Himachal Pradesh High Court
Sh. Gulam Hassan Dar vs Pallulabid Ahmad Arimutta & Anr. And ... on 20 June, 2022
Author: Vivek Singh Thakur
Bench: Vivek Singh Thakur
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
ON THE 20th DAY OF JUNE, 2022
BEFORE
HON'BLE MR. JUSTICE VIVEK SINGH THAKUR
CRIMINAL MISC. PETITION (MAIN) No. 427 OF 2022
BETWEEN:
.
MOHAMMAD SAFI DAR, SON OF
SH. GULAM HASSAN DAR, AGED 42
YEARS, VILLAGE TULKHAN
BIJBEHRA, AND P.O. BIJBEHRA,
DISTT. ANANATNAG, KASHMIR. PETITIONER
(BY MR. YASHVEER SINGH
RATHORE, ADVOCATE)
1.
AND
STATE OF HIMACHAL PRADESH
r to RESPONDENT
(BY MR. HEMANT VAID ADDITIONAL
ADVOCATE GENERAL)
whether approved for Reporting?
This petition coming on for orders this day, the Court passed
the following:
ORDER
Petitioner has approached this Court, invoking the provisions of Section 439 of Criminal Procedure Code for grant of regular bail in case FIR No.288 OF 2020, dated 31.10.2020, registered in Police Station Bhuntar, District Kullu, under Sections 15, 25 and 29 of Narcotic Drugs and Psychotropic Substances Act, 1985 (for short NDPS Act) .
2. Status report stands filed. Record was also produced.
::: Downloaded on - 20/06/2022 20:03:01 :::CIS 23. As per status report, on 31.10.2020 at 2.40 a.m., when patrolling party was present at Bajora near PNB and was checking vehicles by laying Naka, a truck, coming from Bhuntar side towards Bajora, was stopped for .
checking. Coaccused Sukhdeep Singh was driving the truck and Gagandeep Sharma was his conductor. Truck was owned by father of Sukhdeep Singh.
4. On inquiry about luggage or loaded articles in the truck, it was informed by Sukhdeep Singh that truck was empty, but it was found covered with tarpaulin and from back side with wooden planks, therefore, Sukhdeep Singh was asked to open the back side of the truck, whereupon Sukhdeep Singh instead of opening back side of the truck, started saying repeatedly that truck was empty, and therefore, they should be allowed to go. He was perplexed and was not able to give any satisfactory answer, and therefore, he was strictly asked to open the back side of the truck, whereupon they ( driver and conductor of the truck) removed four planks and in the truck three big trunks locked with two locks each were found. Truck driver and conductor disclosed that they were taking spices but when they could not produce any document in this regard, it created suspicion and, therefore, after joining independent witness Dimple Thakur and following the procedure, trunks found in the truck were opened and therefrom, in different packets 209.706Kgs (2 Quintal, 9 Kg. 706 gram) poppy straw was recovered.
5. Recovered contraband in the report of FSL has been confirmed to be poppy straw.
::: Downloaded on - 20/06/2022 20:03:01 :::CIS 36. As per prosecution case, during interrogation accused Sukhdeep Singh stated that he was habitual of consumption of poppy husk and he met a person known as Dar 56 months ago on the way to Srinagar, at Sangam in .
