Gagan vs State Of Himachal Pradesh

Vivek Singh Thakur, J

Petitioner has approached this Court, invoking provisions of Section 439 of Code of Criminal Procedure (in short ‘Cr.PC’), seeking regular bail in case FIR No. 151 of 2020 dated 12.10.2020, registered under Sections 20 and 29 of Narcotic Drugs and Psychotropic Substances Act (in short ‘NDPS Act’) in Police Station Jwali, District Kangra H.P.

2 Status report stands filed wherein it is stated that on 12.10.2020, police party had set up a Naka for traffic checking on the main road from 32 Mile to Kuthehar in Tehsil Jawali. At 5.30 PM a car bearing No. HP- 34C-6425 was noticed coming from 32-mile towards Jawali, driver whereof, on noticing police party, started to move it towards fields whereupon police party overpowered him after stopping the car. Apart from driver, two other persons were sitting on back seat, who disclosed their names Vishal and Gagan (petitioner) respectively.

On suspicion arisen on account of behaviour of driver, the raiding party was constituted, by associating independent witnesses i.e. Up-Pradhan and Ward Panch of Gram Panchayat Kuthehar and vehicle was checked. During checking, a carry bag was recovered from co-driver seat of car, wherein 1 Kg. 072 grams charas was found in two envelopes. After taking samples of contraband, the contraband was taken in possession and seized by following the procedure. After sending the ruka, FIR was registered and thereafter, petitioner along with co-accused Vishal and Dhundi was arrested. As per State FSL report, recovered contraband was confirmed as charas.

During investigation, Vishal was found a child in conflict with law and, therefore, he was produced before the Principal Magistrate of Juvenile Justice Board and was sent to Correction Home Una and he was enlarged on bail by Principal Magistrate, Juvenile Justice Board Dharamshala on 28th October, 2020.

Petitioner, after remaining in police custody, is in judicial custody since October, 2021.

It has been canvassed on behalf of petitioner that even if the case of prosecution is to be considered true in all respects, then also, contraband, allegedly recovered from petitioner, has been found 1 Kg. 072 grams and weight of contraband was measured by police party along with envelopes and the recovered contraband is nearer to 1 Kg. which is the lowest quantity of commercial quantity and for weighing it with packing material, it has been found slightly more than 1 Kg. and thus, recovered contraband deserves to be considered than intermediate quantity.

7 It has been further contended that though it has been reported in the status report that petitioner has been found involved in commission of offence in other case also, but, that case does not pertain to ND&PS Act but is an FIR registered in the year 2018 under Sections 379 and 34 IPC.

It has been stated that for quantity of contraband, allegedly recovered from petitioner, rigors of Section 37 of NDPS Act are not attracted and keeping in view the period of detention of petitioner since 12th October, 2020 i.e. for about 17 months, petitioner deserves to be enlarged on bail.

9 Learned Deputy Advocate General has submitted that petitioner has 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, petitioner does not deserve any leniency and, thus, he has prayed for rejection of bail application.

10 Taking into consideration, the entire facts and circumstances including period of detention, but, without commenting on merits thereon and taking into account factors and parameters, as propounded by the Supreme Court and this Court, required to be considered at the time of adjudication of bail application, I am of the opinion that petitioner may be enlarged on bail in present case at this stage.

11 Accordingly, petitioner is ordered to be enlarged on bail, at this stage, subject to furnishing personal bond in the sum of Rs. 1 lac with one surety in the like amount to the satisfaction of trial Court within a period of two weeks from today and also subject to any further conditions to be imposed by trial Court for assuring his presence during trial including the following further conditions:-

(i) That the petitioner shall make himself available during the investigation as well as trial on each and every date as and when required;

(iii) That the petitioner 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 him/her from disclosing such facts to Court or to any police officer or tamper with the evidence. She shall not, in any manner, try to overawe or influence or intimidate the prosecution witnesses;

(iv) That the petitioner shall not obstruct the smooth progress of the investigation as well as trial;

(v) That the petitioner shall not jump over the bail and shall inform, in writing, regarding change of address, land line number and/or mobile number, if any, in advance, to concerned Police Station;

(vi) That the petitioner shall not commit the offence similar to the offence to which he is accused or suspected or the commission of which he is suspected;

(vii) In the event of repetition of commission of offence, bail granted in present case shall be liable to be cancelled on taking appropriate steps by prosecution/police;

(viii) That the petitioner shall not leave India without prior permission of Court;

(ix) That petitioner shall not misuse his liberty in any manner.

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

13 In case the petitioner violates any condition imposed upon him, his 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.

14 Learned 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 18.3.2013.

15 Any observation made in this order shall not affect the merits of case in any manner and will strictly confine for the disposal of this bail application filed under Section 439 of Code of Criminal Procedure 1973.

16 The petitioner is permitted to produce copy of order downloaded from the High Court website and the trial Court shall not insist for certified copy of the order, however, they may verify the order from the High Court website or otherwise.

Petition stands disposed of. Dasti copy on usual terms.