Jai Prakash And Others vs State Of Himachal Pradesh

Vivek Singh Thakur, J

These petitions arising out of the same FIR, for involvement of common question of facts, are being decided together by this common order.

These petitions have been filed invoking provisions under Section 439 Criminal Procedure Code (in short ‘Cr.P.C.’), for enlarging the petitioners on bail in case FIR No. 09 of 2022 dated 20.02.2022, registered under Sections 22 and 29 of Narcotic Drugs and Psychotropic Substances Act (hereinafter in short ‘NDPS Act’) in Police Station Nerwa, District Shimla, H.P.

Status Reports were filed. Record was also made available.

Prosecution case, as per status reports, is that on 20. 02.2022, during checking of bus by the police, coming from Paonta Sahib to Nerwa, at Check Post Jhamrari, at about 8.20 p.m, Jai Prakash (petitioner in Cr.M.P.(M) No.1971 of 2022) was found in possession of 5-litres plastic Can of Engine Fluid filled with some liquid, which, on opening of the Can in presence of independent witnesses associated during search and seizure process, on the basis of experience and as per disclosure of Jai Prakash, was identified to be Corex. 5-litres plastic Can was taken into possession, wrapped in a white cloth and seized. By sending Rukka to Police Station Nerwa, FIR was registered. For involvement in transporting Corex having Codeine therein, petitioner Jai Prakash was arrested. During his interrogation, he disclosed that he alongwith Ram Lal (petitioner in Cr.M.P.(M) No.1300 of 2022) and Bhag Mal was present at Vikasnagar (Uttarakhand) on 17.02.2022 and 18.02.2022, where Bhag Mal and Ram Lal purchased Corex and they (all three persons) poured bottles of Corex in a Can and empty bottles were thrown by petitioner Ram Lal somewhere not known to petitioner Jai Prakash and all of them, on 20.02.2022, came in a vehicle of Ram Lal and Ram Lal halted at a place namely Bhog. He and Bhag Mal started their journey to Nerwa in a bus, but Bhag Mal deboarded the bus at Fedis Pul and he alone was coming to Nerwa, but on the way, he was intercepted and apprehended by the police.

As per prosecution case, on 22.02.2022, Jai Prakash identified ‘Yamnotri Home Stay’ where he and Bhag Mal stayed on 17.02.2022 and ‘Samrat Hotel’, where he and Ram Lal had stayed on 18.02.2022. Photocopies of record of Hotels were obtained by the police.

During investigation, Call Detail Records (CDRs) of all aforesaid three persons were obtained and as per CDRs Tower Location of these persons since 17.02.2022 to 20.02.2022 was found in Vikasnagar (Uttarakhand). Thereafter, on 23.02.2022, Bhag Mal and Ram Lal were interrogated. Ram Lal disclosed that he had purchased 25 bottles of Chocho Cough Syrup and Bhag Mal disclosed him that he had purchased 15 bottles of Chocho Cough Syrup from the same motor mechanic and they had handed over these bottles to Jai Prakash. On finding complicity in commission of offence, Bhag Mal and Ram Lal were also arrested.

During interrogation, Ram Lal disclosed that he had concealed empty bottles of Chocho Cough Syrup near Gumma on the road leading from Fedis Pul to Minas in a Parapet. On 25. 02.2022, on identification of the spot by Ram Lal, 40 empty bottles of Chocho Cough Syrup were recovered. To verify the claim of Bhag Mal and Ram Lal that they had purchased the Cough Syrup from some mechanic at Vikasnagar (Uttarakhand), they were taken to Vikasnagar, but they failed to identify or locate the person from whom they had purchased Chocho Cough Syrup.

Recovered contraband was sent for chemical analysis to State Forensic Science Laboratory (SFSL). In the report of Chemical Laboratory, total volume of Syrup in the Can was measured as 5900 Mililitre with total weight of Syrup as 6.720 Kilograms. As per report, Codeine was present in the Corex Syrup.

Learned counsel for the petitioner Jai Prakash has submitted that it is case of the prosecution that 5 litre Corex was recovered from petitioner Jai Prakash, but as per SFSL, volume of Syrup was found to be 5900 ML with weight of 6.720 Kilograms and there is discrepancy of about 900 ML against claim of the prosecution of recovery of 5 Litre Corex Syrup, SFSL has reported it to be 5900 ML which creates doubt on the veracity of prosecution story and, therefore, it has been prayed that petitioners are entitled for bail in aforesaid facts and circumstances.

