Himachal Pradesh High Court
Amru Ram vs State Of Himachal Pradesh on 27 February, 2018
Author: Chander Bhusan Barowalia
Bench: Chander Bhusan Barowalia
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.MPs(M) No. 98 & 99 of 2018 Decided on: 27th February, 2018
1. Cr.MP(M) No. 98 of 2018:
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Amru Ram ....Petitioner
Versus
State of Himachal Pradesh ...Respondent
____________________________________________________________________
2. Cr.MP(M) No. 99 of 2018:
Lekh Raj ....Petitioner
Versus
State of Himachal Pradesh ...Respondent
Coram
Whether approved for reporting?1 Yes.
For the petitioner(s):
r to
The Hon'ble Mr. Justice Chander Bhusan Barowalia, Judge.
Mr. N.K. Thakur, Sr. Advocate, with Mr. Divya Raj Singh, Advocate.
For the respondent/State: Mr. Ashwani Sharma, Addl. AG, with Mr. Kamal Kant Chandel, Dy. AG and Mr. Rajat Chauhan, Law Officer.
SI Ajit Singh, I.O. P.S. Sadar, Kullu, District Kullu, H.P. ______________________________________________________________________ Chander Bhusan Barowalia, Judge. (oral).
The present bail applications have been maintained by the petitioners under Section 438 of the Code of Criminal Procedure for releasing them on bail, in the event of their arrest, in case FIR No. 234 of 2017, dated 14.10.2017, under Sections 20 and 29 of the ND&PS Act, Police Station Sadar Kullu, District Kullu, H.P. 1 Whether reporters of Local Papers may be allowed to see the judgment? Yes.
::: Downloaded on - 28/02/2018 22:57:59 :::HCHP 22. As per the averments made in the petition, the petitioners are innocent and have been falsely implicated in the present case.
They are residents of the place and neither in a position to tamper with .
the prosecution evidence nor in a position to flee from justice. It is further averred that the petitioners have nothing to do with the recovery and the police has instituted a false case against them.
Nothing is to be recovered from the petitioners, thus they may be released on bail, as they are ready and willing to join the investigation.
3. Police report stands filed. As per the prosecution story, on 13.10.2017, police were present in connection with patrol duty at place Cheedmod. Police spotted a person and that person after seeing the police threw a packet and started running towards Manikarn. Police apprehended him and he disclosed his name as Saleem. Despite best efforts no independent witness could be associated and on checking the packet thrown by the said person it was found to be charas and on weighment it was found to be one kg and 180 grams. Police conducted the sealing formalities. The person, who was nabbed by the police, divulged that the charas was given to him by Amru and Lekh Raj for selling at Kasol-Manikaran to Ram Bahadur Nepali and the sale proceeds were decided to be divided equally. As per the police, petitioners are absconding after the arrest of Saleem and the call details prove that they were constantly in touch with Saleem. Lastly, the prosecution has prayed that as the investigation is at the initial ::: Downloaded on - 28/02/2018 22:57:59 :::HCHP 3 stages and the role of the petitioners is yet to be ascertained, they may not be enlarged on bail and the bail applications may be dismissed.
4. I have heard the learned Senior Counsel for the petitioners, .
learned Additional Advocate General for the State and gone through the record, including the police report, carefully.
5. The learned Senior Counsel for the petitioners has argued that the petitioners are ready and willing to join the investigation and their custodial interrogation is not at all required. He has also argued that by keeping the petitioners behind the bars no fruitful purpose will be served. The petitioners are residents of the place and neither in a position to tamper with the prosecution evidence nor in a position to flee from justice, so they may be released on bail. To support his arguments, the learned Senior Counsel has placed reliance on the following judicial pronouncements:
1. Siddharam Satlingappa Mhetre vs. State of Maharashtra & others, (2011)1 SCC 694,
2. Bhadresh Bipinbhai Sheth vs. State of Gujarat & another, (2016) 1 SCC 152,
3. Dataram Singh vs. State of Uttar Pradesh & another, Criminal Appeal No. 227 of 2018, decided by Hon'ble Supreme Court of India, &
4. Amarjeet Singh vs. Director of Revenue Intelligence, Bail Application No. 673 of 2009, 2009 (163) DLT 524.
Conversely, the learned Additional Advocate General has argued that the petitioners were found involved in a serious offence and the ::: Downloaded on - 28/02/2018 22:57:59 :::HCHP 4 recovered quantity of contraband is commercial. He has further argued that the investigation is at the initial stage and there is prima facie proof to connect them with the offence. He has prayed that the .
bail applications of the petitioners may be dismissed.
