Vir Singh vs State Of H.P

Virender Singh, J

By way of present application, under Section 439 of the Code of Criminal Procedure (hereinafter referred to as ‘Cr.PC’), applicant-Vir Singh has sought his release, on bail, during the pendency of trial, in case FIR No. 41 of 2023, dated 11th August, 2023, registered with Police Station Brow, District Kullu, H.P., under Section 21 of the Narcotic Drugs and Psychotropic Substances Act (hereinafter referred to as ‘NDPS Act’).

According to the applicant, he is permanent resident of the address mentioned in the application and has falsely been implicated, in the present case, at the instance of police. According to him, he has nothing to do with the offences, for which, he has been arrested, in this case.

It is further case of the applicant that investigation, in the present case, is almost complete and nothing is to be recovered from him or at his instance. The applicant, presently, is in judicial custody.

Apart from this, number of undertakings have also been given on behalf of the applicant, for which, the applicant is ready to abide by, in case, released on bail, during the pendency of the trial.

When put to notice, the police has filed the status report, disclosing therein, that on 11.08.2023, a rukka, which was forwarded through HC Ajay Kumar No. 437, was received in Police Station, Brow for registration of FIR. According to the rukka, the I.O., as per Rapat No. 26, had left Police Station, Brow for patrolling duty on 10.08.2023. At about 11. 30 p.m., when, the I.O. was on patrolling duty and was present at Dumping Yard Chatti, then, he noticed a person coming there, on foot, and he was moving towards Chatti side. He was having a carry bag in his right hand. On seeing the police vehicle, he, at once, turned towards the Dumping Yard Chatti and had thrown the carry bag, which was being carried by him, towards the bushes. The said activity has raised suspicion in the mind of the I.O. that he might be having some suspicious article in it, upon which, the I.O and other police officials have nabbed him.

5.2. On inquiry, he has disclosed his name as Vir Singh, son of Pega Ram (applicant). He could not disclose the reason for throwing the carry bag and was found to be perplexed, upon which, I.O developed a suspicion that the carry bag might be having some illegal article in it. Efforts were made to associate the independent witnesses, but, since, it was late in the night, as such, no one was found there, upon which, Pradhan, Gram Panchayat, Jagaatkhana was apprised, on phone, with regard to the situation at the spot and was requested to come on the spot. After 15 minutes, Pradhan Satish Kumar reached there. Except Pradhan, no-one was found there, as such, by associating Pradhan and other police official, as witnesses, in the investigating team, the carry bag, which was thrown towards the bushes, was brought.

5.3. On opening the same, it was found to be containing a substance in the foil paper and the silver coloured electronic weighing machine. When, the said foil was opened, the same was found containing a brown substance, which, on the basis of experience, was found to be heroin/chitta, weighing 8.86 grams.

5.4. Other codal formalities were completed on the spot. The accused was arrested. The contraband, so recovered, was sent to SFSL, Junga from where, positive report has been received. It has been submitted that the challan is ready and will be filed in the competent Court of law.

Apart-from this, the criminal history of the applicant has also been mentioned, the details of which are as under:-

Case FIR No. 71 of 2005 under Sections 341, 147, 149 and 395 IPC. However, it has been submitted that in the said case, the applicant has been acquitted.

Case FIR No. 100 of 2018 under Section 20 of the NDPS Act is also stated to be registered against the applicant, which is pending in the Court.

On the basis of above facts, Ms. Leena Guleria, learned Deputy Advocate General has opposed the prayer, so made, in the application, on the ground that the application deserves to be dismissed and it has been prayed that the same may kindly be dismissed.

Heard.

The investigation, according to the status report, so filed, is almost complete. As such, no useful purpose would be served by keeping the applicant in the judicial custody, that too, for indefinite period, as chances of commencement and conclusion of trial against him, in near future, are not so bright.

So far as the criminal case, which is stated to be registered against the applicant, on the basis of said case, the presumption of innocence, which is still available in favour of the applicant, cannot be taken away from him, as admittedly, in the said case, conviction has not been recorded by the competent Court of law.

The contraband, allegedly recovered from the possession of the applicant, does not fall within the definition of ‘commercial quantity’. The same falls within the definition of ‘intermediate quantity’. Since, the contraband, so recovered, does not fall within the definition of commercial quantity, as such, rigors of Section 37 of the NDPS Act are not applicable, in the present case, then the accused is presumed to be innocent and bail application cannot be rejected as a matter of punishment, as pre-trial punishment is prohibited under the law.

The applicant is permanent resident of District Kullu, as such, it cannot be apprehended that in case, he is ordered to be released on bail, he will not be available during the trial.

Considering all these facts, this Court is of the view that the bail application is liable to be allowed and is accordingly allowed.

The applicant is ordered to be released on bail in case FIR No. 41 of 2023, dated 11th August, 2023, registered with Police Station Brow, District Kullu, H.P., under Section 21 of NDPS Act, on his furnishing personal bail bond, in the sum of ₹50,000/-, with one surety of the like amount, to the satisfaction of learned JMFC, Anni/ACJM, Rampur. This order, however, shall be subject to the following conditions:

a) He shall make himself available for the purpose of interrogation, if so required and regularly attend the trial Court on each and every date of hearing and if prevented by any reason to do so, seek exemption from appearance by filing appropriate application;

b) He shall not tamper with the prosecution evidence nor hamper the investigation of the case in any manner whatsoever;

c) He shall not make any inducement, threat or promises to any person acquainted with the facts of the case so as to dissuade them from disclosing such facts to the Court or the Police Officer; and

d) He shall not leave the territory of India without the prior permission of the Court.

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 bail application.

It is made clear that the respondent-State is at liberty to move an appropriate application, in case, any of the bail conditions, is found to be violated by the applicant.

The Registry is directed to forward a soft copy of the bail order to the Superintendent of Jail, Kullu through e-mail, with a direction to enter the date of grant of bail in the e-prison software.

In case, the applicant is not released within a period of seven days from the date of grant of bail, the Superintendent of Jail, Kullu is directed to inform this fact to the Secretary, DLSA, Kullu. The Superintendent of Jail, Kullu is further directed that if the applicant fails to furnish the bail bonds, as per the order passed by this Court, within a period of one month from today, then, the said fact be submitted to this Court.