Himachal Pradesh High Court
Inder Dev vs State Of Himachal Pradesh on 22 April, 2024
Author: Virender Singh
Bench: Virender Singh
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr.MP(M) No.432 of 2024
Decided on : 22.04.2024
Inder Dev ...Applicant
Versus
State of Himachal Pradesh ...Respondent
Coram
The Hon'ble Mr. Justice Virender Singh, Judge.
Whether approved for reporting?1
For the applicant : Ms. Vijay K. Arora, Advocate.
For the respondent : Mr. Tejasvi Sharma and Mr. H.S.
Rawat, Additional Advocates
General.
Virender Singh, Judge (oral)
Applicant-Inder Dev has filed the present application, under Section 439 of the Code of Criminal Procedure, (hereinafter referred to as 'the Cr.P.C.) for releasing him, on bail, during the pendency of the trial, in case FIR No.141 of 2023, dated 28.06.2023, under Sections 21 and 29 of the Narcotic Drugs and Psychotropic Substances Act 1 Whether Reporters of local papers may be allowed to see the judgment? 2 (hereinafter referred to as the ND & PS Act), registered with Police Station, Boileauganj, District Shimla.
2. The applicant has pleaded the fact that he is innocent person and has falsely been implicated in the present case, as, he has no concern whatsoever with the offence, for which, he has been arrested, by the police.
3. It has further been submitted by learned counsel for the applicant that the applicant is 38 years of age.
4. Asserting the ignorance with regard to the contraband, which has allegedly been recovered from his possession, a prayer has been made to release him on bail, during the pendency of the trial.
5. According to the applicant, on 28.06.2023, vehicle No.HP01-A-6439 was stopped for checking at Tara Devi and during search, 18.55 grams of heroin was recovered from two persons, namely, Chet Ram and Sewa Ram. Further, during investigation, they disclosed the name of the applicant and subsequently, he was arrested by the police.
6. As per the averments of the bail application, the 3 applicant has earlier tried his luck, by moving bail application bearing No.127-S/22 of 2023, before the Court of learned Special Judge-I, Shimla, which was dismissed, vide order dated 27.09.2023.
6.1. Applicant has also tried his luck, before this Court, by moving bail application bearing No.Cr.MP(M) No.2672 of 2023, which was dismissed as withdrawn, vide order dated 01.11.2023.
6.2 Learned counsel appearing for the applicant has submitted that even, on the ground of parity, the applicant is entitled to be released on bail, as his co-accused, namely Chet Ram and Dinesh Verma @Vicky, have already been released on bail, by this Court, vide orders dated 28.07.2023, passed in Cr.MP(M) No.1816 of 2023, titled as 'Çhet Ram versus State of H.P.' and 20.04.2024, passed in Cr.MP(M) No.688 of 2024, titled as 'Dinesh Verma @Vicky Vs. State of H.P.', respectively.
7. Apart from this, the applicant, through his counsel Mr. Vijay K. Arora, Advocate, has given certain undertakings, for which, he is ready to abide by, in case, released on bail. 4
8. On these submissions, a prayer has been made to allow the bail application.
9. When put to notice, the police has filed the status report, disclosing therein, that on 28.06.2023, HC Manoj Kumar No.195, Investigating Officer of the SUC-II, Shimla, submitted a ruqqa to the Police Station, Shimla West, disclosing therein, that on 28.06.2023, he, along with, other police officials, had left the office of SUC(II) at about 01:05 p.m. and proceeded towards the Old Bus Stand, 103 Tunnel, Barrier, Tara Devi, Shoghi etc. At about 01:40 p.m., when he was present at Barrier, along with other police officials, a secret information was received about the fact that in vehicle No.HP-01A-6439, two persons, namely Sewa Nand and Chet Ram, who are indulged in the trade of heroin (chitta), were coming from Solan to Shimla and in case, the vehicle is searched, the contraband (chitta) could be recovered. The said information was found to be authentic and reliable. 9.1 It has been mentioned in the ruqqa that in case, efforts are made to obtain search warrant, in that eventuality, there 5 are chances that the contraband could be removed from there. As such, the Investigating Officer has complied with the provisions of Section 42(2) of the NDPS Act and prepared the case and submitted the same to the Supervisory Officer, through constable Dinesh.
