Himachal Pradesh High Court
Dabe Ram vs State Of Himachal Pradesh on 26 December, 2022
Author: Vivek Singh Thakur
Bench: Vivek Singh Thakur
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
ON THE 26th OF DECEMBER, 2022
BEFORE
.
HON'BLE MR. JUSTICE VIVEK SINGH THAKUR
CRIMINAL MISC. PETITION (MAIN) No.2272 OF 2022
Dabe Ram
.....PETITIONER
Versus
State of Himachal Pradesh
....RESPONDENT
For the Petitioner
For the Respondent
:
:
Mr. Sudhir Thakur, Senior Advocate,
with Mr. Karun Negi, Advocte.
Mr. Hemant Vaid, Additional
Advocate General
Whether approved for reporting? Yes.
ORDER
Petitioner has approached this Court seeking bail under Section 438 Code of Criminal Procedure (in short 'Cr.P.C.'), in FIR No.31 of 2022, dated 13.02.2022, registered in Police Station Sadar Solan, District Solan, H.P., under Sections 20 and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as 'NDPS Act').
2. Status report stands filed. Record, alongwith Call Detail Record, also made available.
3. Prosecution case is that on 13.02.2022, at about 7.00 p.m. ASI Sanjeev Kumar, Incharge of Special Investigation Unit (SIU), Solan, near Dohri Diwar bifurcation of Subathu road, received a reliable information, from ::: Downloaded on - 29/12/2022 20:32:48 :::CIS Cr.MP(M) No.2272 of 2022 ...2...
trustworthy informer, that a Magma Grey coloured Swift Car bearing registration No.HP-64B-3404 was coming from .
Subathu to Solan with charas having two occupants, namely, Govind Thakur and Radha Devi, who are doing business of sale and purchase of charas in the said vehicle.
4. As, during time spent for obtaining warrant for search, there was possibility of disappearance of the contraband, ASI prepared information under Section 42(2) of NDPS Act on the spot and sent it through Supervisory Officer of SIU, Solan through Constable Hemant Kumar at 7.15 p.m. and thereafter, he alongwith police officials went in search and Nakkaa Bandi towards Subathu road etc. and laid a Nakka at Ghatti, near Shiv Temple at 7.25 p.m. and telephonically informed the Ward Member, Pawan Kumar of Gram Panchayat Dangri, about the circumstances.
5. At about 7.45 p.m. above referred vehicle came with two occupants i.e. a boy and a girl, from Subathu side and car was stopped. At that time, Ward Member Pawan Kuamr alongwith independent witness Geeta Sharma also came on the spot. By complying procedure of search and seizure, car was searched in presence of independent witnesses, wherefrom, a carry bag, hidden below the driver seat, containing round black coloured substance, was recovered. On the basis of experience, on smelling, and as ::: Downloaded on - 29/12/2022 20:32:48 :::CIS Cr.MP(M) No.2272 of 2022 ...3...
also disclosed by the occupants of the car, it was identified as cannabis, which was 1.26 kilograms. Same was taken into .
possession and seized as per prescribed procedure and, thereafter, after registration of FIR by sending Rukka, occupants of car were arrested.
6. By complying provisions of Section 52A of NDPS Act, 70 grams charas was taken out as a sample from the recovered contraband. State Forensic Science Laboratory (SFSL) on the r basis of analysis confirmed recovered contraband as charas.
7. During interrogation, Govind Thakur disclosed that he, on 12.02.2022 went alongwith co-accused Radha Devi towards Kullu, and from an interior Village, they procured charas from petitioner-Dabe Ram.
8. Call Detail Records (CDRs) of Govind Thakur was obtained and on perusal whereof, it has been found that since the night of 12.02.2022 till 13.02.2022, Govind Thakur was in regular contact with petitioner-Dabe Ram. Thereafter, CDRs and Customer Acquisition Form (CAF) of petitioner-Dabe Ram were obtained. Mobile number was found in the name of petitioner-Dabe Ram linked with his Aadhar Card.
9. On 05.03.2022, police party went in search of petitioner-Dabe Ram, but neither he nor any other member of his family was found in his house and house was found locked.
