Karan Sharma vs State Of Himachal Pradesh

Satyen Vaidya, J

Petitioner is an accused in case FIR No.50 of 2023 dated 20.3.2023, under Sections 21, 25 and 29 of the Narcotics Drugs and Psychotropic Substances Act (for short “ND&PS” Act) registered at Police Station, Dhalli, District Shimla, H.P. He is in custody since 25.3.2023.

It is alleged against the petitioner that on 19.3.2023 he had handed over 45.86 grams of heroin/chitta to Surender Kumar and Rohit at Jabli in District Solan for further supply at Dhalli, Shimla. During the intervening night of 19/20.3.2023, the aforesaid Surender Kumar and Rohit were nabbed by the police at place Lambhi-Dhar on Dhalli Bye-Pass Road, Shimla on a secret information. Both were on a motorcycle bearing No. HR-24-AE-1022. On the search of toolkit of the motorcycle, 45.86 grams of heroin/chitta was recovered.

The investigation has been completed and police has filed challan against five persons namely Surender Kumar, Rohit, Karan Sharma (petitioner), Vijay and Parvesh Saini. The role attributed to accused Parvesh Saini is that he had handed over the contraband to petitioner. Against accused Vijay the allegation is that he was the kingpin and all other accused persons were employed by him for supply of contraband. It is also alleged that petitioner had travelled upto Jabli in District Solan on a Scooty, which belonged to accused Vijay. The prosecution is also relying upon certain bank transactions and call details exchanged inter se the accused persons.

Petitioner has prayed for grant of bail on the grounds that he has been falsely implicated. Even on completion of investigation, police has not been able to collect any legal evidence against petitioner. The prosecution is relying upon inadmissible evidence. Further, it has been submitted that petitioner is aged about 23 years and his prolonged incarceration can prove to be detrimental to his future prospects. The petitioner has already suffered incarceration for about ten months and not even a single witness has been examined till date.

Per contra, learned Additional Advocate General has opposed the prayer on the ground that petitioner has been a member of team involved in commission of an organized crime. If released on bail, there is every likelihood that petitioner may again indulge in such activities, which are prejudicial to the interest of the society as a whole. It is further apprehended that petitioner may abscond from the course of justice, in case his prayer is allowed.

I have heard learned counsel for the parties and have also gone through the records of the case carefully.

The status report filed by the respondent-State reveals that the trial in the case has not even begun till date. It is also evident from the facts detailed in the status report that the contraband was not directly recovered from the petitioner. The initial implication of petitioner was on the basis of disclosure allegedly made by a co-accused from whom the contraband was recovered.

The quantity of contraband involved in the case is intermediate and hence, rigors of Section 37 of the ND&PS Act will not be applicable.

As per the dictum of judgment passed by Hon’ble Supreme Court in Tofan Singh vs. State of Tamilnadu, reported in (2021) 4 SCC 1, the disclosure made by a co-accused cannot be read against the petitioner.

The prosecution is also relying upon certain call detail records and bank transactions inter se the accused persons to allege the complicity of petitioner in the crime. As regards the existence of call detail records of accused persons, reference can be made to the judgment passed by Hon’ble Supreme Court in State by (NCB) Bengaluru vs. Pallulabid Ahmad Arimutta and another, (2022) 2 Scale 14, wherein such evidence has not been held to be a circumstance sufficient to hold prima-facie case against co-accused.

The allegations that there were financial transactions inter se the accused persons, are still required to be proved, more particularly in the context of the allegations of such transactions being tainted in nature.

The petitioner has already been in custody for about ten months. There is no likelihood of the trial being concluded in near future as the trial has not even begun till date. In such circumstances, the petitioner cannot be allowed to remain in custody for indeterminate period. Pre-trial incarceration is not the rule and is not punitive also.

It is not the case of respondent that the petitioner has no roots in the society or has no permanent abode. Petitioner is stated to be permanent resident of G-23 Gopal Nagar Saharanpur, Post Office, Tehsil and District Saharanpur (U.P.).

Two other co-accused namely Parvesh Saini and Vijay in identical fact situation have already been released on bail by this Court.

It is also alleged against the petitioner that he is involved in another case under Sections 21 and 29 of the ND&PS Act, registered at Police Station, Theog, District Shimla on 16.12.2022. Except for the reference to registration of a case, nothing further has been suggested as to result of investigation in the said case. In any situation, petitioner is already on bail in the said other case. Mere registration of another case cannot be taken as the sole ground to reject his prayer for bail in the instant case.

Keeping in view the peculiar facts and circumstances of the case, the petition is allowed and the petitioner is ordered to be released on bail in case FIR No.50 of 2023 dated 20.3.2023, under Sections 21, 25 and 29 of the ND&PS Act registered at Police Station, Dhalli, District Shimla, H.P., on his furnishing personal bond in the sum of Rs.1,00,000/- with two sureties in the like amount each to the satisfaction of learned trial Court. This order shall, however, be subject to the following conditions:

i) That the petitioner shall not indulge in any criminal activity and in the event of breach of this condition, the bail granted to the petitioner in this case, shall automatically be cancelled.

ii) That the petitioner shall not leave the territory of India without express leave of Trial Court during the Trial.

iii). That the petitioner shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case and shall not tamper with the prosecution evidence.

iv) That the petitioner shall regularly attend the trial of the case before learned Trial Court and shall not cause any delay in its conclusion.

Any observation made in this order shall not be taken as an expression of opinion on the merits of the case and the trial Court shall decide the matter uninfluenced by any observation made hereinabove.