Ashok Kumar vs State Of Himachal Pradesh

Satyen Vaidya, J

Petitioner is accused in case FIR No. 145 of 2020 dated 18.09.2020 registered at Police Station, Paonta Sahib, District Sirmaur, H.P. under Section

21 and 29 of the Narcotic Drugs and Psychotropic Substances Act. Petitioner is in custody since 18.09.2020.

Petitioner has approached this Court for grant of bail under Section 439 Cr.P.C. in the above-noted case on the grounds that the allegations leveled

against the petitioner are false and baseless. The main accused Karamjeet has been granted bail by this Court. The allegations against the petitioner is

that he had transported contraband after purchasing the same from Davinder Singh, who also has been granted regular bail by this Court. It has

further been contended on behalf of the petitioner that as per case of police, petitioner was hired to transport the contraband for a consideration of a

paltry sum of Rs.250/-. The motor cycle involved in the case also belongs to Karamjeet. Earlier bail application filed before this Court being

Cr.M.P(M) No. 1129 of 2021 was dismissed as withdrawn on 12.07.2021, with liberty to file fresh. As per petitioner, he has no criminal background.

He is sole bread earner of the family and the entire responsibility of his wife and children besides old father is on the petitioner. He has undertaken not

to tamper with the prosecution evidence. He is ready and willing to abide by all the conditions as may be imposed. Petitioner has also placed on record

copies of order passed by a Co-ordinate Bench of this Court in Cr.M.P(M) No. 2084/2020, Cr.M.P(M) No. 760/2020 and Cr.M.P(M) No. 528/2021,

whereby the bail applications of Karamjeet, Davinder Singh and Tinku Kumar were allowed respectively.

In response, the status report has been filed. It is stated that on 18.09.2020, a secret information was received by the police that Karamjeet son of

Harmel Singh, a milk vendor was also involved in the illicit trade of drugs, who had deputed his worker Ashok Kumar (petitioner) along-with his motor

cycle No. HP17A-8677 to bring drugs from Haryana. Petitioner was likely to cross Behral border to enter Himachal Pradesh shortly. On such

information, compliance under Section 42 of the NDPS Act was alleged to have been made and a police party was deputed to apprehend Ashok

Kumar at Behral. Independent witnesses were associated. At about 6.05 p.m. petitioner reached Behral police check post from Yamunanagar side

and was stopped by the police party. On search, a bag was found hanging on the right side handle of motor cycle. On search of bag, 1800 capsules of

mark “PYN SPAS PLUS†were recovered and seized. Petitioner was arrested. During investigation other co-accused named Karamjeet,

Davinder Singh and Tinku Kumar were also arrested. The contraband on chemical analysis was found to be Tramadol Hydrochloride capsules and the

weight of the powder contained in the capsules was found to be 1.44 Kgs. After completion of investigation, the challan has been presented on

24.12.2020.

I have heard learned counsel for the petitioner and learned Additional Advocate General for the respondent-State and have also gone through the

record carefully.

It has been contended on behalf of the petitioner that all other accused in the case have been released on bail by this Court, therefore, on the ground

of parity, petitioner is also entitled for the same treatment. Petitioner has placed on record orders passed by this Court, whereby bail has been granted

to other co-accused. Perusal of orders so passed by this Court reveal that other co-accused namely, Karamjeet, Davinder Singh and Tinku Kumar

were granted bail on the ground that no direct recovery was effected from them and their alleged connection with the offence in question was to be

established during trial. All these persons were given the benefit of the fact that there was no direct evidence to connect them with the alleged

commission of offence. The petitioner is not entitled for grant of bail on the ground of parity as his case is entirely different. The case of the

prosecution is that it was the petitioner who was found in actual and conscious possession of huge quantity of Tramadol Hydrochloride capsules.

Section 37 of the NPDS Act places an embargo on the powers of the Court to grant bail for the offences under the Act involving commercial

quantity, unless the Court comes to the conclusion that bail petitioner was not involved in the offence and that there was no likelihood of his committing

the offence while on bail.

From the perusal of record, it cannot be said that implication of the petitioner in the offence involving commercial quantity of contraband is

unjustified. Prima-facie there is sufficient material on record to implicate the petitioner for commission of offence as alleged against him. Hence, it is

not a case where this Court is in a position to return findings that the petitioner was not prima-facie found to be involved in the commission of offence

alleged against him and also there is no likelihood of petitioner indulging in criminal activity in case released on bail. The conditions prescribed in

Section 37 of NDPS Act for grant of bail are to be read conjunctively.

In the light of the discussion made above, there is no merit in the petition and the same is accordingly dismissed.

Any observations 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 observations made herein above.