IMPORTANT POINT
Bail is not to be withheld as a punishment. Normal rule is of bail and not jail.

JUDGMENT (ORAL)

Sandeep Sharma, J.—Bail petitioner, namely Gaurav Kumar alias Bunty, who is behind the bars since 10.10.2020, has approached this Court in the instant proceedings filed under Section 439 of the Code of Criminal Procedure, praying therein for grant of regular bail in case FIR No.158 of 2020, dated 10.10. 2020, under Sections 21, 29-61-85 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (For short ‘Act’), registered at police Station, Damtal, District Kangra, Himachal Pradesh.

2. Perusal of status report filed by the respondent-State in terms of order dated 11.12.2020, reveals that on10.10.2020, police allegedly apprehended one motorcycle coming from Bhadroya side. Since, persons riding on the motorcycle got perplexed after having seen the police party, police associated two independent witnesses and carried out their personal search as well as search of the motorcycle and allegedly recovered 9.41grams heroin/chitta from the dickey of the motorcycle. Since, no plausible explanation came to be rendered on record by the present bail petitioner, who at that relevant time was driving the motorcycle as well as other person namely, Moksh qua the possession of aforesaid quantity of contraband, police after completion of necessary codal formalities, lodged a FIR, detailed hereinabove, against the present bail petitioner as well as other co-accused Moksh under Section 21,29-61-85 of the Act and since then present bail petitioner is behind the bars, whereas co-accused Moksh stands already enlarged on bail granted by learned Special Jude-II, Kangra at Dharamshala, H.P. Though, present bail petitioner had also applied for bail before the learned Special Judge-II, Kangra at Dharamshala, but his bail application came to be rejected on the ground that in past also, there was one case registered against him under the Act. The challan stands filed in the competent court of law and nothing remains to be recovered from the bail petitioner, petitioner has approached this Court in the instant proceedings under the changed circumstances.

3. Mr. Sudhir Bhatnagar, learned Additional Advocate General while fairly admitting the factum with regard to filing of the challan in the competent Court of law, contends that though nothing remains to be recovered from the bail petitioner, but having taken note of his antecedents, he does not deserve any leniency and as such, prayer having been made on his behalf for grant of bail deserves outright rejection. Mr. Bhatnagar, further contends that in past also bail petitioner was found indulging in illegal trade of narcotics as such, was convicted for 10 months and it may not be in the interest of justice to enlarge him on bail at this stage because in the event of his being enlarged on bail, he may not only flee from justice, rather again indulge in such activities.

4. Having heard learned counsel representing the parties and perused the material available on record, this Court finds that on 10.10.2020, police recovered 9.41 grams heroin/chitta from the dickey of the motorcycle being driven by the bail petitioner in the presence of two independent witnesses and as such, it cannot be said that he has been falsely implicated. However, this Court finds that the motorcycle involved in the incident was not in the name of the bail petitioner as such, it would be too premature to conclude complicity, if any, of bail petitioner in the crime allegedly committed by him, especially when 9.41 grams of heroin/chitta never came to be recovered from his conscious possession, rather from the dickey of the motorcycle, which belongs to some other person. Moreover, co-accused Moksh, who was also riding on the same motorcycle already stands enlarged on bail. Earlier bail petition having been filed by the bail petitioner has been rejected solely on the basis of past history of the bail petitioner.

5. Admittedly, record reveals that in the year 2014, bail petitioner was convicted and sentenced for 10 months