Tule Singh vs State Of Himachal Pradesh

Vivek Singh Thakur, J

Petitioner has approached this Court, invoking provisions of Section 439 Code of Criminal Procedure (in short ‘Cr.P.C.’), seeking bail in case FIR No.83 of 2019 dated 27.05.2019, registered in Police Station, Joginder Nagar, District Mandi, H.P., under Sections 18, 20 and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as ‘NDPS Act’) and Sections 181, 192 and 196 of the Motor Vehicles Act (hereinafter referred to as ‘M.V. Act’).

Status report stands filed and record was also made available.

As per status report, on 26.05.2019, police party, had laid a Nakka near Galu on National Highway-154 and was checking vehicles. At about 8.15 p.m., a car bearing registration No.HP-01C-0612 coming from Joginder Nagar side was stopped and driver was asked to show the documents, but he could not produce the same, rather he got perplexed and stuttered. On inquiry, he disclosed his name Tule Singh (petitioner). For not giving satisfactory answers to the questions of the police, on suspicion, independent witnesses were associated and car was searched in which, under left side front seat, three packets wrapped with tape were found, and one bag, concealed under the cardboard of the Dickey was found. In the bag also, five wrapped packets were found. From six packets, 3.289 kilograms charas and from remaining two packets 413 grams opium was recovered, which were taken into possession and seized by following prescribed procedure.

As per status report, on inquiry, petitioner-Tule Singh disclosed that in transportation of recovered charas and opium, there was involvement of co-accused Om Prakash alias Ram Singh (petitioner in Cr.M.P.M No.1499 of 2022) and co-accused Satish Singh and they alongwith Tiwan Singh were escorting/piloting his car in Scorpio bearing registration No.HP-54B-3622 owned and possessed by Satish Singh. Whereupon, this information was transmitted to Police Chowki Ghatta for detaining the Scorpio. After detaining the vehicle, Incarge of Police Chowki informed that in the said vehicle only Satish Singh was present and there was none else and it was disclosed by Satish Singh that other two persons de-boarded at Joginder Nagar. Thereafter, Rukka was sent to the Police Station and FIR was registered and investigation was carried on. Petitioner-Tule Singh, after interrogation, was arrested. After inquiry, Satish Singh, on finding sufficient material for his arrest, was also arrested. Other two persons, i.e. Tiwan Singh alias Tanu (petitioner in Cr.M.P.M. No.2084 of 2022) and co-accused Om Prakash alias Ram Singh alias Kaka (petitioner in Cr.M.P.M No.1499 of 2022) were arrested on 20.07.2019 and 25.07.2019 respectively. Since then, after remaining in police custody, they are in judicial custody in District Jail, Mandi, H.P.

As per status report, petitioner-Tule Singh was also found involved in case FIR No.147 of 2010, dated 22.12.2010, registered in Police Station Aut, under Section 379 read with Section 34 of the Indian Penal Code (in short ‘IPC’); and FIR No.276 of 2015, dated 10.11.2015, registered in Police Station Sadar, District Mandi, under Section 379 read with Section 34 IPC, which are pending adjudication in the Court. Co-accused Satish Singh was found involved in FIR No.178 of 1997, dated 10. 09.1997, under Sections 324, 323 and 506 IPC; FIR No.26 of 1998, dated 28.01.1998, under Sections 452 and 323 read with Section 34 IPC; FIR No.242 of 1998, dated 10.12.1998, under Section 325 read with Section 34 IPC; FIR No.93 of 1999, dated 24. 05.1999, under the Excise Act; and FIR No.141 of 2005, dated 12. 09.2005, under the Excise Act, all registered in Police Station Jawali, District Kangra, H.P., which are pending adjudication in the Court.

On the basis of Call Detail Records (CDRs) and Customer Application Forms (CAFs) of accused persons, they were found in touch with each other through their mobile phones.

State Forensic Science Laboratory (SFSL) has confirmed recovered contraband to be charas and opium.

As per prosecution case, as reported in the status report, Satish Singh, in his vehicle, went to accused Om Prakash alias Ram Singh and purchased charas and opium and both of them hired a Taxi of petitioner-Tule Singh for transporting charas and opium for consideration of `10,000-12,000/- and at that time, co-accused Tiwan Singh was also alongwith them and Satish Singh, Om Prakash alias Ram Singh and Tiwan Singh put charas in the Taxi of petitioner-Tule Singh and they started their journey piloting Taxi of Tule Singh and they were also in touch telephonically with each other. Further that, on discharge of battery of mobile of Tule Singh, Tiwan Singh gave his mobile phone to Tule Singh for use and the said phone, was recovered during Jama Talashi of Tiwan Singh, which was found in the name of Chunni Lal father of Tiwan Singh. As per statement of Chunni Lal, phone in his name was being used by his son Tiwan Singh.

