Brijesh Kumar @ Mamu vs State Of Himachal Pradesh

Ajay Mohan Goel, J

By way of this petition filed under Section 439 of the Code of Criminal Procedure Code (hereinafter referred to 'Cr.P.C.' for short), the petitioner has prayed for grant of regular bail in FIR No. 32 of 2020, dated 10.02.2020, registered at Police Station Kangra, District Kangra, HP, under Section 21-61-85 of the Narcotic Drugs and Psychotropic Substances, Act (hereinafter referred to 'ND&PS, Act' for short).

I have heard learned Counsel for the petitioner as well as learned Additional Advocate General.

The allegation against the petitioner/accused is that he was apprehended with contraband measuring 6.04 gms (heroin) by the police patrol on 10.02.2020. The petitioner is in custody since his arrest on 10.02.2020, and as of now, he is in judicial custody.

Learned Counsel for the petitioner submits that the petitioner is not guilty of the offences alleged against him, and even otherwise, the quantity of contraband allegedly recovered from the petitioner is less than commercial quantity, therefore, the petitioner be ordered to be released on bail as no purpose is going to be achieved by keeping him in custody as investigation is already complete and challan has also been filed in the Court.

On the other hand, learned Additional Advocate General has argued that though challan has already been filed in the Court on 06.04.2020, however, taking into consideration the fact that the petitioner earlier was also found involved in the similar kind of offences leading to lodging of 5 FIRs against him, including three under the provisions of the ND&PS Act itself, the petitioner does not deserves to be released on bail as there is each and every possibility that he may again indulge in such like activities in future also. He has further argued that the petitioner may also try to tamper with the evidence and win over the witnesses. Accordingly, a prayer has been made for dismissal of the bail petition.

Learned Counsel for the petitioner has further argued that earlier FIRs which have been lodged against the petitioner are still at the stage of trial and in neither of the FIRs, he has been convicted as yet. He has further submitted that those FIRs also stood registered against the petitioner because of ill will on account of animosity which some local residents of the area are having with him and he is not guilty of the offences alleged against him in those FIRs also. He has further submitted that the petitioner shall abide by all the terms and conditions which this Court shall impose upon him in the event of grant of bail. Mr. Jaswal has further submitted that the petitioner is the sole bread earner of the family and he has a wife and a minor child to look after and maintain, who have no other source of income except the earning of the petitioner. He states that the petitioner is permanent resident of District Kangra. His entire family lives there and there is no likelihood of his jumping the bail or trying to win over the witnesses and fleeing from justice etc. as alleged.

After giving a careful consideration to the submissions which have been made on behalf of the petitioner as well as learned Additional Advocate General, this Court is of the view that taking into consideration the fact that as of now the allegation against the petitioner is that contraband measuring 6.04 gms was recovered from his conscious possession, which is less than commercial quantity and further the fact that the investigation is complete and challan already stood filed in the Court, no fruitful purpose will be solved by retaining the petitioner in custody. The apprehensions which have been expressed by learned Additional Advocate General can be duly addressed and redressed by this Court by imposing stringent conditions upon him, as has been prayed for on behalf of the State. Accordingly, without making any further observation on the merit of the case, this petition is disposed of with the direction that the petitioner is ordered to be released on bail on his furnishing personal bond to the tune of Rs. One Lac with one surety in the like amount to the satisfaction of the learned ACJM/JMIC, Kangra, within a period of two weeks. As prayed for on behalf of the State, it is further directed that in the peculiar facts of the case, the petitioner shall not leave District Kangra without the leave of the concerned Trial Court and he shall also mark his presence once in a fortnight at Police Station, Kangra, where he shall also give his Phone Number to IO/SHO, which number shall not be changed by the accused, so that he can be contacted by the Investigating Agency. In addition, the petitioner shall also abide by the following conditions also:-

i) Petitioner shall 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;

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

iii) He shall not 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 Court or the Police Officer; and

It is clarified that findings which have been returned by this Court while deciding this petition are only for the purpose of adjudication of the present bail application and learned trial Court shall not be influenced by any of the findings so returned by this Court in the adjudication of this petition during the trial of the case. It is further clarified that in case the petitioner does not complies with the conditions which have been imposed upon him while granting the present bail, the State shall be at liberty to approach this Court for the cancellation of the bail. The petition stands disposed of in the above terms.