Mehardeen vs State of Himachal Pradesh

The present bail application has been maintained by the petitioner under Section 439 of the Code of Criminal Procedure seeking his release in case FIR No.125 of 2016, dated 06.07.2016, under Section 15 of Narcotic Drugs & Psychotropic Substances Act, registered at Police Station, Nalagarh, District Solan, H.P.

As per the petitioner, he is innocent and has been falsely implicated in the present case. He is resident of the place and neither in a position to tamper with the prosecution evidence nor in a position to flee from justice, so he may be released on bail.

Police report stands filed. As per the prosecution, on 06.07.2016, around 6:45 a.m. when the police party was on patrol duty near place known as Jagaat Khana, they spotted a truck, bearing registration No. HP12D-3133, and behind that truck a car, having registration No. RJ09CC-2151, was parked. In between the truck and car three persons were standing and they got baffled on seeing police and also tried to escape from the spot, but they were apprehended. On inquiry, person sitting on the driver''s seat in the car divulged in his name as Gulzar, resident of Jhijhriwala, Nalagarh, person sitting on the front passenger seat in the car disclosed his name as Shoka Lal, resident of Village Akiya, Badeshwar, District Chitaur, Rajasthan, and the person sitting on the driver''s seat in the truck revealed his name as Mehardeen, resident of Rotawal, Post Office Lodhimajara, Baddi, District Solan. The car was searched and nine bags having written "Maize Starch Powder", "For Industrial Use Only", were recovered. Likewise, two bags, having same inscription, were also recovered from the rear seat of the aforesaid truck. The police checked each bag and the same were found to have contained ''Poast'' (Bhukki). All the bags were weight and on weighment the contraband recovered from the car was 173.490 kgs and contraband recovered from the truck was 12,700 kgs. Thus, the total contraband recovered was 186.190 kgs. Police took 500 grams from each bag as samples and NCB form, in triplicate, was also prepared. FIR was registered by the police. Spot map was prepared and statements of the witnesses were also recorded. All the accused were arrested and were got medically examined. During the course of investigation, it was unearthed that accused Gulzar runs a ''Dhaba'' in Chitaur, Rajasthan, in partnership, and he, in small quantities, use to collect Poast (Bhukki) from the local people and transports the same to Nalagarh. He has further revealed that he came to Nalagarh with 20/25 kgs of Bhukki. He has further divulged that he loaded the Bhukki in the petitioner''s truck, which was loaded with drums of chemical and he also agreed to give Rs.30,000/- to the petitioner. As per accused Gulzar, he came with his servant, Shoka Lal (accused) in his partner''s car RJ-09CC-2151, which he took on the pretext that he wanted to go to his home. It was also unearthed that at place called Jagaat Khana the accused and the petitioner were unloading the Poast (Bhukki) from the truck and the same was being loaded in the said car. The recovered contraband was subjected to chemical analysis in State Forensic Science Laboratory and report was also obtained. As per the prosecution, the involvement of the accused and the petitioner was found in the commission of the offence. The accused and the petitioner are involved in the business of transporting and distributing narcotics to the public thereby spreading drug menace in the society. Lastly, the prosecution has prayed for dismissal of the application.

Heard. The learned counsel for the petitioner has argued that the petitioner is innocent and the alleged quantity shown to be recovered from him is not at all commercial quantity, thus rigors of Section 37 of the ND & PS Act are not applicable in his case. He has further argued that the petitioner has been falsely implicated in the present case. The petitioner is resident of the place and he is neither in a position to tamper with the prosecution evidence nor in a position to flee from justice, so he may be released on bail, as no fruitful purpose will be served by keeping him behind the bars for an unlimited period. Conversely, the learned Additional Advocate General has argued that the police caught the petitioner red handedly while they were dealing with the Poast (Bhukki), which they transported all the way from Chitaur, Rajasthan, and the quantity recovered is a commercial quantity. He has further argued that the petitioner was found involved in a very serious offence of spreading drug menace in the society, so he prayed that the bail application of the petitioner may be dismissed.

I have gone through the rival contentions of the parties and the police report in detail.

As per the prosecution story, the accused and the petitioner were caught red handedly by the police while they were unloading the Poast (Bhukki) from truck bearing registration No. HP12D-3133 and loading the same in car having registration No. RJ09CC-2151. The police report reveals that the petitioner transported the contraband to Nalagarh for Rs.30,000/- and accused Gulzar was found involved in the business of transporting and distributing Poast (Bhukki).

At this stage, this Court is of the view that the learned Trial Court will come to the conclusion whether the quantity of the recovered substance was commercial or non-commercial, only after recording the evidence. At this stage, prima facie, as per the prosecution story, whole of the contraband was recovered from the accused persons, that is, from the truck and the car jointly, thus it is a commercial quantity. Therefore, this Court finds that at this time, on the basis of the available record, it is not possible to decipher that what quantity was recovered from which accused. However, as per the prosecution, the charge sheet is already presented in the Court, so, this Court finds that at this moment the present is not a fit case to grant bail to the petitioner for the simple reason that there is nothing on record which provide a reasonable ground to conclude that the petitioner is not guilty of the offence and he is not likely to repeat the same office. Further taking into consideration the fact that as per the prosecution, the whole contraband was recovered from all the accused persons, thus the bail application of the petitioner is required to be dismissed. However, in view of peculiar facts and circumstances of the case, this Court finds that it will be expedient and in the interest of justice that the learned Trial Court is directed to dispose of the case, pending before it, preferably within eight months. Ordered accordingly.

In view of what has been discussed hereinabove, the petition, which sans merits, deserves dismissal and is accordingly dismissed.