Himachal Pradesh High Court
Arsh Deep vs State Of Himachal Pradesh on 19 July, 2023
Author: Sushil Kukreja
Bench: Sushil Kukreja
1 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA .
Cr. MP(M) No. 1456 of 2023
Reserved on: 14.07.2023
Decided on: 19.07.2023
Arsh Deep ....Petitioner
Versus
State of Himachal Pradesh ....Respondent
Coram
The Hon'ble Mr. Justice Sushil Kukreja, Judge.
Whether approved for reporting?1 For the petitioner : Mr. B.S. Verma, Advocate.
For the respondent : Mr. Jitender Kumar Sharma, Additional Advocate General.
Sushil Kukreja, Judge By way of instant petition, filed under Section 439 of the Criminal Procedure Code, the petitioner is seeking bail in case F.I.R. No. 19/2023, dated 13.04.2023, registered at Police Station New Shimla, District Shimla, H.P., under Section 21 of the Narcotic Drugs and Psychotropic Substances Act (hereinafter referred to as "NDPS Act") and Section 181 of the Motor Vehicles Act (hereinafter referred to as "MV Act") 1 Whether reporters of Local Papers may be allowed to see the judgment?
::: Downloaded on - 19/07/2023 21:34:17 :::CIS 22. The prosecution story, in brief, is that on .
12.04.2023, at about 7:30 P.M., while the police party was on routine patrolling duty and present at Forest Colony, Lower Khalini (Jhanjiri Road), they received a secret information that a person namely Ashu was coming from Jhanjiri in his vehicle bearing registration No. HP52A-6166 towards Khalini, to sell chitta. On information, the police associated Jitender Thakur and Kamal Kant as independent witnesses in the proceedings.
receiving such At about 8:20 P.M. the police saw vehicle of Ashu coming from Jhanjiri side, which was signaled to stop. In presence of the witnesses, the said vehicle was searched and during search, underneath the foot mat of the driving seat of the vehicle, a transparent polythene packet was recovered, which was containing chitta/heroin. On weighment, the recovered heroin was found to be 7.49 grams. Thereafter, the police completed all the codal formalities and FIR as detailed hereinabove was registered against the petitioner and he was arrested.
3. The bail petition has been filed on the ground that the petitioner is innocent and has been falsely ::: Downloaded on - 19/07/2023 21:34:17 :::CIS 3 implicated in this case. Learned counsel for the petitioner .
has contended that investigation in this case is complete and nothing remains to be recovered at the instance of the petitioner. He further contended that the petitioner is only 22 years old boy and if he is not enlarged on bail, his entire career will be ruined.
4. Per contra, the learned Additional Advocate General opposed the bail application on the ground that keeping in view the gravity of the offence alleged to have been committed by the petitioner, he is not entitled to be enlarged on bail. He further contended that the petitioner is habitual offender and two more cases under the NDPS Act and one case under different sections of IPC, have been registered against him at different Police Stations, as such, he does not deserve to be released on bail.
5. I have heard the learned counsel for the petitioner as well as learned Additional Advocate General and have also gone through the record of the case. The perusal of the record indicates that the quantity of chitta/heroin, involved in the present case is 7.49 grams, which is an intermediate quantity. Therefore, rigors of ::: Downloaded on - 19/07/2023 21:34:17 :::CIS 4 Section 37 of the NDPS Act are not applicable in the .
present case. The petitioner was arrested on 13.04.2023 and since then he is behind the bars. There is no evidence on record to suggest that the petitioner will tamper with the prosecution evidence or will flee from justice, if released on bail. Moreover, the trial may take sufficiently long time to conclude, therefore, no fruitful purpose will be served if the petitioner is kept behind the bars for an unlimited period.
6. The learned Additional Advocate General contended that two more cases under the NDPS Act and one case under the different sections of IPC have been registered against the petitioner and he is not entitled to be released on bail, as he is a habitual offender. However, this contention of the learned Additional Advocate General cannot be accepted, as registration of some case in the past against the petitioner is no ground to deny bail to him in the present case, as the said case will be decided by the concerned Court on its own merits. In Maulana Mohammed Amir Rashadi Vs. State of Uttar Pradesh and another, MANU/SC/0029/2012: (2012) 2 ::: Downloaded on - 19/07/2023 21:34:17 :::CIS 5 Supreme Court Cases 382, it has been held that merely .
on the basis of criminal antecedents, the claim of the bail cannot be rejected as it is the duty of the Court to find out the role of the accused in the case in which he has been charged and other circumstances such as possibility of fleeing away from the jurisdiction of the Court etc. under:-
r to Relevant portion of the aforesaid judgment reads as "10. It is not in dispute and highlighted that the second respondent is a sitting Member of Parliament facing several criminal cases. It is also not in dispute that most of the cases ended in acquittal for want of proper witnesses or pending trial. As observed by the High Court, merely on the basis of criminal antecedents, the claim of the second respondent cannot be rejected. In other words, it is the duty of the Court to find out the role of the accused in the case in which he has been charged and other circumstances such as possibility of fleeing away from the jurisdiction of the Court etc."
7. Considering the overall facts and circumstances of the case and since the quantity of heroin involved in this case is 7.49 grams, which is an ::: Downloaded on - 19/07/2023 21:34:17 :::CIS 6 intermediate quantity, this Court finds that the present is .
a fit case where judicial discretion to admit the petitioner on bail is required to be exercised in his favour.
Accordingly, the bail application is allowed and it is ordered that the petitioner, who has been arrested by the police, in case F.I.R. No. 19/2023, dated 13.04.2023, r to registered at Police Station New Shimla, District Shimla, H.P., under Section 21 of NDPS Act and Section 181 of MV Act, shall be forthwith released on bail, subject to his furnishing personal bond to the tune of Rs. 1,00,000/-
(Rupees one lac), with one surety in the like amount to the satisfaction of learned Trial Court. This bail order is subject, however, to the following conditions:-
(i) that the petitioner will appear before the Court and the Investigating Officer whenever required ;
(ii) that he will 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 any facts to the Court or the police;
(iii) that he will not tamper with the prosecution evidence nor he will try to win over the Prosecution witnesses or terrorise them in any manner;
(iv) that he will not repeat the offence, as is alleged to have been committed by him.
(v) that he will not deliberately and intentionally act in a manner which may tend to delay the investigation or the trial of the case.
(vi) that he will not leave India without prior permission of the Court.::: Downloaded on - 19/07/2023 21:34:17 :::CIS 7
8. Needless to say that the Investigating agency .
shall be at liberty to move this Court for cancellation of the bail, if any of the aforesaid conditions is violated by the petitioner.
9. Be it stated that any expression of opinion given in this order does not mean an expression of opinion on the merits of the case and the trial Court will not be influenced by any observations made therein.
(Sushil Kukreja)
July 19, 2023 Judge
(raman)
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