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2025 DIGILAW 571 (HP)

Ghanshyam @Sonu v. State of Himachal Pradesh

2025-04-01

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- Ghanshyam @Sonu has sought his release, on bail, during the pendency of the trial, in case FIR No.331 of 2024, dated 13.12.2024, registered under Sections 18 and 20 of the Narcotic Drugs & Psychotropic Substances Act (hereinafter referred to as the ‘NDPS Act’), with Police Station Sadar Hamirpur, District Hamirpur, H.P. 2. According to the applicant, he is innocent person and has falsely been implicated, in this case, for allegedly possessing 194.16 gms of charas and 14.71 gms of opium, by the police. 3. It is the case of the applicant that he is no longer required by the police for investigation. 4. As per applicant, he is the sole bread-earner of his family and cannot be kept in the judicial custody for indefinite period. 5. It has been averred in the application that previously, five other FIRs have been registered against him, out of which, two cases are under the provisions of NDPS Act. 5.1. In case FIR No.288/95, the applicant has been convicted, under Section 457 of the Indian Penal Code (hereinafter referred to as the ‘IPC’). In case FIR No.133/14, registered under Section 21 of the NDPS Act, he has been acquitted in the appeal, whereas, cases, bearing FIR No.136/23, registered under Sections 20 and 29 of NDPS Act, FIR No.26/12 and FIR No.137/13, both registered under the provisions of IPC, are still pending adjudication. 6. Apart from this, Mr. Rajul Chauhan, Legal Aid Counsel, 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 ASI Puran Bhagat Singh, I/O PS Sadar Hamirpur, has submitted a ruqqa to the Police Station, mentioning therein that on 13.12.2024, at about 05:55 pm, when, he, along with other police officials, was on patrolling duty, then, he noticed a person near Shiv Temple Chowk, Anu. 9. According to the police, on seeing the police party, the said person was trying to hide himself. 9. According to the police, on seeing the police party, the said person was trying to hide himself. As such, IO developed a suspicion in his mind. On seeing the police personnel, he alighted down from the vehicle. The said person had thrown away the bag, which he was carrying. Thereafter, in the presence of independent witnesses, the said person was nabbed and on enquiry, he has disclosed his name as Ghanshyam @Sonu S/o Desh Raj R/o Village Jhanikar, PO Barara, Tehsil Tauni Devi, District Hamirpur, H.P. (applicant). 10. Subsequently, on opening the bag, which was thrown away by the applicant, the contraband, weighing 194.16 gms of charas and 14.71 gms of opium, was recovered. Other codal formalities were completed. 11. Thereafter, the FIR in question has been registered and accused (applicant) was arrested. 12. The contraband, so recovered, was sent to SFSL, Junga, for chemical analysis, from where, positive report was received. 13. As per the status report, following cases are stated to have been registered, against the applicant:- “(i) FIR No.288/95, registered under Section 457 IPC with PS Sadar, Hamirpur, in which, the applicant has been convicted. (ii) FIR No.23/12, registered under Section 61-1-14 of the Excise Act, with PS Bhoranj, in which, the applicant has been convicted. (iii) FIR No.26/12, registered under Sections 323, 504, 34 of IPC, with PS Bhoranj, in which, the applicant has been acquitted. (iv) FIR No.137/13, registered under Sections 341, 323, 504, 34 of IPC, with PS Bhoranj. The said case is stated to be pending. (v) FIR No.133/14, registered under Section 20 of NDPS Act, with PS Hamirpur, in which, he has been convicted by the Court of learned CJM, Hamirpur, whereas, acquitted by the Court of learned Sessions Judge, Hamirpur. (vi) FIR No.136/23, registered under Sections 20 and 29 of NDPS Act, with PS Bhoranj. The said case is stated to be pending.” 14. According to the status report, investigation in the present case is complete, as, the police has submitted the charge-sheet in the Court and now, the case is stated to be listed before the Court of learned Special Judge, Hamirpur, H.P. 15. On the basis of the above facts, a prayer has been made to dismiss the application. 16. In this case, admittedly, the contraband, allegedly stated to have been recovered, does not fall, within the definition of ‘commercial quantity’. On the basis of the above facts, a prayer has been made to dismiss the application. 16. In this case, admittedly, the contraband, allegedly stated to have been recovered, 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. 17. 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. 18. As per the status report, in case, mentioned at Sr. No.1, the applicant has been convicted on 18.03.1996 and he cannot be permitted to suffer the sting of the conviction, which was inflicted against him about 29 years ago, whereas, in case, at Sr. No.2, he has been convicted and sentenced to pay a fine of Rs.3,000/-, under the provisions of Excise Act. 18.1. In cases, at Sr. No.3 and 5, the applicant has been acquitted, whereas, the other two cases, one under the provisions of IPC, and other under the provisions of NDPS Act, are pending adjudication against him. However, no conviction has been recorded, in the aforementioned cases. 19. In the present case, investigation is complete and the police has submitted the challan, in the competent Court of law. This fact is sufficient to demonstrate that the custodial interrogation of the applicant is no longer required by the police. 20. Even otherwise, the bail application cannot be rejected, as a matter of punishment, as, the punishment can only be inflicted, after the conclusion of trial and in the present case, the chances of conclusion of trial against the applicant, in near future, are not so bright. As such, he cannot be kept in judicial custody, that too, for the indefinite period. 21. Considering all these facts, this Court is of the view that the bail application is liable to be allowed and is accordingly allowed. 22. As such, he cannot be kept in judicial custody, that too, for the indefinite period. 21. Considering all these facts, this Court is of the view that the bail application is liable to be allowed and is accordingly allowed. 22. Consequently, the applicant is ordered to be released, on bail, in case FIR No.331 of 2024, dated 13.12.2024, registered under Sections 18 and 20 of the NDPS Act, with Police Station Sadar Hamirpur, District Hamirpur, H.P., on his furnishing personal bonds in the sum of Rs.50,000/-, with one surety of the like amount, to the satisfaction of the learned Chief Judicial Magistrate, Hamirpur, H.P. 23. 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. 24. 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. 25. It is made clear that respondent-State is at liberty to move an appropriate application, in case, any of the bail conditions is found violated by the applicant. 26. The Registry is directed to forward a soft copy of the bail order to the Superintendent of Jail, District Jail, Hamirpur, Himachal Pradesh, through e-mail, with a direction to enter the date of grant of bail in the e-prison software. 27. In case, the applicant is not released within a period of seven days from the date of grant of bail, the Superintendent of Jail, District Jail, Hamirpur, Himachal Pradesh, is directed to inform this fact to the Secretary, DLSA, Hamirpur. 27. In case, the applicant is not released within a period of seven days from the date of grant of bail, the Superintendent of Jail, District Jail, Hamirpur, Himachal Pradesh, is directed to inform this fact to the Secretary, DLSA, Hamirpur. The Superintendent of Jail, District Jail, Hamirpur, 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.