9.2 Thereafter, the Investigating Officer, along with other police officials, had proceeded towards Tara Devi. When he reached on National Highway-5, then, near Tata Motor Service Station, at about 02:15 p.m., two persons came from Tara Devi side, to whom, Investigating Officer, as well as, other police officials, had given their personal identification and also apprised them about the information, which the Investigating Officer had received. On inquiry, they had disclosed their names as Ajay Kumar and Sanjeev Kumar. Both of them were associated as independent witnesses, along with Constable Varun. Thereafter, picketing was done. At about 02:45 p.m., during picketing, a white coloured vehicle No.HP-01A-6439, being driven by its driver, was intercepted. The Investigating Officer signalled the vehicle to stop. Two persons were found 6 sitting in the vehicle. After giving identification, they were also apprised about the information, which, the Investigating Officer has received. Thereafter, Investigating Officer enquired the names of those persons. The persons have disclosed their names as Sewa Nand and Chet Ram.
9.3 Both of them were directed to come out from the vehicle. Thereafter, Investigating Officer, as well as, the police officials, have given their personal search to the accused, but, nothing incriminating was found.
9.4 Thereafter, the vehicle was searched and during search, two white coloured plastic pouches were found, which, on opening, were found to be containing stone shaped and powdered substance. The said substance, on the basis of experience, as well as, on the disclosure of accused persons, was found to be heroin. On weighing, the same was found to be 18.55 grams. The contraband was taken into possession, after complying with the other codal formalities. 9.5 On the basis of above facts, police registered the FIR. 9.6 On 29.06.2023, both the accused persons, namely 7 Chet Ram and Sewa Nand were produced before the Court and they were remanded to Police custody, by the Court of learned ACJM-I, Shimla.
9.7 On 30.06.2023, proceedings, under Section 52-A of the NDPS Act, were got conducted. The contraband was sent to State Forensic Science Laboratory, from where, positive report was received.
9.8 During investigation, accused Sewa Nand has disclosed that the contraband, which has been recovered from his possession, has been brought by them, at the instance of Dinesh Verma @ Vicky. Accused Sewa Nand has also disclosed his mobile number as 62309-59584. He has also disclosed that his cousin Inder Dev @Danu (applicant) is in judicial custody in District Jail, Kaithu and he used to meet him in jail. Once, when he went to meet him in jail, he provided the said mobile number to him with a direction that he will receive a call on this number and directed him to bring some articles from Chandigarh.
9.9 After sometime, he received a call from the said 8 number and the caller disclosed his name as Vicky. The said person disclosed to him that some articles, belonging to him, have to be brought from Chandigarh.
9.10 Accused Chet Ram @Vijay disclosed that both of them had gone in the aforesaid vehicle to Chandigarh, where, some unknown person handed over heroin to them, which has been brought to Shimla, by the said Sewa Nand and Chet Ram. 9.11 During investigation, said Sewa Nand and Chet Ram have also disclosed that for the purchase of heroin, Dinesh Kumar @Vicky had transferred the money in their accounts, through Google Pay application.
9.12 It is the further case of the police that during investigation, from the perusal of the CDR of mobile No.70182- 33467, w.e.f. 28.05.2023 to 27.06.2023, which is in the name of Sewa Nand, conversation has been found to have taken place for 10 times. As per CDR of mobile No.62309-59584, it was found to be used by a number of accused, lodged in Kaithu Jail.
9.13 It is the further case of the police that as per the 9 statement of Smt. Kanta, wife of accused Vicky, mobile No.62309-59584 belongs to her husband Dinesh Kumar @Vicky, who is in judicial custody. When the CDR of mobile phone of Kanta was perused, it was found that from the said mobile number, number of calls was made on the mobile of Kanta, bearing No.85809-95656.
9.14 It is the further case of the police that when, Vicky was arrested, in connection with FIR No.251 of 2022 dated 12.10.2022, under Sections 18-21-29 of the NDPS Act, with Police Station, Shimla West, then, the mobile No.62309-59584 was found from his possession.
9.15 According to the case of the Police, when, Google Pay account and bank accounts of accused Sewa Nand and Chet Ram were perused, it was found that in the account of Sewa Nand, a sum of Rs.45,000/- was transferred on 27.06.2023, from different accounts. Those account numbers are 30855869893, 4536000100099320 and 50100467928 189, belonging to Vidya Verma, Rajneesh @ Bunty and Sanjay Chandel, respectively. The said persons were also associated in 10 the investigation of the case.
