Himachal Pradesh High Court
Hitesh Sharma vs State Of H.P on 26 November, 2021
Author: Jyotsna Rewal Dua
Bench: Jyotsna Rewal Dua
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
ON THE 26th DAY OF NOVEMBER, 2021
BEFORE
.
HON'BLE MS. JUSTICE JYOTSNA REWAL DUA
CRIMINAL MISC. PETITION (MAIN) No.2069 of 2021
Between:-
HITESH SHARMA,
S/O SH. NAND LAL SHARMA,
AGED ABOUT 30 YEARS,
R/O VILLAGE CHUNGAR,
POST OFFICE BHUMTI, TEHSIL ARKI,
DISTRICT SOLAN, H.P.
THROUGH HIS UNCLE
SH. PREM LAL S/O SH. ROOP RAM
......PETITIONER
(BY SH. ANIRUDH SHARMA AND SH. PAVINDER,
ADVOCATES)
AND
STATE OF H.P.
......RESPONDENT
(BY SH. ASHWANI K. SHARMA, ADDITIONAL
ADVOCATE GENERAL WITH SH. VIKRANT
CHANDEL, DEPUTY ADVOCATE GENERAL AND
SH. SUNNY DHATWALIA, ASSISTANT ADVOCATE
GENERAL,
ASI PYARE LAL, POLICE STATION ARKI, DISTRICT
SOLAN, H.P., PRESENT IN PERSON ALONGWITH
RECORD)
This petition coming on for orders this day, the Court
passed the following:
ORDER
Petitioner is accused in FIR No.38/2021, registered on 21.06.2021, under Section 21 of the Narcotic ::: Downloaded on - 31/01/2022 23:20:21 :::CIS 2 Drugs and Psychotropic Substances Act, 1985 (in short 'NDPS Act') at Police Station Arki, District Solan. He is in custody w.e.f. 21.06.2021 and by means of the present .
petition filed under Section 439 of the Code of Criminal Procedure (Cr.P.C.), seeks enlargement on regular bail.
2. Heard learned counsel for the parties and gone through the status report.
3. The prosecution case as it comes out from the status report is that:-
3(i). On 21.06.2021, a police party was on patrolling duty. At around 12:15 pm near Sarog Nala, it noticed a person coming from Sanan side. It appeared to the police personnel that on seeing the police party, the person became perplexed. After throwing the packet, which was held by him, in a drain, he started running away. The police personnel nabbed him. Independent witnesses were associated by the police party. The article thrown by the person was retrieved. Search was carried out in accordance with law. The retrieved packet was found to contain 60.89 grams of heroin. This led to registration of the FIR and arrest of the petitioner.
3(ii). During investigation, the petitioner disclosed having purchased the contraband in question from Delhi on ::: Downloaded on - 31/01/2022 23:20:21 :::CIS 3 20.06.2021 from a person of Nigerian nationality. As per the status report, the bank account statements obtained by the Investigating Agency revealed that large amount of .
money was transacted in the bank accounts of the petitioner and his wife during the period 01.01.2021 to 20.06.2021 without having the proportionate sources of income to account for the transactions.
4. Learned counsel for the petitioner submitted that the allegations levelled against the petitioner are all false. He is not guilty of the offences alleged against him.
The contraband allegedly recovered from the petitioner falls in the 'Intermediate' category, therefore, the provisions of Section 37 of the NDPS Act are not attracted. Learned counsel further submitted that the bank account statements, referred to in the status report, have not been made part of the final report presented by the Police under Section 173(2) Cr.P.C. No bank official has been cited in the police report as a witness to prove this aspect of the case.
The final report does not mention even the fact that after verifying the account statements, any supplementary challan is to be presented. Learned counsel further submitted that in case of his enlargement on bail, the petitioner will not influence the prosecution witnesses or ::: Downloaded on - 31/01/2022 23:20:21 :::CIS 4 tamper the prosecution evidence and will abide by all the terms and conditions, which may be imposed upon him by this Court.
.
Opposing the bail petition, learned Additional Advocate General submitted that the petitioner has been accused of possessing intermediate quantity of the contraband heroin. In the facts and circumstances of the case, he does not deserve to be enlarged on bail at this stage.
5. It is not in dispute that the FIR registered against the petitioner is in respect of his alleged possession of 60.89 grams of heroin. The quantity falls in the 'Intermediate' category as notified under the NDPS Act.
Therefore, rigors of Section 37 of the NDPS Act will not be attracted. The status report does not indicate any previous criminal history of the petitioner. The financial transactions being relied upon in the status report for opposing the bail petition are admittedly not part of the final report presented by the Investigating Agency. Petitioner is in custody for the last five months. Investigation in the matter is complete and challan stands presented in the Court of competent jurisdiction. Petitioner is aged 30 years and is resident of Village Chungar, Post Office Bhumti, Tehsil Arki, District ::: Downloaded on - 31/01/2022 23:20:21 :::CIS 5 Solan, Himachal Pradesh, therefore, his presence can be ensured in the trial. Accordingly, the present petition is allowed. Petitioner is ordered to be released on bail in the .
aforesaid FIR on his furnishing personal bond in the sum of Rs.75,000/- (Rupees Seventy Five Thousand only) with one local surety in the like amount to the satisfaction of the learned Trial Court having jurisdiction over the Police Station concerned, subject to the following conditions:-
(i). The petitioner shall join and cooperate the investigation of the case as and when called for by the Investigating Officer in accordance with law.
(ii). The petitioner shall not tamper with the evidence or hamper the investigation in any manner whatsoever.
(iii). The petitioner will not leave India without prior permission of the Court.
(iv). The petitioner shall not make any inducement, threat or promise, directly or indirectly, to the Investigating Officer or any person acquainted with the facts of the case to dissuade him/her from disclosing such facts to the Court or any Police Officer.
(v). In case the petitioner is put to trial, then he shall attend the trial on every hearing, unless exempted in accordance with law.
(vi). Petitioner shall inform the Station House Officer of the concerned police station about his place of residence during bail and trial.
Any change in the same shall also be communicated within two weeks thereafter.
::: Downloaded on - 31/01/2022 23:20:21 :::CIS 6Petitioner shall furnish details of his Aadhar Card, Telephone Number, E-mail, PAN Card, Bank Account Number, if any.
(vii). It is made clear that in case the petitioner is arraigned as an accused in future in any FIR .
under the NDPS Act, then this bail is liable to be cancelled. It is open for the Investigating Agency to move appropriate application in that regard. This shall also be considered as a negative factor for consideration of his future bail application, if any.
In case of violation of any of the terms & conditions of the bail, respondent-State shall be at liberty to move appropriate application for cancellation of the bail. It is made clear that observations made above are only for the purpose of adjudication of instant bail petition and shall not be construed as an opinion on the merits of the matter.
Learned Trial Court shall decide the matter without being influenced by any of the observations made hereinabove.
With the aforesaid observations, the present petition stands disposed of, so also the pending miscellaneous application(s), if any.
Copy dasti.
Jyotsna Rewal Dua Judge November 26, 2021 Mukesh ::: Downloaded on - 31/01/2022 23:20:21 :::CIS