Ajmer Singh vs State Of H.P on 30 December, 2022

[Cites 11, Cited by 1]

Himachal Pradesh High Court

Ajmer Singh vs State Of H.P on 30 December, 2022

______________________________________________________________ ::: Downloaded on - 30/12/2022 20:34:00 :::CIS 2 For the Petitioner(s): Mr. Rahul Singh Verma, Advocate in Cr.MP(M) Nos. 1508 and 1512 of 2022.

Mr. Deepak Kaushal, Advocate in Cr.MP(M) No. 1485 of 2022.

                                    Mr.  Topender    Kumar    Verma,





                                    Advocate in Cr.MP(M) No. 1409 of
                                    2022

    For the Respondent(s):          Mr.  Hemant     Vaid,              Additional
                                    Advocate General.

__________________________________________________________________ Vivek Singh Thakur, J.

Since all these petitions arise out of the same FIR, the same are consolidated and disposed of together in order to avoid repetition and for the sake of convenience.

2 Petitioners have approached this Court under Section 439 of Criminal Procedure Code (in short 'Cr.P.C.') for granting them bail in case FIR No. 21 of 2021 dated 11.02.2021, registered under Sections 15, 29, 27-A of Narcotic Drugs and Psychotropic Substances Act (hereinafter in short 'NDPS Act') in Police Station Paonta Sahib, District Sirmaur (H.P.).

3 Status Report stands filed, wherein it is brought on record that on 11.02.2021, at about 6 a.m., on the basis of reliable information that from Truck No. HP-11-4991 going towards Banjara Basti huge poppy-straw can be recovered, the said information was transmitted to Sub Divisional Police Officer ::: Downloaded on - 30/12/2022 20:34:00 :::CIS 3 as required under Section 42 (2) of NDPS Act and police party rushed towards Banjara Basti where aforesaid Truck was found .

coming towards Satiwala Chowk main road. However, on seeing the PCR van of police, person driving the Truck, after parking it came out from driver side and had fled towards Yamuna River by taking benefit of darkness and dense fog, and despite taking help of torch and mobile light, he could not be chased by police officials, and during checking of Truck, 8 plastic bags were found in rear portion of Truck and on opening of one bag, poppy-straw was found therein, which created suspicion that other 7 plastic bags might be containing poppy-straw, whereupon house owners of houses, adjacent to the spot, were asked to join search and seizure process, but, by citing their difficulties, they refused to come on spot, whereupon Panchayat Pardhan Anjana and Up-

Pardhan Satnam Singh were called on spot from their houses through PCR van and were asked to join search and seizure process, but, they also refused to join as independent witnesses by referring their own limitations and problems. Thereafter, a Constable was sent to Toll Tax Barrier Bahral in search of independent witness wherefrom Toll Tax Barrier employee Arun Sharma agreed to become an independent witness and thus, he was associated in search and seizure process. Thereafter, 8 ::: Downloaded on - 30/12/2022 20:34:00 :::CIS 4 plastic bags were unloaded from Truck and each bag was opened and checked, wherein poppy-straw was found. On weighing with .

electronic scale available in police vehicle, in total 200.278 Kg poppy-straw was found in those bags. Thereafter, by sending a ruka, FIR was registered in Police Station and recovered contraband was seized and taken in possession by Investigating Officer. After that, SI Gian Singh along with police officials went to Khaira valley of Yamuna river in search of accused. In that valley also, he found 6 plastic bags of poppy-straw and two spades and one belcha kept in pits of sand under cover of bushes. In these bags, in total 150.500 Kg poppy-straw was found, which was also taken in possession along with belcha and spades.