9.16 During investigation, Vidya Verma disclosed that her sister-in-law Kaushalya requested her telephonically that she is in dire need of money, as such, on the request of her sister- in-law, Vidya Devi had transferred a sum of Rs.10,000/-, through Google Pay, in the account of Sewa Nand. Similar statement has also been made, by Kaushalya, mother of accused Dinesh @Vicky.
9.17 It is the further case of the police that Rajneesh was also associated in the investigation, who had disclosed that he was lodged in District Jail, Kaithu, in a case, registered against him. During his judicial custody, he met Inder Dev @Danu (applicant). The said Inder Dev (applicant) had lent a sum of Rs.20,000/- to him, for bail. Rajneesh @Bunty was released on bail in the month of March. Thereafter, he remained in rehabilitation centre. On 17.06.2023, he received an information from Inder Dev (applicant) from mobile No.62309-59884 and demanded a sum of Rs.20,000/-. A sum of Rs.15,000/- was stated to be transferred on 27.06.2023 on 11 Google Pay account No.82191-78860.
9.18 Similarly, Sanjay Chandel was also associated in the investigation. He has disclosed that one Avtar Singh, who is in judicial custody in District Jail, Kaithu, called him from mobile No.62309-59584 and disclosed him that his brother in law Ajit Singh will pay him Rs.20,000/- in cash. Sanjay Chandel has been requested to transfer the amount in question on Google Pay No.82191-78860. Consequently, he had transferred the amount, upon which, Chet Ram was also associated. Chet Ram disclosed that his brother-in-law Avtar Singh, who is lodged in District Jail, Kaithu, called him from mobile No.62309-59584 and disclosed him that he has to return a sum of Rs.20,000/-, upon which, he has taken money from his wife Pooja and handed over the same to Sanjay Chandel. 9.19 On the basis of above facts, accused Vicky Dogra, Inder Dev (applicant), Dinesh @ Vicky and Avtar Singh were arrested in this case.
9.20 Police has also given the criminal history of the applicant, which is reproduced as under:
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(i) FIR No.145/03 dated 29.08.2003, U/s 279, 337 IPC, PS West, Shimla
(ii) FIR No.211/03 dated 17.12.2003, U/s 279, 337 IPC, PS West, Shimla
(iii) FIR No.22/04 dated 20.01.2004, U/s 379, 467, 468, 471, 34 IPC, PS West, Shimla
(iv) FIR No.35/04 dated 24.02.2004, U/s 379 IPC, PS Dhalli
(v) FIR No.56/04 dated 08.03.2004, U/s 379, 467, 468, 471, 120B IPC, PS Sadar Shimla
(vi) FIR No.64/04 dated 27.03.2004, U/s 379 IPC, PS Dhalli
(vii) FIR No.97/04 dated 10.05.2004, U/s 379, 34 IPC, PS Dhalli
(viii) FIR No.159/04 dated 03.08.2004, U/s 379, 34 IPC, PS West
(ix) FIR No.168/04 dated 02.07.2004, U/s 379 IPC, PS Dhalli
(x) FIR No.259/04 dated 16.10.2004, U/s 379 IPC, PS Dhalli
(xi) FIR No.363/04 dated 03.12.2004, U/s 379 IPC and 41 and 42 of IF Act, PS Sadar Solan
(xii) FIR No.144/05 dated 23.05.2005, U/s 379, 411, 34 IPC, PS Sadar Shimla
(xiii) FIR No.279/05 dated 28.10.2005, U/s 379, 411, 413, 34 IPC, PS Sadar Solan
(xiv) FIR No.55/06 dated 14.03.2006, U/s 379, 120B IPC and 14 and 42 of IF Act, PS Dhalli
