Himachal Pradesh High Court
Om Parkash vs State Of Himachal Pradesh on 28 February, 2020
Author: Anoop Chitkara
Bench: Anoop Chitkara
1 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.MP(M) No. 29 of 2020 .
Reserved on : February 17, 2020
Date of Decision : February 28 , 2020
Om Parkash ...Petitioner.
Versus
State of Himachal Pradesh ...Respondent.
Coram:
The Hon'ble Mr. Justice Anoop Chitkara, Judge.
Whether approved for reporting?1 No.
For the petitioner : Mr. Vinod Chauhan, Advocate, for the petitioner.
For the respondent : Ms. Ritta Goswami and Mr. Nand Lal Thakur,
Addl.AGs with Mr. Yudhbir Singh Thakur, Dy.AG for
the respondent/State.
Anoop Chitkara, Judge.
For possessing 6 kg and 639 grams of charas and 413 grams of opium, the petitioner, who is under arrest, on being arraigned as accused in FIR Number 83 of 2019, dated May 27, 2019, registered under Sections. 18, 20 and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (after now called "NDPS Act"), in the file of Police Station Jogindernagar, Distt. Mandi, HP, disclosing non-bailable offences, has come up before this Court under Section 439 CrPC, seeking regular bail.
2. Status report stands filed. I have seen the status report(s) as well as the Police file, to the extent it was necessary for deciding the present petition, and heard learned Counsel for the parties.
3. Prior to the present bail petition, the petitioner had filed a petition under Section 439 CrPC, before Special Judge (I), Mandi, District Mandi, HP. However, vide order dated 31.10.2019, the Court dismissed the petition.
1Whether reporters of Local Papers may be allowed to see the judgment?
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4. The gist of the First Information Report and the investigation is that the Incharge of Police Station Jogindernagar, District, Mandi, had erected a barricade at place Galu .
on National Highway No. 154, on May 26, 2019. At around 8.15 p.m. a white alto car came from Mandi to Jogindernagar side. The police officials signalled the car driver to stop the car on which it stopped. The police officials asked the driver to show the doc -
uments but he could not produce any document and rather became perplexed and started stammering. On inquiry, he told his name as Tule Singh. On this the police officials asked him why he was perplexed to which he could hardly give any reason. On this, suspicion arose in the mind of the police party of some illegal contraband or substance in the said car. On this, police officials associated independent witnesses by calling them from the vicinity. In the presence of independent witnesses, police conducted the search of the said alto car and from under the front left seat, they re -
covered a carry bag. On opening the same, they found a packet. From the boot of the car the police recovered another bag. In this bag also there was a polythene packet. After that the police arranged for scale from the nearby shop and opened the packets which contained charas. On weighment, the first packet contained 3kg & 35 grams charas and the second packet contained 3kg & 289 grams charas and also 413 grams opium. After that the police resealed the substance recovered in the same manner, complied with the procedural requirements under the NDPS Act and the CrPC and ar-
rested the said accused Tule Singh.
5. During investigation Tule Singh informed the police that persons namely Ram Singh, Tanu and Satish Singh were also involved in the transportation of the drugs. He further told the police that these people were piloting the said car. On this police offi - cials informed the Police Post Ghatta to detain the scorpio which was plying as pilot to the alto car from which the contraband was recovered. Police Post Ghatta detained the said scorpio and found that only one person namely Satish Singh was present in it. Satish told that two other persons had got down at Jogindernagar on which Satish Singh was also impleaded as accused and arrested in the present FIR.
6. In the investigation police found that Satish Singh had visited the present bail pe- titioner Om Parkash @ Ram Singh at a place known as Palahach (Banjaar) and had pur-
::: Downloaded on - 28/02/2020 20:25:54 :::HCHP 3chased the said Charas and Opium from Om Parkash. After that these persons had hired the taxi of Tule Singh and told him that they had to carry this charas & opium to Jogindernagar. On this Tule Singh agreed to transport the same to Jogindernagar by .
charging rupees ten to twelve thousand as fare. It further came in investigation that another person namely Tiwan Singh @ Tanu was also present with Om Parkash @ Ram Singh. It further came investigation that accused Satish Singh, Om Parkash and Tiwan Singh had carried the charas and the opium up to the vehicle of Tule Singh. It further transpired that while travelling, these people were regularly in touch with Tule Singh on his mobile. The police also conducted the CDR and CAF of the mobile phones and conducted financial investigation of these persons. Subsequently Tiwan Singh @ Tanu was arrested on 20.07.2019 and the present bail petitioner Om Parkash @ Ram Singh was arrested on 25.09.2019.