4 During investigation, on interrogation Truck owner Ajmer Singh (petitioner) disclosed that on 10.2.2021 Parveen Kumar resident of Satiwala, who was his neighbour, approached him in the morning for his Truck to shift the goods therein and he (Ajmer) agreed for that and in the evening Parveen and Subhash came to his house and asked him to bring the Truck near Reliance Petrol Pump, Taruwala by saying that both of them would meet him there, whereupon, Ajmer drove his Truck from his house and Parveen and Subhash followed him in his (Ajmer's) Alto car and thereafter, Parveen telephonically ::: Downloaded on - 30/12/2022 20:34:00 :::CIS 5 informed Ajmer that Mohammad Deen @ Kala and Chaman @ Tinku will meet him before the petrol pump and asked him .

(Ajmer) to hand over the key of Truck to them and accordingly he (Ajmer) handed over the key of Truck to Mohammad Deen and Chaman @ Tinku and started coming back on foot towards Badripur and by that time, Parveen and Subhash, who had brought his car, handed over the car to him and thereafter he (Ajmer) went home.

5 It is stated in status report that since 12.02.2021, police attempted to search Mohammad Deen @ Kala, Chaman @ Tinku, Subuash and Parveen in their homes, but, they absconded to avoid their arrest and thereafter, on 19.2.2021, Mohammad Deen @ Kala and Budh Ram could be traced after great difficulty and were associated in the investigation alongwith Ajmer Singh and during interrogation, Mohammad Deen disclosed that poppy-

straw was brought out of State in another Truck with help of Parveen, Subhash and Chaman @ Tinku and thereafter, Mohammad Deen @ Kala, Ajmer Singh and Budh Ram were arrested on 19.02.2021 and their police remand was obtained on 20.02.2021.

6 As per status report, on 20.02.2021, Mohammad Deen had made a disclosure statement under Section 27 of ::: Downloaded on - 30/12/2022 20:34:00 :::CIS 6 Indian Evidence Act in the presence of independent witness Gaurav Dhiman, Block Development Officer Paonta Sahib and ASI .

Ram Lal and in pursuant thereto, 4 bags of poppy-straw were recovered from Satiwala forest/Khudd wherein in total 101.530 Kg. poppy-straw was recovered.

7 The recovered contraband was sent for chemical analysis to the State FSL Junga and it has been reported by State FSL that recovered material was poppy-straw.

8 As per status report, Budh Ram had used his Tractor No. HP-17D-9357 for loading and unloading the poppy-straw under instructions of Parveen Kumar petitioner and car of Ajmer bearing No. HP-17E-9340 was used by Parveen Kumar and Subhash and another car HP-17F-4020 was also used by Mohammad Deen @ Kala, Mushatkeen and Praveen to procure poppy-straw from Jharkhand and to load in Truck No. HR-55A-

4876 along with driver Deepak in the month of January, 2021 in the bags of rice. All these vehicles except Truck No.HR-55L-4876, were taken in possession by police. It is also stated in status report that after taking possession of aforesaid Truck HR-55L-

4876 by Finance Company in Banaras, Mohammad Deen and Mushatkeen had returned home, but, Truck driver Deepak had stayed there.

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9 As per status report, for bringing poppy husk/straw, Mohammad Deen @ Kala contacted Ahsaan resident of village .

Dharmawala in District Dehradun and used Truck No.HR-55L-

4876 for consideration of Rs.1,50,000/- and out of that, Rs.80,000/- were received by Ahsaan from Mohammad Deen and, therefore, Ahsaan was also arrested under Section 29 of NDPS Act on 23.02.2021, who after remaining in police custody for three days, is in judicial custody since 26.02.2021.

10 As per prosecution case, co-accused Praveen Kumar had denied acquaintance with arrested persons including Ajmer with submission that he had not been keeping mobile phone since last one year. Whereas, from CDR of mobile, it was found that Ajmer Singh and Praveen Kumar were in active contact with each other and on 10.02.2021 also they talked with each other for fourteen times, wherein six times Ajmer Singh called Praveen Kumar and they were in regular contact with each other through Whatsapp calls.

11 As per status report, Truck No.HR-55L-4876 was not registered in the name of Ahsaan, but in the name of Ashu Malhotra son of Sh.Dharam Pal Malhotra, resident of Ambala.

