Amar Singh vs State Of Himachal Pradesh

Vivek Singh Thakur, J

Petitioner has approached this Court, invoking provisions of Section 439 of Code of Criminal Procedure (in short ‘Cr.PC’), seeking regular bail in case FIR No. 34 of 2020, dated 17.03.2020, registered under Sections 20, 25 and 29 of Narcotic Drugs and Psychotropic Substances Act (in short ‘NDPS Act’) in Police Station Banjar, District Kullu, H.P.

Status report stands filed. Record was also made available.

As per status report, on 16.03.2020, at about 11.30 p.m. police party on Nakka duty, stopped a car coming from Gushaini side for checking and when police tried to approach the car for checking, car driver reversed it with speed and when police officials rushed towards the vehicle, he suddenly stopped the vehicle, and immediately thereafter, a person sitting on rear seat of driver side came out of the car and ran away towards the cliff. Other two persons sitting in the car were overpowered. Despite making effort to chase, third person who ran towards the cliff, could not be apprehended. Two persons, apprehended by the police, disclosed their names as Nitin Sharma (driver) and Rajesh Kumar and they also disclosed name of third person as Tilak Raj. A yellow coloured bag kept on rear seat on the right side of Rajesh Kumar, was checked, wherein 8.076 kilograms charas was found. Recovered contraband was taken into possession and seized by following prescribed procedure and by sending Rukka, FIR was registered in Police Station Banjar and, thereafter, during investigation Nitin Sharma and Rajesh Kumar were arrested on 17.03.2020 at 6.05 a.m.

After search of Tilak Raj, he was apprehended and arrested near Sindhwa at 4.30 p.m. on 18.03.2020.

As per status report, during investigation, Tilak Raj made disclosure statement that Amar Singh-petitioner, for a consideration of `4,00,000/- , had supplied 8 kilograms charas to him. Call Detail Records (CDRs) of Tilak Raj and Amar Singh were also obtained and on the basis of CDRs and disclosure statement, Amar Singh-petitioner was arrested on 07.06.2020 at 6.05 p.m. under Section 29 of NDPS Act. According to Investigating Agency, during interrogation, Amar Singh-petitioner disclosed that 2 kilograms charas was extracted by him personally and remaining charas was collected by him by purchasing small quantities from different unknown persons and he admitted selling of 8 kilograms charas to Tilak Raj for a consideration of `4,00,000/-.

Vehicle was also taken into possession, but the same was released by order of the Court to its owner Hem Raj, who was brother of Tilak Raj. For throwing his mobile by Tilak Raj in a ravine (Khadd), Section 201 IPC was also added in the case.

As per status report, Amar Singh- petitioner has been found involved in two FIRs i.e. FIR No.70 of 2013, dated 22. 08.2013, registered under Sections 353, 332, 354, 504 and 506 IPC, wherein he was acquitted on 01.06.2022 and FIR No.60 of 2019, dated 26.07.2019, registered under Sections 341, 323 and 506 IPC, which is pending adjudication in Gram Panchayat Tung.

It has been submitted by learned counsel for the petitioner that petitioner is behind the bars since last 2 years 6 months and till date, out of 19 total witnesses, only 11 witnesses have been examined, who are formal in nature, whereas, 8 main witnesses are yet to be examined and next date for recording evidence has been fixed on 10.01.2023 and it reflects, keeping in view the pace of the trial, that there is no likelihood of completion of trial in near future. It has been further submitted that there is no previous history of petitioner regarding his involvement in commission of offence related to NDPS Act, and further that, he has been arrayed as an accused only on the basis of disclosure statement and CDRs, but nothing has been recovered from him. There is nothing on record to substantiate the payment of `4,00,000/- by Tilak Raj to Amar Singh-petitioner.

Learned counsel for the petitioner has submitted that petitioner has been implicated in the present case on the basis of disclosure statement of the co-accused and CDRs of main accused. Whereas, nothing has been recovered from petitioner-Tara Chand, and he is behind the bars since more than two years and six months and, therefore, in view of the pronouncements of the Supreme Court in Tofan Singh vs. State of Tamil Nadu, (2021) 4 SCC 1 and order dated 10.01.2022 pronounced by the Supreme Court in Special Leave to Appeal (Crl.) No.242 of 2022, titled as State by (NCB) Bengaluru vs. Pallulabid Ahamad Arimutta & another, petitioner deserves to be enlarged on bail.