ANALYSIS AND REASONING:
7. Pre-trial incarceration needs to be justified depending upon the heinous nature of the offence, terms of the sentence prescribed in the Statute for such a crime, ac- cused fleeing from justice, hampering the investigation, and doing away with wit-
nesses. The Court is under the Constitutional obligation to safeguard the interests of the victim, the accused, the society, and the State.
8. Section 2 (vii-a) of the NDPS Act defines commercial quantity as the quantity greater than the quantity specified in the schedule, and S. 2 (xxiii-a), defines a small quantity as the quantity lesser than the quantity specified in the schedule of NDPS Act. The remaining quantity falls in an undefined category, which is now generally called as intermediate quantity. All Sections in the NDPS Act, which specify an offense, also mention that minimum and maximum sentence, depending upon the quantity of the substance. Commercial quantity mandates minimum sentence of ten years of impris- onment and a minimum fine of Rupees One hundred thousand, and bail is subject to the riders mandated in S. 37 of NDPS Act.
9. The substance recovered from the accused is 6 kg & 639 grams of charas and 413 grams of opium. In the status report, there is no mention of any previous criminal his- tory of the bail petitioner.
::: Downloaded on - 28/02/2020 20:25:54 :::HCHP 410. In this case the report under section 173(2) stands filed. In the final police report it has been mentioned that all the these accused had talked inter se their phone num- bers 80917-85144, 85447-14658, 8219853868, 98165-13622 and 98165-86004. The .
first number 80917-85144 belongs to Tule Singh. The case of the police is that Tule Singh was in touch with the other three persons namely Ram Singh @ Om Parkash, Ti- wan Singh @ Tanu and Satish Singh. Mobile No. 85447-14658 belongs to Tek Singh who is father of petitioner Om Parkash @ Ram Singh; Mobile No.82198-53868 belongs to Chuni Lal who is father of Tiwan Singh @ Tanu; Mobile Nos. 98165-13622 and 98165-86004 both belong to Satish Singh. Petitioner Om Parkash is known by another name Ram Singh. Father of Om Parkash @ Ram Singh is Tek Singh and in fact the said Om Parkash @ Ram Singh at that time was using the phone issued to his father Tek Singh having mobile number 85447-14658. The address of said Tek Singh s/o Sohan Lal as mentioned on the prepaid customer application form, which is at page No. 71 of the police report, is Ward No. 1, Manhaon, P.O. Kalwari, Distt. Kullu, HP. It is not the case of the learned counsel for the petitioner that Tek Singh s/o Sohan Lal is not father of the bail petitioner Om Parkash @ Ram Singh.
11. Perusal of the call details as mentioned at page numbers 67 and 68 of the police report reveals that on May 26, 2019, eleven phone calls were made between Tule Singh and Om Parkash @ Ram Singh. Accused Tule Singh from whose possession po - lice had recovered the charas was using phone No. 80917-85144. Investigation also re-
vealed that petitioner Om Parkash @ Ram Singh was using the phone of his father Tek Singh and the said phone No. was 85447-14658. It is for this reason that the Investi -
gating Officer did not arrest Tek Singh but instead arrested Om Parkash @ Ram Singh @ Kaka. Perusal of the call details reveal that on May 26, 2019 before accused Tule Singh was arrested, he and the petitioner had talked with each other on as many as eleven occasions. There is exchange of calls between phone numbers 80917-85144 of Tule Singh and 85447-14658 which was used by petitioner Om Parkash @ Ram Singh.
12. Given the above reasoning, in my considered opinion, no case for bail is made out at this stage. Resultantly, the present petition stands dismissed. The dismissal of this bail shall not come in the way of the petitioner filing subsequent bail petitions.
::: Downloaded on - 28/02/2020 20:25:54 :::HCHP 513. Any observation made herein above shall not be taken as an expression of opin- ion on the merits of the case, and the trial Court shall decide the matter uninfluenced by any observation made herein above.
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14. The petition stands disposed of in the aforesaid terms.
(Anoop Chitkara), Judge.
February 28 , 2020 (PK)
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