After completion of trial, challan was presented in the Court on 12.11.2019. Thereafter, out of 22 witnesses, 11-12 witnesses have been examined, two have been given up and 8 witnesses are yet to be examined and next date of hearing in the case has been fixed for 14.03.2023.

It has been submitted that petitioner is behind the bars since last more than 3 years 9 months. Whereas, main accused Satish Singh, who according to prosecution story, purchased charas and on whose instance charas has been transported, has been enlarged on bail by a Coordinate Bench of this Court on 29.06.2020, passed in Cr.M.P.(M) No. 299 of 2020. It has further been submitted that co-accused Om Prakash alias Ram Singh and Tiwan Singh alias Tanu have also been enlarged on bail vide order dated 28.11.2022, passed in Cr.M.P.(M) Nos.1499 and 2084 of 2022. Whereas, as per prosecution case, Tiwan Singh had provided his mobile phone to present petitioner for using the same because battery of mobile phone of petitioner was discharged. In the aforesaid circumstances, it has been submitted that petitioner is also entitled for bail.

Learned counsel for the petitioner has submitted that as per status report there are two cases stated to be registered against petitioner-Tule Singh bearing FIR No.147 of 2010, dated 20. 11.2010, under Section 379 read with Section 34 of Indian Penal Code ( in short ‘IPC’); and FIR No.276 of 2015, dated 10. 11.2015, under Section 379 read with Section 34 IPC, which are pending adjudication. It has further been submitted that there is no previous history of the petitioner in involvement of commission of offence under NDPS Act. It has further been stated that despite registration of five FIRs against Satish Singh, he has been enlarged on bail.

Learned counsel for the petitioner has referred judgment dated 10.01.2022, passed by the Supreme Court in Special Leave to Appeal (Crl.) No.242 of 2022, titled as State by (NCB) Bengaluru vs. Pallulabid Ahamad Arimutta & another; Order dated 13.12.2021, passed in Special Leave to Appeal (Crl.) No.5703 of 2021, titled as Bharat Chaudhary vs. Union of India, wherein bail has been granted to the accused persons, who were involved on the basis disclosure statement of co-accused and CDRs, but without any other material on record.

Learned counsel for the petitioner, to substantiate plea for bail, has referred pronouncement of the order dated 1. 08.2022 passed by the Supreme Court in a petition for Special Leave to Appeal (Crl.) No.3961 of 2022, titled as Abdul Majeed Lone vs. Union Territory of Jamu and Kashmir, wherein petitioner facing trial for having been found in possession of 1100 grams commercial quantity of charas was enlarged on bail for suffering incarceration for over 2 years and 5 months, observing that there was no likelihood of completion of trial in near future; and order dated 12.10.2020, passed by Three Judges’ Bench of the Supreme Court, in Criminal Appeal No.668 of 2020, titled as Amit Singh Moni vs. State of Himachal Pradesh, whereby petitioner therein, facing trial for recovery of 3.285 kilograms charas from a vehicle, alongwith four other persons, was enlarged on bail for having been in detention of 2 years and 7 months, as till then out of 14 witnesses, 7 witnesses were yet to be examined and last witness was examined in February 2020 and, thereafter, there was no further progress in the trial.

Learned counsel for the petitioner has also placed reliance on order dated 7.2.2020 passed by the Supreme Court in Criminal Appeal No. 245 of 2020, titled as Chitta Biswas Alias Subhas Vs. The State of West Bengal, whereby accused having found in possession of Codeine mixture above commercial quantity, was enlarged on bail after 1 year 7 months, at the stage of trial when out of 10 witnesses, 4 witnesses have been examined in the trial.

Reliance has also been placed on order dated 10. 11.2021 passed by the Supreme Court in Special Leave to Appeal (Criminal) No. 5187 of 2021, titled as Kulwant Singh Vs. The State of Punjab, whereby accused after detention of more than 2 years, was enlarged on bail despite the fact that recovered contraband was of commercial quantity, for prayer to grant of bail was on the ground of advanced age of petitioner, period of custody undergone by him and the fact that trial would take time to conclude.

Learned counsel for the petitioner has also placed reliance upon order dated 7.12.2021 passed by the Supreme Court in Criminal Appeal No. 1570 of 2021, titled as Mahmod Kurdeya Vs. Narcotics Control Bureau, whereby petitioner apprehended with thousands of tablets of Tramadol X-225, was enlarged on bail. In this case, quantity of drug recovered was more than 50 Kilograms.