The said Ashu Malhotra had handed over the said Truck to Paramjeet Singh son of Sh.Narender Singh, resident of Nahan, by ::: Downloaded on - 30/12/2022 20:34:00 :::CIS 8 executing General Power of Attorney (GPA) in favour of Paramjeet Singh. Paramjeet Singh vide agreement dated 28.12.2020 had .

sold this Truck to Ahsaan for a consideration of Rs.2,25,000/-.

Out of which Rs.1,60,000/- had been paid and balance amount of Rs.65,000/- was to be paid within two months thereafter and as per agreement, Truck was with Ahsaan since 28.12.2020. On the basis of GPA and agreement, produced by its driver Deepak (co-

accused) this Truck was found in possession and under control of Ahsaan and Deepak as a driver was employed by Ahsaan on the Truck and this Truck was provided by Ahsaan to Mohammad Deen for transportation of poppy straw from Jharkhand. However, on the way, this Truck was taken in possession by the Finance Company at Banaras and thereafter poppy straw was transported from Banaras to Selaqui in Truck No.HR-69A-9217, owned by Amzad Khan.

12 As per status report, when possession of Truck No.HP-

55L-4876 was taken by Finance Company, then Mohammad Deen @ Kala had contacted Amzad Khan and had asked him to provide his Truck to bring rice from Varanasi to Ludhiana on urgent basis as Mohammad Deen had expressed apprehension that delay may spoil the rice whereupon Amzad Khan had handed over his Truck to Deepak at Muradabad who brought the rice in his Truck from ::: Downloaded on - 30/12/2022 20:34:00 :::CIS 9 Banaras to Selaqui. Statement of Amzad has been recorded under Section 161 Cr.P.C.

13 It has further been stated in the status report that from Selaqui to the spot where Truck was intercepted by the police, poppy straw was transported in Truck No.HP-11-4991 owned and possession by Ajmer Singh. This Truck was taken to Selaqui by driver Chaman Lal @ Tinku. When Chaman Lal was going to Selaqui, one Surender Singh had also gone with him in the Truck, but he did not return and during investigation, it was found that the said Surender Singh was not knowing about purpose for which Chaman Lal was going to Selaqui and, therefore, he was associated in the investigation as a witness and his statement under Section 164 Cr.P.C. was also recorded before learned Additional Chief Judicial Magistrate, Paonta Sahib.

It is further case of the police that at Selaqui poppy straw from Truck No.HR69-A9217 was shifted, to Truck No.HP-11-4991 and brought to near bridge of Banjara Basti, Satiwala and some bags of poppy straw were shifted, to Tractor No.HP-17D-9357 belonging to Budh Ram, for hiding those bags in the forest adjacent to Yamuna River and during that process, Praveen Kumar noticed light of some vehicle, therefore, some bags of poppy straw were left in the Truck. Whereas, bags loaded in the ::: Downloaded on - 30/12/2022 20:34:00 :::CIS 10 Tractor were taken to the forest and thrown in the pits already prepared for hiding contraband and thereafter accused fled from .

the spot. As per police, accused Subhash had identified those places wherefrom poppy straw was recovered by the police after intercepting the Truck.

14 Petitioners Ajmer Singh, Ahsan and Chaman Lal have preferred Cr.MP(M) No. 1466, 2134 and 2100 of 2021 respectively which were dismissed vide order dated 29.12.2021.

15 Learned Additional Advocate General has submitted that after taking into consideration the claim of petitioners for enlarging them on bail, this Court has already dismissed their petitions on merits and there is no changed circumstance and therefore, for the findings and observations made in aforesaid petitions, preferred by Ajmer, Ahsan and Chaman, these petitions also deserve to be dismissed.

