Ram Lal vs State Of Himachal Pradesh

Vivek Singh Thakur, J

Petitioner has approached this Court seeking bail under Section 439 Code of Criminal Procedure (in short ‘Cr.P.C.’), in case FIR No.86 of 2021, dated 08.06.2021, registered in Police Station Bhawarna, District Kangra, H.P., under Sections 20 and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as ‘NDPS Act’).

Status report stands filed. Record was also made available.

Prosecution case is that police patrolling party, on 8.6.2021 at about 3.40 PM, noticed two persons sitting in a forest at a distance of 50 metres from National Highway, but, looking here and there abnormally while talking with each other. At that time, there was Corona curfew and activities of both created suspicion and, therefore, police party, headed by ASI Madan Lal, moved towards them for inquiry, whereupon one of those; possessing a rucksack bag, threw it in forest and both of them tried to flee from spot but were overpowered on the spot. Suspecting some illegal material in bag, for search thereof, independent witnesses namely Rozy Rana and Chanderveer Katoch Pradhan and Up-Pradhan Gram Panchayat Paraur were associated in search and seizure party and identification of both persons was inquired. The person, who threw the bag, disclosed his name as Shyam Singh with his address, whereas another person disclosed his name as Ram Lal. Thereafter, bag was checked wherein 1.212 Kg. black coloured stick shaped substance was found, which, on smelling, burning and on the basis of experience, was identified as Charas. It was taken in possession and seized by following the procedure. After registration of FIR, on the basis of Ruka sent to Police Station, both persons were arrested at 10.45 PM. State FSL has confirmed the recovered contraband as charas.

As per status report, five witnesses have been examined and now case is pending for recording evidence of remaining witnesses on 26.8.2022. Status report is silent about source of recovered contraband.

It has been submitted by learned counsel for petitioner that even if prosecution case is taken to be true as it is, then also petitioner Ram Lal was not found in possession of any contraband and no narcotic drug or psychotropic substance has been recovered from him, but he has been arrayed as an accused only for sitting with co-accused Shyam Singh, who was in possession of the bag wherefrom alleged recovery of charas has been made. He has submitted that prosecution is acting on presumption which is not permissible under law that a person, sitting with a person from whose possession contraband is recovered, would also be party in transportation of said contraband, whereas there is difference between such presumption and recovery of contraband from actual possession of a person. Further that implicating the petitioner for sitting with co-accused, it would be necessary to have sufficient linking evidence on record to establish knowledge of petitioner about possession of contraband by the person with whom he would be sitting. Further that there is no such linking evidence is available on record. Therefore, it has been contended that in present case there is nothing on record to substantiate the plea that petitioner was also involved in procuring, transporting or selling and purchasing the recovered contraband.

It has been further submitted that as per status report, there is no previous history of petitioner about commission of any offence much less similar offence under NDPS Act. In aforesaid circumstances, prayer for enlarging the petitioner on bail, who is behind the bars since June 2021, has been made.

Learned counsel for petitioner has submitted that two independent witnesses Rozy Rana and Chanderveer Katoch along with one police official, claimed to be present on spot, have been examined as PW1 to PW3 and now remaining witnesses are official witnesses and therefore there is no possibility of influencing or dissuading the prosecution witnesses by the petitioner from revealing the truth in Court. Further that independent witnesses were declared as hostile witnesses and in their cross examination, the only suggestion, with respect to incident of recovery of contraband, given by learned Public Prosecutor is that contraband was recovered from bag thrown by Shyam Singh and there is not even a single suggestion that petitioner Ram Lal was also in possession of contraband or anything was recovered from him or petitioner was having knowledge of contraband.

Learned Additional Advocate General has opposed grant of bail on the ground that commercial quantity of 1 Kg. and 212 grams of charas has been recovered from petitioner and the offence committed by petitioner is not only affecting the individual but also society at large, therefore, petitioner is not entitled for bail.

It is settled that appreciation of evidence on merit by this Court, while consideration of bail application, is not warranted. However, entire material can be taken into consideration for granting or rejecting the bail application.

Considering all facts and circumstances, as narrated in the prosecution story, including quantum of contraband recovered from the bag allegedly being thrown by co - accused Shyam and period of his detention and other material placed before me, I am of the opinion that, at this stage, but without commenting upon the merits of the claims and counter claims of prosecution and learned counsel for the petitioner-accused, case of petitioner can be considered differently than co-accused and he can be enlarged on bail.

Accordingly, present petition is allowed and petitioner is directed to be enlarged on bail, subject to his furnishing personal bond in the sum of Rs.1,00,000/- with one surety in the like amount to the satisfaction of the trial Court, upon such further conditions as may be deemed fit and proper by the trial Court, including the conditions enumerated hereinafter, so as to assure the presence of petitioner/accused at the time of trial:-

(i) That the petitioner shall make himself available to the police or any other Investigating Agency or Court in the present case as and when required;

(ii) 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 from disclosing such facts to Court or to any police officer or tamper with the evidence.

He shall not, in any manner, try to overawe or influence or intimidate the prosecution witnesses;

(iii) that the petitioner shall not obstruct the smooth progress of the investigation/trial;

(iv) that the petitioner shall not commit the offence similar to the offence to which he is accused or suspected;

(v) that the petitioner shall not misuse his liberty in any manner;

(vi) that the petitioner shall not jump over the bail;

(vii) that in case petitioner indulges in repetition of similar offence(s) then, his bail shall be liable to be cancelled on taking appropriate steps by prosecution;

(viii) that the petitioner shall not leave the territory of India without prior permission; and

(ix) that the petitioner shall inform the Police/Court his contact number and shall keep on informing about change in address and contact number, if any, in future.

It will be open to the prosecution to apply for imposing and/or to the trial Court to impose any other condition on the petitioner as deemed necessary in the facts and circumstances of the case and in the interest of justice and thereupon, it will also be open to the trial Court to impose any other or further condition on the petitioner as it may deem necessary in the interest of justice.

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.

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 18.03.2013.

Observations made in this petition hereinbefore, shall not affect the merits of the case in any manner and are strictly confined for the disposal of the bail application.

Petition is disposed of in aforesaid terms.

Copy dasti.

Parties are permitted to use/produce copy of this order, downloaded from the web-page of the High Court of Himachal Pradesh, before the trial Court/authorities concerned, and the said authorities shall not insist for production of a certified copy but if required, may verify it from Website of the High Court.