Kamlesh Kumar And Others vs State Of Himachal Pradesh

Vivek Singh Thakur, J

Since all these petitions arise out of the same FIR, the same are consolidated and disposed of together in order to avoid repetition and for the sake of convenience.

Petitioners have approached this Court, invoking provisions of Section 439 Cr.P.C., seeking bail in case FIR No. 77 of 2021, dated 26.4.2021, registered in Police Station Aut, District Mandi, H.P., under Sections 20, 25, and 27-A of Narcotic Drugs and Psychotropic Substances Act (in short 'NDPS Act').

3 Status report stands filed and record was also produced which was returned after perusal with direction to learned Deputy Advocate General to retain the photocopies of relevant documents.

4 Prosecution case, in brief, is that on 26.4.2021, at 8.45 PM police had set up a Naka on a link road from Panarsa to Dalashani. At about 9 PM, a vehicle No. HP-01M-1868 coming from Dalashani to Panarsa side, was stopped on signal of police.

The vehicle was occupied by driver and one lady on co-driver seat. On inquiry about their travel on that road, they could not give satisfactory answer. They disclosed their identity as Vicky and Kirna Devi (petitioner in Cr.MP(M) No. 1179 of 2021). When they were being questioned about their whereabouts by police, both of them had tried to press a carry bag kept between the seats which created suspicion whereupon two independent witnesses, resident of Panarsa, were associated and made members of search and seizure party. After complying with procedure, the bag was checked wherein 17 small packets containing blak coloured substance were found. On the basis of experience and on smelling, it was found to be charas. On weighing it on electronic weighing machine, it was found 1.831 Kg. Recovered contraband was taken in possession and seized after complying with procedure.

By sending ruka, FIR was registered in Police Station and investigation was handed over to another Investigating Officer. During investigation, petitioner Kirna and co-accused Vicky were arrested at about 3/3.15 am on 27.4.2021.

6 It has further been stated in status report that during interrogation, petitioner Kirna Devi and co-accused Vicky had disclosed that they had purchased the charas from a person namely Rakesh, who is familiar to Kirna by face but without any knowledge of his address. Later on, Kirna Devi had disclosed that Rakesh is resident of Bhuntar and on the basis of her statement, Rakesh Kumar was associated in investigation and was interrogated, but, during interrogation, contradiction was found in statements of accused persons as well as Rakesh Kumar and thereafter during police remand, on intensive interrogation, Kirna Devi had disclosed that they had purchased the charas from Rakesh Kumar resident of village and Post Office Sayanj , Tehsil Gohar, District Mandi for a consideration of Rs. 2 lacs. Statement of Kirna Devi was recorded under Section 27 of Indian Evidence Act and she identified the places where she had claimed handing over of Rs.2 lacs to Rakesh Kumar for purchase of charas. Rakesh Kumar was arrested on 30.4.2021 and thereafter Kirna Devi, Vicky and Rakesh Kumar were again interrogated during further police remand and on the basis of Call Details Record, Kamlesh Kumar and Shiv Ram were also associated in the investigation and all of them i.e. Kirna Devi, Vicky, Rakesh Kumar, Kamlesh Kumar and Shiv Ram were interrogated and thereafter, Kamlesh Kumar was also arrested on 1.5.2021.

7 During further investigation, Kirna Devi and Vicky had disclosed that they had purchased charas from Lala Ram resident of Malana District Kullu for consideration of Rs. 2 lacs and for that Rs.50,000/- were paid by Kamlesh Kumar. They had further disclosed that they had not purchased charas from Rakesh Kumar whose name was disclosed by them for personal enmity with him and to save Lala Ram.

8 On study of Call Details Record, it was found that on the day of incident, no talk between Rakesh had taken place with Kirna Devi and Vicky and tower location of Rakesh Kumar was also not matched with places disclosed by Kirna Devi about presence of Rakesh Kumar and for the material on record, it was concluded by Investigating Officer that Rakesh Kumar was not involved in commission of offence and therefore, he was discharged on 2.5.2021 at 8 AM under Section 169 of Cr.P.C.

