Shahjad Ali vs State Of Himachal Pradesh

Chander Bhusan Barowalia, J

The present bail application has been maintained by the petitioner under Section 439 of the Code of Criminal Procedure seeking his release in case

FIR No. 12/22, dated 6.1.2022, under Sections 22-61-85 of the ND&PS Act, registered at Police Station Paonta Sahib, District Sirmaur, H.P.

As per the averments made in the petition, the petitioner is innocent and has been falsely implicated in the present case. He is neither in a position to

tamper with the prosecution evidence nor in a position to flee from justice. No fruitful purpose will be served by keeping him behind the bars for an

unlimited period, so he be released on bail.

Police report stands filed. As per the prosecution story, on 16.1.2022 at about 11.02 A.M, a police team was on routine patrol duty and then at

about 11.40 a.m. near Primary School, Amarkot, Paonta Sahib, they received a secret information that the accused is indulged in the business of

selling Drugs (narcotic capsules). On finding the information genuine, the police party proceeded to Amarkot. At about 12.05 p.m. they have reached

to the house of accused and search of the house of the accused was conducted. During search, they found a knotted polythene bag from a steel

almirah. On opening the polythene bag, they recovered 18 packets of restricted/narcotic tablets in which total 180 capsules were found. In each

packet of restricted/narcotic tables, “ Parvion Spas Composition: Each Hard Geletin Capsule contains: Diclomine Hydrochloride I.P 10 mg.

Tramadol Hydrochloride I.P 50 Mg, Acelaminophen, I.P 325 mg.†was written. When the police asked about theses tablets, the accused could not

produce any permit for keeping these tablets. On weighing the 180 tablets so recovered from the accused, it was found to be 132.73 grams. Police

completed all the codal formalities and the petitioner was arrested. A case under the apt Section of ND&PS was registered and the investigation

ensued. Police recorded the statements of the witnesses and prepared the spot map. It is prayed that at this stage, the bail application of the petitioner

be dismissed.

I have heard the learned Counsel for the petitioner, learned Additional Advocate General for the State and gone through the records, including the

police report, carefully.

The learned Counsel for the petitioner has argued that the petitioner has been falsely implicated in the present case. He has further argued that the

petitioner is neither in a position to tamper with the prosecution evidence nor in a position to flee from justice. No fruitful purpose will be served by

keeping the petitioner behind the bars for an unlimited period, as investigation is complete; nothing remains to be recovered at the instance of the

petitioner and challan stands presented in the learned Trial Court. The custody of the petitioner is not at all required by the police for investigation, so

the petitioner is required to be enlarged on bail by allowing the instant bail application. Conversely, the learned Additional Advocate General has

argued that the petitioner was found involved in a serious offence and considerable quantity of narcotic substance was recovered from his possession,

so in case the petitioner is enlarged on bail, at this stage, he may tamper with the prosecution evidence and may also flee from justice. It is prayed that

the bail application of the petitioner be dismissed.

In rebuttal the learned Counsel for the petitioner has argued that the petitioner is neither in a position to flee from justice nor in a position to tamper

with the prosecution evidence. His custody is not at all required by the police, as the investigation is complete, nothing remains to be recovered at the

instance of the petitioner, even challan stands presented in the learned Trial Court. Moreover, the petitioner is behind the bars for about one month and

cannot be kept behind the bars for an unlimited period, so the petitioner may be enlarged on bail by allowing the instant bail petition.

At this stage, considering the fact that the alleged recovered quantity of contraband is less than commercial quantity, so rigors of Section 37 of the

ND&PS Act are not applicable to the instant case, the fact that the petitioner is first time offender, considering age of the petitioner, who is 42 years

old, the fact that now the investigation is complete, even challan stands presented in the learned Trial Court, the custody of the petitioner is not at all

required by the police, as nothing remains to be recovered at the instance of the petitioner, the petitioner is neither in a position to tamper with the

prosecution evidence nor in a position to flee from justice and also considering all the facets of the case and without discussing them elaborately at this

stage, this Court finds that the present is a fit case where the judicial discretion to admit the petitioner on bail, is required to be exercised in his favour.

Accordingly, the petition is allowed and it is ordered that the petitioner, in case FIR No. 12 of 2022, dated 6.1.2022, under Sections 22-61-85 of the

ND&PS Act, registered at Police Station Paonta Sahib, District Sirmaur, H.P., shall be released on bail forthwith in this case, subject to his furnishing

personal bond in the sum of Rs.50,000/- (rupees fifty thousand) with one surety in the like amount to the satisfaction of the learned Trial Court. The

bail is granted subject to the following conditions:

(i) That the petitioner will appear before the learned Trial Court/ Police/ authorities as and when required.

(ii) That the petitioner will not leave India without prior permission of the Court.

(iii) That the petitioner will 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 the Investigating Officer or Court.

In view of the above, the petition is disposed of.

Needless to say that the observations made hereinabove are only confined for adjudication of the present case and the same shall have no bearing

on the merits of the main case, which shall be adjudicated on its own.

Copy dasti.