Himachal Pradesh High Court
Nikhil Sharma vs State Of Himachal Pradesh on 24 January, 2023
Author: Virender Singh
Bench: Virender Singh
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CrMP(M) No. 169 of 2023 .
Decided on : 24.01.2023
Nikhil Sharma ...Applicant
Versus
State of Himachal Pradesh ...Respondent
Coram
The Hon'ble Mr. Justice Virender Singh, Vacation Judge.
Whether approved for reporting?1 For the applicant : Mr. Peeyush Rathore, Advocate.
For the respondent : Mr. Y.P.S. Dhaulta and Mr. H.S. Rawat, Additional Advocates General.
SI Jaswant Singh, I/C PP Sanjauli, Police Station Dhalli, District Shimla, present in person, with police record.
Virender Singh, Vacation Judge. (Oral) Applicant-Nikhil Sharma has filed the present application, under Section 439 of the Code of Criminal Procedure (hereinafter referred to as 'CrPC'), for releasing him on bail, during the pendency of trial, in case FIR No. 135 of 2022, dated 26th September, 2022, registered with Police 1 Whether Reporters of local papers may be allowed to see the judgment? Yes.
::: Downloaded on - 24/01/2023 20:32:18 :::CIS 2Station Dhalli, District Shimla, H.P., under Sections 21 and 29 of the Narcotic Drugs and Psychotropic Substances Act .
(hereinafter referred to as 'NDPS Act').
2. The applicant has sought the bail, on the ground, that he is an innocent person and has nothing to do with the alleged offence, for which, he has been arrested by the police.
3. It is his further case that investigation, in the present case, is complete and nothing is to be recovered from him or at his instance and no fruitful purpose will be served by keeping him in judicial custody.
4. Apart from this, the learned counsel appearing for the applicant, has given certain undertakings, on behalf of the applicant, for which, the applicant is ready to abide by, in case, released on bail, during the pendency of the trial.
5. When put on notice, police filed the status report, disclosing therein that on 26th September, 2022, at about 03.30 p.m., when SI Jaswant Singh, alongwith other police official, was present near Police Post Sanjauli, for patrolling and traffic checking duty, he noticed that smoke was emitting from inside one Maruti Ertiga, bearing temporary registration No. TO522CH7271A, upon which, the vehicle was signalled to ::: Downloaded on - 24/01/2023 20:32:18 :::CIS 3 stop. When, the vehicle was checked, he noticed that a young man and woman were siting on the rear seat. The young man .
was smoking, who, got perplexed, on seeing the police and threw the cigarette. Thereafter, he took a transparent plastic envelope from behind his right elbow and tried to throw the same, but, he was overpowered inside the vehicle. This has developed a suspicion, in the mind of the Investigating Officer that there might be some objectionable item inside the envelope. Thereafter, one passer-by, namely Shri Israr, and driver of the said vehicle, namely Shri Nitish Kumar, were asked to associate in the investigation. After associating both the said persons, when, the young man and woman were asked about the envelope, they could not reply satisfactorily, upon which, the envelope was opened and was found containing stone shaped light brown coloured substance. On the basis of experience, the same was found to be heroin, which, on weighment, was found to be 56.87 grams. The contraband, so recovered, was taken into possession. Other codal formalities were completed and the contraband was sent to SFL Junga, for chemical analysis.
::: Downloaded on - 24/01/2023 20:32:18 :::CIS 46. It has been apprehended that in case, the applicant is released on bail, he may again indulge in such .
type of activities and may coerce the witnesses. It has also been apprehended that being the resident of the adjoining State, he may not be available during the trial.
7. On all these submissions, a prayer has been made to dismiss the bail application.
8. Heard.
9. Admittedly, the contraband allegedly recovered from the possession of the applicant, in this case, does not fall within the definition of 'commercial quantity', as such, rigors of Section 37 of the NDPS Act are not applicable, in this case.
10. Once, it has been held that rigors of Section 37 of the NDPS Act are not applicable, in this case, then the presumption of innocence is still available to the applicant, as the bail application cannot be rejected as a matter of punishment. Pre-trial punishment is prohibited under the law.
The trial of the accused will take sufficient long time and no useful purpose would be served by keeping him in judicial custody.
11. At the time of deciding the bail application, the ::: Downloaded on - 24/01/2023 20:32:18 :::CIS 5 Court should refrain from discussing the case of the prosecution in detail, as, the same would cause prejudice to .
the case of the prosecution or the defence.
12. So far as the apprehensions, as expressed, in the status report, are concerned, those are not sufficient to decline the relief to the applicant, for which, he is, otherwise, entitled to. For those apprehensions, reasonable conditions can be imposed. r
13. Considering all these facts, this Court is of the view that the bail application is liable to be allowed and is accordingly allowed.
14. The applicant is ordered to be released on bail in case FIR No. 135 of 2022, dated 26th September, 2022, registered with Police Station Dhalli, District Shimla, H.P., under Sections 21 and 29 of the NDPS Act, on his furnishing personal bail bond, in the sum of ₹ 50,000/- , with one surety of the like amount, to the satisfaction of learned CJM/JMFC/ Duty Magistrate, Shimla. This order, however, shall be subject to the following conditions:
a) He shall make himself available for the purpose of interrogation, if so required and regularly attend the trial Court on each and every date of hearing and if prevented by any reason to do so, seek ::: Downloaded on - 24/01/2023 20:32:18 :::CIS 6 exemption from appearance by filing appropriate application;
b) He shall not tamper with the prosecution evidence .
nor hamper the investigation of the case in any manner whatsoever;
c) He shall not make any inducement, threat or promises to any person acquainted with the facts of the case so as to dissuade them from disclosing such facts to the Court or the Police Officer; and
d) He shall not leave the territory of India without the prior permission of the Court.
15. Any of the observations, made hereinabove, shall not be taken as an expression of opinion, on the merits of the case, as these observations, are confined, only, to the disposal of the present bail application.
16. It is made clear that the respondent-State is at liberty to move an appropriate application, in case, any of the bail conditions, is found violated by the applicant.
17. Applicant may produce a downloaded copy of the order, passed by the Court, before the learned CJM/JMFC/ Duty Magistrate, Shimla, and the said Court shall not insist for the certified copy of order, rather, passing of order can be verified from the web-page of this Court.
( Virender Singh ) Vacation Judge January 24, 2023 ( rajni ) ::: Downloaded on - 24/01/2023 20:32:18 :::CIS