Pradeep Kumar alias Bablu vs State of Himachal Pradesh

Kuldip Singh, J.—This is an application u/s 439 Code of Criminal Procedure for releasing the Petitioner on bail in FIR No. 15 of 2011 dated 25.06.2011, registered at Police Station, CID, Bharari, Shimla, under Sections 20 and 29 of the Narcotic and Psychotropic Substances Act, 1985 ( for short ''Act'').

The learned Counsel for the Petitioner has submitted that Petitioner has been falsely implicated in the case. The Petitioner is owner of taxi and drives the same himself. The taxi was hired by one Sandeep Kumar, who has a shop near Bemloe, Shimla. The Petitioner took his taxi to the place as per direction of Sandeep Kumar.

On return, the police party stopped the taxi and the contraband was seized. The Petitioner is innocent and he has been falsely implicated in the case. There is No. evidence to connect the Petitioner with the commission of offence. There is No. allegation in the FIR with regard to conscious possession of the Petitioner. He has been implicated in the case being a driver of the taxi. The Petitioner cannot be punished for the sins of passenger sitting in the vehicle.

The Petitioner is to look after the entire family. The wife of the Petitioner is expecting and her expected date of delivery is 10.08.2011. No. recovery is to be made from the Petitioner. The Petitioner earlier filed bail application which has been dismissed on 26.07.2011 by learned Special Judge, FTC, Shimla. The learned Counsel for the Petitioner has relied Siddharam Satlingappa Mhetre Vs. State of Maharashtra and Others, and has submitted for releasing the Petitioner on bail.

The application has been opposed by learned Additional Advocate General and has submitted that the Petitioner was driving taxi and contraband was found inside the taxi. The occupants of taxi including Petitioner are to explain under what circumstances the contraband was in the taxi. This will be established only during trial. The learned Additional Advocate General has relied Madan Lal and Another Vs. State of Himachal Pradesh, and submitted that in that case also the contraband was found in the car. In that case charas was recovered from ''doloo'' kept in a plastic bag. A contention was raised that Manjit Singh was driving the vehicle and was not supposed to know what other occupants were bringing. It has been held that accused-Appellant Manjit Singh does not stand on a different footing merely because he was the driver of the vehicle.

The learned Counsel for the Petitioner has relied Union of India (UOI) Vs. Rattan Mallik @ Habul, In that case the trial Court had sentenced the Respondent to undergo rigorous imprisonment for 10 years and to pay fine of Rs. 1,00,000/-under Section 27-A and rigorous imprisonment for 10 years and fine of Rs. 1,00,000/- u/s 29 of the Act with default stipulation. The Respondent filed appeal along with application for suspension of sentence and the High Court granted bail till appeal was finally decided. This was challenged by Union of India. The Supreme Court has held as follows:

Merely because, according to the learned Judge, nothing was found from the possession of the Respondent, it could not be said at this stage that the Respondent was not guilty of the offences for which he had been charged and convicted. We find No. substance in the argument of learned Counsel for the Respondent that the observation of the learned Judge to the effect that "nothing has been found from his possession" by itself shows application of mind by the learned Judge tantamounting to "satisfaction" within the meaning of the said provision It seems that the provisions of the Narcotic Drugs and Psychotropic Substances Act and more particularly Section 37 were not brought to the notice of the learned Judge.

Thus, in our opinion, the impugned order having been passed ignoring the mandatory requirements of Section 37 of the Narcotic Drugs and Psychotropic Substances Act, it cannot be sustained....

Therefore, Petitioner cannot take help from Union of India v. Rattan Mallik (supra). I have gone through Siddharam Satlingappa Mhetre Vs. State of Maharashtra and Others, and this judgment on facts is also not applicable in the present case.

It is the case of the Investigating Agency that at the time of checking two persons namely Rahul Kumar and driver, who is the owner of the taxi were found in the taxi. It is intriguing, in the application it has been stated that the taxi was hired by Sandeep Kumar, but how Rahul Kumar was in the taxi, it has not been explained. This apart, the ''charas'' weighing 1 kg 200 gms was recovered from inside the taxi. At this stage, both Rahul Kumar and Petitioner are required to explain how the contraband was found in the taxi in which both of them were traveling, more particularly, in view of Madan Lal (supra). The contention of the learned Counsel for the Petitioner that Petitioner is the earning member of the family and his wife is expecting delivery on 10.08.2011 is No. ground to release the Petitioner on bail keeping in view seriousness of the case. The quantity of charas recovered from the taxi is quite huge. In these circumstances, the Petitioner is not entitled to bail and accordingly the application is rejected. 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.