Rajesh Kumar vs State Of H.P

Virender Singh, J

Applicant-Rajesh Kumar has filed the present application, under Section 439 of the Code of Criminal Procedure (hereinafter referred to as ‘Cr.PC’), for releasing him on bail, during the pendency of trial, in case FIR No. 65 of 2023, dated 19th April, 2023, registered with Police Station Jhakri, District Shimla, H.P., under Section 21 of the Narcotic Drugs and Psychotropic Substances Act (hereinafter referred to as ‘NDPS Act’).

It has been submitted in the bail application that the applicant is an innocent person and has nothing to do with the offence, for which, he has been falsely implicated by the police and has been arrested. The investigation is also stated to be complete in this case and the applicant is in judicial custody.

Apart from this, number of undertakings have also been given on behalf of the applicant, for which, the applicant is ready to abide by, in case, released on bail, during the pendency of the trial.

On the basis of above facts, Mr. Naresh Sharma, Advocate appearing for the applicant has prayed that during the pendency of the trial, the applicant be released on bail.

The present application has been moved by the applicant through his mother.

The applicant has earlier tried his luck before the learned Special Judge, Kinnaur at Rampur by filing a bail application, however, the said application was dismissed by the learned Special Judge vide order dated 09.05.2023.

When put to notice, the police has filed the status report disclosing therein that on 19-04-2023, HC Mohinder Singh along with HASI Roshan Lal, HHC Mool Chand were on patrolling duty in Govt. vehicle bearing registration No. HP-06B- 0634 towards Pashada, Jhakri etc. and at about 5.30 PM, when they were coming from Gashoh to Jhakri and reached near SJVNL Bulb House, then, one person was found coming from the upper side of SJVNL Bulb House. When the police vehicle reached near him, he turned back after seeing it and started walking swiftly. Thereafter, the said person was asked to stop. In the meantime, the said person threw some substance from the pocket of his lower. On asking about the substance thrown by him, he could not give any satisfactory answer. On suspicion of some contraband, vehicles, which were being plied on the road were stopped and the persons travelling in the vehicles were asked for being associated as independent witnesses, but, on one was ready. Thereafter, HHC Mool Chand was sent to Jhakri bazaar in search of independent witnesses. He came back with one Sushma Devi and she was associated as witness. The substance thrown on the side of the road was checked. On checking of the plastic envelope, it was found containing brown coloured substance. On the basis of smell and experience, it was found to be heroin/Chitta. Thereafter, the recovered heroin/Chitta was weighed and it was found to be 13.49 grams. The recovered heroin/Chitta was put in the same envelope and was put in a cloth parcel which was sealed with seal 'T'. Rest of the formalities were completed and the applicant was apprehended in the case.

Apart from this, it is case of the police that during police remand, the applicant was interrogated, in which, he has disclosed that he has purchased the contraband from Baltana (Panchkula). The investigation is also stated to be complete. The report from FSL, Junga has also been received.

On the basis of above facts, a prayer has been made to dismiss the bail application.

In the status report, it has been mentioned that a case under Sections 279 and 427 IPC has been registered against the applicant vide FIR No. 115/2021 dated 13.09.2021. Apart from the above, no other criminal history of the applicant has been mentioned or argued during the course of arguments.

Heard.

The contraband allegedly recovered from the possession of the applicant does not fall within the definition of commercial quantity. The same falls within the definition of intermediate quantity. Since the contraband, so recovered, does not fall within the commercial quantity, as such, rigors of Section 37 of the NDPS Act are not applicable in the present case.

The presumption of innocence is still available to the accused. Considering the fact that the applicant earlier remained admit in rehabilitation Centre, this Court is of the view that no useful purpose would be served by keeping the applicant in judicial custody, as the chances of commencement of trial in near future are not so bright. Moreover, the bail application cannot be rejected as a mere punishment as pre-trial punishment is prohibited under the law.

The applicant is a young man of 24 years and keeping him in judicial custody, that too, in the company of hardened criminals would adversely affect his future.

Considering all these facts, this Court is of the view that the bail application is liable to be allowed and is accordingly allowed.

The applicant is ordered to be released on bail in case FIR No. 65 of 2023, dated 19th April, 2023, registered with Police Station Jhakri, District Shimla, H.P., under Section 21 of the NDPS Act, on his furnishing personal bail bond, in the sum of ₹50,000/-, with one surety of the like amount, to the satisfaction of learned Special Judge, Kinnaur at Rampur. This order, however, shall be subject to the following conditions:

a) 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;

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

c) He shall not make any inducement, threat or promises to any person acquainted with the facts of the case so as to dissuade them from disclosing such facts to the Court or the Police Officer; and

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

Any of the observations, made hereinabove, shall not be taken as an expression of opinion, on the merits of the case, as these observations, are confined, only, to the disposal of the present bail application.

It is made clear that the respondent-State is at liberty to move an appropriate application, in case, any of the bail conditions, is found violated by the applicant.

The Registry is directed to forward a soft copy of the bail order to the Superintendent of Jail, Shimla through e-mail, with a direction to enter the date of grant of bail in the e-prison software.

In case, the applicant is not released within a period of seven days from the date of grant of bail, the Superintendent of Jail, Shimla is directed to inform this fact to the Secretary, DLSA, Shimla. The Superintendent of Jail, Shimla is further directed that if the applicant fails to furnish the bail bonds, as per the order passed by this Court, within a period of one month from today, then, the said fact be submitted to this Court.