Gulshan Kumar vs State Of Himachal Pradesh

Vivek Singh Thakur, J

Petitioner has approached this Court, seeking regular bail, under Section 439 of the Code of Criminal Procedure, in case FIR No. 74 of 2020, dated 20.7.2020, registered under Sections 20,25 and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short NDPS Act) in Police Station Banjar, District Kullu, H.P.

Status Report stands filed. Record has also been made available.

Prosecution case is that on 20.7.2020, co­accused Manjeet Singh and Ashwani Rana were found travelling in a car, transporting 1 kg 515 gram charas kept on the handbrake of the car. After their arrest, during interrogation, they disclosed that Manjeet Singh, on 19.7.2020, had contacted petitioner Gulshan Kumar on his mobile and informed about their arrival at Banjar with request to provide charas from someone known to Gulshan Kumar. Gulshan Kumar and Manjeet Singh remained in contact, on mobile, with each other and Gulshan Kumar facilitated a conference call of Manjeet Singh with his uncle Jitender Singh @ Tonu and Jitender Singh @ Tonu provided them charas for consideration of Rs.90,000/­.

Investigating Agency obtained Call Detail Record (CDR) and CAF of petitioner as well as co­accused persons, which verified the information given by co­accused in their disclosure statement and on the basis of that Gulshan Kumar as well as Jitender @ Tonu were arrested on 26.7.2020 and 29.7.2020, respectively. After remaining in police custody, petitioner is in judicial custody. Challan has been presented in the Court on 27.8.2020 and trial is pending adjudication before the trial Court.

Learned counsel for the petitioner has submitted that petitioner has been implicated in present case only on the basis of disclosure statement and Call Detail Record and there is no other material, direct or indirect to implicate him. Further that, in view of pronouncement of the Supreme Court in Tofan Singh vs. State of Madras, (2021) 4 SCC 1; and (NCB) Bengaluru vs. Pallulabid Ahmad Arimutta & Anr. Special Leave to Appeal (Crl.) No. 242 of 2022, decided on 10.1.2022, petitioner deserves to be enlarged on bail.

It has been further submitted that nothing has been recovered from the petitioner, and, therefore, rigorous of Section 37 of NDPS Act are not attracted in present case. Petitioner has referred following paragraph of pronouncement of Supreme Court in Pallulabid’s case:

“10. It has been held in clear terms in Tofan Singh vs. State of Tamil Nadu (2021) 4 SCC 1 that a confessional statement recorded under Section 67 of the NDPS Act will remain inadmissible in the trial of an offence under the NDPS Act. In the teeth of the aforesaid decision, the arrests made by the petitioner NCB, on the basis of the confession/voluntary statements of the respondents or the co­accused under Section 67 of the NDPS Act, cannot form the basis for overturning the impugned orders releasing them on bail. The CDR details of the some of the accuse dor the allegations of tampering of evidence on the part of one of the respondents is an aspect that will be examined at the stage of trial. For the aforesaid reason, this Court is not inclined to interfere in the orders dated 16th September, 2019, 14th January, 2020, 16th January, 2020, 19th December, 2019 and 20th January, 2020 passed in SLP (Crl.) No. @ Diary No. 22702/2020, SLP (Crl.) No. 1454/2021, SLP (Crl.) No. 1465/2021, SLP (Crl.) No. 1773­74/2021 and SLP (Crl.) No. 2080/2021 respectively. The impugned orders are, accordingly, upheld and the Special Leave Petitions filed by the petitioner ­NCB seeking cancellation of bail granted to the respective respondents, are dismissed as meritless.”

It has been submitted that petitioner is permanent resident of Himachal Pradesh and there is no apprehension of his fleeing from justice and in case he is enlarged on bail, he is ready to abide by any conditions imposed by this Court. It has been further stated that earlier bail application, filed by the petitioner, was dismissed by a co­ordinate Bench of this Court but in February 2021 and since then more than 1 ½ years has already passed and during this time verdict of Supreme Court in above referred case has come and, therefore, petitioner is entitled for filing present bail petition irrespective of dismissal of previous bail application filed by the petitioner.

Learned Additional Advocate General has opposed grant of bail to the petitioner on the ground that in present case commercial quantity of charas is involved and petitioner, on earlier occasion also, was found involved in commission of offences under NDPS Act. Further that, petitioner is involved in commission of heinous crime which is causing damage not only to individual but also to the society and nation and, therefore, he is not entitled for bail.

Learned counsel for the petitioner has submitted that cases referred in past history of the petitioner are of 2013 and 2019 and in the case registered in 2013, petitioner has been acquitted and in other case guilt of petitioner is yet to be established and the registration of cases during past may not be a valid reason for rejecting the bail application of the petitioner particularly when petitioner has not been convicted in those cases.

Without commenting upon rival contention of the parties but taking into consideration entire facts and circumstances of the case including period of detention, submissions made by learned counsel for the parties and also factors and parameters propounded by the Supreme Court necessary to be considered at the time of adjudication of bail, I find that petitioner may be enlarged on bail at this stage.

Accordingly, the petition is allowed and petitioner is ordered to be released on bail, on his furnishing personal bond in the sum of Rs. 1,00,000/­ with one surety in the like amount to the satisfaction of 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 petitioner/accused at the time of trial and also subject to following further conditions:­

(i) That the petitioner shall make himself available to the police or any other Investigating Agency or Court in the present case as and when required;

(ii) 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. He shall not, in any manner, try to overawe or influence or intimidate the prosecution witnesses;

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

(iv) that the petitioner shall not commit the offence similar to the offence to which he is accused or suspected;

(v) that the petitioner shall not misuse his liberty in any manner;

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

(vii) that the petitioner shall keep on informing about the change in address, landline number and/or mobile number, if any, for his availability to Police and/or during trial;

(viii) that the petitioner shall not leave India without permission of the Court.

It will be open to the prosecution to apply for imposing and/or to the trial Court to impose any other condition on the petitioner 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 petitioner as it may deem necessary in the interest of justice.

In case the petitioner violates any conditions 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.

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

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

The parties 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, it may verify the passing of order from the High Court website or otherwise.

The petition stands disposed of in the aforesaid terms.