Nawal Kishore vs State Of HP

Vivek Singh Thakur, J

Petitioner has been implicated in present case under Sections 20 and 29 of Narcotic Drugs and Psychotropic Substances Act, 1985 (in short

‘NDPS Act’) in case FIR No. 20 of 2020 dated 25.01.2020 registered in Police Station Patlikuhal, District Kullu (H.P.).

As per status report, filed on behalf of the respondent/State, petitioner has been named as a supplier by main accused Ajit Singh when he was

arrested for having been found in possession of 1.78 Kg. Charas on 25.1.2019. Disclosure statement of main accused, naming the petitioner as

supplier, has been substantiated by Call Detail Reports (CDRs) of mobile numbers of petitioner as well as main accused Ajit Singh. It is the case of

prosecution that main accused Ajit Singh had purchased charas from petitioner for selling it further in retail.

Learned counsel for petitioner submits that main accused is denter by profession and petitioner is owner of Bolero Pickup and main accused had

contacted petitioner on 24.1.2020 in connection with repair work of his Bolero and his conversation with main accused for that purpose cannot be

considered to be a conversation for selling and purchasing the charas recovered from main accused. It is submitted on behalf of petitioner that no

charas has been recovered from him and, therefore, reverse burden of proof under Sections 35 and 54 of NDPS Act is not applicable to petitioner and

further that there is no conclusive and admissible evidence available on record against petitioner. Further that as petitioner has been roped in the case

only on the basis of statement of main accused, which, under law, is not admissible against petitioner and, therefore, there is every likelihood of his

acquittal and therefore, judicial custody of petitioner during trial is unwarranted in this case.

It is also submitted by learned counsel for petitioner that bail petition of petitioner filed earlier bearing Cr.MP(M) No. 1535 of 2020 was dismissed

by a Coordinate Bench of this Court on 16.9.2020 but, in that rejection order, it has been categorically stated that bail petition, at that stage, was

dismissed and thereafter sufficient time has elapsed and as of now petitioner has completed about one year behind the bars that too for his alleged

involvement under Section 29 of NDPS Act on the basis of confessional statement of main accused, which, in fact, is not admissible against petitioner

even under Section 30 of Indian Evidence Act.

Petitioner has placed reliance upon judgment dated 24.9.2020 passed by the Supreme Court of India in Cr. Appeal No. 630 of 2020, titled Mohan

vs. State of Madhya Pradesh, wherein, by referring Section 120-A IPC, it has been observed that conspiracy cannot be assumed from a set of

unconnected facts or from a set of conduct at different places and times without a reasonable link. Referring this observation, he has canvassed that

in present case also there is no evidence to establish sale of charas by petitioner to main accused Ajit Singh on 24.1.20202 and there is nothing to link

the Call Detail Reports with alleged transaction of charas from petitioner to main accused Ajit Singh.

Other judgments passed by Supreme Court in cases Bhagwan Swarup Lal Bishan Lal vs. State of Maharashtra, reported in AIR 1965 SC 682S;u jit

Tiwari vs. State of Gujarat and another, reported in AIR 2020 SC 667; and State (NCT of Delhi) vs. Navjot Sandhu alias Afsan Guru reported in

(2005)11 SCC 600 have also been referred by learned counsel for petitioner in support of his plea that ingredients of conspiracy under Section 120B of

IPC are missing in present case.

Learned counsel for petitioner has also put reliance on judgment of Coordinate Bench dated 29.6.2020, passed in Cr.MP(M) No. 299 of 2020, titled

Satish Singh vs. State of HP, whereby accused therein, who was under incarceration for about one year for purchasing 6.324 Kg. Charas and 413

grams opium, was enlarged on bail.