(xv) FIR No.25/06 dated 28.01.2006, U/s 379 IPC, PS Solan (xvi) FIR No.05/07 dated 04.01.2007, U/s 61-1-14 of Excise Act, PS Dhalli (xvii) FIR No.47/07 dated 16.03.2007, U/s 379, 120B IPC & 41 and 42 of IF Act, PS Rampur (xviii) FIR No.233/07 dated 11.01.2007, U/s 61-1-14 of Excise Act, PS Dhalli (xix) FIR No.25/08 dated 01.02.2008, U/s 61-1-14 of Excise Act, PS West 13 (xx) FIR No.64/08 dated 22.03.2008, U/s 61-1-14 of Excise Act, PS Dhalli (xxi) FIR No.67/08 dated 02.07.2008, U/s 61-1-14 of Excise Act, PS Barotiwala (xxii) FIR No.74/08 dated 29.06.2008, U/s 61-1-14 of Excise Act, PS Parwanoo (xxiii) FIR No.84/08 dated 16.04.2008, U/s 61-1-14 of Excise Act, PS Dhalli (xxiv) FIR No.163/08 dated 24.7.2008, U/s 61-1-14 of Excise Act, PS Dhalli (xxv) FIR No.16/09 dated 27.01.2009, U/s 279 IPC, PS Boileauganj (xxvi) FIR No.208/09 dated 23.11.2009, U/s 61-1-14 of Excise Act, PS Dhalli (xxvii) FIR No.226/09 dated 21.11.2009, U/s 61-1-14 of Excise Act, PS Boileauganj (xxviii) FIR No.18/10 dated 25.01.2010, U/s 61-1-14 of Excise Act, PS Dhallil (xxix) FIR No.57/10 dated 20.03.2010, U/s 61-1-14 of Excise Act, PS Dhalli (xxx) FIR No.68/10 dated 11.04.2010, U/s 61-1-14 of Excise Act, PS Dhalli (xxxi) FIR No.122/10 dated 28.06.2010, U/s 61-1-14 of Excise Act, PS Dhalli (xxxii) FIR No.212/10 dated 13.12.2010, U/s 61-1-14 of Excise Act and 25-34-59 of Arms Act, PS Dhalli (xxxiii) FIR No.17/11 dated 29.06.2011, U/s 61-1-14 of Excise Act, PS CID Bharari (xxxiv) FIR No.19/11 dated 14.07.2011, U/s 61-1-14 of Excise Act, PS CID Bharari (xxxv) FIR No.44/11 dated 13.04.2011, U/s 61-1-14 of Excise Act, PS Karsog (xxxvi) FIR No.119/11 dated 29.07.2011, U/s 61-1-14 of Excise Act, PS Boileauganj (xxxvii) FIR No.120/11 dated 22.12.2011, U/s 279 IPC, PS Kumarsain (xxxviii) FIR No.222/11 dated 29.09.2011, U/s 61-1-14 of Excise Act, PS Dhalli 14 (xxxix) FIR No.255/11 dated 12.11.2011, U/s 61-1-14 of Excise Act, PS Dhalli (xl) FIR No.298/11 dated 30.12.2011, U/s 393, 398 IPC, 25-54-59 of Arms Act, PS Dhalli (xli) FIR No.03/13 dated 03.01.2013, U/s 61-1-14 of Excise Act, PS Dhalli (xlii) FIR No.05/14 dated 22.01.2014, U/s 379 IPC, 41 and 42 of IF Act, PS Dhalli (xliii) FIR No.53/14 dated 18.04.2014, U/s 457, 380 IPC, PS Barmana (xliv) FIR No.60/15 dated 06.07.2015, U/s 3/25 of Arms Act, PS Duni District Tonk Rajasthan.
(xlv) FIR No.119/13 dated 06.07.2013, U/s 457, 380, 34 of IPC, PS Barmana (xlvi) FIR No.68/16 dated 02.03.2016, u/s 20, 29-61-85 of NDPS Act, 25-54-59 of Arms Act, PS West (xlvii) FIR No.19/18 dated 14.05.2018, U/s 353, 147, 149, 186, 188 IPC, PS Sunni (xlviii) FIR No.279/20 dated 28.11.2020, U/s 39 of HP Excise Act, PS Dhalli (xlix) FIR No.251/22 dated 12.10.2022, U/s 18, 21, 29 of NDPS Act, PS West Shimla.
(l) FIR No.141/23 dated 28.06.2023, U/s 21, 29 of NDPS Act, PS West Shimla
10. It has been apprehended that the applicant is involved in the trade of heroin, as number of cases have already been registered against him. It is the case of the police that in case, the applicant is released on bail, he may again indulge in similar activities.
