Ashish vs State Of Himachal Pradesh

Virender Singh, J

Applicant-Ashish has filed the present application, under Section 439 of the Code of Criminal Procedure (hereinafter referred to as ‘CrPC’), for releasing him on bail, during the pendency of trial, in case FIR No. 292 of 2022, dated 7th December, 2022, registered with Police Station West (Boileauganj), Shimla, District Shimla, Himachal Pradesh, under Sections 21 and 29 of the Narcotic Drugs and Psychotropic Substances Act (hereinafter referred to as ‘NDPS Act’).

The applicant has sought the bail, on the ground, that he is an innocent person and has nothing to do with the alleged offence, for which, he has been arrested by the police.

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

Apart from this, the learned 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, released on bail, during the pendency of the trial.

When put on notice, police filed the status report, disclosing therein that on 7th December, 2022, a rukka was received in Police Station Boileauganj, according to which, the contraband, i.e. heroin, weighing 20.20 grams, was found from the exclusive and conscious possession of the applicant.

Elaborating the stand it has been pleaded that the IO ASI Ambi Lal, Incharge, SIU, Shimla, alongwith other police official, was present at Police Post Shoghi. At about 7.50 a.m., he noticed a Bus No. HP-63C-2849, enroute Delhi to Shimla, being driven by its driver. In view of the ensuing Vidhan Sabha Elections, the IO started checking the bus. 20- 25 passengers were found sitting in it.

When the IO reached near seat No. 30(w) and 31, he noticed two young men sitting there. The young man sitting on seat No. 30 (w) was having a black rucksack, in his lap. However, the said person could not give a satisfactory answer regarding travelling in the bus. His activity has raised suspicion in the mind of the IO that the said person might be having some objectionable item in his possession. Efforts to associate the passengers in the investigation were made. No one was ready to do so. Thereafter, Conductor-Ravi Verma and Driver-Jai Prakash were associated in the investigation of the case. On inquiry, both the persons have disclosed their names as Ashish and Islam. When the rucksack was searched, the police found the heroin alongwith the other articles. On weighment, the heroin was found to be 20.20 grams. Other codal formalities were completed on the spot and the accused persons were arrested.

It has been apprehended that in case, the applicant is released on bail, he 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 application.

Heard.

Admittedly, the contraband allegedly recovered from the possession of the applicant, 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 applicant, 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 him 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 applicant, for which, he is, otherwise, entitled to. For those apprehensions, reasonable conditions can be imposed.

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

The applicant is ordered to be released on bail in case FIR No. 292 of 2022, dated 7th December, 2022, under Sections 21 and 29 of the NDPS Act, on his furnishing personal bail bond, in the sum of Rs.50,000/- (Rupees Fifty Thousand only), with one surety of the like amount, to the satisfaction of learned ACJM/JMFC/Duty Magistrate, Shimla. This order, however, shall be subject to the following conditions:

a) He 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 appropriate application;

b) He shall not tamper with the prosecution evidence nor hamper the investigation of the case in any manner whatsoever;

c) He 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) He 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 application.

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 applicant.

Applicant may produce a downloaded copy of the order, passed by the Court, before the learned ACJM/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.