Vishal Banyal 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-Vishal Banyal has sought his release, on bail, during the pendency of trial, in case FIR No. 85 of 2023, dated 11th July, 2023, registered with Police Station Gagret, District Una, H.P., under Sections 21 and 8C of the Narcotic Drugs and Psychotropic Substances Act (hereinafter referred to as ‘NDPS Act’).

According to the applicant, he has falsely been implicated, in the present case, as, nothing has been recovered from his possession. He has termed the case of the prosecution case as false. The investigation, in the present case, is also stated to be complete.

The applicant has earlier tried his luck before the learned Special Judge-I, Una, District Una, H.P., by filing a bail application, however, the said application was dismissed by the learned Special Judge vide order dated 04.09.2023.

The applicant has also asserted that he is the only bread earner of his family and due to the fact that he is in judicial custody, his entire family is at the verge of starvation.

On the basis of above facts, the applicant has given, certain undertakings, for which, he is ready to abide by, in case, ordered to be released on bail, during the pendency of the trial.

When put to notice, the police has filed the status report, disclosing therein, that on 11.07.2023, I.O. HC Manzoor Akhtar No. 56, along-with other police officials, was on patrolling duty. When, he was present at Gagret Chowk, then, he received a secret information with regard to the fact that one person, while riding motorcycle No. HP28A-6533, is coming from Hoshiarpur side and moving towards Gagret. The said person is stated to be dealing in the business of sale and purchase of chitta/heroin.

6.1. It has also been informed that if the said vehicle is intercepted and searched, then, the contraband in large quantity could be recovered. The said information was found to be authentic and according to the I.O. in case, efforts were made to obtain the search warrant, in the said process, the contraband could be removed from there. As such, he has complied with provisions of Section 42(2) of the NDPS Act and submitted the information to the SDPO, Amb. Thereafter, Up-pradhan, Gram Panchayat, Upper Gagret Sh. Ashish Sharma was apprised and requested to come to the spot. He was associated in the raiding party and thereafter the picketing was done.

6.2. At about 6.30 p.m., one motorcycle bearing No. HP28A-6533 was found coming from Hoshiarpur side. The motorcyclist was directed to stop. Thereafter, the said person, after stopping the motorcycle, had made efforts to flee away towards jungle and in that process, he had thrown away one packet of cigarette in the bushes. He was nabbed. Thereafter, the cigarette packet was searched and on opening the same, it was found containing chitta/heroin. On weighment, the chitta was found to be 6.31 grams.

6.3. The contraband, so recovered, was taken into possession. Other codal formalities were completed and the FIR in question was registered. Thereafter, the accused person was arrested. The contraband was sent to SFSL, from where, positive result has been received.

6.4. It is the case of the police that after the completion of the investigation, report under Section 173(2) Cr.P.C has been submitted against the applicant, and the case, is now stated to be fixed on 03.11.2023 for consideration on charge.

6.5. Apart from this, the detail of another case, which has been registered against the applicant, has also been mentioned by stating that FIR No. 39 of 2023 dated 05.03.2023 under the NDPS Act, has also been registered against the applicant in Police Station, Sarkaghat, District Mandi, H.P.

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

Heard.

The contraband, allegedly recovered from the possession of the applicant, 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.

So far as the registration of another case, as highlighted by the learned Additional Advocate General, during the course of arguments is concerned, admittedly, no conviction has been inflicted upon the applicant by the competent Court of law. Mere registration of case does not take away the presumption of innocence, which is still available to the applicant.

The applicant, in this case, has been arrested on 11. 07.2023. Considering the fact that report, under Section 173(2) Cr.P.C, has already been filed, this Court is of the view that dismissal of the application, at this stage, would be nothing, but, punishing the applicant prior to the conclusion of trial, which is prohibited under the law.

Considering all these facts, especially, the age of the applicant, this Court is of the view that no purpose would be served by keeping the applicant in the judicial custody, that too, for the indefinite period.

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 in case FIR No. 85 of 2023, dated 11th July, 2023, registered with Police Station Gagret, District Una, H.P., under Sections 21 and 8C of NDPS Act, on his furnishing personal bail bond, in the sum of Rs. 50,000/-, with one surety of the like amount, to the satisfaction of learned trial Court/CJM, Una. 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, Una 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, Una is directed to inform this fact to the Secretary, DLSA, Una. The Superintendent of Jail, Una 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.