Bhim Bali Thakur vs State Of Himachal Pradesh

Satyen Vaidya, J

Petitioner is accused in case FIR No.98 of 2021, dated 1st June, 2021, under Sections 18, 25 and 29 of the the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short ‘NDPS Act’), registered at Police Station Sadar, District Bilaspur, H.P. Petitioner was arrested in the above noted case on 17th July, 2021, and is in custody since then.

On 1.06.2021, the police on prior information, intercepted truck No. HP-69-5452 on NH-205 at place near Kalar in District Bilaspur. Co-accused Dalip Singh was on driving seat and another person named Jitender Singh was found travelling in the truck. A gunny bag was found in the tool box of the truck. On opening of said gunny bag, it was found filled with rice, but on further intensive search opium weighing 5.025 kg. was recovered. Case under Sections 18, 25 and 29 of the NDPS Act was registered against the petitioner. Besides petitioner, Jitender Singh, Dalip Singh and Akshay Sahni have been arrayed as accused. While Jitender Singh and Dalip Singh, besides the petitioner are in custody. Akshay Sahni is absconding and proceeding under Section 82 of the Cr.P.C., have been initiated against him.

The Investigation in the case has been completed and challan has been filed in the Court of learned Special Judge, Bilaspur.

Petitioner has approached this Court for grant of bail, in the above noted case on the ground that his implication is false. Contraband was not found from conscious possession of the petitioner. As per petitioner, no legal evidence could be collected against him to connect him with the crime. It is further contended on behalf of the petitioner that there is no likelihood of his absconding from the course of justice. Nothing is required to be recovered from petitioner. Petitioner has undertaken not to tamper with the prosecution evidence. It is further stated that the petitioner will abide by all the conditions as may be imposed.

In response, status report has been filed. The bail application has been opposed on the ground that the commercial quantity of contraband is involved and the petitioner is not entitled for bail, keeping in view, the rigors of Section 37 of the NDPS Act. It has been contended that the petitioner had telephonical conversation with co-accused Dalip Singh around 12 in the night i.e. about six hours prior to the recovery of contraband.

I have heard learned counsel for the petitioner and learned Additional Advocate General for the respondent and have gone through the record produced by H.C. Chaman Lal, No.64, P.S. Sadar, Bilaspur.

The contraband recovered in the case is of commercial quantity, therefore, rigors of Section 37 of NDPS Act are applicable. However, at this stage, this Court is not precluded from looking into the material placed before it in order to have prima facie assessment of the nature and gravity of allegations against the petitioner and the material collected by the investigating agency to substantiate the same.

Save and except the allegations that the petitioner had telephonical conversation with co-accused Dalip Singh at about 12 during the intervening night of 30th May/1st June, 2021, no tangible material to connect the petitioner with the alleged offence has been placed on record. The telephonical conversation between petitioner and co-accused Dalip Singh is an allegation which is subject matter of the trial. Thus, in the facts and circumstances of the case, this court is satisfied that the complicity of the petitioner in the alleged crime is not prima facie made out.

In the given facts and circumstances of the case, pre trial incarceration of the petitioner is not going to serve any fruitful purpose. Petitioner is permanent resident of Village Vshambhra, Post Office and Tehsil Sikta, District West Champaran, Bihar. The apprehension of the respondent that petitioner, if enlarged on bail, may influence the witnesses again does not appear to be reasonable as no material has been placed on record to substantiate such apprehension. There is no criminal history attributed to the petitioner. It is not the case of respondent that in case petitioner is released on bail, the trial of the case will be affected adversely.

In the peculiar facts and circumstances of the case, the instant petition is allowed and petitioner is ordered to be released on bail in case FIR No. 98/2021, dated 1. 06.2021, under Sections 18, 25 and 29 of the NDPS Act registered at Police Station Sadar, District Bilaspur, H.P., subject to petitioner furnishing personal bond in a sum of Rs. One lakh with one surety in like amount, which necessarily will be a person belonging to the State of Himachal Pradesh to the satisfaction of the learned trial Court. This order is subject to following conditions :-

i) Petitioner shall regularly attend the trial of the case, before learned trial Court and shall not cause any delay in its conclusion.

ii) Petitioner shall not tamper with the prosecution evidence in any manner, whatsoever and shall not dissuade any person from speaking the truth in relation to the facts of the case in hand.

iii) Petitioner shall be liable for cancellation of bail in the instant case in the event of petitioner violating the conditions of this order.

iv) Petitioner shall not leave India without permission of learned trial Court till completion of trial.

Any opinion expressed hereinabove shall be construed only for the purposes of disposal of this application and shall have no effect on the merits of the case.