Learned counsel for petitioner also submits that rigors of Section 37 of NDPS Act are also not applicable in present case for the reason that there is

nothing on record so as to reasonably believe that petitioner was involved in alleged commission of offence as petitioner is not connected in any

manner with charas allegedly recovered from Ajit Singh. Further that petitioner is not involved in selling and purchasing the charas and the said fact is

substantiated from status report wherein it is stated that there is no previous history of involvement of petitioner in any other case.

It is also submitted on behalf of petitioner that recovered charas is about 1.078 Kg., which is almost equivalent to 1 Kg. and as such that may be

considered as intermediate quantity, not commercial quantity and thus, rigors of Section 37 of NDPS Act should not be applied in present case.

Learned Additional Advocate General has opposed the grant of bail on the ground that quantity of charas, recovered in present case, is

commercial quantity and petitioner has been arrayed as an accused in present case not only on the basis of confessional or disclosure statement of

main accused, but also on the basis of evidence of CDRs substantiating and corroborating the disclosure of main accused and, therefore, it is wrong to

say that it is a case of ‘no evidence’ or ‘inadmissible evidence’ against the petitioner.

So far as case law referred by petitioner is concerned, in bail petition, as has also been observed by Coordinate Bench at the time of deciding

Cr.MP(M) No. 1535 of 2020, each case has to be examined on the basis of its own facts. Submissions of learned Additional Advocate General, as

also observed by Coordinate Bench that in instance case, besides disclosure statement of main accused, the Investigating Agency has also obtained

CDRs of mobile phones of Ajit Singh as well as petitioner, which indicate that both of them have been in constant contact with each other through

mobile phones on 24.1.2020 i.e. the day when main accused Ajit Sigh has allegedly purchased the contraband from petitioner, have some force.

Therefore, it cannot be said that there is no prima-facie reason to believe about involvement of petitioner in present case and it cannot be said that

ex-facie there is no evidence at all against the petitioner on record. However, considering the facts in entirety i.e. quantity of recovered contraband,

alleged role of petitioner, evidence available against him and also period of his custody, petitioner may be enlarged on bail without commenting upon

the rival contentions of parties on merits and without assessing the evidence on record either way, which is to be evaluated and considered by the trial

Court during trial. Accordingly, petitioner is ordered to be enlarged on bail subject to furnishing personal bond in the sum of Rs. 1 lac with one surety in

the like amount to the satisfaction of learned trial Court, within two weeks from today, and also subject to further conditions enumerated hereinafter, in

addition to other or further conditions imposed by trial Court as deemed fit by that Court:-

(i) That the petitioner shall make himself available during investigation as well as the trial on each and every date as and when required;

(ii) That the petitioner 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 her from disclosing such facts to Court or to any police officer or tamper with the evidence. She shall not, in any manner, try to overawe

or influence or intimidate the prosecution witnesses;

(iii) That he shall not obstruct the smooth progress of the investigation as well as trial;

(iv) That he shall not jump over the bail;

(v) That he shall inform, in writing, regarding change of address, land line number and/or mobile number, if any, in advance, to concerned Police

Station.

(vi) That the petitioner shall not commit the offence similar to the offence to which he is accused or suspected or the commission of which he is

suspected;

(vii) That petitioner shall not misuse his liberty in any manner;

(viii) That he shall not leave the country without prior permission of Court.

It will be open to the prosecution to apply for imposing any such other or further condition on the petitioner as deemed necessary in the facts and

circumstances of the case and in the interest of justice and thereupon it will also be open to the trial Court to impose any other or further condition on

the petitioner as it may deem necessary in the interest of justice.

In case the petitioner violates any condition imposed upon them, his 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 18.3.2013.

Any observation made in this order shall not affect the merits of case in any manner and will strictly confine for the disposal of this bail application

filed under Section 439 of Code of Criminal Procedure 1973.

It is directed that trial Court shall not insist for certified copy of order and can verify the same from High Court Website and from Registry before

accepting the bail bonds to be furnished by petitioner.

Petition stands disposed of.

Dasti copy on usual terms.