Tara Chand 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, for grant of bail in case FIR No. 203/2020, dated 27.08.2020, under Sections 20 & 29 of the NDPS Act, registered at Police Station Dhalli, District Shimla, H.P.

As per the averments made in the petition, the petitioner is innocent and has been falsely implicated in the present case. Further, he is resident of the place and neither in a position to tamper with the prosecution evidence nor in a position to flee from justice. No purpose would 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 27.08.2020, police party were on patrolling duty. Around 4:00 P.M., a vehicle, bearing Registration No. HP06C­3536, came from Kufri side, which was signaled to stop. The person, who was driving the vehicle stopped his vehicle and disclosed his name as Sunil Kumar. However, when he was further inquired by the police, he got perplexed and could not give satisfactory answer, which raised doubt qua that person. Accordingly, the police associated two independent witnesses from the spot and checked the vehicle of the person. When the police opened the boot of the car, they saw two bags, one was containing clothes and in another, besides clothes, two packets, wrapped with white colour tape were found. The police cut the tape of the packets and opened the same. On opening the packets, black coloured substance in round shape was found, which on the basis of experience, was found to be charas. On weighment, the recovered contraband was 2.089 Kgs. Consequently, FIR No. 203/2020, dated 27.08.2020, under the apt Sections of NDPS Act came to be registered. Thereafter, the police completed all the codal formalities and arrested Sunil Kumar. During the course of interrogation, Sunil Kumar disclosed that he was coming to Shimla to sell the recovered charas and the vehicle in which he was carrying charas belongs to one Abhay Roach. During investigation, Abhay Roach has disclosed that he and Sunil Kumar have studied from Shoolini University and are friends and this was the reason that he gave his car to Sunil Kumar. However, he is not aware that he is involved in selling charas. During further interrogation, Sunil Kumar disclosed that he purchased the aforesaid contraband from Tara Chand (petitioner herein). Thereafter, police procured the CDR of the mobiles of accused Sunil Kumar and that of the petitioner and it was found that accused Sunil Kumar and the petitioner were constantly in touch with each other from 01.01.2020 to 26.08.2020. The mobile number used by accused Sunil Kumar was found to be registered in the name of one Tamanna, who disclosed that she and accused Sunil Kumar were friends when they were in Shoolini University and in the year 2015, Sunil Kumar took Aadhar Card and Ration Card from Tamanna and got a SIM Card. On 07.10.2020, the police arrested the petitioner and he identified the place, i.e. Dghoot, where he sold the charas to accused Sunil Kumar. Tower location of both the accused persons were found at place Dghoot. Lastly, it is prayed that the bail application of the petitioner be dismissed, as the petitioner was found involved in a serious offence and commercial quantity of charas was recovered from the co­ accused, which was sold to him by the petitioner and there is every possibility that in case at this stage he is enlarged on bail, he may flee from justice or tamper with the prosecution evidence.

I have heard the learned counsel for the petitioner, learned Additional Advocate General for the State and gone through the record, 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 has been implicated in this case only on the statement of the main accused, who himself was found in possession of the commercial quantity of charas, therefore, no case against the petitioner is made out. He has argued that the petitioner is behind the bars since his arrest and cannot be kept behind the bars for an unlimited period and since the petitioner is resident of the place and neither in a position to tamper with the prosecution evidence, nor in a position to flee from justice, he be released on bail. In support of his contentions, learned counsel for the petitioner has relied upon the judgment rendered by learned Single Judge of this Court in Cr.MP(M) No. 1439 of 2022, titled Akshay Sharma Vs. State of H.P.

Conversely, the learned Additional Advocate General has argued that the petitioner was found involved in a serious offence and his call details show that he was in constant touch with the main accused through mobile and in case, at this stage, if he is enlarged on bail, he may tamper with the prosecution evidence and may also flee from justice. He has prayed that the bail application of the petitioner be dismissed.

This Court has gone through the contents of the judgments relied upon by learned counsel for the petitioner.

In Akshay Sharma’s case (supra), the learned Single Judge of this Court, on the basis of law laid down in Tofan Singh Vs. State of Tamil Nadu, (2021) 4 Supreme Court Cases 1, has released the petitioner on bail by observing that there is no material available against the petitioner connecting him with the commission of offence alleged against him, except the statement of the accused recorded under Section 67 of NDPS Act and CDR details.

However, the above judgment is not applicable to the facts of the present case, as in the instant case prima facie there is sufficient material available on record to connect the petitioner with the commission of offence, as he was in constant touch with the main accused from 01.01.2020 to 26.08.2020 and during this period the petitioner has made 69 calls on the mobile number of accused Sunil Kumar. Even on 24, 25 and 26.08.2022, the petitioner made calls to Sunil Kumar thrice. Therefore, taking into consideration the seriousness of the offence, the manner in which the offence is alleged to have been committed, the role of the petitioner in the commission of alleged offence, the alleged recovered quantity of the contraband, which is a commercial quantity, the fact that trial is still going on and in case at this stage petitioner is enlarged on bail, he may tamper with the prosecution evidence and may also flee from justice. So, considering the overall aspects of the case and without discussing them elaborately at this stage, this Court finds that the present is not a fit case where judicial discretion to admit the petitioner on bail is required to be exercised in his favour. Accordingly, the petition, which sans merits, deserves dismissal and is dismissed.

However, the observations made hereinabove shall not be construed to have expressed an opinion on the merits of the main case and the same shall be adjudicated on its own.