Naseeb Mohammad vs State of Himachal Pradesh

Kuldip Singh, J.—This is an application u/s 439 Code of Criminal Procedure for releasing the applicant on bail in FIR No. 5 of 2011, registered at Police Station, Theog on 07.01.2011 under Sections 18, 29 of Narcotic Drugs and Psychotropic Substances Act, 1985. The Status report has been filed, record perused.

It has been stated by the learned Counsel for the applicant that the applicant was arrested by the police on 07.01.2011 in FIR No. 5 of 2011 of Police Station, Theog. According to the applicant, as per police on the intervening night of 6/7.1.2011, the applicant along with other co-accused was found in possession of 1Kg 400 gms of opium which was being carried by them in a vehicle without licence and permit. It has been stated that applicant is innocent, he has been falsely implicated in the case. The applicant was simply asked by other co-accused to accompany them to Narkanda side for touring. No. opium was, in fact, recovered from the applicant as alleged by the police.

The applicant is ready to abide by all conditions of bail, in case he is released on bail. The three co-accused have already been released on bail by learned Sessions Judge-cum-Special Judge, Shimla on 07.03.2011. Another accused namely Ashok Kumar has been released on bail by this Court on 29.03.2011 in Cr.M.P.(M) No. 148 of 2011. Only the applicant is now in custody. The learned Counsel for the applicant has prayed for releasing the applicant on bail.

The bail application has been opposed by the learned Additional Advocate General. It has been submitted that on the basis of the disclosure statement of applicant, another 100 grams of opium has been recovered from his residence at Nalagarh. The applicant is involved in another case at Fatehgarh-Punjab in FIR No. 47/2010 dated 18.09.2010 u/s 18 of Narcotic Drugs and Psychotropic Substances Act and he remained in jail for 49 days and his case is pending in the Court. It has been stated in the status report that in case the applicant is released on bail, he is likely to commit the offence under the Narcotic Drugs and Psychotropic Substances Act and terrorize the prosecution witnesses.

I have considered the rival contentions of the learned Counsel for the parties. The case of the applicant is not on the same footing as of the other four accused. It has been stated by learned Additional Advocate General that opium was recovered from the conscious possession of the accused including the applicant. In addition, 100 grams opium has also been recovered from the residence of applicant at Nalagarh on the basis of his disclosure statement. The applicant is already facing trial on the basis of FIR No. 47/2010 dated 18.09.2010, referred above. The possibility cannot be ruled out that in case the applicant is released on bail, then he will commit similar type of offence again. The Investigating Agency has also alleged that in case the applicant is released on bail, he will terrorize the prosecution witnesses. In the facts and circumstances of the case, the applicant is not entitled to bail, hence application dismissed.

The observations made in the judgment are for disposal of the bail application and it shall not be construed as expression of opinion on the merits of the case.