Shyam Singh 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’). 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 the other 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, more than seven witnesses have been examined and case has now been fixed for examining the remaining witnesses on 28.9.2022.

It has been submitted by learned counsel for petitioner that two independent witnesses have been examined who did not identify the accused in Court. They have stated that they did not remember the name and address of accused persons and there is also discrepancy regarding the time of associating those witnesses in search and seizure process and they have not supported the prosecution case which indicates that petitioner has been falsely implicated. Further that personal search of accused persons was not conducted in presence of independent witnesses and, therefore, it has been contended that there is every likelihood of acquittal of petitioner of charges framed against him and thus, he is entitled for bail.

It has been further submitted by learned counsel for petitioner that co-accused Ram Lal, with whom petitioner was present at the time of alleged recovery of contraband has been alleged to have been recovered, has already been enlarged on bail by this Court and therefore, on the ground of parity also, petitioner is entitled for bail.

Learned Additional Advocate General has submitted that prosecution is not based only on independent witnesses but official witnesses are also there and unless their credibility is shaken their deposition would be sufficient for convicting the accused persons and, therefore, resiling of independent witnesses from their earlier statement has no bearing on merits of case and minor discrepancies created by such witnesses are not to be relied upon.

It has been further contended by learned Additional Advocate General that as per prosecution case, Shyam Singh was in possession of bag wherefrom charas was recovered and on seeing the police party, he had thrown the bag and for this reason only, co-accused Ram Lal was enlarged on bail by this Court and, therefore, case of petitioner is not similarly situated to co-accused Ram Lal and therefore, prayer for dismissing the present bail application has been made.

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 considering 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 thrown by petitioner Shyam and other material placed before me, but without commenting upon the merits of the claims and counter claims of prosecution and learned counsel for the petitioner-accused. I am of opinion that petitioner is not similarly situated to co-accused and he is not entitled to be enlarged on bail, at this stage.

Accordingly, bail application is dismissed.