Vijay Khatri vs State Of H.P

Virender Singh, J

Applicant Vijay Khatri has filed the present application, under Section 439 of Code of Criminal Procedure (hereinafter referred to as ‘the Cr. P.C.’), with a prayer to release him on bail, during pendency of the trial, in case FIR No. 109 of 2022, dated 6.5.2022, registered with Police Station, West, Shimla, under Sections 18 and 19 of the Narcotic Drugs & Psychotropic Substances, Act (hereinafter referred to as ‘the NDPS’ Act.

According to the applicant, he has falsely been implicated in this case by the Police. The applicant has sought the relief, as claimed in the application, mainly on the ground that he is in judicial custody for the last one year and 6 months and there is no likelihood of commencement and completion of trial, against him, in near future.

The applicant has also asserted that he belongs to respectable family and having deep roots in the society.

The applicant has given certain undertakings, for which, he is ready to abide by, in case, ordered to be released on bail.

The applicant has also put forward his clear antecedents to get the relief of bail.

The applicant has also tried his luck by moving an application for releasing him on bail, before the learned Special Judge (II), Shimla, District Shimla, however the said application has been dismissed, vide order dated 3.8.2022. Thereafter, he has filed bail applications twice before this Court, however, both his applications have been dismissed as withdrawn.

The applicant has lastly stated that he is from Nepal and no one from his family resides in India. Therefore, he has sought indulgence of this Court to dispense him from filing the requisite affidavit.

On the basis of above facts, Mr. Hemant Kumar Thakur, Advocate has given certain undertakings, for which he is ready to abide by, in case ordered to be released on bail.

When put to notice, the police filed status report, disclosing therein that on 6.5.2022 ASI Ambi Lal, Incharge, SIU, Shimla, District Shimla has forwarded the Ruqua through Constable Bhuvnesh to Police Station, West, disclosing therein that on 6.5.2022, he alongwith other police officials, was on patrolling duty/traffic checking duty and duty to prevent the crime. They were in their private vehicle bearing No. HP 52C-0426. The have proceeded towards Sankat Mochan, Tara Devi and Shoghi side. The I.O., alongwith other police officials, at about 7:20 p.m., was present near Police Post, Shoghi. At that time, one Punjab Roadways Bus, being driven by its driver, came there from Chadigarh side. The bus was proceeding towards Shimla. HHC Sunil Kumar, who was in uniform, was directed to stop the bus on his signal, as such, the bus was stopped by its driver. The Registration number of the bus was found to be PB 29-R-8629, enrouted as Ludhiana-Chandigarh-Shimla.

9.1 Since majority of the passengers were from outside, as such, in order to prevent the crime, belongings of the passengers were checked. While, checking, when I.O. reached near seat Nos. 30 and 31, he noticed two Nepalese persons sitting on seat Nos. 30 and 31. The person, sitting on seat No. 31 was having a rucksack in his lap. When, reasons for travelling in the bus was inquired, the aforesaid persons got perplexed on seeing the Police party and could not give satisfactory answer. The Police has raised suspicion in its mind that they might be having some objectionable article, in the rucksack. Requests were made to the passengers to associate as independent witnesses, but, all of them have shown their inability to do the same. Consequently, the driver and conductor of the bus were associated in the investigation of the case.

9.2 Thereafter, names and addresses of both these persons were inquired. The person, sitting on seat No. 31 has disclosed his name as Vijay Khatri (applicant), whereas, other person has disclosed his name as Vijay Tikka Ram Giri. Thereafter, the rucksack was opened and the same was found containing three plastic bags. On opening the same, light brown color substance (opium) was found. On weighment, the same was found to be 2 kgs 824 grams.

9.3 The contraband was recovered and taken into possession. Other codal formalities were completed. Accused persons were arrested. The contraband was sent to FSL Junga. After receiving positive report from SFSL Junga, the Police submitted its report, under Section 173 (2) Cr. P.C., before the learned Special Judge (II), Shimla, on 11.7.2022. The said case is stated to be pending in the Court of Special Judge (II), Shimla and now fixed for 30.11.2023, for consideration on Charge.

9.4 Lastly, it has been mentioned that the applicant is resident of Nepal and having no permanent abode in India. It has been asserted that since, he was not having any permanent abode, as such, his criminal antecedents could not be verified. 9.5 On the basis of above facts, it has been apprehended that in case, the applicant is released on bail, then, there are chances that he may not be available for the trial and may again indulge in the similar activities.

9.6 On the basis of above facts, a prayer has been made to dismiss the application.

As referred to above, the applicant has sought the relief of bail, on the basis of delay in trial. Although, charge-sheet in the case has been filed on 11.7.2022, but, till date, even the charges have not been framed, against the applicant. As per the status report, the case is now fixed for 30.11.2023, for consideration on charge.

At the time of deciding the question of bail, the stand as taken by the applicant, has to be considered, in the light of the apprehensions, which have been expressed by the Police. The applicant is having no permanent abode in India. This fact is depicted from the address, as mentioned by the State, in the status report. Although, in the bail application, the applicant has mentioned his address as “Theog, Tehsil Theog, District Shimla”. This is a vague address.

On the basis of vague address, it cannot be concluded that applicant is having any permanent abode in India. In such situation, apprehensions, which have been expressed by the Police, in the status report, at this stage, cannot be said to be unfounded.

While deciding the question of bail, the availability of the applicant for trial, in case, he is ordered to be released on bail, is to be ascertained on the basis of facts and circumstances of each case. Even otherwise, the rigors of Section 37 of the ND & PS Act are applicable and there is nothing on record, at this stage, to conclude that twin conditions, as per Section 37 of ND & PS Act, exist in favour of the applicant.

So far as, delay in trial, is concerned, it is a fit case where trial Court can be directed to expedite the trial. Considering the fact that the Challan has been filed about a year ago, however, even charges have not yet been framed, the learned trial Court is directed to conclude the trial, within a period of three months from 30.11.2023. On 30.11.2023, as per the status report, the case is fixed for consideration on charge.

With these observations, the bail application is disposed of.

Any of the observations, made hereinabove, shall not be taken as an expression of opinion, on the merits of the case, as these observations, are confined, only, to the disposal of the present application.