Gautam Kumar vs State of Himachal Pradesh

Tarlok Singh Chauhan, J.—This petition u/s 439 Cr.P.C. for the grant of bail arises out of case FIR No. 7 of 2014 dated 25.1.2014 registered at Police Station, Sunni, District Shimla, under Sections 22-61-85 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short ''Act'').

The petitioner has contended that he is working in a shop named ''Pankaj Medical Store'' at Oddi and is a permanent resident of the aforementioned address. He has further submitted that when he was at his shop the police officials arrived and conducted a search and recovered nothing and thereafter recovered 84 (100 ml each) empty bottles of Rexcof from the BSNL office, Oddi and falsely framed the charges against the petitioner. The petitioner further contended that he is not the owner of the shop from where the contraband was being sold but was working in the said shop. He has claimed that since the actual owner has been released on bail, he should also be released.

Notice of this petition was issued to the State of Himachal Pradesh. I have gone through the records of the case and find that the prosecution story proceeds in the following manner:

On the intervening night of 24/25.1.2014 at about 12.15 AM at place Gharat Nala, HC Suresh Kumar No. 141, alongwith HHC Tek Singh No. 1141, C. Karan Singh No. 1388 and C. Ranjan No. 1387 were exercising their routine patrolling duty in government vehicle No. HP-07A-0727 when they detected a Maruti Car bearing registration No. CH-01X-8819. The vehicle was stopped on signal. The two occupants disclosed their names as Anil Kumar @ Anu and Kuldeep @ Kaku. During the intensive search of the vehicle, it was found that the accused persons were carrying one carton box carrying 120 bottles of Rexcof of 100 ml. There was also lying one cream colour bag containing 15 bottles of the same mark and quantity. Thus, in total these persons were carrying 135 bottles of Rexcof 100 ml and the name of company manufacturing the said product was mentioned as ''Cipla''. These persons were asked to produce the valid permit or licence and they failed to do so. These 135 bottles of Rexcof containing 100 ml were taken into police custody vide separate memos.

During the investigation, the aforesaid two accused persons revealed that they had purchased these 135 bottles of Rexcof from Gautam Kumar and Pankaj, who are running a medical store at Oddi, Tehsil Kumarsain, District Shimla. On finding the information genuine, the investigating agency raided the medical store at Oddi and during search, Gautam Kumar and Pankaj were found to be in conscious and exclusive possession of 101 bottles of Rexcof containing 100 ml. They were also found in possession of 72 empty bottles of Rancof, 9 empty bottles of Rexcof, 3 empty bottles of Relexcof and Recof containing 100 ml each. Necessary formalities were completed by complying with the provisions of Sections 50, 55, 57 etc. by the investigating agency. FIR No. 7 of 2014 was registered on the basis of the statement of the complainant u/s 154 Cr.P.C.

I have heard learned counsel for the parties and perused the records of FIR No. 7 of 2014.

The learned counsel for the petitioner has strenuously argued that admittedly when the petitioner is not the owner of the shop in question from where certain recoveries alleged to have been made and the owner of the shop has already been released on bail by this Court, therefore, on the basis of parity, he deserves to be enlarged on bail.

On the other hand, Mr. R.P. Singh, learned Assistant Advocate General has contended that the bail petitioner deserves no sympathy because he is the king-pin and the main accused in the present case. The petitioner deserves no sympathy since it is he, who is responsible for indulging in large scale dealing of Rexcof which in turn is being sold to the school children and other vulnerable sections of the society and has now become a menace in the society. In fact the petitioner is the head of the gang of mafia involved in selling of so called ''medicine'' which in fact is nothing, but a potent ''drug'' containing codeine phosphate.

It is settled law that while granting bail, the Court has to keep in mind the nature of accusation, evidence in support thereof, severity of punishment in the event of his conviction; the other factor is character, behaviour, means and standing of the accused. The Court has also to keep in view the reasonable possibility of securing the presence of the accused in the trial, circumstances which are peculiar to the accused, reasonable apprehension of the witnesses, above all, the larger interest of the public and the State.

The Court cannot be unmindful of the fact that the detailed examination of the evidence and elaborate documentation of the case is to be avoided, while dealing with the bail application. There is no gain saying that the Court still has to be satisfied regarding the existence of prima facie case or not.

From the records of the investigation, I find no reason for granting bail to the petitioner as it was not in his presence but was on his consent that certain recoveries were effected at Oddi. At this stage, it would not be proper to make any further comment on the merits of the case or to the role played by each of the accused persons lest it prejudices the case of the petitioner.

Accordingly, the present petition merits dismissal and is accordingly dismissed.

It is made clear that the observations made in this order are solely for the purpose of deciding the bail application and shall not be read or referred to at the time of trial or at any later stage.