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2022 Supreme(HP) 807
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
Vivek Singh Thakur, J.
Dabe Ram – Petitioner
Versus
State of Himachal Pradesh – Respondent
Criminal misc. Petition (main) No.2272 OF 2022
Decided On : 26-12-2022
Advocate Appeared:
For the Petitioner:Mr. Sudhir Thakur, Senior Advocate, with Mr. Karun Negi, Advocate.
For the Respondent:Mr. Hemant Vaid, Additional Advocate General
Point of Law: Cardinal principle of criminal jurisprudence is that ‘bail is rule and jail is exception.’
Headnote:
Code of Criminal Procedure, 1973 - Section 438 - Narcotic Drugs and Psychotropic Substances Act, 1985 - Sections 20, 29, 42(2), 52A, 35 and 54 - Constitution of India, 1950 - Article 21 - Grant of Bail - Charas Recovered - Petitioner has approached this Court seeking bail – Petitioner has been found involved in commission of offence under NDPS Act, which is harming not only individuals but also well being of society and nation at large - Para 21.
Finding of the Court:
Amount of Charas recovered is of commercial quantity of 1.260 kgs and for considering provisions of Section 37 of NDPS Act and period of detention of petitioner, vis-à-vis pace of trial, it cannot be said that right to personal liberty of petitioner is being infringed without any reasonable cause - It has been further submitted that petitioner has been found involved in commission of offence under NDPS Act, which is harming not only individuals but also well being of society and nation at large and further that there is a presumption against accused provided under Sections 35 and 54 of NDPS Act - Therefore, learned Additional Advocate General has opposed grant of bail - Without commenting upon merits of case, but taking into consideration material placed before Court and rival contention of parties and also taking into consideration factors and parameters required to be considered for adjudication of bail application, Court find that petitioner has failed to make out a case for grant of anticipatory bail.
Result: Petition dismissed.
ORDER :
Petitioner has approached this Court seeking bail under Section 438 Code of Criminal Procedure (in short ‘Cr.P.C.’), in FIR No.31 of 2022, dated 13.02.2022, registered in Police Station Sadar Solan, District Solan, H.P., under Sections 20 and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as ‘NDPS Act’).
2. Status report stands filed. Record, alongwith Call Detail Record, also made available.
3. Prosecution case is that on 13.02.2022, at about 7.00 p.m. ASI Sanjeev Kumar, Incharge of Special Investigation Unit (SIU), Solan, near Dohri Diwar bifurcation of Subathu road, received a reliable information, from trustworthy informer, that a Magma Grey coloured Swift Car bearing registration No.HP-64B-3404 was coming from Subathu to Solan with charas having two occupants, namely, Govind Thakur and Radha Devi, who are doing business of sale and purchase of charas in the said vehicle.
4. As, during time spent for obtaining warrant for search, there was possibility of disappearance of the contraband, ASI prepared information under Section 42(2) of NDPS Act on the spot and sent it through Supervisory Officer of SIU, Solan through Constable Hemant Kumar at 7.15 p.m. and thereafter, he alongwith police officials went in search and Nakkaa Bandi towards Subathu road etc. and laid a Nakka at Ghatti, near Shiv Temple at 7.25 p.m. and telephonically informed the Ward Member, Pawan Kumar of Gram Panchayat Dangri, about the circumstances.
5. At about 7.45 p.m. above referred vehicle came with two occupants i.e. a boy and a girl, from Subathu side and car was stopped. At that time, Ward Member Pawan Kuamr alongwith independent witness Geeta Sharma also came on the spot. By complying procedure of search and seizure, car was searched in presence of independent witnesses, wherefrom, a carry bag, hidden below the driver seat, containing round black coloured substance, was recovered. On the basis of experience, on smelling, and as also disclosed by the occupants of the car, it was identified as cannabis, which was 1.26 kilograms. Same was taken into possession and seized as per prescribed procedure and, thereafter, after registration of FIR by sending Rukka, occupants of car were arrested.
6. By complying provisions of Section 52A of NDPS Act, 70 grams charas was taken out as a sample from the recovered contraband. State Forensic Science Laboratory (SFSL) on the basis of analysis confirmed recovered contraband as charas.
7. During interrogation, Govind Thakur disclosed that he, on 12.02.2022 went alongwith co-accused Radha Devi towards Kullu, and from an interior Village, they procured charas from petitioner-Dabe Ram.
8. Call Detail Records (CDRs) of Govind Thakur was obtained and on perusal whereof, it has been found that since the night of 12.02.2022 till 13.02.2022, Govind Thakur was in regular contact with petitioner-Dabe Ram. Thereafter, CDRs and Customer Acquisition Form (CAF) of petitioner-Dabe Ram were obtained. Mobile number was found in the name of petitioner-Dabe Ram linked with his Aadhar Card.
9. On 05.03.2022, police party went in search of petitioner-Dabe Ram, but neither he nor any other member of his family was found in his house and house was found locked. They all were hiding them due to fear of police. Search memo was prepared in presence of Ward Member Pawan Kumar.
10. On the basis of CAF and photograph on Aadhar Card Govind Thakur identified petitioner Dabe Ram as the same person from whom he had purchased charas in his house at Barogi. House of petitioner-Dabe Ram is situated at a distance of 10 kilometers on a link road from Bhunter to Manikaran road at an interior place.
11. After obtaining interim bail petitioner-Dabe Ram had joined investigation on 01.07.2022 and as per prosecution, he has not disclosed anything, rather denying selling of charas by him to Govind Thakur with explanation that he is a Carpenter and his family earn livelihood from agriculture and Orchard and they are residing
