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Cr.Mp(M) No. 191 Of 2018 vs State Of Himachal Pradesh on 16 April, 2018

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

Cr.MP(M) No. 191 of 2018
Decided on: 16th April, 2018
Beli Ram ….Petitioner

.

Versus

State of Himachal Pradesh …Respondent

Coram

The Hon’ble Mr. Justice Chander Bhusan Barowalia, Judge.
Whether approved for reporting?1 No.
For the petitioner: Mr. Bhupinder Ahuja, Advocate.

For the respondent/State: Mr. Ashwani Sharma and Mr. P.K.

Bhatti, Additional Advocates General.

_
Chander Bhusan Barowalia, Judge. (oral).

The present bail application has been maintained by the

petitioner under Section 439 of the Code of Criminal Procedure seeking

his release in case FIR No. 218 of 2016, dated 23.20.2016, under

Section 18 of NDPS Act, registered at Police Station Kullu, District

Kullu, H.P.

2. As per the averments made in the petition, the petitioner

is innocent and has been falsely implicated in the present case. He is

neither in a position to tamper with the prosecution evidence nor in a

position to flee from justice, so he be released on bail.

3. Police report stands filed. As per the prosecution story, on

23.10.2016, at about 03:55 a.m., when a police party was at place

1
Whether reporters of Local Papers may be allowed to see the judgment? Yes.

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2

Sishamaati, they spotted the petitioner coming on foot. The petitioner,

on seeing vehicle of the police threw a bag, which he was carrying on

his shoulder. On the basis of suspicion, the petitioner was

.

apprehended and inquired. Due to odd hours no witness could be

associated, so in presence of official police witnesses the bag, which

was thrown by the petitioner, was searched. The said bag contained

some black liquid substance. The police personnel, on the basis of

experience, found it to be opium and on weighment it was 826 grams.

Thereafter, police conducted all sampling and sealing formalities.

Photographs were also taken from personal mobile. During the course

of investigation, the police prepared the spot map and also recorded the

statements of the witnesses. The petitioner was arrested. Sample of

contraband was sent to SFSL for forensic analysis and the same was

opined to be of opium. The petitioner divulged that he cultivated the

opium on a government land and he wanted to sell it to truck drivers of

Kullu Truck Union. On 17.01.2017, after conclusion of investigation,

the challan stands presented in the learned Trial Court. Lastly, the

prosecution has prayed that the bail application may be dismissed.

4. 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.

5. The learned counsel for the petitioner has argued that the

petitioner is innocent. He is neither in a position to tamper with the

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3

prosecution evidence nor in a position to flee from justice. He has

further argued that no fruitful purpose will be served by keeping him

behind the bars for an unlimited period. The petitioner is though

.

convicted earlier, but the case was under Section 376 IPC. He has

argued that in the present case the recovered quantity is not

commercial quantity, thus he be enlarged on bail. The learned Senior

Counsel for the petitioner has also placed reliance on the following

judicial pronouncements:

1. Tejinder Singh @ Teja vs. State of
Punjab and others, CRM-M No. 21934
of 2015, decided by Hon’ble High
Court of Punjab and Haryana;

r 2. Shambhu Singh vs. State of

Rajasthan, Cr. Misc. Bail
application No. 1461 of 1987,
decided by Hon’ble High Court of
Rajasthan (Jaipur Bench):

3. Gurcharan Singh and others vs.
State(Delhi Administration), 1978(1)
SCC 118.

Conversely, the learned Additional Advocate General has argued that

the petitioner has a criminal history and earlier also he has been

convicted under Section 376 IPC and now he is involved in the

Narcotics Act for possessing narcotics. He has further argued that in

case the petitioner is enlarged on bail he may tamper with the

prosecution evidence and may also flee from justice, so he be not

released on bail. He has argued that taking into consideration

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4

seriousness of the offence, the application of the petitioner may be

dismissed.

6. In rebuttal the learned Senior Counsel for the petitioner

.

has argued that the petitioner cannot be kept behind the bars for an

unlimited period. He has further argued that the petitioner is neither

in a position to tamper with the prosecution evidence nor in a position

to flee from justice, so he may be enlarged on bail.

7. The Hon’ble High Court of Punjab and Haryana in

Tejinder Singh @ Teja vs. State of Punjab and others, CRM-M No.

21934 of 2015, has held asunder:

“42. A perusal thereof reveal that he was
first arrested on 31.12.2014 in FIR

No. 155 (supra) and after giving him
the benefit of concurrence of
undertrial detention it transpires
that he has undergone 01 year and
more than 02 months detention as

on 16.03.2016. The alleged
recovery is of noncommercial
quantity i.e. 2 k.g. opium. These
facts have not been denied by the

learned Additional Advocate
General.