It has further been contended that it is case of prosecution that only 40 bottles of 100 ML each, were purchased by co-accused Bhag Mal and Ram Lal and Syrup contained therein was shifted to 5-Litre Can. Whereas, Syrup in Can has been reported to be 5900 ML which creates doubt about veracity of prosecution story for being huge difference in purchased quantity of Syrup, recovered quantity of Syrup and the Syrup sent to SFSL.

It has been contended that as per prosecution case, only 40 empty bottles of Syrup were recovered at the instance of Ram Lal, but prosecution has failed to explain under what circumstances the said 4000 ML Cough Syrup becomes 5900 ML with further submission that 5900 ML Syrup can never be extracted from 40 bottles of 100 ML each which shall always be 4000 ML, but never be 5900 ML and, therefore, report of SFSL cannot be connected with alleged recovery of Chocho Syrup from petitioner Jai Prakash and, thus, petitioners are entitled for bail.

It has been contended on behalf of petitioner Ram Lal that nothing has been recovered from him and he has been made an accused on the basis of CDRs and disclosure statement of co-accused and keeping in view order dated 10.01.2022 pronounced by the Supreme Court in Special Leave to Appeal (Crl.) No.242 of 2022, titled as State by (NCB) Bengaluru vs. Pallulabid Ahamad Arimutta & another, petitioner deserves to be enlarged on bail. It has further been contended that petitioner has no concern in the alleged recovery of Corex and, therefore, he is entitled for bail. It has also been contended that petitioner is owner of the Car and there was no occasion for him, if he was involved in commission of offence, to send Jai Prakash in a bus for transporting prohibited Chocho Cough Syrup. Further that, the petitioner had gone to Vikasnagar in connection with repair work of his Car and that petitioner is 25 years young boy and continuation of detention shall have bad impact on his mind. Further that, there is no money transaction between petitioner and other co-accused and, therefore, also petitioner is entitled for bail.

Learned Additional Advocate General has referred recent judgment dated 19.07.2022, passed by the Supreme Court in Special Leave to Appeal (Crl.) No.6128-29 of 2021, titled as Narcotics Control Bureau vs. Mohit Aggarwal, with further submission that in present case, it is not only disclosure statement and the CDRs, but also the fact that on the basis of disclosure statement 40 empty bottles were recovered at the instance of Ram Lal and CDRS of co-accused persons is not only depicting conversation between all three during alleged period of procuring prohibited drug Codeine, but also it reflects that at the relevant point of time petitioners were in Vikasnagar and were staying in different places, but together as substantiated by corresponding entries in the record of Register of Hotels. It has further been submitted that during interrogation, petitioners and co-accused persons had also disclosed that they had poured water in the Can after pouring all 40 bottles in the Can.

Learned Additional Advocate General has further submitted that plea taken on behalf of the petitioners with respect to Can and quantum of Syrup found therein in SFSL is misconceived for the reason that it is not case of the prosecution that 5 litre Corex was recovered, but case is that a liquid appearing to be Corex being transported in a 5-Litre Can of Engine Fluid was recovered and the said Can was taken into possession and seized alongwith liquid and was produced before the Magistrate in the same condition and was sent to SFSL for chemical analysis in the same manner without shifting it to any other vessel. It was sent to SFSL as it is, as was being transported by petitioner Jai Prakash, which is also evident from report of SFSL, where it has been stated that Can was received in one parcel of a cloth duly signed by the police as well as the Magistrate and on opening the Can and on measuring liquid therein, it was found 5900 ML with 6.720 Kilograms weight. It has further been submitted that there is difference in density of different fluids and, therefore, different quantity of different fluid can be stored in one and the same vessel and further that, Can of 5-Litre Engine Fluid was recovered, but nowhere it has come on record that in 5-Litre Can of Engine Fluid 5900 ML Fluid cannot be stored, rather from production of Can before the Magistrate and opening of the same in the SFSL, it has been established that the fluid in the said Can was 5900 ML and, therefore, there is no discrepancy or contradiction in investigation carried out by prosecution and the quantum of Corex found in SFSL in Can.

Learned Additional Advocate General has further submitted that it has come in the knowledge of police during interrogation that accused persons had mixed water in the Corex at the time of storing the same in the Can and, therefore, there is explanation for recovery of 5900 ML Corex after pouring 40 bottles of Corex in the Can. Whereas, learned counsel for the petitioners have contended that nowhere in the status report or in the challan, it has been claimed that in the Corex alleged to be recovered from Jai Prakash, water was mixed in it and, therefore, such explanation is not permissible at this belated stage.

Taking into consideration entire facts and circumstances, including quantum of prohibited drug alleged to have been recovered, period of detention and other material placed before me, but without commenting on rival contentions of parties, I am of the opinion that petitioners are not entitled for bail at this stage. Accordingly, petitions are dismissed.