023, ASI Ambi Lal, Incharge, Special Investigation Unit, Shimla, submitted a ruqqa, through Ct. Dheeraj Kumar No.669, to Police Station East Shimla, District Shimla, H.P., mentioning therein, that on 12.07.2023, he, along with other police party, was on patrolling duty and duty to prevent the crime. 9. It is the further case of the police that when, police party was present at Mehli, then, at about 08:00 pm, they received a secret information, regarding the indulgence of Kuldeep Thakur and Saurav Chauhan, in the business of selling chitta and according to the said secret information, they are coming from Chandigarh and going towards Maliana side, in a car, bearing registration No.HP63-D-2992. 10. As per the said information, if the said vehicle is searched, then, chitta could be recovered. The said information was found to be authentic and reliable. As such, IO has complied with Section 42(2) of the NDPS Act, by submitting the report to the superior officer and thereafter, he has associated two independent witnesses, namely Bal Krishan Sharma and Sanju, after apprising them about the secret information. 11. It is the further case of the police that thereafter, at about 10:00 am, they noticed a car, bearing registration No.HP63-D-2992, being driven by its driver, coming from Mehli side. The car was signaled to stop, in which, two persons were found sitting. The person, who was sitting on wheel, disclosed his name as ‘Kuldeep Thakur, s/o Krishan Chand Thakur’, and the other person, sitting on co-driver seat, disclosed his name as ‘Saurav Chauhan, s/o Nareshwar Chauhan’. 12. Thereafter, the said car was searched and underneath the foot mat of the driver seat, a transparent plastic, containing granule shaped brown substance, was found and when, the same was checked on the drug detection kit, then, the same was found to be chitta/heroin. On enquiry, both the persons disclosed that they had gone to Chandigarh in the vehicle and purchased the chitta and now, returning back to Maliana. On weighing, the said chitta was found to be 13.63 gms, which was taken into possession. Thereafter, other codal formalities were completed. 13. After registration of the FIR, police started conducting the further investigation by arresting both accused persons. On weighing, the said chitta was found to be 13.63 gms, which was taken into possession. Thereafter, other codal formalities were completed. 13. After registration of the FIR, police started conducting the further investigation by arresting both accused persons. 14. During investigation, Kuldeep Thakur has disclosed that he is working as Salesman in Mahindra & Mahindra Company for the last one-and-a-half year and his wife is working as Nursing Tutor in private Nursing College, Surala. Kuldeep Thakur is having account in Punjab National Bank. He and Saurav Chauhan had gone to Chandigarh for the purchase of chitta. They used to purchase the same from a person, namely Shami (applicant), who called them through Telegram application and thereafter, he used to delete the said chat. Sometimes, they used to pay in cash and sometimes, through online mode. 15. As per further disclosure by Kuldeep Thakur, he was earlier arrested for allegedly possessing 12 gms of chitta. Subsequently, he used to transfer the amount to Shami (applicant), through his wife, on the pretext of marketing. He has further disclosed that he had gone to Panchkula, in order to purchase the chitta, where, he purchased 14 gms chitta from Shami (applicant), for a sum of Rs.28,000/-. When, amount was demanded, then, he has telephonically requested his wife Kiran to transfer Rs.2,000/- and Rs.1,500/- in the account of Saurav Chauhan. Thereafter, Saurav Chauhan has paid the said amount to Shami (applicant). On the basis of above, the police searched for the applicant. 16. During investigation, it was found that wife of accused Kuldeep Thakur had transferred the amount of Rs.13,000/- on 16.06.2023, Rs.10,000/-, Rs.12,000/-, Rs.2,000/- on 28.06.2023, Rs.7,000/- on 30.06.2023 and Rs.14,000/- on 04.07.2023, in the bank account of Shami (applicant). 17. It has also been found during investigation that from the account of Saurav Chauhan, amount was transferred to Shami (applicant), through UPI. He has transferred Rs.4,000/- on 26.03.2023. On 12.07.2023, 14 gms of chitta was allegedly purchased by Kuldeep Thakur and Saurav Chauhan for a sum of Rs.24,000/-. After paying Rs.24,000/- in cash, the deal was settled for Rs.28,000/-. Subsequently, Kuldeep Thakur, through his wife, got transferred the amount of Rs.2,000/-, Rs.1500/- (total Rs.3500/-) in the account of Saurav Chauhan. 18. Thereafter, Saurav Chauhan has transferred the amount in the account of Shami (applicant). After paying Rs.24,000/- in cash, the deal was settled for Rs.28,000/-. Subsequently, Kuldeep Thakur, through his wife, got transferred the amount of Rs.2,000/-, Rs.1500/- (total Rs.3500/-) in the account of Saurav Chauhan. 18. Thereafter, Saurav Chauhan has transferred the amount in the account of Shami (applicant). As per the CDR, location of the mobile phone of Saurav Chauhan was also found to be in Panchkula on 12.07.2023. Shami (applicant) was arrested on 25.01.2025. 19. Thereafter, during the police remand, the police has not got recovered the record, through which, Saurav Chauhan used to get the amount, transferred in applicant’s account. However, it has been found that in the last one year, there is transaction of about Rs.14 lacs, in his account. In the account, maintained with PNB and HDFC, it was found that Rs.41,00,239/- was credited in his account. 20. It is also the case of the police that the bail application of Saurav Chauhan was allowed on 08.08.2023 and bail application of Kuldeep Thakur was allowed on 11.08.2023. 21. On the basis of above facts, it has been apprehended that the applicant had sold the contraband, for a sum of Rs.27,500/-, out of which, Rs.24,000/- was received in cash, whereas, Rs.3,500/- was transferred by accused Saurav Chauhan, in the bank account of the applicant. 