Akshay And Others vs State Of Himachal Pradesh

Virender Singh, J

Applicants have filed the present applications, under Section 439 of the Code of Criminal Procedure (hereinafter referred to as ‘CrPC’), for releasing them on bail, during the pendency of trial, in case FIR No. 08 of 2023, dated 5th January, 2023, registered with Police Station West, District Shimla, H.P. under Sections 21 and 29 of the Narcotic Drugs and Psychotropic Substances Act (hereinafter referred to as ‘NDPS Act’).

Since, both the applications have been filed in the same FIR, as such, both the applications are being taken up together, for the purpose of decision.

The applicants have sought the bail, on the ground, that they are innocent and have nothing to do with the alleged offence, for which, they have been arrested by the police.

It is their further case that investigation, in the present case, is complete and nothing is to be recovered from them or at their instance and no fruitful purpose will be served by keeping them in judicial custody.

Apart from this, the learned counsel appearing for the applicants, has given certain undertakings, on behalf of the applicants, for which, the applicants are ready to abide by, in case, released on bail, during the pendency of the trial.

When put on notice, police filed the status report, disclosing therein that on 5th January, 2023, a rukka was received in Police Station West, District Shimla, according to which, the contraband, i.e. heroin, weighing 29 grams, was found from the exclusive and conscious possession of the applicants.

Elaborating the stand, it has been mentioned in the status report that when HC Lalit Kumar, alongwith other police official, was present at Tara Devi Bus Stoppage, at about 09.10 a.m., on 5th January, 2023 and was checking the vehicles, then, HRTC bus No. HP-25A-3571, being driven by its driver reached there. The bus was enroute to Shimla from Nalagarh. The signal to stop the bus was given. Thereafter, the belongings of the occupants of the bus were checked. When the IO reached near seat Nos. 36 and 37(w), then, he found two young men sitting there, however, seat Nos. 34 and 35 were lying vacant. Both the said persons were not having any belongings with them. On inquiry, both of them had become perplexed and could not give satisfactory answer. Since, their activities raised a suspicion in the mind of the IO that they might be taking the objectionable articles and narcotic substance, as such, the options, as per Section 50 of the NDPS Act were given to the applicants. Thereafter, Additional SP Shri Ramesh Sharma, was asked to reach at the spot. The bus driver and conductor were associated in the investigation. At about 10.10 a.m., the Supervising Officer reached there. In the presence of above witnesses, names and address of the applicants were ascertained.

From the personal search of applicant-Chandan Sharma, the contraband, i.e. heroin, weighing 29 grams, was found, whereas from the personal search of applicant-Akshay, nothing objectionable was found.

Apart from the above facts, it has also been mentioned that the case bearing FIR No. 83/2018, dated 5.8.2018, under Sections 341, 323 read with Section 34 IPC at Police Station Kumarsain; Case FIR No. 2/19, dated 1/1/19, under Section 341, 323 504 & 506 IPC, at Police Station Boileauganj and case FIR No. 108/21, dated 01.6.2021, under Sections 21 &29 of NDPS Act, at Police Station Boileauganj, have been registered against applicant-Chandan Sharma, whereas no such case has been registered against accused-Akshay.

It has been apprehended that in case, the applicants are released on bail, they may again indulge in such type of activities and may coerce the witnesses.

On all these submissions, a prayer has been made to dismiss the bail applications.

Heard.

Admittedly, the contraband allegedly recovered from the possession of the applicants, in this case, does not fall within the definition of ‘commercial quantity’, as such, rigors of Section 37 of the NDPS Act are not applicable, in this case.

Once, it has been held that rigors of Section 37 of the NDPS Act are not applicable, in this case, then the presumption of innocence is still available to the applicants, as the bail application cannot be rejected as a matter of punishment. Pre-trial punishment is prohibited under the law.

The trial of the accused will take sufficient long time and no useful purpose would be served by keeping them in judicial custody.

At the time of deciding the bail application, the Court should refrain from discussing the case of the prosecution in detail, as, the same would cause prejudice to the case of the prosecution or the defence.

So far as the apprehensions, as expressed, in the status report, are concerned, those are not sufficient to decline the relief to the applicants, for which, they are, otherwise, entitled to. For those apprehensions, reasonable conditions can be imposed.

So far as the registration of other criminal cases against applicant-Chandan Sharma, as stated above, is concerned, admittedly, no conviction has been inflicted in any of the cases. As such, presumption of innocence is still available to the applicant-Chandan Sharma.

Considering all these facts, this Court is of the view that the bail applications are liable to be allowed and are accordingly allowed.

The applicants are ordered to be released on bail in case FIR No. 08 of 2023, dated 5th January, 2023, registered with Police Station West, District Shimla, H.P. under Sections

21 and 29 of the NDPS Act, on their furnishing personal bail bonds, in the sum of ₹ 50,000/- each, with one surety each of the like amount, to the satisfaction of learned CJM/JMFC/Duty Magistrate, Shimla. This order, however, shall be subject to the following conditions:

a) They shall make themselves 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) They shall not tamper with the prosecution evidence nor hamper the investigation of the case in any manner whatsoever;

c) They 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) They shall not leave the territory of India without the prior permission of the Court.

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 applications.

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 violated by the applicants.

Applicants may produce a downloaded copy of the order, passed by the Court, before the learned CJM/JMFC/Duty Magistrate, Shimla, and the said Court shall not insist for the certified copy of order, rather, passing of order can be verified from the web- page of this Court.