Rohit Kumar vs State Of H.P

Virender Singh, J

Applicant-Rohit 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. 38 of 2023, dated 1st July, 2023, registered with Police Station Sunni, District Shimla, H.P., under Sections 21 and 29 of the Narcotic Drugs and Psychotropic Substances Act (hereinafter referred to as ‘NDPS Act’).

According to the applicant, he is an innocent person and has falsely been implicated, in this case, as he has nothing to do with the alleged offence. The investigation, in the present case, is almost complete and nothing is to be recovered from him or at his instance.

The applicant has given certain undertaking, for which, he is ready to abide by, in case, ordered to be released on bail. The relief has also been sought on the ground of parity as his co-accused namely, Guddu has already been released on bail vide order dated 25.08.2023.

On the basis of above facts, Mr. Inderjit Singh Narwal, learned counsel for the applicant has prayed that, on the ground of parity, the relief has been sought to be granted to the applicant.

When put to notice, the police has filed the status report, disclosing therein, that on 01.07.2023, a police party headed by ASI Ambi Lal, Incharge, Special Investigation Unit (SIU), Shimla left for routine patrolling, law and order duty, crime detection and traffic checking duty towards Dhalli, Mashobra, Naldehra, Basantpur, Sunni etc. in a private vehicle No. HP-52C-0280. He was accompanied by other police officials namely HC Lalit No.42, Constable Bhuvnesh Kumar No.1527, HHC Sunil Kumar No.1026 and Constable Rahul No.1500. The police party, while patrolling, reached Jubbar at about 6:00 A.M., where the Investigating Officer received a secret, specific and reliable information that the accused and his co-accused were returning from Delhi in Vehicle No. HP-63C-3407 (Etios) after procuring contraband/Chitta. The information was further specific that in case the aforesaid vehicle is searched, sufficient quantity of Chitta/Heroin can be recovered.

5.1. After the receipt of said information, the Investigating Officer immediately complied with provisions of Section 42 (2) of ND&PS Act by recording reasons of belief and sending the same to his Superior Officer/Supervisory Officer through Constable Rahul No.1500. Thereafter, the police party proceeded towards Sunni-Rampur road for locating suitable place to intercept the vehicle. The police party laid a Nakka at Noti Khud Bridge at about 7:30 PM. Thereafter, the presence of two independent witnesses was secured i.e. Khushi Ram, Up-Pradhan, Gram Panchayat, Shakrodi and Mohan Lal, Ward Member, Chabba. At about 8:10 A.M., Car No. HP-63C-3407 was intercepted coming from Sunni. The said vehicle was stopped for checking. The Car was being driven by accused Guddu (applicant), whereas his co- accused Rohit Kumar was sitting on the front seat. The police officials during the course of the search of the car in the presence of independent witnesses, recovered one transparent plastic pouch containing 51.53 grams of Chitta/Heroin. The accused could not account for the contraband, which was recovered from their joint possession.

5.2. Pursuant to the recovery of contraband, codal seizure formalities were conducted in presence of independent, official witnesses and the accused and thereafter, rukka was scribed and sent to Police Station, Sunni, Shimla District Shimla, H.P. on which FIR No.38/2023 was registered against the accused.

It is the further case of the police that in case applicant is released on bail, he may coerce the witnesses and may indulge in the similar activities.

It is the further case of the police that the following cases were found to be registered against the applicant Rohit:-

Case FIR No. 109/2020 dated 19.08.2020 under Sections 341, 323, 504, 34 IPC PS Jhakri, District Shimla, H.P.

Case FIR No. 30 of 2022 dated 27.02.2022 under Section 21 of ND & PS Act, PS City Kurali, District SAS, Punjab.

Case FIR No. 200 of 2022 dated 14.08.2022 under Sections 21 & 29 of ND & PS Act, PS West Shimla, District Shimla, H.P.

Case FIR No. 18 of 2022 dated 12.02.2023 under Sections 21 & 29 of ND & PS Act, PS Kumarsain, District Shimla, H.P.

The contraband, so recovered, from the possession of accused is heroin/chitta 51.53 grams, which, admittedly, 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 definition of commercial quantity, as such, rigors of Section 37 of the NDPS Act are not applicable, in the present case.

Once, it has been held that the rigors of Section 37 of the NDPS Act are not applicable, then, the presumption of innocence is still available to the accused.

The applicant is presumed to be innocent as mere registration of four cases does not take away the presumption of innocence from him as admittedly, in none of the case, conviction has been recorded by the competent Court of law.

The investigation, in the present case, is complete, as such, custodial interrogation of the applicant is no longer required by the police. No useful purpose would be served by keeping him in judicial custody for indefinite period, as pre trial punishment is prohibited under the law.

The applicant is resident of District Kullu, as such, it cannot be presumed that, in case, he is ordered to be released on bail, he may not be available during the course of trial.

The chances of commencement and conclusion of trial in near future are not so bright, as such, no useful purpose would be served by keeping him in judicial custody for indefinite period. The relief, cannot be declined merely on the basis of the fact that number of cases have been registered against the applicant.

Even otherwise, on the principle of parity, the applicant is also entitled for the relief of bail, as, claimed in the application, as his co-accused has already been released on bail, by this Court, vide order dated 25.08.2023 passed in Cr.M.P(M) No. 2123 of 2023.

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. 38 of 2023, dated 1st July, 2023, registered with Police Station Sunni, District Shimla, H.P., under Sections 21 and 29 of 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, 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 to be 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.