6. In rebuttal, the learned Senior Counsel for the petitioners has argued that the rule is bail not jail and no recovery is to be effected from the petitioners. He has argued that the petitioners have been falsely implicated in the present case, thus they may be released on bail, as they are residents of the place and they are neither in a position to tamper with the prosecution evidence nor in a position to flee from justice.
7. At this moment, this Court considers the fact that the main accused, from whom the alleged charas was recovered, has given a statement to the police that the petitioners gave him the contraband for selling to a named person at Kasol and the sale proceeds were to be divided among the three. At this stage, this Court finds that the police are investigating the matter and the mobile conversation between the person from whom the recovery was effected and the petitioners has been found and further all the three are business partners. The investigation is at the initial stages and if at this stage the petitioners are enlarged on bail, the investigation will be hampered and there are chances that the petitioners will tamper with the prosecution evidence.
This Court also takes into account the seriousness of the offence, the ::: Downloaded on - 28/02/2018 22:57:59 :::HCHP 5 fact that the petitioners are likely to flee from justice and the quantity of the recovered contraband is also found to be more than one kilogram, which is a commercial quantity.
.
8. In Siddharam Satlingappa Mhetre vs. State of Maharashtra & others, (2011) 1 SCC 694, the Hon'ble Supreme Court has held that there is no requirement that the accused must make out a "special case" for exercise of the power to grant anticipatory bail. However, in the present case the investigation is at the initial stage and petitioners are in a position to tamper with the prosecution evidence and they are also in a position to flee from justice, so the judgment (supra) is not applicable to the facts of the present case.
9. In Bhadresh Bipinbhai Sheth vs. State of Gujarat & another, (2016) 1 SCC 152, the Hon'ble Supreme Court has culled out the parameters which needs to be taken into consideration while dealing with anticipatory bail and one of the parameters was that balance has to be struck between two factors, namely, no prejudice should be caused to free, fair and full investigation, and there should be prevention of harassment, humiliation and unjustified detention of the accused. However, in the case in hand, there is every likelihood that in case the petitioners are enlarged on bail it will effect free, fair and full investigation of the case, thus the balance is in favour of free, fair and full investigation and at this moment judicial discretion to admit the petitioners on bail cannot be exercised in their favour. The ::: Downloaded on - 28/02/2018 22:57:59 :::HCHP 6 judgment (supra) is not applicable to the facts of the present case, hence the judgment is of no help to the petitioners.
10. In Dataram Singh vs. State of Uttar Pradesh & .
another, Criminal Appeal No. 227 of 2018, the Hon'ble Supreme court has held that the discretionary power should be exercised judiciously and compassionately, but in the case in hand taking into consideration the quantity of the recovered contraband and the fact that the investigation is at nascent stage and also the fact that the exact role of the petitioners is yet to be ascertained, the judgment (supra) is not applicable to the facts of the present case.
11. Similarly, in Amarjeet Singh vs. Director of Revenue Intelligence, Bail Application No. 673 of 2009, 2009(163) DLT 524, the Hon'ble High Court of Delhi has held that if there are reasonable ground to believe that the petitioner is not guilty of offence under the Act and that the court is satisfied that the petitioner is not likely to commit offence under the Act, if released on bail, the applicant can be directed to be released on bail subject to conditions. However, in the present case the investigation is in initial stage and exact role of the petitioners is yet to be ascertained and also the quantity of the alleged contraband is commercial, thus the judgment (supra) is not applicable to the facts of the present case.
12. After meticulously examining the police record and analysis the law, as citied by the learned Senior Counsel for the ::: Downloaded on - 28/02/2018 22:57:59 :::HCHP 7 petitioner, and further taking into consideration the quantity of the recovered contraband, which is commercial quantity, the role of the petitioners in the alleged offence and the fact that the investigation is .
at initial stage, there is every likelihood that the petitioners may flee from justice and tamper with the prosecution evidence and also the fact that in case the petitioners are enlarged on bail the free, fair and full investigation will be affected, therefore, keeping in view the above enumerated facts and circumstances, this Court finds that at this stage judicial discretion to admit the petitioners on bail cannot be exercised in their favour. r The bail applications, which san merits, deserve dismissal and are accordingly dismissed.
(Chander Bhusan Barowalia)
27th February, 2018 Judge
(virender)
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