43. Keeping in view the facts and
circumstances of this case, I do not
deem it appropriate to deny him the

concession of regular bail. Bail to
the satisfaction of the trial
Court/Duty Magistrate.”

8. The Hon’ble High Court of Rajasthan (Jaipur Bench) in

Shambhu Singh vs. State of Rajasthan, Cr. Misc. Bail application No.

1461 of 1987, has held, as under:

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“4. I have considered the contentions raised
on behalf of both the sides. The powers
of the High court or a Sessions Court
under Section 439 are wider than
Section 437 Criminal Procedure Code.
The considerations which have been
provided in Section 437 Criminal

.

Procedure Code are to be looked into

while disposing an application under
Section 439, but the discretion of the
High Court is very vide. Conditions can
be imposed while granting bail in order
to see that the liberty of the accused is

not missed. As far as the facts of the
present case are concerned, there can
be no doubt that the petitioner can be
released on bail and it will not be
proper to refused the same merely
because he has been involved in other

incidents and on other occasions and
has been convicted. It is therefore,
ordered that if the petitioner furnishes
a personal bond in the sum of Rs.
10,000/- and two sureties in the sum of
r Rs. 5,000/- each on condition that he
shall appear before the court below on

all dates of hearing and further that he
will not tamper with the witnesses and
will present himself at the Police
Station, Alwar Gate, Ajmer once a
month in the first week of every month.

He shall be released forthwith.”

9. The Hon’ble Supreme Court of India in Gurcharan Singh

and others vs. State(Delhi Administration), 1978(1) SCC 118, vide

para 24 has held as under:

“24. Section 439 (1), Criminal Procedure
Code of the new Code, on the other

hand, confers special powers on the
High Court or the Court of Session in
respect of bail. Unlike under Section
437 (1) there is no ban imposed under
Section 439 (1), Criminal Procedure
Code against granting of bail by the
High Court or the Court of Session to
persons accused of an offence
punishable with death or imprisonment
for life. It is, however, legitimate to
suppose that the High Court or the
Court of Session will be approached by

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6

an accused only after he has failed
before the magistrate and after the
investigation has progressed throwing
light on the evidence and circumstances
implicating the accused. Even so the
High Court or the Court of Session will
have to exercise its judicial discretion

.

in considering the question of granting

of bail under Section 439(1), criminal
Procedure Code of the new Code. The
overriding considerations in granting
bail to which we adverted to earlier and
which are common both in the case of

Section 437 (1) and Section 439 (1)
criminal Procedure Code of the new
code are the nature and gravity of the
circumstances in which the offence is
committed; the position and the status
of the accused with reference to the

victim and the witnesses; the likelihood,
of the accused fleeing from justice; of
repeating the offence, of jeopardizing
his own life being faced with a grim
prospect of possible conviction in the
r case; of tampering with witnesses; the
history of the case as well as of its

investigation and other relevant
grounds which, in view of so many
variable factors, cannot be exhaustively
set out.

10. After carefully going through the records and also

considering the law as extracted hereinabove, this Court finds that the

petitioner was convicted for a case which was not registered under the

NDPS Act. The petitioner is behind the bars for the last more than a

year and there is remote possibility that he will commit the same

offence time and again. Therefore, this Court, after analyzing the

record and keeping in view the law, as cited above, finds that the

petitioner is neither in a position to tamper with the prosecution

evidence nor in a position to flee from justice, so the petitioner cannot

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7

be kept behind the bars for an unlimited period. Thus, the present is a

fit case where the judicial discretion to admit the petitioner on bail is

required to be exercised in his favour. Accordingly, the petition is

.

allowed and it is ordered that the petitioner, who has been arrested by

the police, in connection with FIR No. 218 of 2016, dated 23.20.2016,

under Section 18 of NDPS Act, registered at Police Station Kullu,

District Kullu, H.P., he shall be released on bail forthwith in this case,

subject to his furnishing personal bond in the sum of `25,000/-

(rupees twenty five thousand) with one surety in the like amount to the

satisfaction of learned Trial Court. The bail is granted subject to the

following conditions:

(i) That the petitioner will appear before the
learned Trial Court as and when required.

(ii) That the petitioner will not leave India

without prior permission of the Court.

(iii) That the petitioner will 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/her from disclosing such facts to the
Investigating Officer or Court.

11. In view of the above, the petition is disposed of.

Copy dasti.

(Chander Bhusan Barowalia)
16th April, 2018 Judge
(virender)

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