22. It has also been found that the applicant has got transferred a sum of Rs.39,000/-, through online, from Kuldeep Thakur, in his bank A/c No.3247000105561435 on different dates. In the bank account of the applicant, maintained with PNB, it was found that in the last one year, a sum of Rs.14,00,000/- was credited in his account, whereas, in the other account, a sum of Rs.41,00,239/- was credited. Hence, a sum of Rs.55,00,239/- was found to be deposited in his account. 23. Applicant-Shami Kumar is stated to be a clever person and used to get the amount transferred by sending the scanner through Telegram. Mobile phone of the accused was sent to SFSL, Junga, and the report is still awaited. 24. As per the status report, the applicant is the resident of adjoining State and used to change his address and in case, he is ordered to be released on bail, his presence, before the Court, is doubtful. The antecedents of the applicant are yet to be ascertained. 25. On the basis of above facts, a prayer has been made to dismiss the application. 26. The antecedents of the applicant are yet to be ascertained. 25. On the basis of above facts, a prayer has been made to dismiss the application. 26. The applicant has placed on record the photocopy of the Income Tax Returns, as well as, the copy of the sale deed. These documents are not liable to be considered, as, the defence of the applicant would be probabilized by putting the documents to the prosecution witnesses or at the time of examination of the witnesses. 27. Considering the fact that the persons, who had allegedly purchased the chitta/heroin from the applicant, have been released on bail, this Court is of the view that on the ground of parity, the applicant is entitled for the relief, as claimed, in the application. 28. The investigation, qua those two persons, is complete. The applicant, in the present case, was arrested on 25.01.2025 and certainly, the applicant is presently in judicial custody. This fact is sufficient to demonstrate, at this stage, that custodial interrogation of the applicant is no longer required by the police. 29. The applicant was arrested on 25.01.2025 and it is highly improbable that his antecedents could not be ascertained by the police, had the sincere efforts been made by the Investigating Officer, in this case. Merely, on this ground, the applicant cannot be kept in the judicial custody, that too, for the indefinite period. 30. In this case, the contraband, allegedly stated to have been recovered, is 13.63 grams of chitta/heroin. Admittedly, the said contraband does not fall, within the definition of ‘commercial quantity’. As such, the rigors of Section 37 of the NDPS Act are not applicable, in this case. 31. Once, it has been held that the rigors of Section 37 of the NDPS Act are not applicable, in that eventuality, the presumption of innocence is still available to the applicant, as the bail application cannot be rejected merely as a matter of punishment, since, pre-trial punishment is prohibited under the law. 32. Considering all these facts, this Court is of the view that the bail application is liable to be allowed and is accordingly allowed. 33. 32. Considering all these facts, this Court is of the view that the bail application is liable to be allowed and is accordingly allowed. 33. Consequently, the applicant is ordered to be released, on bail, in case FIR No.73 of 2023, dated 13.07.2023, registered under Sections 21 and 29 of the NDPS Act, with Police Station East Shimla, District Shimla, H.P., on his furnishing personal bonds in the sum of Rs.1,00,000/-, with two sureties of the like amount, to the satisfaction of the learned trial Court. 34. This order, however, shall be subject to the following conditions:- “a) The applicant 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 the appropriate application; b) The applicant shall not tamper with the prosecution evidence nor hamper the investigation of the case in any manner whatsoever; c) The applicant shall not make any inducement, threat or promises to any person acquainted with the facts of the case so as to dissuade them from disclosing such facts to the Court or the Police Officer, and d) The applicant shall not leave the territory of India without the prior permission of the Court. e) The Court, before releasing the applicant on bail, may satisfy itself about the permanent address of the applicant. f) The applicant is also directed to furnish his fresh address to the learned trial Court, in case, there is change in his abode.” 35. Any of the observations, made hereinabove, shall not be taken as an expression of opinion, on the merits of the case, as these observations, are confined, only, to the disposal of the present bail application. 36. It is made clear that the respondent-State is at liberty to move an appropriate application, in case, any of the bail conditions, is found to be violated by the applicant. 37. The Registry is directed to forward a soft copy of the bail order to the Superintendent of Jail, Kaithu Jail, Shimla, Himachal Pradesh, through e-mail, with a direction to enter the date of grant of bail in the e-prison software. 38. 37. The Registry is directed to forward a soft copy of the bail order to the Superintendent of Jail, Kaithu Jail, Shimla, Himachal Pradesh, through e-mail, with a direction to enter the date of grant of bail in the e-prison software. 38. In case, the applicant is not released within a period of seven days from the date of grant of bail, the Superintendent of Jail, Kaithu Jail, Shimla, Himachal Pradesh, is directed to inform this fact to the Secretary, DLSA, Shimla. The Superintendent of Jail, Kaithu Jail, Shimla, Himachal Pradesh, is further directed that if the applicant fails to furnish the bail bonds, as per the order passed by this Court, within a period of one month from today, then, the said fact be submitted to this Court.