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2025 DIGILAW 707 (HP)

Upender Harish v. State of Himachal Pradesh

2025-04-09

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-Upender Harish has sought his release, on bail, during the pendency of the trial, in case FIR No.302 of 2024, dated 15.11.2024, registered under Sections 21 and 29 of the Narcotic Drugs & Psychotropic Substances Act (hereinafter referred to as the ‘NDPS Act’), with Police Station Sadar, District Hamirpur, H.P. 2. According to the applicant, he is innocent person and has falsely been implicated, in this case, at the instance of police, for allegedly possessing 5.63 gms of heroin/chitta. 3. Applicant has pleaded that he is also the victim of drugs and has remained admitted in Rehabilitation Centre for a considerable period and as such, for the treatment of his behavioral disorder, he has been taking medicines and therapy from a Psychiatric at Radha Krishna Government Hospital, Hamirpur, H.P. 3.1. To substantiate the said fact, applicant has also annexed his medical record, along with the application. 4. According to the applicant, he had earlier tried his luck by moving similar application, before the Court of learned Special Judge, Hamirpur, District Hamirpur, Himachal Pradesh. However, the same was dismissed, vide order dated 02.01.2025. 5. The co-accused of the applicant, namely Ashish Kumar, is stated to have been released on bail, by the Court of learned Special Judge, Hamirpur, District Hamirpur, H.P., vide order dated 01.01.2025. 6. Lastly, the applicant has given the details of the cases, which are stated to have been registered against him, in para No.7 of the application, particulars of which are reproduced, as under:- “i. FIR No.217/2018 dated 23.08.2018, under Sections 21 and 29 of NDPS Act, with PS Sadar, Hamirpur, H.P., in which, the applicant is stated to have been acquitted on 04.05.2019. ii. FIR No.31/2024 dated 07.08.2024, under Sections 21 and 29 of NDPS Act, with PS Sadar, Hamirpur, H.P. and the said case is stated to be pending adjudication before the competent Court of law.” 7. Apart from this, Mr. T.S. Chauhan, Senior Advocate, assisted by Mr. Surya Chauhan, 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. 8. Apart from this, Mr. T.S. Chauhan, Senior Advocate, assisted by Mr. Surya Chauhan, 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. 8. On the basis of the above facts, a prayer has been made to allow the bail application. 9. When, put to notice, the police has filed the status report, disclosing therein, that on 15.11.2024, HC Kuldeep Singh No.69, along with I/O Kit, and other police officials, was on patrolling duty and duty to detect crime, relating to narcotics, in their official vehicle, bearing No.HP22-C-5269. 9.1. It is the case of the police that on the same day, at about 12:15 pm, when, the IO was present at Kenchi Mor, then, he received a secret information regarding the fact that a person, who is on motorcycle No.HP-84-6875, is carrying chitta and as per the information, if the said motorcycle and the person, driving the same, are searched, then, large quantity of chitta/heroin could be recovered. The said information was found to be authentic and reliable and according to the IO, in case, he would have made efforts to obtain authorization letter of search warrant, in that eventuality, there were chances that the contraband could be removed from there. As such, he has complied with the provisions of Section 42(2) of the NDPS Act and submitted the report to the Additional Superintendent of Police, Hamirpur. 9.2. It is the further case of the police that thereafter, IO has proceeded towards Partap Nagar side and on the way, IO has requested Councillor Smt. Dimple Bala, on her mobile phone, to become independent witness. Subsequently, police party reached Partap Nagar, where, Councillor Smt. Dimple Bala, along with her husband Joginder Singh, was found present. Both of them were apprised about the secret information, which IO had received and requested them to associate the police party as independent witnesses, for which, they agreed. 9.3. Meanwhile, from the street of Partap Nagar, on the road, leading to Court Complex, a black coloured motorcycle was noticed and three persons were found riding on that motorcycle. IO, with the help of other police officials, stopped the vehicle and registration number of the same was found to be HP-84-6875. 9.3. Meanwhile, from the street of Partap Nagar, on the road, leading to Court Complex, a black coloured motorcycle was noticed and three persons were found riding on that motorcycle. IO, with the help of other police officials, stopped the vehicle and registration number of the same was found to be HP-84-6875. Subsequently, on enquiry, the person, who was driving the motorcycle, disclosed his name as Ashish Kumar and the person, who was sitting with him, disclosed his name as Govind and the third person, sitting behind them, disclosed his name as Upender Harish (applicant). 9.4. It is the further case of the police that thereafter, when, the said motorcycle was searched, the contraband, which was kept concealed in the motorcycle, i.e. chitta/heroin, was found and on weighing the same, it was found to be 5.63 gms, which was taken into possession. Other codal formalities were completed. 9.5. Thereafter, the FIR in question was registered and accused persons were arrested. 9.6. It is the further case of the police that the co-accused, namely Govind, has been released on bail, by the Court of learned Additional Special Judge, Hamirpur, H.P. and other co-accused, namely Ashish Kumar, has also been released on bail, by the Court of learned Special Judge, Hamirpur, H.P. 10. On the basis of the criminal history of the applicant, as mentioned in the status report and details of the same have been reproduced in the preceding para, a prayer has been made to dismiss the application. 11. Heard. 12. 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. 13. 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. 14. 13. 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. 14. So far as the objection of the learned Additional Advocate General, appearing for the respondent, against the prayer, so made in the application, qua registration of the cases, is concerned, admittedly, in case FIR No.217/2018 dated 22.10.2018, registered under Sections 21 and 29 of NDPS Act, with PS Sadar, Hamirpur, the applicant has been acquitted by the Court of learned Sessions Judge, Hamirpur, on 04.05.2019, whereas, case FIR No.31/2024 dated 07.02.2024, registered under Sections 21 and 29 of NDPS Act, with PS Sadar, Hamirpur, as per status report, is pending adjudication, in the Court of learned JMFC-III, Hamirpur, H.P. Meaning thereby, small quantity of contraband in the said case was involved. 15. Mere registration of the case does not take away the presumption of innocence, which is still available to the applicant, as, no conviction has been recorded by the competent Court of law in the case, which is pending adjudication, before the Court of learned JMFC-III, Hamirpur, H.P. 16. Moreover, the chances of commencement and conclusion of trial against the applicant, in near future, are not so bright. As such, no useful purpose would be served by keeping the applicant in the judicial custody, that too, for the indefinite period. 17. Even otherwise, the applicant is also entitled for grant of bail on the basis of parity, as, his co-accused, namely Govind, has been released on bail, by the Court of learned Additional Special Judge, Hamirpur, H.P. and other co-accused, namely Ashish Kumar, has also been released on bail, by the Court of learned Special Judge, Hamirpur, H.P. 18. Furthermore, the role, allegedly attributed to the applicant, is the similar to the role, which has been alleged against his two other co-accused. 19. Considering all these facts, this Court is of the view that the bail application is liable to be allowed and is accordingly allowed. 20. Furthermore, the role, allegedly attributed to the applicant, is the similar to the role, which has been alleged against his two other co-accused. 19. Considering all these facts, this Court is of the view that the bail application is liable to be allowed and is accordingly allowed. 20. Consequently, the applicant is ordered to be released, on bail, in case FIR No.302 of 2024, dated 15.11.2024, registered under Section 21 and 29 of the NDPS Act, with Police Station Sadar, 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 trial Court. 21. 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. 22. 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. 23. 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. 24. 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. 25. 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. 25. 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.