Prem Chand vs State of Himachal Pradesh

By way of this petition filed under Section 439 of the Code of Criminal Procedure, the petitioner has prayed for grant of regular bail in connection with FIR No. 143 of 2013 registered at Police Station, Sunder Nagar, District Mandi under Sections 20 and 29 of the NDPS Act, who was arrested on 7.11.2016 and since 9.11.2016 who is in judicial custody.

As per the prosecution on 29.6.2013 a police party headed by SI (P) HC Ram Chander, Sundernagar, Distt. Mandi for Nakabandi and at around 1:30 a.m., an Innova Car bearing registration No. CH01As-5454 came from Mandi side which was signaled to be stopped by SI Hans Raj, upon which the said car was stopped by its driver. In the meanwhile, another vehicle i.e. Scorpio bearing Registration No. HR70A-7630 came from Sundernagar side in a high speed and it crashed into the Innova Car. Driver of the Scorpio reversed it and attempted to run away but he could not do so on account of the police barricade. In this vehicle two occupants were there. On inquiry driver of the vehicle disclosed his name as Anil Kumar, whereas the other person who was sitting on the back seat disclosed his name as Anuj. Search of vehicle led to recovery of two packets from which in total 3.760 KGs of charas was recovered. This led to the registration of FIR No. 143 of 2013 dated 29.6.2013 at Police Station Sundernagar. During the course of investigation, it was revealed by the accused apprehended at the spot that the charas was sold to them by the present petitioner. However, petitioner could not be arrested as he had gone underground and was arrested only on 7.11.2016.

Mr. N.S. Chandel, learned counsel for the petitioner has argued that the trial conducted against other accused, namely, Anil and Anuj has resulted in their acquittal by the learned trial court on 7.11.2015. He has further submitted that the petitioner was not underground as alleged as he was very much residing at his home in village Damchin, Tehsil Manali Distt. Kullu and the contention of the prosecution that the petitioner was underground is completely/totally incorrect. He has further submitted that the petitioner is a local resident of village Damchin, Tehsil Manali, Distt Kullu and in case bail is granted to the petitioner, there is no possibility of his jumping the same. Mr. Chandel has further submitted that even otherwise as the main accused in the case already stand acquitted by learned trial court, there is no possibility of the petitioner being convicted for having committed an offence punishable under Section 20 and 29 of the NDPS Act. On these bases, he has prayed that the petitioner be released on bail.

On the other hand learned Deputy Advocate General has argued that the trial which is being conducted against the petitioner is an independent trial and acquittal of other accused in FIR No. 143 of 2013 cannot be a reason for granting bail to the present petitioner. He has further submitted that taking into consideration the quantity of the contraband involved, this petition be rejected.

I have heard learned counsel for the parties and have also gone through the status report as well as records of the case produced before me by learned Deputy Advocate General.

It is not in dispute that other two accused in FIR No. 143 of 2013 stands acquitted by the learned trial vide judgment dated 7.11.2015. It is also not in dispute that allegation against the present petitioner is that he allegedly sold charas to those accused from whom the same was allegedly recovered and who stand acquitted by learned trial court. In other words, in the trial conducted against accused Anil and Anuj, prosecution was not able to establish that any contraband in fact was recovered from them which allegedly was purchased by them from the present petitioner. Besides this, the petitioner happens to be a local resident of village Damchann, Tehsil Manali, Distt. Kullu and it is not the case of the prosecution that on 7.11.2016 he was apprehended from some far of place, as during the course of arguments it has not been disputed that the petitioner was arrested on 7.11.2016 from his village itself. Besides this, whether or not the petitioner is guilty of the offence alleged against him is a matter of trial and in case he is found guilty, he will face the consequences. However, in view of the facts mentioned above, in my considered view it will not be in the interest of justice to keep the petitioner behind bar. Accordingly, this petition is allowed and the petitioner is ordered to be enlarged on bail, on his furnishing personal bond to the tune of Rs. 50,000/- with one surety in the like amount to the satisfaction of learned trial court, subject to the following conditions:-

i) He shall make himself available for the purpose of interrogation, if so required and regularly attend the trial Court on each and every date of hearing and if prevented by any reason to do so, seek exemption from appearance by filing appropriate application;

ii) He shall not tamper with the prosecution evidence nor hamper the investigation of the case in any manner whatsoever;

iii) He shall not make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him/her from disclosing such facts to the Court or the Police Officer; and

iv) He shall not leave the territory of India without prior permission of the Court.

It is clarified that the observations made by this Court in this order are only for the purpose of adjudicating upon the present bail petition and the learned trial court shall not be influenced by any of these observations while deciding the case on merits, in the course of trial. It shall be open for the prosecution to move this Court for cancellation of the bail in case petitioner abuses the bail which has been granted in his favour.

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