Kishan Thakur vs State Of H. P

Vivek Singh Thakur, J

Petitioner has approached this Court seeking bail under Section 439 Code of Criminal Procedure (in short 'Cr.P.C.'), in case FIR No.17 OF 2021, dated 23.05.2021, registered in Police Station Kunihar, District Solan, H.P., under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as 'NDPS Act').

Status report stands filed.

Prosecution case, in brief, is that on 23.05.2021 police party of Special Investigating Unit (SIU) Solan, was on patrolling in civil dress in the area of Subathu, Kunihar etc. At about 11.45 a.m. on a road from Kunihar-Jubbla, a person (present petitioner) was found sitting on a parapet. Vehicle was stopped in front of him to inquire about the reason for sitting there during curfew on account of pandemic. Police party gave its introduction, whereupon that person tried to hide something under white Gamchha with his legs which created suspicion, whereupon, on lifting the aforesaid Gamchha, it appeared that a bag is there. For suspicion, it was proposed to check the bag, but because of Lockdown, movement of vehicles and persons was not there on the road. No residential house or shop was situated nearby, therefore, police officials were associated as witnesses to witness the search and seizure process and on search of the bag black solid substance was found therein. On the basis of experience, on smelling and also on inquiry from that person, it was identified as charas. Recovered contraband was weighed on digital machine and it was found to be 256 grams. After completing all codal formalities, the recovered contraband was taken into possession and seized. By sending Rukka to the Police Station, FIR was registered and another Investigating Officer was called on the spot. During investigation, petitioner was arrested.

As per police report, on the basis of Aadhar Card, address of the petitioner was verified as Kishan Lal Thakur, son of Jeet Thakur, resident of Tara Kunj, Devnagar, Post Office Kusumpatti, Tehsil and District Shimla, H.P., and presently he was found to be residing in the house of Hem Raj, resident of Banhwa, Post Office Jubbla, Tehsil Arki, District Solan, H.P., whereas his address of Nepal is found to be Ward No.5, Borisal, Tehsil Gobadiya, District Daang, Aanchal Rapti (Nepal).

It has been submitted by learned Additional Advocate General that petitioner is originally resident of Nepal and, therefore, in case he is enlarged on bail, it would be difficult to procure his presence during trial and also petitioner has been involved in commission of crime which is ruining the society and, therefore, he is not entitled for bail.

Learned counsel for the petitioner has submitted that from the Aadhar Card address of the petitioner has been verified as resident of Tara Kunj, Devnagar, Post Office Kusumpatti, Tehsil and District Shimla, H.P., and his present address has also been verified by Hem Raj, who is resident of Village Banhwa, Post Office Jubbla, Tehsil Arki, District Solan, H.P., and, therefore, according to him, the fact that petitioner is originally resident of Nepal has lost its force, for the reason that petitioner is now permanently residing in Himachal Pradesh. It has also been submitted that in any case, for his residence in Himachal Pradesh on permanent basis, petitioner is also ready to furnish local surety in case he is enlarged on bail. It has further been submitted that even if prosecution story is stated to be true, then also, petitioner has been allegedly found in possession of 256 grams of charas, which is an intermediate quantity and since the petitioner is behind the bars for about last six months, he is entitled for bail as none should be punished without subjecting him to the trial.

Considering all facts and circumstances, including quantum of contraband recovered from the petitioner and the period of his detention, but without commenting on merits of the rival contention of parties and taking note of all principles and factors relevant to be considered at the time of deciding bail application with reference to aforesaid facts and circumstances placed before me, and submissions made by learned counsel for the petitioner as well as learned Additional Advocate General, I find that petitioner may be enlarged on bail, at this stage.

Accordingly, present petition is allowed and petitioner is directed to be enlarged on bail, subject to his furnishing personal bond in the sum of `50,000/- with two local sureties in the like amount, as undertaken by the petitioner, to the satisfaction of the trial Court, within two weeks from today, upon such further conditions as may be deemed fit and proper by the trial Court, including the conditions enumerated hereinafter, so as to ensure the presence of petitioner/accused at the time of trial:-

(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 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 in case petitioner indulges in repetition of similar offence(s) then, his bail shall be liable to be cancelled on taking appropriate steps by prosecution;

(viii) that the petitioner shall not leave the territory of India without prior permission; and

(ix) that the petitioner shall inform the Police/Court his contact number and shall keep on informing about change in address and contact number, if any, in future.

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 condition 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.

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

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

Petition is disposed of in aforesaid terms.

Copy dasti.

Petitioner is permitted to produce a copy of this order, downloaded from the web-page of the High Court of Himachal Pradesh, before the authorities concerned, and the said authorities shall not insist for production of a certified copy but if required, may verify it from Website of the High Court.