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IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
Vivek Singh Thakur, J.
Deepak Rai - Petitioner
Vs.
The State of Himachal Pradesh - Respondent
Cr.M.P(M) Nos.1162 & 1707 of 2022
Decided On : 28-12-2022
Code of Criminal Procedure, 1973 - Section 439, 91 - Narcotic Drugs and Psychotropic Substances Act, 1985 - Sections 218, 21(c), 37, 8, 20, 27(a), 28 and 29 - Bail - Contraband - Petitioners have approached this Court to enlarge them on bail – Petitioners are behind bars since last about more than 2 years 5 months and trial is going on slow pace. [Para 18]
Finding of the Court: Learned counsel for petitioners has submitted that quantity of alleged recovered contraband in present case is about 3 kilograms - Whereas, commercial quantity of opium starts from 2.5 kilograms and, therefore, quantity claimed to have been recovered is leaning towards minimum commercial quantity of opium of 2.5 kilograms - Whereas, petitioners are behind bars since last about more than 2 years 5 months and trial is going on slow pace - Learned counsel for petitioners has also placed reliance upon order passed by Co-ordinate Bench of this Court Madan Lal Vs. State of H.P., wherein accused arrested for having found in possession of 1.695 Kilograms of charas, was enlarged on bail for non completion of trial as accused had suffered detention of 2 years 10 months - Taking into consideration entire facts and circumstances, but without commenting on merits thereon and taking into account factors and parameters required to be considered at time of adjudication of bail application as propounded by Courts, including Supreme Court, Court is of considered opinion that at this stage petitioners may be enlarged on bail.
Result: Petitions allowed.
JUDGMENT :
Vivek Singh Thakur, J.
Petitioners, invoking provisions of Section 439 Code of Criminal Procedure (in short ‘Cr.P.C.’) have approached this Court to enlarge them on bail in case FIR No. 230 of 2020, dated 23.07.2020, registered in Police Station Nalagarh, District Solan, H.P., under Sections 218 and 29 of Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as ‘NDPS Act’).
2. Status report stands filed. record was also made available.
3. Petitioners have also referred certain documents related to application submitted by Deepak Rai, filed on 04.08.2020 under Section 91 of Cr.P.C. for summoning/producing CCTV footage of cameras of certain areas of Nalagarh and mobile phone locations of numbers of police team, who, as per prosecution case, apprehended the petitioners alongwith contraband. Reference has also been made to the complaints/applications made by wife of Gurnam Singh alias Gogi (petitioner in Cr.M.P.(M) No.1707 of 2022) to Chairperson Himachal Pradesh Human Rights Commission at Shimla and Director General of Police, Himachal Pradesh in November 2020.
2. Record reveals that application filed under Section 91 of Cr.P.C., by Deepak Rai was allowed by Special Judge, Solan, vide order dated 05.08.2020, passed in Crl. Misc. Application No.120-NL/4 of 2020, titled as Deepak Rai vs. State of H.P. & another, directing the Superintendent of Police, Police District Baddi, H.P., to preserve CCTV footage of CCTV cameras installed at places mentioned in the application through concerned service providers and to furnish Call Detail Records (CDRs) location of mobile numbers details given in the application through concerned service provider.
3. Respondent-State had assailed aforesaid order dated 05.08.2020 by filing Cr. Revision No.362 of 2020, titled as State of H.P. vs. Deepak Raj, which stands dismissed on 27.12.2022.
4. As per prosecution case, on the basis of Rukka sent by ASI Gopal Singh, Incharge Special Investigating Unit (SIU) Baddi, FIR No.230 of 2020 was registered on 23.07.2020 in Police Station Nalagarh, stating therein that on 22.07.2020 ASI Gopal Singh alongwith police officials was present at Nangal Bus Stand in Nalagarh. At 8.20 p.m. he received a reliable information through a faithful informer that Gurnam Singh alias Gogi is involved in business of selling and purchasing opium alongwith Deepak Rai and at that time, both of them were present, in their car bearing registration No.HP-12M-7070 at lower Nangal near Siddhivinayak Company on the side of road, with intention to sell opium and on the spot huge quantity of opium could be recovered from them. Information was concrete and reliable and there was possibility of disappearance of evidence or accused persons. Therefore, information was reduced into writing under Section 42(2) and was sent to the office of Sub Divisional Police Officer (SDPO) Nalagarh and police party headed by ASI Gopal Singh rushed to the spot. One Ram Pal, who met police party on the way was also associated with the raiding party after telling him about information received from the informer. On reaching at the spot, aforesaid car HP-12M-7070 was found parked on the right side of the road with two persons sitting on the front seats. Both occupants of car were overpowered by ASI Gopal Singh with the help of accompanying police officials and their names and addresses were inquired. Person sitting on the driver seat disclosed his name Deepak Rai. Whereas, another person disclosed his name Gurnam Singh alias Gogi and they disclosed their parentage, age and addresses. Both of them were informed about information received by the police and their written consent for search was obtained and SDPO was requested telephonically to come on the spot, who came on the spot at about 9.40 p.m. Thereafter, following prescribed procedure car was searched and personal search of both of them was also conducted. During search a plastic bag containing 3.048 kilograms opium was found kept near
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