Himachal Pradesh High Court
Parvesh Saini vs State Of H.P on 6 October, 2023
Author: Satyen Vaidya
Bench: Satyen Vaidya
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr.MP(M) No. 2355 of 2023
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Reserved on: 4.10.2023
Date of decision: 06.10.2023.
Parvesh Saini ...Petitioner.
Versus
State of H.P. ...Respondent
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Coram:
The Hon'ble Mr. Justice Satyen Vaidya, Judge.
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Whether approved for reporting?1 No.
For the petitioner : Mr. Mohar Singh, Advocate.
For the respondent : Ms. Priyanka Chauhan, DAG.
Satyen Vaidya, Judge:
By way of instant petition, the petitioner has prayed for grant of bail in case FIR No. 50 of 2023 dated 20.3.2023, under Sections 21, 25 and 29 of the Narcotic Drugs and Psychotropic Substance Act, 1985 (for short, "the Act"), registered at Police Station, Dhalli, District Shimla, H.P.
2. The petitioner was arrested on 26.3.2023 and is in custody till date.
1Whether reporters of Local Papers may be allowed to see the judgment?
::: Downloaded on - 06/10/2023 20:37:02 :::CIS -2-3. The police has completed the investigation and presented the report under Section 173 of the Code of .
Criminal Procedure. The petitioner along with his co-
accused is facing trial before the learned Additional Sessions Judge-I, Shimla.
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4. Total five persons namely Surender Kumar, Rohit, Karan Sharma, Vijay and Parvesh Saini (petitioner) rt have been arrayed as accused. It is alleged that accused Vijay has been running the illicit trade of drugs and the other co-accused in the case were working for him at different destinations.
5. As per prosecution case on intervening night of 19th and 20th March, 2023, the police received secret information that two persons were to supply drugs in Dhalli Bazar and were proceeding towards the destination on motorcycle. A Naka was laid by involving independent witness at place Lambhi-Dhar at Dhalli Bye-Pass Road. At about 9.25 p.m., a motorcycle bearing No. HR-24 AE-1022 was spotted with two persons. The motorcycle was stopped. The rider was named Surender Kumar and the person on pillion was accused Rohit. 45.86 grams of ::: Downloaded on - 06/10/2023 20:37:02 :::CIS -3- charas/heroin was recovered from the toolkit of the motorcycle. After preliminary interrogation, the case was .
registered at Police Station, Dhalli. Both the persons i.e. Surender Kumar and Rohit were arrested. During further investigation accused Surender Kumar disclosed that the of contraband was handed over to him by accused Karan Sharma at place near Jabli in District Solan. Accused rt Karan Sharma was arrested, who disclosed that the contraband was handed over to him by the petitioner at Dhakoli in Punjab. Investigation team also arrived at the hypothesis that accused Vijay was the kingpin and other co-accused were working for him.
6. The petitioner and accused Vijay were allegedly arrested on 26.3.2023 from Pochanpur Delhi. During further investigation, police found evidence linking all the accused with each other through CDRs and bank transactions.
7. It has been contended on behalf of the petitioner that the entire prosecution story is concocted. Petitioner is not involved in any offence. He has no criminal history.
Petitioner has been made just a scapegoat. It is further ::: Downloaded on - 06/10/2023 20:37:02 :::CIS -4- contended that there is no legal evidence against the petitioner to show his involvement in the alleged offence.
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The petitioner is stated to be permanent resident of village Rangdi Kheda, P.O. and Tehsil Sirsa, Haryana. It is submitted that the petitioner is ready and willing to abide of by all the conditions, as may be imposed by this Court.
8. On the other hand, the prayer for bail has been rt opposed on the ground that the petitioner is involved in a serious offence and in case he is released on bail, there is every likelihood that he may indulge in similar activity which is prejudicial to the society at large.
9. I have heard learned counsel for the parties and have also gone through the record carefully.
10. The quantity involved in the case is intermediate and hence the rigors of Section 37 of the Act will not be applicable.
11. The involvement of the petitioner in the case is alleged under Section 29 of the Act. The contraband was not directly recovered from the petitioner. He has been arrayed as accused on the alleged disclosure made by another co-accused. His implication is further sought on ::: Downloaded on - 06/10/2023 20:37:02 :::CIS -5- the basis of certain CDRs and monetary transactions reflected from his bank account.
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12. As per dictum of judgment passed by Hon'ble Supreme Court in Tofan Singh vs. State of Tamilnadu, reported in (2021) 4 SCC 1, the disclosure made by a co-
of accused cannot be read against the petitioner.
13. As regards, the existence of call detail record of rt accused persons, reference can be made to the judgment passed by the Hon'ble Supreme Court in State by (NCB) Bengaluru vs. Pallulabid Ahmad Arimutta and another, (2022) 2 Scale 14, wherein such evidence has not been held to be a circumstance sufficient to hold prima facie case against co-accused.
14. The allegations against the petitioner are yet to be proved. Petitioner is aged about 21 years. The investigation team has not been able to trace any criminal history of the petitioner. Be that at it may, the investigation has already been completed and challan stands filed. It is not the case of the respondent State that the petitioner can potentially affect the course of the trial by influencing the prosecution evidence.
::: Downloaded on - 06/10/2023 20:37:02 :::CIS -6-15. The petitioner has already suffered the custody for more than six months. Pre-trial incarceration cannot .
be ordered as a matter of rule. No grounds for pre-trial incarceration of the petitioner have been made out.
16. Petitioner is permanent resident of village of Rangdi Kheda, P.O. and Tehsil Sirsa, Haryana and there is no likelihood of his absconding or fleeing from the course of justice.
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17. Keeping in view the peculiar facts and circumstances of the case, petition is allowed and the petitioner is ordered to be released on bail in case FIR No. 50 of 2023 dated 20.3.2023, registered under Sections 21, 25 and 29 of the Narcotic Drugs and Psychotropic Substance Act, 1985, on his furnishing personal bond in the sum of Rs. 1,00,000/- with two sureties in the like amount each to the satisfaction of the learned trial Court.
This order shall be subject to following conditions: -
i) That the petitioner shall appear before learned trial Court on each and every date and shall not delay the trial.::: Downloaded on - 06/10/2023 20:37:02 :::CIS -7-
ii) That the petitioner shall not directly or indirectly make any inducement, threat or .
promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any of police officer;
iii) That breach of any of the bail condition by rt the petitioner shall entail cancellation of the bail.
iv) That the petitioner shall not leave India without prior permission of the Court.
18. Any observation made herein above shall not be taken as an expression of opinion on the merits of the case and the trial Court shall decide the matter uninfluenced by any observation made herein above.
6th October, 2023 (Satyen Vaidya)
(kck) Judge
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