Mohan Kumar And Others vs State Of Himachal Pradesh

Vivek Singh Thakur, J

Both these petitions arise out of the same FIR, therefore, they are being disposed of by this common order.

Petitioners, invoking Section 439 of the Code of Criminal Procedure, have approached this Court for grant of bail in case FIR No.138/2020, dated 12.8.2020, registered under Sections 20 & 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short ‘NDPS Act’) and Sections 181 & 192 of the Motor Vehicles Act, in Police Station Dharamshala, District Kangra, Himachal Pradesh.

Status report stands filed. Record has also been made available.

In the Status Report, the circumstances, under which on 12.8.2020 at 11.40 a.m., the Police Party, which was present at place Dhari, in connection with investigation of case FIR No.133 of 2020, dated 6.8.2020, under Section 420 IPC, recovered 1.076 kgs Charas from ALTO Car No.HP-37F-5065, occupied by petitioner Mohan Kumar (Driver), petitioner Gian Chand and co-accused Ashu, in presence of witness Sarbjeet Singh, have been narrated in detail.

Status Report further states that after recovery of the contraband and registration of FIR on the basis of Ruka sent from the spot to the Police Station, petitioners and co-accused Ashu were arrested.

As per prosecution case, during investigation, it has come on record that one Geeta Devi wife of Bhallo Ram, resident of village and Post Office Jiya, Tehsil Palampur, District Kangra, as per Insurance, was registered owner of Vehicle No.HP-37F-5065 and petitioner Mohan Kumar was employed as a Driver by her on the said vehicle and the vehicle used to remain with petitioner Mohan Kumar, and that petitioner Gian Chand alongwith his wife co-accused Ashu and petitioner Mohan Kumar, in consultation with each other, were transporting 1.076 kgs Charas for selling in District Kangra and further that petitioner Mohan Kumar, co-accused Ashu were knowing that Gian Chand is in possession of Charas and to sell the Charas were going to District Kangra. On interrogation, the petitioners and co-accused Ashu also disclosed that they tried to sell the Charas in Kullu but they found on customer and so they came towards Dharamshala but caught alongwith the recovered Charas.

Recovered contraband has been confirmed as Charas by the State Forensic Science Laboratory, in its Report, after chemical analysis of the same.

Petitioners were arrested on 12.8.2020 and after remaining in police custody they are in judicial custody since then.

Learned counsel for petitioners have submitted that as per prosecution, at the time of recovery, weight of recovered contraband was 1.076 Kg. which is slightly more than 1 Kg and it is borderline case with respect to minimum prescribed quantity of commercial quantity and he has submitted that there may be error in weighing the contraband as recovered contraband is only 76 grams higher than 1 Kg and, therefore, case of petitioners deserves to be considered without applying rigors of Section 37 of NDPS Act.

Learned Additional Advocate General has submitted that weight mentioned in recovery memo as well as other documents, is correct weight which is more than 1 Kg and, therefore, quantity of charas recovered in present case is of commercial quantity and, thus, petitioners, who are involved in commission of heinous crime which causes damage to individuals, their families as well as society, are not entitled for bail.

Rejection of the bail has also been sought by learned Additional Advocate General on the ground that the petitioners are habitual offenders, as petitioner Mohan Kumar has been found involved in FIR No.29/19, dated 25.2019, registered in Police Station McLeodganj, District Kangra and FIR No.33/20, daed 20.2.2020, both under Sections 20 of the NDPS Act, and petitioner Gian Chand has been found involved in FIR No.11/16 dated 23.1.2016, registered under Section 20 of NDPS Act, in Police Station Sundernagar, District Mandi, which is pending adjudication in the Court.

It has been submitted by the learned counsel for the petitioners that co-accused Ashu has been released on bail by a Co-ordinate Bench of this Court, vide order dated 4.2.2021, passed in Cr.MP(M) No.109 of 2021. They have further submitted that involvement of the petitioners is yet to be established by leading cogent and reliable evidence by prosecution and, therefore, petitioners are entitled for bail, who are behind the bars since last about one year eight months.

Referring quantity of Charas alleged to be recovered and period of detention of petitioners coupled with release of co-accused, it has been submitted that petitioners are entitled for bail. It has further been submitted by the learned counsel for the petitioners that in case the petitioners are ordered to be released on bail, they are ready to furnish the bail bonds and also to abide by any conditions that may be imposed by the Court.

Petitioner Gian Chand had approached this Court, seeking regular bail by filing Cr.M.P.(M) No.1020 of 2021, under Section 439 Cr.P.C. which was dismissed as withdrawn, on 4.6.2021, before a Coordinate Bench of this Court.

Without commenting upon merits of rival contentions of the parties, considering the material placed before me and also parameters and factors necessary to be considered at the time of adjudication of bail application, I am of the opinion that, at this stage, petitioners may be enlarged on bail.

Accordingly, the petitions are allowed and the petitioners are ordered to be enlarged on bail, at this stage, subject to their furnishing personal bond each in the sum of Rs.1,00,000/ - with one surety each in the like amount to the satisfaction of the trial Court, and 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 petitioners shall make themselves available to the police or any other Investigating Agency or Court in the present case as and when required, as per law;

(ii) that the petitioners 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/her from disclosing such facts to Court or to any police officer or tamper with the evidence. They shall not, in any manner, try to overawe or influence or intimidate the prosecution witnesses;

(iii) that they shall not obstruct the smooth progress of the investigation/trial;

(iv) that the petitioners shall not commit the offence similar to the offence to which they are accused or suspected;

(v) that the petitioners shall not misuse their liberty in any manner;

(vi) that the petitioners shall not jump over the bail;

(vii) that the petitioners shall keep on informing about the change in addresses, landline numbers and/or mobile numbers, if any, for their availability to Police during investigation and/or during trial;

(viii) the petitioners shall not leave India without permission of the Court.

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. It shall be open for the trial Court to impose any other condition, as deemed necessary, upon the petitioner, independent of prayer of prosecution.

In case the petitioners violate any of the conditions imposed upon them, their 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.

Learned 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 hereinbefore shall not affect the merits of the case in any manner and are strictly confined for the disposal of these bail applications.

The petitioners are permitted to produce copy of order downloaded from the High Court website and the trial Court shall not insist for certified copy of the order, however, passing of order may be verified from the High Court website or otherwise.

Petitions stand disposed of in the aforesaid terms.