Himachal Pradesh High Court
Between vs Pallulabid Ahamad Arimutta & Another on 8 August, 2022
Author: Vivek Singh Thakur
Bench: Vivek Singh Thakur
1
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
ON THE 8th DAY OF AUGUST, 2022
BEFORE
.
HON'BLE MR. JUSTICE VIVEK SINGH THAKUR
CRIMINAL MISC. PETITION (MAIN) NO. 369 Of 2022
Between:-
BALA RAM, AGED 34 YEARS,
SON OF SH.DUGLU RAM,
RESIDENT OF VILLAGE GRAMENG,
DUNKHRI GAHAR, SHALANG,
DISTRICT KULLU,
.....PETITIONER
HIMACHAL PRADESH.
(BY SH.BHUPINDER SINGH AHUJA,
ADVOCATE)
AND
STATE OF HIMACHAL PRADESH
THROUGH SECRETARY HOME TO THE .....RESPONDENT
GOVERNMENT OF HIMACHAL
PRADESH, SHIMLA, HIMACHAL
PRADESH.
(BY SH. HEMANT VAID, ADDITIONAL
ADVOCATE GENERAL)
Whether approved for reporting?
This petition coming on for pronouncement this day,
the Court passed the following:
ORDER
Petitioner has approached this Court seeking bail under Section 438 Code of Criminal Procedure (in short 'Cr.P.C.'), in FIR No.249 of 2021, dated 02.09.2021, registered in Police Station Kullu, District Kullu, H.P., under Sections 20, 25 and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as 'NDPS Act').
::: Downloaded on - 08/08/2022 20:02:18 :::CIS 22. Status report stands filed. Record was also made available.
3. In the status report, circumstances in which co-
.
accused Ramesh Chand and Raman were arrested on 02.09.2021, for having been found travelling in a Car possessing 3.244 kilograms charas, have been narrated.
4. It has been further stated in Status Report that co-
accused Chander Bhanu, driver of the Car, fled from the spot and since then he is not traceable.
5. It is further case of the prosecution that during interrogation, co-accused Ramesh Chand and Raman disclosed that they, alongwith one Ved Prakash alias Pyare Ram alias Pyaru, decided to purchase charas and, thus, Chander Bhanu was asked to come with vehicle and all of them went to Chalah and met Bala Ram (petitioner) and discussed with him for procuring charas. Whereupon, petitioner-Bala Ram went to Village side and came alongwith his companion and all three i.e. Ramesh Chand, Raman and Chander Bhanu received charas with assurance that payment would be made to Pyare Ram and Bala Ram, after selling it, and they (Ramesh Chand, Raman and Chander Bhanu) started towards Bhalyani, Kullu for selling charas, but on the way they were apprehended by the police.
6. Recovered contraband has been confirmed as charas by the State Forensic Science Laboratory (SFSL).
7. Since the day of arrest all co-accused Ramesh Chand and Raman, other three accused, i.e. Chander Bhanu, Ved ::: Downloaded on - 08/08/2022 20:02:18 :::CIS 3 Prakash alias Pyare Ram alias Pyaru and Bala Ram (petitioner) fled and they were not traceable. Search for them was made in Villages and in their houses, and their family members were also .
asked to inform them to join investigation, but none of them came to the police. On 02.10.2021, house of petitioner-Bala Ram was searched, but he was not found there. On 16.11.2021, his arrest warrants were obtained from the learned Chief Judicial Magistrate, Kullu, H.P., and efforts were made to trace him in his house and other possible places, but he was not traceable.
8. Call Detail Records (CDRs) were obtained, which indicate that on 01.09.2021 and 02.09.2021 there were talks between co-accused and petitioner Bala Ram, but immediately after arrest of co-accused Ramesh Chand and Raman, petitioner-
Bala Ram switched off his phone. Till February 2022, petitioner-
Bala Ram was not traceable and, ultimately, on 18.02.2022, he obtained anticipatory bail and joined investigation.
9. Learned counsel for the petitioner has submitted that petitioner is in ancestral profession of rearing sheep and goats and to purchase and sell sheep, goats and livestock, his talks with the co-accused were with respect to sale/purchase of sheep and goats. Further that, he was not in the Village, as he had gone alongwith sheep and goats to the pastures in interior arreas and, thus, was not aware about the fact that police was searching for him and he was not having any contact for want of connectivity with the family members.
::: Downloaded on - 08/08/2022 20:02:18 :::CIS 410. Certificate issued by the Gram Panchayat, stating that family of the petitioner is doing business of rearing/sale and purchase of sheep and goats since the time ancestors, has been .
placed on record.
