Tanuj Kumar vs State Of H.P

Vivek Singh Thakur, J

Petitioner has approached this Court seeking bail in case FIR No. 13 of 2021, dated 19.2.2021, registered in Police Station Janjheli, District Mandi, H.P. under Sections 20, 25 and 29 of Narcotic Drugs and Psychotropic Substances Act (in short “NDPS”).

Status Report stands filed. Record was also made available.

Prosecution case in brief is that on 18.2.2021, Police Party was going to Chiyuni for laying naka and when they reached at Nihari at about 8:25 P.M., a faithful informer had informed that one person, namely Jai Singh having mobile No. 98163-27507, was coming from Chakudhar Jungle towards Chiyuni Road with charas in his bag and that he had to transport the charas in Alto Car No. HP-87-0138 of his friends. At 8:34 P.M., Head Constable Nek Ram while moving towards Chakudhar Jungle, from his mobile number 94184-34000, had sent this information on Whatsapp to Sub Divisional Police Officer on his mobile number 93172-21006 in the shape of an application under Section 41(2) for authorization letter to search the Alto Car. In response, SDPO had communicated authorization to Head Constable Nek Ram at 8.54 P.M. In the meanwhile Head Constable had also informed SDM Thunag about it with request to send his subordinate Officers as independent witnesses by sending a notice under Section 56 of NDPS Act on Mobile of SDM. At about 8:48 P.M., SDM had deputed two Officers, through Whatsapp, as independent witnesses. At about 8:50 P.M., Head Constable reached near scissors curve i.e. ‘V’ curve (Kanchi Mod) and found an Alto Car HP87-0138 parked near the cliff. Interior lights of the Car were on and three persons were sitting in it. The moment Police vehicle stopped near the Alto Car and Police Head Constable, in dress, came out of the Police vehicle, a person sitting alongwith driver on the front seat, opened the door of the Car and jumped from the cliff and ran away from the spot by taking benefit of dark. Inspector Kamlesh Kumar had asked the persons of Police Party not to chase the said person, as there were deep gorges all around. However, persons sitting in the Car were inquired. Driver had disclosed his identity as petitioner, whereas lady sitting on rear seat of the Car had disclosed her name Naina Devi. From the mobile Phone of Naina Devi call was made on the mobile of person who had fled from the spot, but his phone was reported to be switched off, but Truecaller reflected his name as Jai Chand. At 9.50 P.M. Naib Tehsildar Ved Prakash and Field Kanungo Kuran Chand, deputed by SDM Thunag, reached on the spot in a private vehicle. During search of the Car, a bag was recovered kept in front of co-driver’s seat wherefrom 6.674 Kilograms of charas was recovered in presence of independent witnesses, Ved Prakash and Kuran Chand. Due to darkness and drizzling on the spot further proceedings were not possible on the spot. Therefore, recovered charas was handed over to Naib Tehsildar Ved Prakash till completion of written proceeding at some safe place. Thereafter, Head Constable Nek Ram contacted Forest Guard Balwant Singh on Mobile and narrating the circumstances asked him about appropriate place to carry our further written proceedings. Balwant Singh suggested to complete further proceedings in his rented room at Lamba Thach whereupon Police Party alongwith witnesses and accused-persons started to Lamba Thach. On the way, engine of car of accused persons stopped and could not be restarted due to low battery, whereupon car in custody of HHG Kapil was left on the road and rest all moved to Lamba Thach in other two vehicles and further proceedings were completed with the help of Laptop, printer and weighing machine brought by Police Party. The recovered contraband was taken in possession by following the procedure prescribed and thereafter rukka was sent to Police Station. After registration of FIR, petitioner alongwith Naina Devi were arrested on 19.2.2021 at 9:20 A.M. Jai Chand could not be traced and apprehended, however after availing anticipatory bail from the High Court on 19.7.2021, he joined the investigation. His bail application was rejected on 20.7.2021, thereafter Jai Chand was arrested and subjected to interrogation. All these accused are now in judicial custody.

Learned counsel for the petitioner has submitted that petitioner is innocent person and he has been implicated on wrong notion whereas he has no role in commission of offence as he had been requested by co-accused Naina Devi to help her to bring a person known to her, i.e. Jai Chand in his Car and for that purpose petitioner had borrowed Car from his maternal uncle (Mama) and was accompanying Naina Devi to help her, but on the way when Police Party noticed them in the Car, Jai Chand, after throwing the bag in the Car had run away from the spot, but petitioner was not having any knowledge about contraband in the bag. It has been further submitted that there is no evidence against the petitioner with respect to his involvement in commission of offence.

Learned counsel for the petitioner has also referred pronouncement of co-ordinate Bench of this Court in Cr.MMP(M) No. 1768 of 2021, titled as Prem Sagar @ Pema Vs. State of H.P., decided on 22.9.2021, wherein an under trial accused under NDPS Act was released on bail.

He has also referred para 15 of the judgment of the Supreme Court in Supreme Court Legal Aid Committee representing Undertrial Prisoners Vs. Union of India and others, reported in (1994) 6 SCC 731.

Learned Additional Advocate General has submitted that petitioner has committed a heinous crime, which is not only damaging the youth and their families, but also society at large and, therefore, petitioner is not entitled for bail. It has further been submitted that Call Details Report indicates that petitioner Tanuj Kumar, accused Naina Devi and Jai Chand were in regular contact with each other and petitioner was also involved in commission of offence and, therefore, prayer for rejection of bail has been made. It has been further stated by learned Additional Advocate General that on 18.2.2021 there were number of talks between Jai Chand and Naina Devi and Tanju Kumar and Naina Devi as well as Tanuj and they were in constant touch of each other and, therefore, involvement of petitioner is apparent from his conduct being reflected from record.

It has been submitted on behalf of petitioner that keeping in view the provisions of Article 21 of the Constitution of India, petitioner deserves to be enlarged on bail to give due regard to his right of personal liberty as no one can be punished by refusing the bail during trial.

Learned Additional Advocate General has submitted that NDPS Act is a special enactment casting reverse onus upon the accused to prove his innocence when he is found in conscious possession of narcotic drugs and psychotropic substances, and in present case petitioner has been caught red handed alongwith contraband in his vehicle. Therefore, normal rule and parameters are not applicable in present case.

In Prem Sagar @ Pema’s case, petitioner was behind the bars for more than three years for having found in possession of commercial quantity of Tramadol Hydrochloride capsules and prosecution evidence had not commenced and petitioner was suffering from serious ailment. The facts in present case are not similar to Prem Sagar’s case. Similarly, in Supreme Court Legal Aid Committee’s case, referred supra, the observation made by the Supreme Court was regarding delay in disposal of case under the Act involving Foreigners. In Supreme Court Legal Aid Committee’s case also facts were entirely different from the present case. Therefore, these pronouncements are not applicable in present case.

In view of aforesaid facts and circumstances, quantify of recovered contraband, weighing the personal interest of the petitioner viz-a-viz the impact of his release on the society, but without commenting upon the merits of rival contention of parties and considering factors and parameters required to be taken into consideration at the time of adjudication of bail application, I find that petitioner is not entitled for bail, at this stage.

Accordingly, petition is dismissed.