Point of law : 12. If an accused is not hiding from investigating officer or is hiding due to some genuine and expressed fear of being victimized, it would be a factor that a judge would need to consider in an appropriate case.

ORDER :

Bail petitioner namely Vikram, who is behind the bars since 27.2.2022, has approached this court in the instant proceedings filed under Section 439 Cr.PC, for grant of regular bail, in case FIR No. 50/22 dated 27.2.2022, registered at Police Station Boileuganj, District Shimla, Himachal Pradesh, under Sections 20 and 29 of the NDPS Act.

2. Pursuant to order dated 24.8.2022, respondent-state has filed the status report. ASI Suresh Kumar, PS West, Shimla, has also come present with the records. Records perused and returned.

3. Close scrutiny of record/status report reveals that on 27.2.2022, police party present at Totu bifurcation near Tara Devi, stopped bus bearing registration No. HR-68-A-9619 for checking. While luggage of the passengers of the bus was being checked, two persons sitting at seat Nos. 33 and 34 got perplexed and as such, police after having associated driver and conductor of the bus deemed it necessary to carry out personal search of the occupants of seats No. 33 and 34 as well as their luggage. Present bail petitioner was sitting at seat No.34 and there was one rucksack/bag on his lap. Though nothing was recovered from the rucksack of the present bail petitioner, but 1.252 kg of charas came to be recovered from the bag of occupant of seat No. 33 namely Nitin Kumar. Since both the petitioner and co-accused Nitin Kumar were sitting together at seats No. 33 and 34 and they both had gone to Matiana, present bail petitioner also came to be named in the FIR as detailed herein above. Since investigation in the case is complete and nothing remains to be recovered from the present bail petitioner, he has approached this Court in the instant proceedings, praying therein for grant of regular bail.

4. Mr. Narender Guleria, learned Additional Advocate General while fairly admitting 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 keeping in view the gravity of offence alleged to have been committed by him, he does not deserve any leniency. Mr. Guleria further submits that though nothing came to be recovered from the conscious possession of the present bail petitioner, but once it stands established that he alongwith co-accused Nitin, from whose bag, commercial quantity of contraband came to be recovered had gone to Matiana for sale and purchase of charas, it cannot be said that he has been falsely implicated. Mr. Guleria, further submits that present bail petitioner had prior knowledge and intimation with regard to sale and purchase of the contraband by the co-accused Nitin from person namely Nikku Ram and as such, he has been rightly booked under Section 29 of the Ac. Lastly Mr. Guleria submits that in the event of petitioner’s being enlarged on bail, he may not only flee from justice, but may indulge in such like activities again and as such, this court may dismiss the bail petition filed by the petitioner herein.

5. Having heard learned counsel for the parties and perused material available on this record, this Court finds that though present bail petitioner was travelling alongwith the co-accused Nitin Kumar in Haryana Rodways bus, but as per own case of the prosecution, commercial quantity of contraband came to be recovered from the bag of co-accused Nitin Kumar. It is not in dispute that no contraband ever came to be recovered from the person of the present bail petitioner as well as luggage of him. Bail petitioner has been named in the FIR for the reason that he was sitting at Sr. No. 34 with the co-accused Nitin Kumar from whose conscious possession, commercial quantity of contraband came to be recovered and both the accused were related to each other. Though, Mr. Guleria, learned Additional Advocate General argued that present bail petitioner had intimation/knowledge with regard to sale /purchase and possession of the contraband by the co-accused Nitin Kumar, but such fact needs to be proved in accordanc