Gulshan Kumar vs State Of H.P

Anoop Chitkara, J

The petitioner, incarcerating upon his arrest has come up before this Court under Section 439 CrPC, for possessing commercial quantity of charas,

has come up before this Court under Section 439 of CrPC, seeking bail.

Earlier, the petitioner had filed Cr.PM(M) No.2005 of 2020 before this Court, but same was withdrawn by him with liberty to file afresh.

Para-8 of the bail petition declares the petitioner having no criminal history.

Briefly, the allegations against the petitioner are that on 21.02.2020, the police officials had laid Naka at Fagupul in the jurisdiction of aforesaid

police station. At about 5:15 a.m., a car came from Banjar side. The investigator signaled the same to stop. The driver stopped the car five meters

before the barricades. There were two persons sitting in the car on the front seats. When police signaled the driver to lower the windowpane, then the

person sitting on the front seat threw a bag lying in between them to a person sitting on the back seat. All the three persons became perplexed and this

rose suspicion in the mind of the investigator. On inquiry, the driver told his name as Gulshan Kumar (A-2), the petitioner herein. The person who was

sitting on the front seat disclosed his name as Manish Sharma (A-1) and the person sitting on the back seat revealed his name as Sahil Vata (A-3). On

opening the bag, police recovered charas, which when weighed on electronic scale, it measured 4.600Kg. After that, the investigator conducted

procedural requirements of NDPS act and Cr.P.C and arrested the accused. During interrogation, police also arrested Dev Raj (A-4) and Neel Chand

alias Neelu (A- 5). Based on these allegations, the Police registered the FIR mentioned above.

Ld. Counsel for the petitioner contends that the petitioner is a maiden offender and incarceration before the proof of guilt would cause grave

injustice to the petitioner and family.

On the contrary, the State contends that the Police have collected sufficient evidence against the bail petitioner as well as co-accused. Another

argument on behalf of the State is that the crime is heinous; the accused is a risk to law-abiding people; and bail might send a wrong message to

society.

That the bag allegedly was lying in between the petitioner and co-accused. The burden under Section 37 of the Act is upon the petitioner to satisfy

this Court, which he failed.

Ld. Counsel for the petitioner referred to certain statements and memos from the police report, prepared under section 173(2) CrPC, copies of

which the accused had duly received in compliance to S. 207 CrPC. However, the documents which the Ld. Counsel referred were neither filed with

the petition, nor its copies supplied to the Court and the State. Thus, the Court cannot base any finding on a document which is in the Counsel's brief

and not on the Court's file.

Counsel for the petitioner has also made several other arguments. Still, as this Court is not inclined to grant bail, on the reasons mentioned above,

discussion of the same will be an exercise in futility. Any detailed analysis of the evidence may prejudice the case of the prosecution or the accused.

Given above, in the facts and circumstances peculiar to this case, at this stage, the petitioner fails to make out a case for bail. The petition is

dismissed with liberty to file a new bail application.

Any observation made hereinabove is neither an expression of opinion on the merits of the case, nor shall the trial Court advert to these comments.

The petition is dismissed.