Angrej ka Dhaba, and from him he purchased poppy husk for personal consumption from him, and as and when he used to go to deliver goods at Srinagar, he used to take poppy husk for personal consumption. One day Dar told that he (Sukhdeep Singh) can earn Rs.2,00,000/ by purchasing Bhukki (poppy straw) worth Rs.4,00,000/. Sukhdeep Singh arranged Rs.4,00,000/ by taking loan from Committee of Rs.2,00,000/ in the year 2019 and saving Rs.2,00,000/ by self efforts and swayed by greed, he loaded his vehicle from Chandigarh to Nemo Leh on 24.10.2020 for supply of milk. After loading the vehicle he came to his house Gurdaspur and painted the trunks already purchased by him with black paint and asked his friend Gagandeep to accompany him to Srinagar. Gagandeep accepted the offer and both of them, in truck, went to Udhampur and then Srinagar and Sukhdeep Singh contacted Dar on his mobile phone and on reaching Sangam, they put 2 quintal poppy straw in three trunks by putting the same in separate envelops and Rs.4,00,000/ were paid to Dar by giving eight bundles of Rs.500/ notes, and thereafter, they went Budhkharbo Army Camp for supply of milk and started return journey to Gurdaspur via Upsi, Border Lahaul Spiti. Sukhdeep Singh further disclosed that Dar had asked him to call him after reaching Jalandhar and then he would tell to whom the poppy straw was to be sold and accused Gagandeep Singh also disclosed that he was friend of Sukhdeep ::: Downloaded on - 20/06/2022 20:03:01 :::CIS 4 Singh and he used to go with Sukhdeep Singh as a conductor to Srinagar and other places.
7. During investigation, Call Detail Report of Sukhdeep was .
obtained and perused and it was found that Sukhdeep was in contact of petitioner Dar on mobile phone. Thereafter, Application Form of mobile number of Dar was obtained and photograph thereon was shown to Sukhdeep Singh and Sukhdeep Singh identified Dar and disclosed purchase of poppy husk worth Rs.4,00,000/from him.
8. On 6.11.2020, special team went to Srinagar and petitioner Mohammad Safi Dar was brought to Police Station Kullu on 12.11.2020.
9. During investigation, petitioner disclosed that he met with Sukhdeep 56 months ago and asked Sukhdeep Singh to purchase poppy husk for Rs.4,00,000/ and Sukhdeep Singh on 27.10.2020 called him on mobile phone from Lakhanpur so he asked him to come to Sangam Srinagar where petitioner had kept 200 packets of poppy husk at his home and on 27.10.2020 Sukhdeep Singh paid him Rs.4,00,000/ and poppy husk was loaded in the truck in three trunks. As per petitioner, he had spent Rs.4,00,000/ when police contacted him in November, 2020.
10. On finding primafacie complicity in commission of offence, petitioner was arrested on 12.11.2020 at 2.30 a.m. and since then petitioner is behind the Bars and nowadays in Judicial custody.
11. Learned counsel for the petitioner has submitted that in the alleged disclosure of Sukhdeep Singh, he has claimed that he has met one ::: Downloaded on - 20/06/2022 20:03:01 :::CIS 5 person Dar in the Angrej ka Dhaba, whereas petitioner runs dhaba known as Panjabi Vaishnav Dhaba and further that "Dar" is surname of a community and there are number of Dars in Jammu and Kashmir and, therefore, .
involving the petitioner as coaccsued in commission of offence in present case, is not based on sound footing and petitioner has been arrayed as an accused on the basis of disclosure statement of coaccused.
12. It has been contended that keeping in view of judgment dated 10.1.2022, passed by the Supreme Court in Special Leave to Appeal (Cr.L) No. 242 of 2022, titled as State by NCB Bengaluru Vs. Pallulabid Ahmad Arimutta & Anr. and another order dated 13.12.2020, passed in Special Leave to Appeal (Cr.L.) No.5703 of 2021, titled a Bharat Chaudhary vs. Union of India, wherein taking note of judgment passed by Supreme Court in Tofan Singh vs. The State of Tamilnadu (2021)4 S.C.C 1, Supreme Court has upheld grant of bail to the accused persons, who have been arrayed as accused and arrested on the basis of disclosure statement of coaccused only without having any admissible evidence against them except the disclosure statement of coaccused and Call Detail Records (CDRs).
13. Learned counsel for the petitioner has submitted that petitioner is not related to other accused persons in any manner except that he was contacted by coaccused Sukhdeep Singh for supply of milk and dairy products to his dhaba and there is nothing on record to connect petitioner ::: Downloaded on - 20/06/2022 20:03:01 :::CIS 6 with accused persons for commission of offence and there is no other business or any relationship of petitioner with the coaccused.
