Dinesh Kumar And Others vs State Of Himachal Pradesh

Vivek Singh Thakur, J

Petitioners have approached this Court, invoking provisions of Section 439 Code of Criminal Procedure (in short ‘Cr.P.C.’), seeking bail in case FIR No.182 of 2021, dated 10.11.2021, registered in Police Station, Baijnath, District Kangra, H.P., under Sections 20, 25 and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as ‘NDPS Act’).

Status report stands filed and record was also made available.

In the status report, the circumstances have been explained, in which on 10.11.2021, at 1.15 p.m., near Primary School Kayori petitioners Dinesh Kumar and Satish Kumar alongwith co-accused car driver Harish Kumar and co-accused Nageshwar Singh, were found travelling in a car in a high speed with 1.515 kilograms charas kept in the dashboard of the car, and have been apprehended by the police party during ‘Naka Bandi’ and checking of vehicles.

Recovered contraband was sent for chemical analysis and as per State Forensic Science Laboratory (SFSL) report, it has been identified as extract of cannabis i.e. charas.

After recovery and seizure of contraband, Rukka was sent to the Police Station and FIR was registered. Thereafter, during investigation, all four accused, were arrested.

As per status report, firstly, accused persons disclosed that they were going to deliver charas to a girl Sarita, but during further investigation they further disclosed that their disclosure with respect to Sarita was not true and because accused persons were frightened, therefore, they planned to disclose name of Sarita despite knowing that neither any such girl was there nor any person had talked with them to purchase the charas and nor any girl had made a call to Dinesh Kumar (petitioner) demanding charas.

As per status report, it was disclosed by accused persons that they all are friends and belong to very poor families and on 10.11.2021 they planned to visit Bir Billing alongwith cannabis/charas extracted by them with their own hands and would sell the same to someone for hefty consideration and for that purpose co-accused Harish Kumar had arranged car of his brother. It is further case of the prosecution that it was disclosed by all accused that they put the charas prepared by them in the dashboard in an envelope.

As per status report, Call Detail Records (CDRs) of accused persons were obtained and no details of girl namely Sarita were found in their mobile phones.

As per status report, there is no past history of petitioners of their involvement in any case.

It has been submitted on behalf of the petitioners that petitioners are behind the bars since last about 1 year 7 months and till date out of 22 witnesses no witness has been examined and two witnesses have been summoned for 19. 06.2023 and there is no likelihood of completion of trial in near future. Therefore, at this stage, petitioners are entitled for bail. According to them charas was recovered from the dashboard of the car and it was not belonging to the petitioners.

Petitioner Dinesh Kumar had approached Special Judge-IV, Kangra at Dharamshala, H.P., by filing Bail Application NO.5-D/XXII/2022, which was dismissed on 22.02.2022. Petitioner Dinesh Kumar had also approached this Court by filing Cr.M.P.(M) Nos. 2208 of 2021, 499 of 2022 and 1742 of 2022, which were dismissed as withdrawn on 28.12.2021, 23.05.2022 and 20.10.2022 respectively.

Petitioner Satish Kumar had approached this Court by filing Cr.M.P.(M) No.1856 of 2022 which was dismissed as withdrawn on 14.12.2022. It has been submitted that Satish Kumar is a handicap person with 40% permanent low vision.

Learned Additional Advocate General has submitted that petitioners have been found involved in a heinous crime, which is affecting adversely not only the individual, but also the society at large and spoiling the youth of State of Himachal Pradesh and, therefore, petitioners do not deserve any leniency and, thus, he has prayed for rejection of bail application.

To substantiate the grounds to enlarge the petitioners on bail, learned counsel for the petitioner have referred pronouncement of the Supreme Court in Nitish Adhikary @ Bapan v. The State of West Bengal, Special Leave to Appeal (Crl.) No.5769 of 2022, decided on 1.8.2022, whereby the accused, under Sections 21(c) and 37 of NDPS Act, was ordered to be enlarged on bail after detention of 1 year and 7 months, observing that the trial was at a preliminary stage.

Learned counsel for the petitioners have placed reliance on order dated 7.2.2020 passed by the Supreme Court in Criminal Appeal No. 245 of 2020, titled as Chitta Biswas Alias Subhas Vs. The State of West Bengal, whereby accused having found in possession of Codeine mixture above commercial quantity, was enlarged on bail after 1 year 7 months, at the stage of trial when out of 10 witnesses, 4 witnesses have been examined in the trial.

Reliance has also been placed on order dated 10.11.2021, passed by the Supreme Court in Special Leave to Appeal (Criminal) No. 5187 of 2021, titled as Kulwant Singh v. The State of Punjab, whereby accused after detention of more than 2 years, was enlarged on bail despite the fact that recovered contraband was of commercial quantity, for prayer to grant of bail was on the ground of advanced age of petitioner, period of custody undergone by him and the fact that trial would take time to conclude.