Learned counsel for the petitioner has placed reliance on paragraph 10 of the above referred pronouncement of the Supreme Court in Pallulabid Ahamad Arimutta’s case, which reads as under:-

“10. It has been held in clear terms in Tofan Singh Vs. State of Tamal Nadu, (2021) 4 SCC 1, that a confessional statement recorded under Section 67 of the NDPS Act will remain inadmissible in the trial of an offence under the NDPS Act. In the teeth of the aforesaid decision, the arrests made by the petitioner-NCB, on the basis of the confession/ voluntary statements of the respondents or the co-accused under Section 67 of the NDSP Act, cannot form the basis for overturning the impugned orders releasing them on bail. The CDR details of some of the accused or the allegations of tampering of evidence on the part of one of the respondents is an aspect that will be examined the stage of trial. For the aforesaid reason, this Court is not inclined to interfere in the orders dated 16th January, 2020, 19th December, 2019 and 20th January, 2020 pased in SLP (Crl.) No@ Diary No.22702/2020, SLP (Crl.) No.1454/2021, SLP (Crl.) No.1465/2021, SLP (Crl.) No.1773-74/2021 and SLP (Crl.) No.2080/2021 respectively. The impugned orders are, accordingly, upheld and the Special Leave Petitions filed by the petitioner-NCB seeking cancellation of bail granted to the respective respondents, are dismissed as meritless.”

Learned Additional Advocate General has submitted that petitioner has been found involved in commission of heinous crime of such a nature which is not only ruining the individuals, but also damaging the families, society and Nation and, therefore, petitioner is not entitled for bail.

Taking into consideration the entire facts and circumstances, but, without commenting on merits thereon and taking into account factors and parameters, as propounded by the Supreme Court and this Court, required to be considered at the time of adjudication of bail application, I am of the opinion that petitioner may be enlarged on bail in present case at this stage.

Accordingly, present petition is allowed and petitioner is directed to be enlarged on bail, subject to his furnishing personal bond in the sum of `2,00,000/- with one surety in the like amount to the satisfaction of the trial Court/Special Judge, upon such further conditions as may be deemed fit and proper by the trial Court, including the conditions enumerated hereinafter, so as to assure the presence of petitioner/accused at the time of trial:-

(i) That the petitioner shall make himself available to the police or any other Investigating Agency or Court in the present case as and when required;

(ii) that the petitioner shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him/her from disclosing such facts to Court or to any police officer or tamper with the evidence. He shall not, in any manner, try to overawe or influence or intimidate the prosecution witnesses;

(iii) that the petitioner shall not obstruct the smooth progress of the investigation/trial;

(iv) that the petitioner shall not commit the offence similar to the offence to which he is accused or suspected;

(v) that the petitioner shall not misuse his liberty in any manner;

(vi) that the petitioner shall not jump over the bail;

(vii) that in case petitioner indulges in repetition of similar offence(s) then, his bail shall be liable to be cancelled on taking appropriate steps by prosecution;

(viii) that the petitioner shall not leave the territory of India without prior permission; and

(ix) that the petitioner shall inform the Police/Court his contact number and shall keep on informing about change in address and contact number, if any, in future.

It will be open to the prosecution to apply for imposing and/or to the trial Court to impose any other condition on the petitioner as deemed necessary in the facts and circumstances of the case and in the interest of justice and thereupon, it will also be open to the trial Court to impose any other or further condition on the petitioner as it may deem necessary in the interest of justice.

In case the petitioner violates any condition imposed upon him, his bail shall be liable to be cancelled. In such eventuality, prosecution may approach the competent Court of law for cancellation of bail, in accordance with law.

Trial Court is directed to comply with the directions issued by the High Court, vide communication No.HHC.VIG./Misc. Instructions/93-IV.7139 dated 18.03.2013.

Observations made in this petition hereinbefore, shall not affect the merits of the case in any manner and are strictly confined for the disposal of the bail application.

Petition is disposed of in aforesaid terms.

Copy dasti.

Petitioner is permitted to produce/use copy of this order, downloaded from the web-page of the High Court of Himachal Pradesh, before the trial Court/Special Judge, and the said Court shall not insist for production of a certified copy but if required, may verify it from Website of the High Court.