Himachal Pradesh High Court
Vicky Son Of Shri Garib Dass vs State Of Himachal Pradesh on 20 April, 2022
Author: Vivek Singh Thakur
Bench: Vivek Singh Thakur
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IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
ON THE 20th DAY OF APRIL, 2022
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BEFORE
HON'BLE MR. JUSTICE VIVEK SINGH THAKUR
CRIMINAL MISC.PETITION (MAIN) NO.2260 OF 2021
Between:
VICKY SON OF SHRI GARIB DASS,
RESIDENT OF GHARD, P.O.
TUNUHATI, TEHSIL BHATIAT,
DISTRICT, CHAMBA, H.P. AGED 42
YEARS
PETITIONER
(BY SH. VIVEK SHARMA, ADVOCATE)
AND
STATE OF HIMACHAL PRADESH
RESPONDENT
(BY SH. HEMANT VAID, ADDITIONAL ADVOCATE
GENERAL
Reserved on : 4.4.2022
Decided on : 20.4.2022
Whether approved for reporting?
This petition coming on for orders this day, the Court passed the
following:
ORDER
Petitioner has approached this Court, invoking provisions of Section 439 Cr.P.C., seeking bail in case FIR No. 77 of 2021, dated 26.4.2021, registered in Police Station Aut, District ::: Downloaded on - 20/04/2022 20:06:44 :::CIS 2 Mandi, H.P., under Sections 20, 25, 29 and 27A of Narcotic Drugs and Psychotropic Substances Act (in short 'NDPS Act').
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2. Status report stands filed and record was also made available.
3. Prosecution case, in brief, is that on 26.4.2021, at 8.45 PM, police had set up a Naka on a link road from Panarsa to Dalashani. At about 9 PM, a vehicle No. HP01M1868 coming from Dalashani to Panarsa side, was stopped on signal of police.
The vehicle was occupied by driver and one lady sitting on co driver seat. On inquiry about their travel on that road, they could not give satisfactory answer. They disclosed their identity as Vicky(petitioner) and Kirna Devi (coaccused). When they were being questioned about their whereabouts by police, both of them had tried to press a carry bag kept between the seats which created suspicion whereupon two independent witnesses, residents of Panarsa, were associated and made members of search and seizure party. After complying with procedure, the bag was checked wherein 17 small packets, containing black coloured substance were found. On the basis of experience, on smelling, it was identified as charas. On weighing it on electronic weighing ::: Downloaded on - 20/04/2022 20:06:44 :::CIS 3 machine, it was found 1.831 Kg. Recovered contraband was taken in possession and seized after complying with procedure.
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4. By sending ruka, FIR was registered in Police Station Aut and investigation was handed over to another Investigating Officer. During investigation, petitioner Vicky and coaccused Kirna were arrested at about 3/3.15 am on 27.4.2021.
5. It has further been stated in status report that during interrogation, petitioner Vicky and coaccused Kirna had disclosed that they had purchased the charas from a person namely Rakesh, who was familiar to Kirna by face but without any knowledge of his address. Later on, Kirna Devi had disclosed that Rakesh was resident of Bhuntar and on the basis of her statement, Rakesh Kumar was associated in investigation and was interrogated, but, during interrogation, contradiction was found in statements of accused persons as well as Rakesh Kumar and thereafter, during police remand, on intensive interrogation, Kirna Devi disclosed that they had purchased the charas from Rakesh Kumar resident of village and Post Office Sayanj , Tehsil Gohar, District Mandi for a consideration of Rs. 2 lacs. Statement of Kirna Devi was recorded under Section 27 of Indian Evidence Act and she identified the places where she had claimed handing over of Rs.2 lacs to Rakesh ::: Downloaded on - 20/04/2022 20:06:44 :::CIS 4 Kumar for purchase of charas. Rakesh Kumar was arrested on 30.4.2021 and thereafter Kirna Devi, Vicky and Rakesh Kumar .
were again interrogated during further police remand and on the basis of Call Details Record, Kamlesh Kumar and Shiv Ram were also associated in the investigation and all of them i.e. Kirna Devi, Vicky, Rakesh Kumar, Kamlesh Kumar and Shiv Ram were interrogated and thereafter, Kamlesh Kumar was also arrested on 1.5.2021. r
6. During further investigation, Kirna Devi and Vicky disclosed that they had purchased charas from Lala Ram resident of Malana District Kullu for consideration of Rs. 2 lacs and for that Rs.50,000/ were paid by Kamlesh Kumar. They further disclosed that they had not purchased charas from Rakesh Kumar but his name was implicated by them due to personal enmity with him and to save Lala Ram.
7. On study of Call Details Record, it was found that on the day of incident, there was no talk between Rakesh and accused persons namely Kirna Devi and Vicky, and tower location of Rakesh Kumar was also not matched with places disclosed by Kirna Devi about presence of Rakesh Kumar, and thus, for the material on record, it was concluded by Investigating Officer that ::: Downloaded on - 20/04/2022 20:06:44 :::CIS 5 Rakesh Kumar was not involved in commission of offence and, therefore, he was discharged on 2.5.2021 at 8 AM under Section .
