Anil Kumar vs State Of H.P

Satyen Vaidya, J

By way of instant petition, the petitioner has prayed for grant of bail under Section 439 Cr.P.C. in case FIR No. 24 of 2023 dated 8.2.2023, registered at Police Station Barmana, District Bilaspur, H.P. under Sections 21, 25 and 29 of the Narcotic Drugs & Psychotropic Substances Act, (for short “the Act”).

On earlier occasion, petitioner had approached this Court for grant of pre-arrest bail in the same case, which was denied to him vide order dated 17.3.2023, passed by this Court in Cr.MP(M) No. 366 of 2023. Thereafter, petitioner was arrested on 21.3.2023. He remained in police custody till 24.3.2023 and since then, he is in judicial custody.

The investigation has been completed and challan stands filed in the Court.

As per prosecution case, police on 8.2.2023 apprehended a car at Barmana in District Bilaspur with three occupants namely Surender Kumar, Ravi Kumar and Shesh Ram. 15.13 grams of chitta/heroin was recovered from the vehicle. All the occupants of the car were arrested, after registration of case under Section 21 of the Act against them. During investigation, it was disclosed to the police by the aforesaid accused persons that they had purchased the contraband from the petitioner. In this background, petitioner was also arrayed as accused.

It has been contended on behalf of the petitioner that the investigation in the case has been completed and no legal evidence has been found against the petitioner. His implication is merely on the disclosure made by co-accused. The challan has already been presented. Petitioner has already suffered the custody since 21.3.2023 and his further incarceration shall serve no useful purpose. Petitioner is stated to be permanent resident of VPO Panjgai, Tehsil Sadar, District Bilaspur, H.P.

On the other hand, the prayer of the petitioner for bail has been opposed on the ground that the petitioner is habitual offender and is involved in many criminal cases including five cases under the NDPS Act. It is submitted that in case of release of petitioner on bail, he may again indulge in similar activities, which are prejudicial to the society at large.

I have heard learned counsel for the parties and have also gone through the record carefully.

The quantity of contraband involved in the case is intermediate. Less than 5 grams and above 250 grams of heroin has been notified to be small and commercial quantity respectively. In the instant case, police has recovered 15.13 grams of heroin. The rigors of Section 37 of the Act will not apply to the facts of the present case.

As per status report filed by the respondent, the petitioner has been implicated on the basis of disclosure made by co-accused as also the phone call details. The disclosure made by co-accused cannot be used as legal piece of evidence against the co-accused. The alleged call details between co-accused are also to be proved during the course of trial. The investigation is complete and challan has been filed. Petitioner cannot be allowed to be kept in custody for indefinite period as pre-trial incarceration is not the rule.

Though, the respondents have placed on record a long list of cases in which the petitioner has been involved but it has not been shown that he has been convicted in any case and more particularly under the NDPS Act. Petitioner is on bail in all other cases. The apprehension of respondents that the petitioner may again indulge in similar activities can be taken care of by putting the petitioner to appropriate terms. Petitioner is permanent resident of VPO Panjgai, Tehsil Sadar, District Bilaspur, H.P. He has a family to support. There is no likelihood of his absconding or fleeing from the course of justice. It is also not the case of the respondent that in case of release of petitioner on bail, the trial of the case shall be prejudiced adversely.

Keeping in view the peculiar facts and circumstances of the case, petition is allowed and the petitioner is ordered to be released on bail in case FIR No. 24 of 2023 dated 8.2.2023, registered at Police Station Barmana, District Bilaspur, H.P., on his furnishing personal bond in the sum of Rs. 50,000/- with one surety in the like amount to the satisfaction of the learned trial Court. This order shall be subject to following conditions: -

i) That the petitioner shall appear before learned trial Court on each and every date and shall not delay the trial.

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 from disclosing such facts to the Court or to any police officer;

iii) That breach of any of the bail condition by the petitioner shall entail cancellation of the bail.

iv) That the petitioner shall not leave India without prior permission of the Court.

Any observation made herein above shall not be taken as an expression of opinion on the merits of the case and the trial Court shall decide the matter uninfluenced by any observation made herein above.