16 Learned counsel for petitioners submit that petitions of Ajmer, Ahsan and Chaman were rejected on 21st December, 2021 and after that Supreme Court in Special Leave to Appeal (Crl.) No. 242 of 2022, titled as State by (NCB) Bengaluru vs. Palluabid Ahamad Arimutta has upheld the bail granted by Karnataka High Court to persons similarly situated to petitioners, who were arrested by NCB on the basis of statement recorded ::: Downloaded on - 30/12/2022 20:34:00 :::CIS 11 under Section 67 of NDPS Act and CDRs and nothing had been recovered from personal possession of them so as to establish .

knowledge and involvement of petitioners in transporting the contraband recovered from vehicle in reference.

17 Learned counsel for petitioners have placed reliance on paragraphs 9 and 10 of the above referred pronouncement of the Supreme Court in Pulluabid Ahamad Arimutta's case, which read as under:-

"9. Having gone through the records along with the tabulated statement of the respondents submitted on behalf of the petitioner/NCB and on carefully perusing the impugned orders passed in each case, it emerges that except for the voluntary statements of A-1 and A-2 in the first case and that of the respondents themselves recorded under Section 67 of the NDPS Act, it appears, prima facie, that no substantial material was available with the prosecution at the time of arrest to connect the respondents with the allegations leveled against them of indulging in drug trafficking. It has not been denied by the prosecution that except for the respondents in CLP (Crl.) No. 1569 of 2021, none of other respondents were found to be in possession of commercial quantities of ::: Downloaded on - 30/12/2022 20:34:00 :::CIS 12 psychotropic substances, as contemplated under the NDPS Act.

10. It has been held in clear terms in Tofan .

Singh vs. State of Tamal Nadu, (2021)4 SCC 1 that a confessional statement recorded under Section 67 of the NDPS Act will remain inadmissible in the trial of an offence under the NDPS Act. In the teeth of the aforesaid decision, the arrests made by the petitioner-

NCB, on the basis of the confession/voluntary statements of the respondents or the co- accused under Section 67 of the NDPS Act, cannot form the basis for overturning the impugned orders releasing them on bail. The CDR details of some of the accused or the allegations of tampering of evidence on the part of one of the respondents is an aspect that will be examined the stage of trial. For the aforesaid reason, this Court is not inclined to interfere in the orders dated 16th January, 2020, 19th December, 2019 and 20th January, 2020 passed in SLP (Crl.) No. Diary No.22702/2020, SLP (Crl.) No.1454/2021, SLP (Crl.) No. 1465/2021, SLP (Crl.) No. 1773-

        74/2021     and      SLP       (Crl.)      No.       2080/2021
        respectively.      The     impugned              orders         are,

accordingly, upheld and the Special Leave Petitions filed by the petitioner-NCB seeking cancellation of bail granted to the respective respondents, are dismissed as meritless."

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18 It has been contended that Ajmer Singh has been implicated in the case only for using his truck to transport .

contraband whereas it is the case of prosecution that his truck was taken on request by Parveen Kumar without disclosing the material to be transported therein and further that except disclosure statement of co-accused and CDR indicating his talks with Parveen there is nothing on record to connect him with transportation of contraband. It has also been submitted that being neighbour there is nothing abnormal in talks on mobile phone and also in handing over truck on request.

19 It has been further contended that Ahsan is truck owner whose truck was hired by main accused Mohammad Deen @ Kala, Mustkeen and Parveen Kumar for transporting rice from Jharkhand to Ludhiana and he was not present at the time of loading of contraband or rice at Jharkhand but had come into picture when his truck was taken in possession by Financier and thereafter material loaded in truck was transported in truck of Amjad. It has been submitted that Ahsan and Amjad are on equal footing and Ahsan has been arrayed as co-accused whereas Amjad has been cited as a witness.

20 It has been contended on behalf of Deepak that he is driver by profession and he was engaged by Mohammad Deen @ ::: Downloaded on - 30/12/2022 20:34:00 :::CIS 14 Kala and Ahsan to bring his truck from Jharkhand to Ludhiana loaded with rice on ground that their driver had abandoned the .

truck on road and thereafter Deepak had gone to bring the truck which was taken in possession by Financier at Varanasi and thereafter he was again engaged for driving truck of Amjad from Varanasi to Selaqui and on completion of job, he was paid Rs.5000/- only which indicates that he was not party in transporting the connivance but he was acting as driver to transport material loaded therein stated to be rice. It has been contended that he being a driver did not know that there were some bags containing contraband.