169 of Cr.P.C.
8. Coaccused Lala Ram, who was absconding, was detained at Manikaran on 4.6.2021 for inquiry and thereafter Tikka Ram, involved in selling and purchase of charas along with Lala Ram, was also called for interrogation and on finding their complicity in the commission of offence in present case, they were arrested.
9. It is further case of prosecution that during interrogation, Tikka Ram and Lala Ram had disclosed that they had sold charas to Kirna Devi, Vicky and Kamlesh Kumar on Chakki Mod for consideration of Rs.2 lacs. During police remand, Tikka Ram had disclosed that out of Rs.2 lacs, some amount had been sent by him to Nepal and some amount was spent by him for personal use and remaining amount had been kept by him in his room in the trunk and further that he had also paid Rs.50,000/ as commission to Lala Ram. In sequel to statement of Tikka Ram, recorded under Section 27 of Indian Evidence Act, Rs.35,000/ were recovered from his room. No amount was recovered from the house ::: Downloaded on - 20/04/2022 20:06:44 :::CIS 6 of Lala Ram, but, he had disclosed that he had spent the entire amount for personal work.
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10. The recovered contraband, on chemical analysis, has been confirmed as charas by State FSL Junga. Petitioner Vicky alongwith coaccused Kirna were arrested on 27.4.2021 and co accused Kamlesh was arrested on 1.5.2021, whereas, coaccused Lala Ram and Tikka Ram were arrested on 4.6.2021.
11. Learned Additional Advocate General has also placed on record Call Details of Kirna Devi, pointing out that for hiring the taxi there cannot be nine calls in a day and further that there are calls made by Kirna Devi to the petitioner at 12.45 p.m for 28 seconds and 12.46 p.m. for 199 seconds and at 18.41, 18.43 and 18.55 for 24, 21, 25 seconds, respectively and immediately before and after making calls to the present petitioner, there are calls to Lala Ram and Kamlesh Kumar and therefore, he has contended that petitioner was actively involved in commission of offence.
12. Mr. Vivek Sharma, learned counsel appearing for the petitioner submits that petitioner is driver of Taxi No. HP01M1868 Alto 800 Car which has been purchased by the petitioner in the name of his wife from one Sanjay Kumar and he has no role in the alleged transportation of contraband as his taxi was hired by Kirna ::: Downloaded on - 20/04/2022 20:06:44 :::CIS 7 Devi and he had taken the vehicle wherever Kirna Devi had asked him to take her and he was not having any knowledge about .
purchase or supply of charas either by Kirna Devi or by other co accused and further that he is innocent taxi ownercumdriver who has been implicated falsely. He has further submitted that talks of the petitioner with Kirna Devi are in connection with hiring his taxi by Kirna Devi for purpose of her business and therefore, call details cannot be made basis to rope the petitioner in commission of offence.
13. It has been pointed by learned Additional Advocate General that in Cr.MP(M) No. 1179 of 2021 filed by Kirna Devi, it was contended that Kirna Devi was not involved in commission of offence and she was not having any knowledge about the contraband being transported in the vehicle and now petitioner is claiming that he was not knowing about the contraband being transported in the vehicle and he was acting only as taxi ownercumdriver without having any knowledge about transportation of charas. He has further submitted that petitioner has been found actively involved along with others in selling, purchasing and transporting the charas and his acquittance with Kirna Devi and involvement in commission of offence has been established on the basis of Call Detail Report and recovery of charas from vehicle occupied by him and Kirna Devi.
::: Downloaded on - 20/04/2022 20:06:44 :::CIS 814. Learned counsel for the petitioner submits that as per information received by him, Lala Ram coaccused has been enlarged .
on bail by learned Special Judge, Kullu. In response, learned Additional Advocate General has submitted that petitioner is one of the main accused persons from whose conscious possession charas was recovered and, therefore, his case cannot be equated with Lala Ram. Further that copy of order passed by learned Special Judge in case of Lala Ram is not on record.
15. It has further been stated that offence in present case is a heinous crime which is ruining the individuals, families and society at large and for quantum of recovered contraband, petitioner is not entitled for bail particularly keeping in view the rigors of Section 37 of NDPS Act.
16. Taking into consideration the quantum of charas recovered, period of detention and other facts and circumstances of case, but without commenting upon merits thereon, however, taking note of factors and parameters as propounded by the Supreme Court and this Court, required to be considered at the time of adjudication of bail application, I am of the opinion that, at this stage, enlargement of petitioner on bail would be against ::: Downloaded on - 20/04/2022 20:06:44 :::CIS 9 societal interest and, thus, he is not entitled for bail at this stage.
Therefore, petition stands dismissed.
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(Vivek Singh Thakur) Judge.
April 20, 2022
(veena)
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