Nikka Ram vs State Of Himachal Pradesh

Anoop Chitkara, J

The petitioner, who was arrested after eight years of registration of FIR and arrest of the other accused, incarcerating upon his arrest, for

possessing commercial quantity of Charas, has come up before this Court under Section 439 of Cr.PC, seeking regular bail, on the grounds that the

co-accused who were arrested earlier had been acquitted by a Division Bench of this Court and SLP whereof is also dismissed.

Earlier, the petitioner had filed a petition under Section 439 Cr.PC before the concerned Sessions Court. However, vide order dated 14.10.2020,

learned Special Judge-(I) Mandi, District Mandi, H.P., dismissed the petition because the quantity involved is commercial.

In Para 9(xvii) of the bail application, the petitioner declares having no criminal history relating to the offences prescribing sentence of seven years

and more, or when on conviction, the sentence imposed was more than three years.

Briefly, the allegations against the petitioner are that the Police arrested Padam Singh, Ravi Kumar and Sanjay Kumar for possessing 15.450

Kilograms of Charas in their car, some where on 4.12.2012. The interrogation revealed involvement of bail petitioner, Nikka Ram. However, he

absconded and was fugitive till the end of July, 2020. On 31st July, 2020, he had filed an application for anticipatory bail, which was withdrawn and on

3.9.2020, the Police arrested him and he is in judicial custody.

Learned counsel for the petitioner contends that the petitioner is a first offender and incarceration before the proof of guilt would cause grave

injustice to the petitioner and family.

On the contrary, the State contends that the Police have collected sufficient evidence against the bail petitioner and the co-accused. Another

argument on behalf of the State is that the crime is heinous, the accused is a risk to law-abiding people, and bail might send a wrong message to

society.

REASONING:

As far as arguments that Division Bench of this Court acquitted the co-accused in Cr. Appeal No.352 of 2014, Cr. Appeal No.353 of 2014 and Cr.

Appeal No.354 of 2014, titled as Padam Singh vs. State, Ravi Kumar vs. State and Sanjay Kumar vs. State, respectively and SLP against those was

dismissed, is concerned, those people faced trial and were acquitted on merits. The argument that since the persons from whose possession Charas

was recovered were acquitted as such petitioner cannot be convicted, would arise at the time of framing of charges. If the Special Judge would not

find any evidence against the petitioner, then obviously he would not frame charge against him and close the prosecution, but to raise such argument is

not satisfaction of Section 37 of the ND&PS Act because the contraband is commercial quantity. The conduct of the accused to remain fugitive for

eight years itself is a circumstance which prima facie goes against him.

Learned counsel for the petitioner referred to certain statements and memos from the police report, prepared under section 173(2) CrPC, copies of

which the accused had duly received in compliance to S. 207 CrPC. However, the documents which the leanrd counsel referred were neither filed

with the petition, nor its copies supplied to the Court and the State. Thus, the Court cannot base any finding on a document in the Counsel's brief and

not on Court's file.

Counsel for the petitioner has also made several other arguments. Still, given that this Court is not inclined to grant bail, on the reasons mentioned

above, discussion of the same will be an exercise in futility. Any detailed analysis of the evidence may prejudice the case of the prosecution or the

accused.

Given above, in the facts and circumstances peculiar to this case, at this stage, the petitioner fails to make out a case for bail. The petition is

dismissed with liberty to file a new bail application.

Any observation made hereinabove is neither an expression of opinion on the merits of the case, nor shall the trial Court advert to these comments.

The petition is dismissed.