Rajinder Singh vs State Of H.P

Virender Singh, J

Applicant-Rajinder Singh 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. 256 of 2022, dated 16th October, 2022, registered with Police Station West (Boileauganj), Shimla, under Sections 21 and 29 of the Narcotic Drugs and Psychotropic Substances Act (hereinafter referred to as ‘NDPS Act’).

The applicant has sought the bail, on the ground, that he is an innocent person and has nothing to do with the alleged offence, for which, he has been arrested by the police.

It is his further case that investigation, in the present case, is complete and nothing is to be recovered from him or at his instance and no fruitful purpose will be served by keeping him in judicial custody. Learned counsel appearing for the applicant has also prayed that on the ground of parity, the applicant is entitled to be released on bail, as, his co-accused, namely, Gurdeep Singh and Ranjan Sharma, have already been released on bail by this Court, vide order, dated 23.01.2023 and 27.01.2023, respectively, passed in Cr.M.P(M) Nos. 127 of 2023 and 204 of 2023.

Apart from this, the learned counsel appearing for the applicant, has given certain undertakings, 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.

When put on notice, police filed the status report, disclosing therein that when on 16th October, 2022, ASI Ambi Lal, alongwith other police official, was present near Police Barrier, Shoghi, then, at about 05.20 a.m., a car, bearing registration No. PB-13BC-5584, being driven by its driver, was found coming from Chandigarh side towards Shimla. At the same time, a bus belonging to HRTC also reached there. Both the vehicles were signalled to stop. Meanwhile, the car driver made an unsuccessful attempt to flee away, but, the car was got stopped with the help of other police official. Two persons were found sitting in the car. Due to the ensuing Vidhan Sabha Elections, both the persons were enquired, however, they could not give the satisfactory answer for fleeing away, upon which, a suspicion has developed in the mind of the Investigating Officer that the said persons may have some objectionable item in their possession. Thereafter, two persons from APMC Post were called, who disclosed their names to be Sh. Sushil Kumar and Sh. Sahil. After associating both the said persons, names and addresses of the persons sitting in the car were enquired. Both of them disclosed their names to be Rajender Singh (applicant) and Gurdeep Singh. Thereafter, the car was searched and underneath the seat, upon which the applicant was sitting, the police found a small gift pack, which, on opening, was found to be containing 13 transparent plastic envelopes, containing stone shaped light brown coloured substance. On checking, the same was found to be heroin. On weighment, the said heroin was found to be 255.83 grams. The contraband, so recovered, was taken into possession. Other codal formalities were completed and the contraband was sent to SFL Junga, for chemical analysis.

It is the further case in the status report that in the proceedings, under Section 52 A of the NDPS Act, the contraband was found to be 249 grams and as per the report of the FSL, the same was found to be 176.100 grams.

It has been mentioned in the status report that except the present case, there is no criminal history of the applicant.

Lastly, it has been apprehended that in case, the applicant is released on bail, he may again indulge in such type of activities and may coerce the witnesses. It has also been apprehended that being the resident of the adjoining State, he may not be available during the trial.

On all these submissions, a prayer has been made to dismiss the bail application.

Heard.

Although, as per the status report, the contraband, at the time of initial weighment, was found to be 255.83 grams, whereas before the Court, when proceedings, under Section 52 A of the NDPS Act were conducted, the same was found to be 249 grams, however, as per the FSL report, the actual weight of the contraband was found to be 176.100 grams. Meaning thereby, the contraband allegedly recovered from the possession of the applicant, in this case, does not fall within the definition of ‘commercial quantity’, as such, rigors of Section 37 of the NDPS Act are not applicable, in this case.

Once, it has been held that rigors of Section 37 of the NDPS Act are not applicable, in this case, then the presumption of innocence is still available to the applicant, as the bail application cannot be rejected as a matter of punishment. Pre-trial punishment is prohibited under the law. The trial of the accused will take sufficient long time and no useful purpose would be served by keeping him in judicial custody.

So far as the apprehensions, as expressed, in the status report, are concerned, those are not sufficient to decline the relief to the applicant, for which, he is, otherwise, entitled to. For those apprehensions, reasonable conditions can be imposed. Moreover, on the ground of parity, the applicant is also entitled to be released on bail, as his co-accused have already been released on bail, as referred above.

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. 256 of 2022, dated 16th October, 2022, registered with Police Station West (Boileauganj), Shimla, under Sections 21 and 29 of the NDPS Act, on his furnishing personal bail bond, in the sum of ₹ 50,000/-, with two sureties of the like amount, to the satisfaction of learned CJM/Ilaqua Magistrate, Shimla. 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.

Applicant may produce a downloaded copy of the order, passed by the Court, before the learned CJM/Ilaqua Magistrate, Shimla, and the said Court shall not insist for the certified copy of order, rather, passing of order can be verified from the web-page of this Court.