Mohd. Ishaq vs State Of H.P

Virender Singh, J

Applicant, Mohd. Ishaq has filed the present application, under Section 439 of the Code of Criminal Procedure (hereinafter referred to as ‘Cr. P.C.’), for releasing him on bail, during the pendency of trial, in case FIR No. 6/2023, dated 4.1.2023, under Section 21 of the Narcotric Drugs and Psychotropic Substance Act (hereinafter referred to as ‘NDPS Act’)

The applicant has sought the bail, on the ground, that he is an innocent person and has nothing to do with the alleged offence, for which, he has been arrested by the Police.

It is his further case that investigation, in the present case, is complete and nothing is to be recovered from him or at his instance an no fruitful purpose will be served by keeping him in judicial custody.

Apart from this, the learned counsel appearing for the applicant, has given certain undertakings, on behalf of the applicant, for which, the applicant is ready to abide by, in case, released on bail, during the pendency of the trial.

The applicant had filed an application under Section 439 of Cr. P.C. before the Court of learned Additional Sessions Judge, Sundernagar, which has been dismissed vide order dated 23.1.2023.

When put on notice, police filed the status report disclosing therein that on 4.1.2023, a Rukka was received in Police Station, Dhanotu through H.C. Bhanu Sharma No. 172, regarding registration of FIR against the applicant. In the Rukka, it has been stated that HC Bhanu Sharma, No. 172, LHC Husan Lal No. 401 and Constable Upesh Rana No. 908 were on patrolling duty, in a private vehicle, being driven by HC Bhanu Sharma. At about 2:35 p.m., when the car reached 150/200 meter towards Baggi BSL canal, a person was found smoking on the left side of the road. When, the car was stopped near him, the aforesaid person got perplexed and tried to flee away. After running 3­4 steps ahead, he threw a newspaper ball in the bushes. On suspicion, HC Bhanu Sharma, with the help of other police officials, nabbed the aforesaid person, at a distance of about 30­35 steps. On seeing the activities of this person, HC Bhanu Sharma developed a suspicion in his mind that there might be some illegal thing in the aforesaid newspaper, thrown by the aforesaid person.

5.1 HC Bhanu Sharma called up the Up­Pradhan on his mobile and narrated the incident to him and requested him to join the investigation as independent witness alongwith one other person. The Up­Pradhan acceded to his request and reached alongwith one other person on the spot at about 3:00 p.m. in vehicle No. HP­02 M­0669. Thereafter, the names of the aforesaid persons were inquired in the presence of the nabbed person. Then, said person has disclosed his name as Mahinder Pal, S/o Shri Shyam Lal, Up­Pradhan of Gram Panchayat, Dayargi and the other person disclosed his name as Paras Ram, S/o Shri Chandu Ram, member, Ward No. 5, Gram Panchayat, Dayargi. Thereafter, HC Bhanu Sharma was also associated as witness. The nabbed person was also inquired in the presence of independent witnesses, who disclosed his name as Mohd. Ishaq, S/o Shri Rafiq Mohd. Thereafter, the newspaper ball, thrown by Mohd. Ishaq, in the bushes was checked and it was found containing a transparent polythene pouch. On opening the same, a brown coloured stone shaped substance was found in it, which on smelling, and on the basis of experience, was found to be the heroin.

5.2 On weighment, the contraband (heroin) was found to be 7.07 grams. Thereafter, the recovered transparent pouch containing heroin was knotted and put in the same newspaper cutting and was closed in a cloth parcel. The cloth parcel was sealed with seven seal impressions of ‘BLH C’. The NCB form was filled in triplicate. All other codal formalities were completed and FIR No. 6 of 2023, dated 4.1.2023, under Section 21 of the NDPS Act was registered with the Police Station, Dhanotu. The applicant was arrested on 4.1.2023 at about 9:40 p.m.

5.3. As per the status report, the following cases are stated to have been registered against the applicant:

(I) FIR No. 403/2008, dated 11.11.2008,under Section and 120 B of IPC (acquitted);

(ii) FIR No. 20 of 2013, dated 29.01.2013, under Section 452, 323, 506 read with Section 34 IPC, registered with Police Station, Sundernagar, District Mandi, (acquitted);

(iii) FIR No. 79/2016, dated 5.7.2016, under Section 302, 341, 323, 504, 324, 420, 466, 467, 468, 471 and 120­B of the IPC (pending adjudication).

5.4 On 6.1.2023, the recovered contraband is stated to have been sent to SFSL, Junga for analysis, of which the result is still awaited.

On all these submissions, a prayer has been made to dismiss the bail application.

Heard.

Admittedly, the contraband allegedly recovered from the possession of the applicant, in this case, does not fall within the definition of ‘commercial quantity’, as such rigors of Section 37 of the NDPS Act are not applicable, in this case.

Once, it has been held that rigors of Section 37 of the NDPS Act are not applicable, in this case, then the presumption of innocence is still available to the applicant, as the bail application cannot be rejected as a matter of punishment. Pre­trial punishment is prohibited under the law. The trial of the accused will take sufficient long time and no useful purpose would be served by keeping in him in judicial custody.

At the time of deciding the bail application, the Court should refrain from discussing the case of the prosecution in detail, as, the same would cause prejudice to the case of the prosecution or the defence.

So far as the apprehensions, in the shape of criminal history of applicant are concerned, those are not sufficient to decline the relief to the applicant, for which, he is, otherwise, entitled to. For those apprehensions, reasonable conditions can be imposed.

Considering all these facts, this Court is of the view that the bail application is liable to be allowed and is accordingly allowed.

The applicant is ordered to be released on bail in case FIR No. 6 of 2023, dated 4.1.2023, registered with Police Station, Dhanotu, under Section 21 of the NDPS Act, on his furnishing personal bail bond, in the sum of Rs. 40,000/­ with one surety of the like amount, to the satisfaction of learned ACJM/JMFC/Duty Magistrate, Sundernagar. This order, however, shall be subject to the following conditions:­

a) He shall make himself available for the purpose of interrogation, if so required and regularly attend the trial Court on each and every date of hearing and if prevented by any reason to do so, seek exemption from appearance by filing appropriate application;

b) He shall not tamper with the prosecution evidence nor hamper the investigation of the case in any manner, whatsoever;

c) He shall not make any inducement, threat or promises to any person acquainted with the facts of the case so as to dissuade them from disclosing such facts to the Court or the Police Officer, and

d) He shall not leave the territory of India without the prior permission of the Court.

Any of the observations, made herein above, shall not be taken as an expression of opinion, on the merits of the case, as these observations, are confined only to the disposal of the present application.

It is made clear that the respondent­State is at liberty to move an appropriate application, in case, any of the bail conditions is found to be violated by the applicant.

Applicant may produce a downloaded copy of the order passed by the Court before the trial Court and the trial Court shall not insist for the certified copy of order, rather passing of order can be verified from the web­page of this Court.