Rajesh Kumar vs State Of Himachal Pradesh

Vivek Singh Thakur, J

Petitioner has approached this Court, invoking provisions of Section 439 of Code of Criminal Procedure (in short ‘Cr.PC’), seeking regular bail in case FIR No. 89 of 2020 dated 19.3.2020, registered under Sections 20 and 29 of Narcotic Drugs and Psychotropic Substances Act (in short ‘NDPS Act’) in Police Station Bhuntar, District Kullu H.P.

2 Status report stands filed and record was also made available.

Prosecution case, in brief, is that on 18.3.2020 at 9.30 PM, police party was present for traffic checking and had laid Naka at TCP Bajora and was checking the vehicles. At that time, a bus coming from Bhuntar side was stopped by police. Police party, after inquiring the names of driver and conductor, in their presence, had started checking the luggage of passengers. During checking, a passenger sitting on seat No. 23 appeared to be perplexed who was trying to hide something between his feet. He could not give satisfactory answer to queries of HC Sanjay Kumar, whereupon, his luggage was checked after inquiring about his identity, who had disclosed his name as Aditya Mantri. From the bag, 1.025 Kg charas was recovered, which was taken in possession and seized by following the prescribed procedure. After sending Ruka to Police Station, FIR was registered and, thereafter, Aditya Mantri was arrested.

4 On interrogation, during custody, Aditya Mantri had disclosed that he had purchased the charas from petitioner Rajesh near village Kasol on a way to village Chhalal after having telephonic conversation with petitioner. Whereupon, Aditya Mantri was taken to Kasol etc for searching petitioner Rajesh and petitioner Rajesh was traced near village Chhalal, who admitted selling of charas to Aditya Mantri for Rs.50,000/-, out of which Rs.25,000/-was received by him in cash and Rs.25,000/- through bank transfer, and he had further disclosed that he had extracted the charas himself from area around his village. Aditya Mantri had also identified petitioner. Finding sufficient evidence of involvement of petitioner in commission of offence under Section 29 of NDPS Act, he was arrested on 20.3.2020 at 11.20 PM. After obtaining Call Detail Records of petitioner and co-accused Aditya Mantri, it was noticed that they had numerous talks during the period of commission of offence and record of bank accounts of both accused had also confirmed transfer of Rs.25,000/- by Aditya Mantri in favour of petitioner.

5 Learned counsel for petitioner has submitted that as per prosecution, at the time of recovery, weight of recovered contraband was 1.025 Kg. which is slightly more than 1 Kg and it is borderline case with respect to minimum prescribed quantity of commercial quantity and he has submitted that there may be error in weighing the contraband as recovered contraband is only 25 grams higher than 1 Kg and therefore, case of petitioner deserves to be considered without applying rigors of Section 37 of NDPS Act.

6 Learned Additional Advocate General has submitted that weight mentioned in recovery memo as well as other documents, is correct weight which is more than 1 Kg and, therefore, quantity of charas recovered in present case is of commercial quantity and, thus, petitioner, who is involved in commission of heinous crime which causes damage to individual, his family as well as society, is not entitled for bail.

7 In response, it has been submitted that in case prosecution case is taken to be true as it is then also petitioner is first time offender and is an accused under Section 29 of NDPS Act, having no previous criminal history of any kind and, therefore, petitioner cannot be said to be a habitual offender so as to invoke the provisions of Section 37 of NDPS Act. It has been further stated that petitioner has been involved in commission of alleged crime on the basis of statement of co-accused and his involvement is yet to be established by leading cogent and reliable evidence by prosecution and therefore also, petitioner is entitled for bail, who is behind the bars since last about 2 years.

8 Without commenting upon the merits of case, taking into consideration, the aforesaid facts and circumstances of the case, quantum of recovered contraband, period of detention and also taking note of the factors and parameters, required to be considered at the time of adjudication of bail application, as propounded in various pronouncements of the Courts, I am of the opinion that at this stage petitioner may be enlarged on bail in present case.

9 Accordingly, petitioner is ordered to be enlarged on bail, at this stage, subject to furnishing personal bond in the sum of Rs. 1 lac with one surety in the like amount to the satisfaction of trial Court within a period of two weeks from today and also subject to any further conditions to be imposed by trial Court for assuring his presence during trial including the following further conditions:-

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

(iii) 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 him/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;

(iv) That the petitioner shall not obstruct the smooth progress of the investigation as well as trial;

(v) That the petitioner shall not jump over the bail and 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 she is suspected;

(vii) In the event of repetition of commission of offence, bail granted in present case shall be liable to be cancelled on taking appropriate steps by prosecution/police;

(viii) That the petitioner shall not leave India without prior permission of Court;

(ix) That petitioner shall not misuse his liberty in any manner.

10 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. It will also be open to the trial Court/Magistrate to impose any other or further condition on the petitioner as it may deem necessary in the interest of justice.

11 In case the petitioner violates any condition imposed upon him, 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.

12 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.

13 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.

The petitioner is permitted to produce copy of order downloaded from the High Court website and the trial Court shall not insist for certified copy of the order, however, they may verify the order from the High Court website or otherwise.

Petition stands disposed of. Dasti copy on usual terms.