21 It has been contended on behalf of Chaman Lal that he is also driver by profession ad he was hired by Mohammad Deen to drive the truck of Ajmer and he was not aware about material loaded in truck and there is nothing material on record to establish his connivance with main accused, who had planned transportation of contraband from Jharkhand to Himachal Pradesh. It has been further submitted that petitioner did not flee from the spot but after parking the vehicle at destination told by Mohammad Deen and Mustkeen he had left the spot prior to arrival of police.

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22 It has been contended on behalf of all four petitioners that Mohammad Deen and Mustkeen are main .

accused who had arranged contraband from Jharkhand and were transporting it along with rice whereas petitioners either being owner of vehicle or as drivers were not aware about transportation of contraband and all of them have been implicated on the basis of disclosure statement of co-accused and except that there is no material against them.

23 Learned Additional Advocate General has submitted that petitioners are members of a big racket involved in supplying the narcotic drugs in the State and involvement of Ajmer Singh is writ large as he not only handed over the Truck, but took Truck to the spot and handed over the key to the co-

accused persons. It has further been submitted that involvement of Ajmer Singh is substantiated from the facts that Truck was handed over to co-accused on 10.02.2021 and thereafter, it was taken into possession by the police and Ajmer Singh was associated in the investigation after 12.02.2021, but till then, Ajmer Singh did not inquire about his Truck and did not file any application for release of the Truck as he was knowing well that for what purpose he had handed over the Truck to co-accused. It has further been submitted by learned Deputy Advocate General ::: Downloaded on - 30/12/2022 20:34:00 :::CIS 16 that it is an un-explained behave on the part of Ajmer Singh that he has handed over the keys of Truck without driver to the .

persons, without asking for the nature of material to be loaded and unloaded in or of the Truck. It has further been submitted that call details also strengthen the prosecution case with respect to active involvement of Ajmer Singh in commission of offence. It has also been submitted that not only Truck of Ajmer but car was also used by co-accused facilitating transportation of recovered contraband.

Learned Additional Advocate General by referring the material on record has submitted that so far as Ajmer Singh is concerned, his active role in commission of offence stands established for his conduct came in light during investigation and also for his inaction for getting Truck released from the police after its seizure. It has been submitted that had petitioner Ajmer Singh been innocent, then first reaction on his part would have been to take immediate steps to get his Truck released, but in present case he remained silent for about three days and opened his mouth only when he was subjected to interrogation by the police. It has further been contended that it is not a case where only on the basis of suspicion petitioner Ajmer Singh has been implicated, but there is ample evidence, including call detail ::: Downloaded on - 30/12/2022 20:34:00 :::CIS 17 records about involvement of petitioner Ajmer Singh in commission of offence.

25 Learned Additional Advocate General has submitted that petitioner Ahsaan had agreed to transport the contraband for having heavy amount of consideration i.e. Rs.1,50,000/- and driver Deepak was engaged by him, who was acting under his control and was in his regular contact. Further that when Truck of Ahsaan was taken in possession by the Finance Company, then load of the Truck was shifted to another Truck and at that time also, Deepak remained with the material loaded in the Truck and at the time of shifting also he was actively involved and, therefore, there is more than sufficient evidence on record to connect petitioner Ahsaan with commission of offence.

Therefore, recovery or no recovery of contraband from Ahsaan is an immaterial fact.

26 Learned Additional Advocate General has further submitted that petitioner Chaman Lal @ Tinku was also knowing about transportation of contraband and he has actively participated by taking Truck bearing No.HP-11-4991 to Selaqui and not only in his presence but with his help the poppy straw was shifted to the Truck of Ajmer Singh and Truck was brought to Satiwala and near bridge of Banjara Basti some bags of poppy ::: Downloaded on - 30/12/2022 20:34:00 :::CIS 18 straw were shifted to Tractor of Budh Ram and at that time, police party intercepted the Truck and Chaman fled from the .

spot. It has been contended that in case Chaman was innocent or not knowing about transportation of contraband, then there was no occasion or reason for him to flee from the spot.

