Himachal Pradesh High Court
Sanjay Tomar vs State Of Himachal Pradesh on 14 November, 2018
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
Cr.MP(M) No.1410 of 2018
Decided on: 14.11.2018
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Sanjay Tomar ...........Petitioner
Versus
State of Himachal Pradesh ..........Respondent
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Coram:
Hon'ble Mr. Justice Sandeep Sharma, Judge.
Whether approved for reporting? 1
For the Petitioner : Mr. Anup Rattan, Advocate.
For the Respondent : Mr. S.C. Sharma, Mr. Dinesh Thakur and
Mr. Sanjeev Sood, Additional Advocate
Generals, for the State.
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Sandeep Sharma, Judge (oral):
Bail petitioner namely Sanjay Tomar, who is behind bars since 5.3.2018, has approached this Court in the instant proceedings filed under Section 439 of Cr.PC, praying therein for grant of regular bail in connection with FIR No. 63/18 dated 5.3.2018, under Sections 8-A and 21 of the ND&PS Act, , H.P., registered at P.S. Chamba District Chamba, HP.
2. Sequel to orders dated 26.10.2018 and 2.11.2018, passed by this Court, ASI Shubhash Kumar, I/o P.S. Chamba, Sadar, District Chamba, H.P., has come present in Court alongwith record of the case. Mr. Sanjeev Sood, learned Additional Advocate General, has also placed on record status report prepared on the basis of the investigation carried out by the investigating agency. Record perused and returned.
1Whether the reporters of the local papers may be allowed to see the judgment?
::: Downloaded on - 15/11/2018 22:57:32 :::HCHP 23. Careful perusal of the record/status report reveals that on the basis of secret information, police party raided the house of the bail .
petitioner at Udaipur (Dhampu) Chamba and recovered 85 packets/strips of Spasmo Proxyvan Plus capsules and 850 injections of Pentalap Lactate Injection Ip. Police party had prior information that bail petitioner, who hails from U.P., brings narcotic substance from U.P. and then, sell the same to the school/college students at Chamba, H.P. After completion of necessary codal formalities, police lodged FIR under Sections 8-A and 21 of the ND& PS Act (in short 'the Act'), against the bail petitioner on 5.3.2018 and since then he is behind the bars.
4. Mr. Anup Rattan, learned counsel representing the bail petitioner, contended that as per report of FSL 27.0048 grams of contraband i.e. prohibited drug, has been recovered from the room of the bail petitioner and as such, he deserves to be enlarged on bail. He states that contraband alleged to be recovered from the bail petitioner is of intermediate quantity and as such, rigors of Section 37 of the Act are not attracted in the present case and as such, present bail petitioner, whose guilt is yet to be proved in accordance with law, deserves to be enlarged on bail. Mr. Anup further contended that bail petitioner is a young boy and in case he is allowed to incarcerate in jail for and indefinite period, that would amount to pre-conviction because even if it ::: Downloaded on - 15/11/2018 22:57:32 :::HCHP 3 is presumed that he has committed offence, if any, under Sections 8-A and 21 of the Act, in all eventualities, he would be convicted for almost .
one year, whereas he has already suffered for more than 9 months in jail.
Lastly, Mr. Anup contended that challan already stands filed in the competent court of law and nothing requires to be recovered from the bail petitioner and as such, no fruitful purpose would be served in case bail petitioner is not enlarged on bail, rather his freedom would be curtailed for an indefinite period, which would be in violation of his fundamental right enshrined under Article 21 of the Constitution of India.
5. Mr. Sanjeev Sood, learned Additional Advocate General, while fairly acknowledging factum with regard to the fling of the challan in the competent court of law, contended that keeping in view the gravity of the offence alleged to have been committed by the bail petitioner, he does not deserves any leniency, rather needs to be dealt with severely. While referring to the record/status report, Mr. Sood contended that bail petitioner is a habitual offender because prior to lodging of FIR at hand, he was already convicted in similar case, but despite his conviction, he again indulged in similar activities and as such, it would not be safe to enlarge him on bail. Mr. Sood further contended that bail petitioner hails from the State of U.P., and there is ample evidence adduced on record by the Investigating Agency suggestive of ::: Downloaded on - 15/11/2018 22:57:32 :::HCHP 4 the fact that he is a drug paddler and in case he is set free during trial, he would again indulge in this trade causing irreparable damage to the .
society.
6. Having heard learned counsel for the parties and perused material available on record, this Court finds that bail petitioner is a habitual offender, who prior to lodging of FIR in the case at hand, was tried in similar case and was convicted and sentenced to undergo imprisonment for a period of 5 months and to pay fine of Rs. 10,000/-, but it appears that he did not learn any lesson from the same, rather again indulged in the same activity. Record reveals that police after having received information that bail petitioner, who hails from the State of UP, indulge in trade of narcotics, recovered huge quantity of prohibited drugs, which he intended to supply to the innocent children. No doubt quantity allegedly recovered from the room of bail petitioner is of intermediate quantity and rigors of Section 37 of the Act are not attracted in the present case, but this court cannot lose sight of the fact that bail petitioner was convicted in a similar case few months back but despite that he again indulged in this activity and as such, it would not be safe to enlarge him on bail at this stage. It has been repeatedly held by the Hon'ble Apex Court as well as this Court that while considering bail, factor ::: Downloaded on - 15/11/2018 22:57:32 :::HCHP 5 with regard to possibility/probability of accused indulging in such kind of activity again, is required to be kept in mind.
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7. Consequently, this court sees no reason to accede to the prayer made in the present application and accordingly the same is dismissed being devoid of any merits 14th November, 2018 (Sandeep Sharma), Judge manjit ::: Downloaded on - 15/11/2018 22:57:32 :::HCHP