Ashwani Kumar vs State Of Himachal Pradesh And Others

Chander Bhusan Barowalia, J

The matter is taken up through video conference.

The present bail application has been maintained by the petitioner under Section 439 of the Code of Criminal Procedure seeking his release in case FIR No. 23 of 2020, dated 16.01.2020, under Section 20 of the ND&PS Act, Police Station Bhoranj, District Hamirpur, H.P.

As per the averments made in the petition, the petitioner is innocent and has been falsely implicated in the present case. He is resident of the place and neither in a position to tamper with the prosecution evidence nor in a position to flee from justice. No fruitful purpose will be served by keeping him behind the bars for an unlimited period, so he be released on bail.

Police report stands filed. As per the prosecution story, on 16.01.2020 a police team was on patrol duty. At about 07:15 p.m., at place Patta, police got a secret tip-off that Ashwani Kumar (petitioner herein) is involved in the business of selling charas and he operates from his residential house. Thereafter, police constituted a team and visited the residential house of the petitioner. Police found some fresh soil near the boundary wall of the residential house of the petitioner. When the police dug the soil, a multi color box of Dabur Chayawanprash and envelop of Speed White Detergent Powder were found. Box was checked and found containing some blackish substance in the shape of chapaties and the said envelop was having 31 small pouches of paper having blackish substance. Some roof stones were found near the toilet and when the same were checked, a polythene packet and a pouch of paper was found. Said envelop contained eight pouches of paper which were stuffed with blackish substance and two chapaties and some pieces of blackish substance were also recovered. The blackish substance, on being checked, was found to be charas. Thereafter, the police completed all the codal formalities. On being weighed, the contraband was found to be 133.16 grams. The contraband was taken into possession. Police prepared the spot map and statements of the witnesses were recorded. The spot was photographed and the petitioner was arrested. After completion of the investigation, challan was presented in the learned Trial Court on 12.03.2020. As per the police, one more case under the ND&PS is pending against the petitioner. Lastly, it is prayed that the bail application of the petitioner be dismissed, as the petitioner was involved in a serious offence and there is every possibility that in case at this stage he is enlarged on bail, he may flee from justice or tamper with the prosecution witnesses.

I have heard the learned Counsel for the petitioner, learned Additional Advocate General for the State and gone through the record, including the police report, carefully.

The learned Counsel for the petitioner has argued that the petitioner has been falsely implicated in the present case. He has further argued that the petitioner is resident of the place and neither in a position to tamper with the prosecution evidence nor in a position to flee from justice. He has argued that no fruitful purpose will be served by keeping the petitioner behind the bars for an unlimited period, especially when investigation is complete, nothing is to be recovered from the petitioner, custody of the petitioner is not at all required by the police and the petitioner cannot be kept behind the bars for an unlimited period. So, the bail application may be allowed and the petitioner be enlarged on bail. Conversely, the learned Additional Advocate General has argued that the petitioner was found involved in a serious offence and in case, at this stage, he is enlarged on bail, he may tamper with the prosecution evidence and may also flee from justice. He has prayed that the bail application of the petitioner be dismissed.

In rebuttal the learned Counsel for the petitioner has argued that the petitioner cannot be kept behind the bars for an unlimited period, especially when investigation is complete and the custody of the petitioner is not at all required by the police, so the application be allowed and the petitioner be enlarged on bail.

At this stage, considering the fact that the petitioner is resident of the place and neither in a position to flee from justice nor in a position to tamper with the prosecution evidence, considering the quantity of the contraband, the fact that now the investigation stands completed and the custody of the petitioner is not at all required by the police, the fact that the petitioner is ready and willing to abide by the terms and conditions of bail, in case granted, and also the fact that the petitioner cannot be kept behind the bars for an unlimited period, so this Court finds that the present is a fit case where the judicial discretion to admit the petitioner on bail is required to be exercised in his favour. Accordingly, the petition is allowed and it is ordered that the petitioner, who has been arrested by the police in case FIR No. 23 of 2020, dated 16.01.2020, under Section 20 of the ND&PS Act, Police Station Bhoranj, District Hamirpur, H.P., shall be released on bail forthwith in this case, subject to his furnishing personal bond in the sum of Rs.25,000/- (rupees twenty five thousand) with one surety in the like amount to the satisfaction of the learned Trial Court. The bail is granted subject to the following conditions:

(i) That the petitioner will appear before the learned Trial Court/Police/authorities as and when required.

(ii) That the petitioner will not leave India without prior permission of the Court.

(iii) That the petitioner will 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 the Investigating Officer or Court.

In view of the above, the petition is disposed of.

Copy dasti.