Learned counsel for the petitioner has also referred pronouncement of the Supreme Court in Special Leave to Appeal (Crl.) No(s).5769 of 2022, titled as Nitish Adhikary @ Bapan vs. The State of West Bengal, wherein under Sections 21(c) and 37 NDPS Act, undergone custody for a period of one year seven months was enlarged on bail as trial was at preliminary stage and only one witness was examined and petitioner was not having any criminal antecedents. Referring aforesaid pronouncements, learned counsel for the petitioner has pleaded that petitioner is also entitled for bail on the same analogy.

Learned counsel for the petitioner has also referred order dated 28.07.2022, passed by a Coordinate Bench of this Court in Cr.M.P.(M) No.1255 of 2022, titled as Puran Chand vs. State of Himachal Pradesh, wherein petitioner facing trial for recovery of 1.996 kilogram charas, has been enlarged on bail in a case wherein after 2 years and 7 months detention, trial was not concluded and four prosecution witnesses were yet to be examined.

Learned Additional Advocate General has opposed grant of bail to the petitioner for having found in possession of commercial quantity of charas alongwith opium and these drugs are spoiling the youth causing damage to the society as well as the Nation, therefore, prayer for rejecting the bail applications has been made.

Learned Additional Advocate General, referring judgment of a three-Judges Bench of the Supreme Court, passed on 19.07.2022, in Narcotics Control Bureau vs. Mohit Aggarwal, has contended that period of detention cannot be a ground for enlarging the petitioner on bail.

The learned counsel for the petitioner has further submitted that in Mohit Aggarwal’s case huge commercial quantity of 20 kilograms of Tramadol, against minimum commercial quantity of 250 grams, was recovered, whereas, in present case the recovered quantity is much less than the quantity of contraband in Mohit Aggarwal’s case.

Without commenting on merits of the case, but considering rival contentions of the parties, including submissions made by learned counsel for the parties, and taking into consideration entire facts and circumstances and pronouncements of the Supreme Court, whereby discretion in favour of accused similarly situated like petitioner facing trial for alleged recovery of contraband equivalent as well as more than the quantity alleged to have been recovered from them, have been enlarged on bail, and period of detention and also factors and parameters propounded by the Courts, including Supreme Court, necessary to be considered at the time of adjudication of bail, I find that at this stage, petitioner may be enlarged on bail.

Accordingly, present petition is allowed and petitioner is ordered to be enlarged on bail, subject to her furnishing personal bond in the sum of Rs.2,00,000/- with one surety in the like amount to the satisfaction of the trial Court/Special Judge, upon such further conditions as may be deemed fit and proper by the trial Court, including the conditions enumerated hereinafter, so as to assure presence of petitioner/accused at the time of trial:-

(i) That the petitioner shall make himself available to the police or any other Investigating Agency or Court in the present case as and when required in accordance with law;

(ii) that the petitioner shall 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 from disclosing such facts to Court or to any police officer or tamper with the evidence. He shall not, in any manner, try to overawe or influence or intimidate the prosecution witnesses;

(iii) that the petitioner shall not obstruct the smooth progress of the investigation/trial;

(iv) that the petitioner shall not commit the offence similar to the offence to which he is accused or suspected;

(v) that the petitioner shall not misuse his liberty in any manner;

(vi) that the petitioner shall not jump over the bail;

(vii) that in case petitioner indulges in repetition of similar offence(s) then, his bail shall be liable to be cancelled on taking appropriate steps by prosecution;

(viii) that the petitioner shall not leave the territory of India without prior permission; and

(ix) that the petitioner shall inform the Police/Court her contact number and shall keep on informing about change in address and contact number, if any, in future.

It will be open to the prosecution to apply for imposing and/or to the trial Court to impose any other condition on the petitioner as deemed necessary in the facts and circumstances of the case and in the interest of justice and thereupon, it will also be open to the trial Court to impose any other or further condition on the petitioner as it may deem necessary in the interest of justice.

In case the petitioner violates any condition imposed upon him, his bail shall be liable to be cancelled. In such eventuality, prosecution may approach the competent Court of law for cancellation of bail, in accordance with law.

Trial Court is directed to comply with the directions issued by the High Court, vide communication No.HHC.VIG./Misc. Instructions/93-IV.7139 dated 18.03.2013.

Observations made in this petition hereinbefore, shall not affect the merits of the case in any manner and are strictly confined for the disposal of the bail application.

Petition is disposed of in aforesaid terms.

Copy dasti.

Parties are permitted to produce copy of this order, downloaded from the web-page of the High Court of Himachal Pradesh, before the authorities concerned, and the said authorities shall not insist for production of a certified copy but if required, may verify passing of order from Website of the High Court.