14. It has been further submitted that petitioner is behind the Bars .
since last about 18 months and, therefore, also, especially for no recovery of contraband from his possession, he is entitled for bail.
15. Learned Additional Advocate General submits that accused Sukhdeep Singh is resident of Gurdaspur and there was no reason or occasion for him to know and involve the petitioner in commission of offence by alleging that he had purchased poppy husk from the petitioner and in case no poppy straw would have been sold by the petitioner to him there was no occasion or reason for Sukhdeep Singh to have identified the photograph in Consumer Application Form obtained by the police during investigation.
16. It has been further submitted by learned Additional Advocate General that in present case huge quantity of poppy husk weighing more than 2 Quintals has been recovered from the main accused, who has disclosed that it was purchased from the petitioner and, therefore, for commission of offence involving sale and transportation of commercial quantity of poppy husk, provisions of Section 37 NDPS Act are attracted and petitioner is not entitled for bail.
17. Learned counsel for the petitioner has also submitted that petitioner is ready to furnish bail bonds to the satisfaction of the Court by furnishing surety of local person as well as of his relative in case he is ::: Downloaded on - 20/06/2022 20:03:01 :::CIS 7 enlarged on bail and also to abide by any conditions imposed upon him to ensure his presence in the Court during trial.
18. Without commenting upon rival contention of the parties but .
taking into consideration entire facts and circumstances of the case including period of detention, submissions made by learned counsel for the parties and also factors and parameters propounded by the Courts necessary to be considered at the time of adjudication of bail, I find that petitioner may be enlarged on bail at this stage.
19. Accordingly, the petition is allowed and petitioner is ordered to be released on bail, on his furnishing personal bond in the sum of Rs.
5,00,000/ with two sureties, each in the like amount, out of which one surety, as undertaken by the petitioner, should be local surety and other should be of close relative of the petitioner, to the satisfaction of trial Court, upon such further conditions as may be deemed fit and proper by the trial Court, including the conditions enumerated hereinafter, so as to ensure presence of petitioner/accused at the time of trial and also subject to following further conditions:
(i) That the petitioner shall make himself available to the police or any other Investigating Agency or Court in the present case as and when required;
(ii) that the petitioner 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 to Court or to any Police Officer or tamper with the evidence. He shall not, in any manner, try to overawe or influence or intimidate the prosecution witnesses;
::: Downloaded on - 20/06/2022 20:03:01 :::CIS 8(iii) that the petitioner shall not obstruct the smooth progress of the investigation/trial;
(iv) that the petitioner shall not commit the offence similar to the offence to which he is accused or suspected;
.
(v) that the petitioner shall not misuse his liberty in any manner;
(vi) that the petitioner shall not jump over the bail;
(vii) that the petitioner shall keep on informing about the change in address, landline number and/or mobile number, if any, for his availability to Police and/or during trial;
of the Court.
r to
(viii) that the petitioner shall not leave India without permission
20. It will be open to the prosecution to apply for imposing and/or to the trial Court to impose any other condition on the petitioner 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 any other or further condition on the petitioner as it may deem necessary in the interest of justice.
21. In case the petitioner violates any conditions imposed upon him, his 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.
::: Downloaded on - 20/06/2022 20:03:01 :::CIS 922. Learned trial Court is directed to comply with the directions issued by the High Court, vide communication No.HHC.VIG./Misc.
Instructions/93IV.7139 dated 18.03.2013.
.
23. Observations made in this petition hereinbefore shall not affect merits of the case in any manner and are strictly confined for the disposal of the bail application.
24. The petitioner is permitted to produce copy of order downloaded from the High Court website and the trial Court shall not insist for certified website or otherwise.
r to copy of the order, however, it may verify the order from the High Court The petition stands disposed of in the aforesaid terms.
Dasti copy on usual terms.
(Vivek Singh Thakur), th 20 June, 2022 Judge.
(veena) ::: Downloaded on - 20/06/2022 20:03:01 :::CIS 10 .
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