9 Petitioner Lala Ram, who was absconding, was detained at Manikaran on 4.6.2021 for inquiry and thereafter Tikka Ram, involved in selling and purchase of charas along with Lala Ram, was also called for interrogation and on finding their complicity in the commission of offence in present case, they were arrested.

10 It is further case of prosecution that during interrogation, Tikka Ram and Lala Ram had disclosed that they had sold charas to Kirna Devi, Vicky and Kamlesh Kumar on Chakki Moad for payment of Rs.2 lacs. During police remand, Tikka Ram had disclosed that out of Rs.2 lacs, some amount had been sent by him to Nepal and some amount was spent by him for personal use and some remaining amount had been kept by him in his room in the trunk and further that he had also paid Rs.50,000/- as commission to Lala Ram. In sequel to statement of Tikka Ram, recorded under Section 27 of Indian Evidence Act, Rs.35,000/- were recovered from his room. No amount was recovered from the house of Lala Ram, but, he had disclosed that he had spent the entire amount for personal work.

11 The recovered contraband, on chemical analysis, has been confirmed as charas by State FSL Junga. Petitioner Kirna along with co-accused Vicky was arrested on 27.4.2021 and Kamlesh was arrested on 1.5.2021, whereas, Lala Ram and Tikka Ram were arrested on 4.6.2021 and since then after remaining in police custody, they are in judicial custody.

12 Mr. Bhupinder Ahuja, learned counsel for petitioner Kirna Devi, has submitted that Kirna Devi has not been found earlier involved in commission of such offence and as a matter of fact, she has been falsely implicated and petitioner is in business of arranging the camp sites for tourists at various places and she had been talking with large number of persons in connection with her business and she is not at all involved in transportation of charas, as alleged by prosecution, and further that police case is highly improbable and in any case, if prosecution case is considered to be true, then also police was duty bound to follow the prescribed provisions of Section 42 of NDPS Act and in view of aforesaid facts and circumstances, petitioner is entitled for bail as in all eventualities, petitioner Kirna Devi will not be liable to be convicted on the basis of material on record.

13 Mr. Virender Singh Chauhan, learned Senior counsel, under instructions of Mr. Ajay Singh Kashyap, Advocate, appearing on behalf of petitioner Kamlesh Kumar, has submitted that involvement of petitioner on the basis of alleged disclosure statement made by Kirna Devi and Vicky is not tenable in the eyes of law more particularly when Kirna Devi and Vicky had disclosed that they had purchased the charas from one Rakesh Kumar and had also disclosed the name of Shiv Ram along with petitioner Kamlesh Kumar but later on their claim with respect to Rakesh Kumar and Shiv Ram was considered to be false by Investigating Officer, but, petitioner Kamlesh has been implicated in commission of offence without any evidence on record against him

14 Mr. Ajit Sharma and Mr. Prashant Sharma, Advocates for Lala Ram and Tikka Ram have submitted that implication of petitioners Lala Ram and Tikka Ram, merely on the basis of statements alleged to have been made by Vicky and Kirna Devi is contrary to law of land and there is no material on record about their involvement in commission of offence as alleged by prosecution.

15 Mr. Yudhvir Singh Thakur, learned Deputy Advocate General, has submitted that in present case, petitioners have been found actively involved in selling, purchasing and transporting the charas and their acquittance with each other and involvement in commission of offence has been established on the basis of their Call record and also recovery of amount at the instance of one of them from his room and therefore, it is further submitted that for disclosure of name of Rakesh Kumar, who was later on found not involved in commission of offence in present case, is also not in favour of petitioners but in favour of prosecution as it clearly reflects that accused persons in present case are clever persons and are trying to protect each other by misleading the Investigating Agency and therefore, there is also possibility of tampering the evidence on their part.

16 It has further been stated that offence in present case is a heinous crime which is ruining the society and for quantum of recovered contraband, petitioners are not entitled for bail particularly keeping in view the rigors of Section 37 of NDPS Act.

17 Taking into consideration the quantum of charas recovered and period of detention and other facts and circumstances of case, but without commenting upon merits thereon, however, taking note of 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 at this stage, enlargement of petitioners on bail would be against societal interest and thus, they are not entitled for bail at this stage. Therefore, all petitions stand dismissed.