11. It has been submitted by learned Additional 15 Advocate General that there is a lot of resentment in the society, as number of persons have died due to addiction of heroin/chitta. The investigation is also stated to be underway, in this case, as such, in case, the applicant is ordered to be released on bail, he may affect the investigation.
12. On the basis of the above facts, a prayer has been made to dismiss the bail application.
13. Heard.
14. The contraband, allegedly recovered by the police in this case, does not fall within the definition of 'commercial quantity'. Once, it has been held that the contraband, so recovered, does not fall within the commercial quantity, rigors of Section 37 of the NDPS Act are not applicable, in this case. As such, the presumption of innocence is still available to the applicant, as, pre-trial punishment is prohibited under the law.
15. So far as the registration of number of cases, against the applicant, is concerned, the police has given the details of those cases, which have been reproduced in para 16 No.9.20 above. Mere registration of number of cases does not mean that the presumption of innocence is not available to him, as, admittedly, in none of the cases, which have been referred above, conviction has been recorded by the competent Court of law. As such, on this ground, relief, for which, the applicant is otherwise entitled for, cannot be denied to him.
16. The applicant is in judicial custody. This fact is sufficient to hold that his custodial interrogation is no longer required by the Police.
17. Applicant has sought the relief of bail on the ground of change of circumstances, as according to him, his co- accused Chet Ram has already been released on bail, by this Court, vide Order dated 28.07.2023, passed in Cr.MP(M) No.1816 of 2023.
18. Keeping in view the fact that the Challan/final report has now been filed, in the Court, on 06.10.2023, this Court is of the view that there is a change in circumstances.
19. Even otherwise, the applicant is also entitled for grant of bail on the basis of parity, as his co-accused, namely 17 Chet Ram and Dinesh Verma @Vicky, have already been released on bail, by this Court, vide orders dated 28.07.2023, passed in Cr.MP(M) No.1816 of 2023, titled as 'Çhet Ram versus State of H.P.' and 20.04.2024, passed in Cr.MP(M) No.688 of 2024, titled as 'Dinesh Verma @Vicky Vs. State of H.P.', respectively
20. Moreover, chances of commencement and conclusion of trial, against the applicant, in near future, are not so bright, as such, no useful purpose would be served, by keeping him in judicial custody, that too, for indefinite period.
21. So far as the apprehensions, which have been expressed, in the status report, are concerned, the applicant is permanent resident of District Shimla and for those apprehensions, reasonable conditions can be imposed upon the applicant, in case, released on bail.
22. Considering all these facts, this Court is of the view that the bail application is liable to be allowed and is accordingly allowed.
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23. Consequently, applicant is ordered to be released on bail in case FIR No.141 of 2023, dated 28.06.2023, under Sections 21 and 29 of the NDPS Act, registered with Police Station Boileauganj, District Shimla, on his furnishing personal bond in the sum of Rs.50,000/-, with one surety in the like amount, to the satisfaction of learned Special Judge, Shimla. It is clarified that either his mother or father shall stand as surety for the applicant.
24. This order, however, shall be subject to the following conditions:-
a) The applicant 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 exemption from appearance by filing the appropriate application;
b) The applicant shall not tamper with the prosecution evidence nor hamper the investigation of the case in any manner whatsoever;
c) The applicant shall not make any inducement, threat or promises to any person acquainted with the facts of the case so as to 19 dissuade them from disclosing such facts to the Court or the Police Officer, and
d) The applicant shall not leave the territory of India without the prior permission of the Court.
25. 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.
26. It is made clear that respondent-State is at liberty to move an appropriate application, in case, any of the bail conditions is found violated by the applicant.
27. The Registry is directed to forward a soft copy of the bail order to the Superintendent, Model Central Jail, Kanda, through e-mail, with a direction to enter the date of grant of bail in the e-prison software.
28. In case, applicant is not released within a period of seven days, from the date of grant of bail, the Superintendent, Model Central Jail, Kanda, is directed to inform this fact to the Secretary, DLSA, Shimla. The Superintendent, Model Central Jail, Kanda, is further directed that if the applicant fails to 20 furnish the bail bonds, as per the order passed by this Court, within a period of one month from today, then, the said fact be submitted to this Court.
(Virender Singh) Judge April 22, 2024 (Gaurav Thakur) Digitally signed by RAJNI Date: 2024.04.22 17:17:43 IST