Naresh Kumar vs State Of Himachal Pradesh And Another

Jyotsna Rewal Dua, J

The petitioner has been accused of possessing 58.5 grams of opium and 23 grams of cannabis in FIR No. 21/2021 dated 31.1.2021 registered under

sections 18, 20, 25 of ND&PS Act, 1985, section 336 of Indian Penal Code and sections 181, 184 and 196 of Motor Vehicles Act, at Police Station

Sadar, Bilsapur, District Bilaspur, Himachal Pradesh.

Heard learned counsel for the parties. The gist of the prosecution case against the petitioner is that on 30.1.2021 at around 7.15 p.m. the police

party while on routine patrolling duty near Swarghat noticed a Mahindra pickup No. HP24D-0272 parked alongside the road. The person occupying

the driving seat of this vehicle was identified as the petitioner. He seemingly appeared perplexed on noticing the police patrolling party and dangerously

drove away his vehicle. In this process, he struck his vehicle against the private vehicle used by the police patrolling party. Petitioner’s vehicle

was chased by the police party. Petitioner after covering a distance of about 600 meters, drove his vehicle to an Indian Oil petrol pump at Padgal

(Nauni) and stopped the vehicle there, He left it unlocked and ran away from the spot taking advantage of night cover. Despite best efforts made by

the police team he could not be traced in dark. The above conduct of the petitioner had raised suspicion of the police party about presence of some

illegal substance in the vehicle. Accordingly, some local residents were summoned on the spot and in their presence at about 8.30 p.m., the unlocked

vehicle was inspected. During its search, one knotted handkerchief was found lying on the floor of the vehicle behind its driver seat. It was found to

be containing 58.5 grams of opium and 23 grams of cannabis as measured on the electronic scale carried by the police patrolling party. During the

search, the procedure prescribed in law was followed. The recovery of the contraband led to the registration of the FIR.

Learned counsel for the petitioner submitted that the recovery of the contraband has been planted on the petitioner. At best, it was just a case of hit

and run. The petitioner has not committed the offences alleged against him in the FIR. He is an innocent person. In past, he has also been honored by

the local police for his honesty. Learned counsel for the petitioner further submits that the petitioner undertakes to abide by all the conditions, which

may be imposed upon him in case the interim protection granted to him vide order dated 5.2.2021 is made absolute and that the petitioner will further

undertake not to tamper with the prosecution evidence or influence the prosecution witnesses in any manner whatsoever. Learned Additional

Advocate General submits that in case the Court is inclined to confirm the interim protection then the same be made subject to stringent conditions.

Contraband allegedly recovered from the petitioner weighs 23 grams of cannabis i.e small quantity notified under the ND & PS Act and 58.5 grams

of opium i.e commonly known as intermediate quantity under the ND & PS Act. Therefore, provisions of Section 37 of the ND & PS Act will not be

attracted. Looking into the mode and manner of the commission of the alleged offences by the petitioner at this stage it cannot be said that the

petitioner was guilty of possessing the contraband involved in the FIR. As per status report, there are three FIRs previously registered against the

petitioner viz. FIR No. 319/07 dated 14.11.2007 under Sections 451, 325, 323, 504, 506,34 of IPC, in which the petitioner has been acquitted vide

judgment dated 26.11.2016, 2nd FIR No. 287/08 dated 20.08.08 under Sections 447, 323, 427,34 of IPC which is pending consideration before the

Court concerned and 3rd FIR No. 268/07 dated 27.09.07 under Sections 341, 323, 504, 34 of IPC which stands compromised and accordingly the

petitioner has been discharged by the competent Court on 14.1.2014. As of now, it is only FIR No. 287 of 2008 which is pending against the petitioner.

Status report also records that pursuant to interim protection, the petitioner has joined the investigation and is cooperating with the investigating

agency. There are no allegations in the status report that post registration of the FIR, the petitioner has tried to influence the prosecution witnesses or

tempered prosecution evidence. Petitioner is a local resident and his presence in the trial can be ensured. No purpose will be served by putting the

petitioner behind the bars. Therefore, the instant petition is allowed and the interim protection granted to the petitioner vide order dated 5.2.2021 is

made absolute subject to following conditions:-

(i) The petitioner shall join and cooperate the investigation of the case as and when called for by the Investigating Officer in accordance with law.

(ii) The petitioner shall not temper with the evidence or hamper the investigation in any manner whatsoever.

(iii) The petitioner will not leave India without prior permission of the Court.

(iv) The petitioner shall not make any inducement, threat or promise, directly or indirectly, to the investigating officer or any person acquainted with the

facts of the case to dissuade him/her from disclosing such facts to the Court or any Police Officer.

(v) In case of launching of prosecution, petitioner shall attend the trial on every hearing, unless exempted in accordance with law.

(vi) The petitioner shall inform the Station House Officer of the concerned police station about his place of residence during bail and trial. Any change

in the same shall also be communicated within two weeks thereafter. Petitioner shall furnish details of his Aadhar card, telephone number, E-Mail,

PAN Card, Bank Account Number, if any.

(vii) It is made clear that in case the petitioner is arraigned as an accused in future, in any FIR, more particularly under the NDPS Act, then this bail is

liable to be cancelled. It is open for the Investigating Agency to move appropriate application in that regard.

In case of violation of any of the terms and conditions of the bail, respondent-State shall be at liberty to move appropriate application for cancellation

of the bail. It is made clear that observations made above are only for the purpose of adjudication of instant bail petition and shall not be construed as

an opinion on the merits of the matter. Learned trial Court shall decide the matter without being influenced by above observations.

With the aforesaid observations, the present petition stands disposed of, so also the pending miscellaneous applications, if any.