Dev Raj Sharma vs State Of H.P

Virender Singh, J

Applicant Dev Raj Sharma has filed the present bail application, under Section 439 of the Code of Criminal Procedure, (hereinafter referred to as ‘the Cr. P.C.) for releasing him, on bail, during the pendency of the trial, in case FIR No. 28 of 2023, dated 4.2.2023 under Sections 20, 61 and 85 of the Narcotic Drugs and Psychotropic Substance Act (hereinafter referred to as the ND & PS Act), registered with Police Station, Boileauganj/West, Shimla.

The applicant has pleaded the fact that he is innocent person and has falsely been implicated in the present case.

As per the applicant, the contraband, which has been shown to be recovered from his possession, does not fall within the commercial quantity.

Asserting the fact that investigation is almost complete, it is the case of the applicant that report under Section 173(2) Cr.P.C. has been filed in the competent Court of law.

Apart from this, the applicant, through his counsel Mr. Tek Chand Sharma has given certain undertakings, for which, he is ready to abide by, in case, he is released on bail.

As per the averments of the bail application, the applicant has also tried his luck by moving bail application, bearing No. 69­S/22 of 2023, before the learned Special Judge­I, Shimla, District Shimla, which was dismissed on 8.6.2023.

On these submissions, a prayer has been made to allow the bail application.

When put to notice, the police has filed the status report, disclosing therein, that on 23.11.2022, a police party headed by ASI Inder Singh, Investigating Officer of P.S. West (Boileauganj), Shimla alognwith HC Rajinder No. 59 HC Neeraj No. 323, C. Vikas No. 846. C. Prabhat No. 1170 and C. Shabeer No. 1060 alongwith I.O Kit, had left for routine patrolling and crime prevention duty. At about 1:15 A.M (midnight), he along with other police officials were present at Ghandhal NH­ 205, where they saw a person on the parapet. On seeing the police party, he got perplexed and threw some object out of right pocket of his jacket. ASI asked the person about the object but he could not give satisfactory answer. Due to place being secluded and being odd hours of night, they could not find any independent witness. Consequently, I.O. requested HC Rajinder and HC Neeraj to the witnesses of search. On inquiry, said person has disclosed his name as Dev Raj, son of Sh. Gian Dutt Sharma, resident of villge Kufri P.O. Dhami, Tehsil and Distt. Shimla HP (applicant). On checking the object thrown by the applicant, the same was found to be an orange coloured micron bag. The micorn bag was opened and checked in the presence of witnesses. A black coloured substance ball shaped substance was found inside it. On the basis of experience and smell; the recovered substance was found to be cannabis. The recovered charas was weighed in the electronic balance and it was found to be 378 grams of charas. The recovered cannabis was put in a separate piece of cloth and sealed with eight numbers of seal impressions 'U'. The other codal formalities were completed on the spot and rukka was scribed and sent to the Police Station for registration of FIR.

Apart from this, it is the further case of the police in the status report that the contraband, so recovered, from the possession of the applicant was sent for chemical analysis to the State Forensic Scient Laboratory, Junga, from where, the positive report has been received.

In addition to this, details of the cases, which have been registered against the applicant, has also been mentioned, which are reproduced as under:

(i) FIR No. 228/19, dated 12.10.2019, under Sections 341, 427 and 504 IPC;

(ii) FIR No. 77/2006, dated 14.5.2006, under Sections 341, 323, 506 & 34 IPC, registered with Police Station, Dharampur; and

(iii) FIR No. 184/08, dated 19.8.2008, under Sections 379 read with Section 34 IPC, registered with Police Station, Dhalli.

On the basis of criminal history, as has been mentioned in the status report, it is argued by the learned Additional Advocate General that considering the criminal history of the applicant, his application for releasing him on bail, deserves dismissal.

On all these submissions, a prayer has been made to dismiss the application.

The contraband, which is stated to be recovered from the possession of the applicant, does not fall within the definition of ‘commercial quantity’. As such, the rigors of Section 37 of the ND & PS Act are not applicable in this case, therefore, the presumption of innocence is still available to the applicant. as pre­trial punishment is prohibited under the law.

Although, report under Section 173(2) Cr. P.C. has been filed in the competent Court of law, the chances of the conclusion of trial against the accused, in his near future, are not so bright, therefore, no useful purpose would be served by keeping him in judicial custody.

So far as, the registration of other cases against the applicant is concerned, this fact is also not sufficient to take away the presumption of innocence, as, admittedly, no punishment has been awarded to the applicant by the competent Court of law, in any of the cases. Mere registration of other cases, does not take away the presumption of innocence. As such, the bail application cannot be rejected as a matter of punishment, as the punishment can only be inflicted after the trial.

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. 28 of 2023, dated 4.2.2023 under Sections 20, 61 and 85 of the NDPS Act, registered with Police Station, Boileauganj/West, Shimla, on his furnishing personal bond in the sum of Rs. 70,000/­, with one surety in the like amount, to the satisfaction of learned trial Court. 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 herein above, 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 respondent­State is at liberty to move an appropriate application, in case, any of the bail conditions is found violated by the applicant.

The Registry is directed to forward a soft copy of the bail order to the Superintendent of concerned jail, through e­mail,with a direction to enter the date of grant of bail in the e­prison software.

In case, the applicant is not released within a period of seven days from the date of grant of bail, the Superintendent of concerned jail is directed to inform this fact to the Secretary, DLSA, Shimla. The Superintendent of concerned jail is further directed that if the applicant fails to furnish the bail bonds, as per the order passed by this Court, within a period of one month from today, then, the said fact be submitted to this Court.