11. Learned Additional Advocate General has submitted that the Shepherds alongwith sheep and goats used to go to high ranges in Summers and during Winters they come to their native places or lower areas of the State as during those days all pastures in high ranges are covered with heavy snow and, therefore, appropriate time for Shepherds to leave the houses for higher ranges is March and May of the year and by the months of September and October they come back to their native places or to lower areas. Further that, in present case, petitioner-Bala Ram was available in his native place in the month of September and, thereafter, till February of the next year he was not available and traceable, and it is impossible to a Shepherd to go alongiwth livestock or otherwise to the high ranges of Himalaya during peak of Winters and in case he had gone to lower areas of State then all such areas are connected with Mobile network and there was no question of having no communication with family.
Further that, it is also noticeable that petitioner approached the Court in February, i.e. during a period when winters were not over and in case he was away with livestock then there is no reason to return mid-winters and petitioner has not disclosed about pastures where he was. Lastly that mobile of petitioner was switched off instead of 'not reachable'. Learned Additional ::: Downloaded on - 08/08/2022 20:02:18 :::CIS 5 Advocate General, thus, has submitted that plea of petitioner-
Bala Ram that he was away from house alongwith sheep and goats, is not plausible.
.
12. Learned counsel for the petitioner has claimed that CDRs of previous months would reflect that petitioner-Bala Ram was in touch with accused since long with respect to sale/purchase of sheep and goats, but petitioner has been made accused by relying upon the calls between co-accused Ramesh Chand and petitioner-Bala Ram made on 01.09.2021 and 02.09.2021 in isolation.
r Regarding this, State was directed to produce CDRs of previous months, perusal whereof, indicates that there is one call each between co-accused and petitioner-
Bala Ram during the months of June and July i.e. on 22.06.2021 and 16.07.2021 and no other call has been pointed out between petitioner-Bala Ram and co-accused. Whereas, on 02.09.2021, on the day of procuring charas by co-accused, at relevant point of time, there were about five calls between them, which indicate that petitioner-Bala Ram may throw light on the purpose of calls during his interrogation during custody and, therefore, learned Additional Advocate General has submitted that custody of the petitioner is warranted and he is not entitled for bail under Section 438 Cr.P.C.
13. It has further been submitted by learned Additional Advocate General that petitioner was absconding and was not traceable even after issuance of non-bailable warrants by the Court and one side petitioner is taking plea that he was away ::: Downloaded on - 08/08/2022 20:02:18 :::CIS 6 from home with sheep and goats, but on the other hand, his family members did not state so to the police, rather they expressed their ignorance about whereabouts of petitioner-Bala .
Ram and, therefore, also petitioner is not entitled for discretionary relief under Section 438 Cr.P.C.
14. Learned counsel for the petitioner has referred order dated 10.01.2022 passed by Supreme Court in Special Leave to Appeal (Crl.) No.242 of 2022, titled as State by (NCB) Bengaluru vs. Pallulabid Ahamad Arimutta & another, wherein taking note of earlier judgment passed by the Supreme Court in Tofan Singh vs. State of Tamil Nadu, (2021) 4 SCC 1, Supreme Court has upheld grant of bail to the accused persons, who were arrayed as accused and arrested on the basis of disclosure statement of co-
accused only, but without having any admissible evidence against them except the disclosure statement of co-accused and Call Detail Records (CDRs).
15. By referring the aforesaid judgment in Pallulabid Ahamad Arimutta's case, it has been submitted on behalf of the petitioner that in present case also petitioner-Bala Ram has falsely been implicated, only on the basis of statement of co-
accused and CDRs and, therefore, in view of pronouncement of the Supreme Court, he deserves to be enlarged on bail.
16. Learned Additional Advocate General has submitted that in above referred cases, in Pallulabid Ahamad Arimutta's case, bail applications were filed under Section 439 Cr.P.C., but not under Section 438 Cr.P.C. and anticipatory bail during ::: Downloaded on - 08/08/2022 20:02:18 :::CIS 7 pending investigation has to be considered on different footings.
Further that, petitioner has not been implicated only on the basis of disclosure statement of co-accused and CDRs, but for hiding .
himself immediately after arrest of co-accused Ramesh Chand and Raman, keeping his mobile phone switched off and, therefore, there are material circumstances other than CDRs and disclosure statement of co-accused, indicating involvement of the petitioner and warranting his custody for further investigation.
17. Learned r Additional Advocate General has also submitted that judgments referred by the petitioner are not applicable, in present case, in the given facts and circumstances and these judgments may have bearing in case of bail application filed under Section 439 Cr.P.C., but not in a bail application under Section 438 Cr.P.C., where co-accused are absconding and petitioner was also absconding for more than about six months.
18. Considering entire material placed before me, without commenting upon merits of the case, but taking into consideration material placed before me and rival contentions of parties and also taking into consideration factors and parameters required to be considered for adjudication of bail application, I find that petitioner has failed to make out a case for grant of anticipatory bail. Therefore, petition is dismissed being devoid of any merit.
::: Downloaded on - 08/08/2022 20:02:18 :::CIS 819. Needless to say that observation made hereinabove, shall not affect the merits of the trial and shall not be taken into consideration for any other purpose.
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(Vivek Singh Thakur), Judge.
August 8, 2022
(Purohit)
r to
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