Therefore, there is sufficient evidence on record to connect Chaman Lal also with commission of offence as a member of gang involved in commission of offence under the NDPS Act.

27 Learned Additional Advocate General has submitted that Deepak was the party in shifting the load of truck from the truck of Ahsan and at that time, it must have been come in his knowledge that apart from rice, there was contraband being transported in the truck but he remained silent and acted as party to the transportation of that contraband. Therefore, it cannot be said that he was not having any knowledge of commission of offence rather it substantiates his companion in commission of offence.

28 It has been submitted by learned counsel for parties that petitioners are ready to abide by any condition imposed by Court for assuring their presence after their enlargement on bail and to furnish legal surety as well as surety of relative for that purpose.

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29 Taking into consideration the entire facts and circumstances, but without commenting on merits thereon and .

taking into account factors and parameters required to be considered at the time of adjudication of bail application as propounded by the Courts, including the Supreme Court, I am of the considered opinion that at this stage petitioners may be enlarged on bail.

30. Accordingly, present petitions are allowed and petitioners are ordered to be enlarged on bail, subject to their furnishing personal bonds each in the sum of Rs.1,00,000/- with two sureties each one of them shall be local surety and another shall be relative of respective petitioners, as undertaken, in the like amount, to the satisfaction of trial Court/Special Judge and upon such further conditions as may be deemed fit and proper by the trial Court, including the conditions enumerated hereinafter, so as to assure presence of the petitioner at the time of trial:-

(i) That the petitioners shall make themselves available to the Police or any other Investigating Agency or Court in the present case as and when required;

(ii) that the petitioners 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/her from disclosing such facts ::: Downloaded on - 30/12/2022 20:34:00 :::CIS 20 to Court or to any police officer or tamper with the evidence. They shall not, in any manner, try to overawe or influence or intimidate the .

prosecution witnesses;

(iii) that the petitioners shall not obstruct the smooth progress of the investigation/trial;

(iv) that the petitioners shall not commit the offence similar to the offence to which they are accused or suspected;

(v) that the petitioners shall not misuse their liberty in any manner;

(vi) that the petitioners shall not jump over the bail;

(vii) that in case petitioners indulges in repetition of similar offence(s) then, their bail shall be liable to be cancelled on taking appropriate steps by prosecution;

(viii) that the petitioners shall keep on informing about the change in address, landline number and/or mobile number, if any, for their availability to Police and/or during trial; and

(ix) the petitioners shall not leave India without permission of the Court.

31 It will be open to the prosecution to apply for imposing and/or to the trial Court to impose any other condition on the petitioners, enlarged on bail, as deemed necessary in the facts and circumstances of the case and in the interest of justice and thereupon, it will also be open to the trial Court to impose ::: Downloaded on - 30/12/2022 20:34:00 :::CIS 21 any other or further condition on the petitioner as it may deem necessary in the interest of justice.

32 In case the petitioners violate any conditions imposed upon them, their bail shall be liable to be cancelled. In such eventuality, prosecution may approach the competent Court of law for cancellation of bail, in accordance with law.

33 Learned trial Court is directed to comply with the directions issued by the High Court, vide communication No.HHC.VIG./Misc. Instructions/93-IV.7139 dated 18.03.2013.

Observations made in this petition hereinbefore shall not affect the merits of the case in any manner and are strictly confined for the disposal of the bail application.

The parties are permitted to produce copy of order downloaded from the High Court website and trial Court shall not insist for certified copy of the order, however, if required, passing of order can be verified from the High Court website or otherwise.

The petitions stand disposed of in the aforesaid terms.

    December 30, 2022                              (Vivek Singh Thakur)
    (ms)                                                  Judge




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