Learned counsel for the petitioners have also placed reliance upon order dated 7.12.2021, passed by the Supreme Court in Criminal Appeal No. 1570 of 2021, titled as Mahmod Kurdeya Vs. Narcotics Control Bureau, whereby petitioner apprehended with thousands of tablets of Tramadol X-225, was enlarged on bail. In this case, quantity of drug recovered was more than 50 Kilograms. However, in this case bail was granted by taking into consideration the fact that charge-sheet was filed on 23.9.2018 and thereafter even charges had not been framed nor trial had commenced till grant of bail to the petitioner, whereas manufacturer who sold the drug to the accused had been granted bail.

Learned counsel have also placed reliance on order dated 29.03.2023 passed by the Supreme Court in Special Leave to Appeal (Crl.) No. 1904 of 2023, titled as Sunil Kumar vs. The State of Himachal Pradesh, wherein accused person facing trial for recovery of more than 2 kilograms of charas has been enlarged on bail by the Supreme Court after 1 and a ½ year detention on the ground that trial is yet to conclude.

Learned counsel for the petitioners have also referred order dated 19.05.2023, passed by Co-ordinate Bench of thisi Court, in Cr.M.P. (M) No. 524 of 2023, titled as Hussain Mohammad Vs. State of Himachal Pradesh, wherein a person, for having possession of commercial quantity of charas, was enlarged on bail for length of custody of more than 1 year and 6 months.

Learned counsel for the petitioners have also placed reliance upon order dated 31.05.2023, passed by Co-ordinate Bench of this Court in Cr.M.P. (M) No. 1143 of 2023, titled Chain Lal Vs. State of Himachal Pradesh, wherein accused facing trial for recovery of 1502 grams of charas was enlarged on bail after 1 year 6 months as by then, only two witnesses were examined.

Without commenting upon merits of rival contention of parties, but taking into consideration the material placed before me in the status report and also submission of learned counsel for the petitioners alongwith factors and parameters required to be considered at the time of adjudication of bail application as propounded by the Courts, including the Supreme Court, I am of the considered opinion that at this stage petitioners may be enlarged on bail.

Accordingly, present petitions are allowed and petitioners are ordered to be enlarged on bail, subject to their furnishing personal bond in the sum of Rs.1,50,000/- each with one surety each in the like amount to the satisfaction of the trial Court, upon such further conditions as may be deemed fit and proper by the trial Court, including the conditions enumerated hereinafter, so as to assure presence of petitioners/accused at the time of trial:-

(i) That the petitioners shall make themselves available to the police or any other Investigating Agency or Court in the present case as and when required in accordance with law;

(ii) that the petitioners shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade them from disclosing such facts to Court or to any police officer or tamper with the evidence. They shall not, in any manner, try to overawe or influence or intimidate the prosecution witnesses;

(iii) that the petitioners shall not obstruct the smooth progress of the investigation/trial;

(iv) that the petitioners shall not commit the offence similar to the offence to which they are accused or suspected;

(v) that the petitioners shall not misuse their liberty in any manner;

(vi) that the petitioners shall not jump over the bail;

(vii) that in case petitioners indulge in repetition of similar offence(s) then, their bail shall be liable to be cancelled on taking appropriate steps by prosecution;

(viii) that the petitioners shall not leave the territory of India without prior permission; and

(ix) that the petitioners shall inform the Police/Court their contact numbers and shall keep on informing about change in addresses and contact numbers, if any, in future.

It will be open to the prosecution to apply for imposing and/or to the trial Court to impose any other condition on the petitioners as deemed necessary in the facts and circumstances of the case and in the interest of justice and thereupon, it will also be open to the trial Court to impose any other or further condition on the petitioners as it may deem necessary in the interest of justice.

In case the petitioners violate any condition imposed upon them, their bail shall be liable to be cancelled. In such eventuality, prosecution may approach the competent Court of law for cancellation of bail, in accordance with law.

Trial Court is directed to comply with the directions issued by the High Court, vide communication No.HHC.VIG./Misc. Instructions/93-IV.7139 dated 18.03.2013.

Observations made in this petition hereinbefore, shall not affect the merits of the case in any manner and are strictly confined for the disposal of the bail application.

Petitions are disposed of in aforesaid terms.

Copy dasti.

Parties are permitted to produce copy of this order, downloaded from the web-page of the High Court of Himachal Pradesh, before the authorities concerned, and the said authorities shall not insist for production of a certified copy but if required, may verify passing of order from Website of the High Court.