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They all were hiding them due to fear of police. Search memo was prepared in presence of Ward Member Pawan Kumar.
.
10. On the basis of CAF and photograph on Aadhar Card Govind Thakur identified petitioner Dabe Ram as the same person from whom he had purchased charas in his house at Barogi. House of petitioner-Dabe Ram is situated at a distance of 10 kilometers on a link road from Bhunter to Manikaran road at an interior place.
11. After obtaining interim bail petitioner-Dabe Ram had joined investigation on 01.07.2022 and as per prosecution, he has not disclosed anything, rather denying selling of charas by him to Govind Thakur with explanation that he is a Carpenter and his family earn livelihood from agriculture and Orchard and they are residing in a joint family.
Further that at about 6-7 months ago, he came in contact of Govind Thakur in a Fair at Karsog and at that time, a girl was there alongwith him and thereafter, whenever Govind Thakur used to come to Kullu and Manikaran, he used to meet him and they shared mobile numbers and had been talking with each other.
12. It has further been stated by learned counsel for the petitioner that Govind Thakur was contacting Dabe Ram on 12.03.2022 for staying in his house alongwith a girl, but petitioner did not agree for that and except that there was no ::: Downloaded on - 29/12/2022 20:32:48 :::CIS Cr.MP(M) No.2272 of 2022 ...5...
other conversation or dealing of the petitioner with Govind Thakur. According to Dabe Ram, Govind Thakur was .
informing him about his visit to Kullu alongwith girl.
13. As per prosecution case, call detail reflects that on 12.02.2022 Govind Thakur started contacting petitioner-Dabe Ram at 02:31:03 a.m. and thereafter he had talks with him at 02.35:11 a.m. for 2005 seconds and thereafter, at 03:08:36 a.m., 03:10:12 a.m., 09:36:58 a.m., 21:53:52 p.m., 22:42:36 p.m., and 22:55:24 p.m., and on 13.02.2022 at 01:52:18 a.m. he sent message to petitioner-Dabe Ram and, in turn, petitioner-Dabe Ram sent him messages at 01:52:46 a.m. and 01:52:48 a.m. and, thereafter, Govind Thakur sent him another message at 02:27:09 a.m. and had a telephonic call at 02:29:56 a.m. and last call was made by him at 10:32:12 a.m. on 13.12.2022. Further that this detail has been corroborated with call detail of petitioner Dabe Ram. On 14.02.2022 at 00:03:23 a.m. and 10:24:47 a.m. messages were sent from the mobile phone of Govind Thakur to the mobile phone of petitioner-Dabe Ram.
14. It is further case of the prosecution that on 12.02.2022 at 02:31:03 a.m. location of Govind Thakur was at near Vardhman Chowk, Baddi and from 09:36:58 a.m. till 10:34:47 a.m. he was at Baddi. But at 9.53 p.m. on 12.02.2022 his location was at Gulab Singh, son of late ::: Downloaded on - 29/12/2022 20:32:48 :::CIS Cr.MP(M) No.2272 of 2022 ...6...
Sh.Tikam Ram, Village Phalana, P.O. Sachani, Tehsil Bhunter, Tehsil Bhunter, District Kullu, H.P. During midnight between .
12th and 13th, on 13.02.2022, at 01:52:18 a.m. to 02:29:56 a.m. his location was under Tower at Village Shirshu, Tehsil Bhunter, District Kullu, H.P. and at 10:32:12 a.m. on 13.02.2022, he was in Village Chadyana, Tehsil Sadar, District Mandi, H.P.
15. It is further case of prosecution that on 12.02.2022 from 02:31:03 a.m. up to 10:34:46 a.m. petitioner was in Village Shirshu, District Kullu, H.P. and at 21:53:52 p.m. to 10:41:36 p.m. he was in Village Bradha in District Kullu. At 10:55:24 he was in Village Chadhai in District Kullu, H.P. From 01:52:19 a.m. to 02:29:56 a.m. he was in Village Shirshoo and at that time Govind Thakur was also under the same Tower meaning thereby that they were nearby each other and leading to the inference that at that time they had met each other which was probable time of procuring charas by Govind Thakur from Dabe Ram.
16. It is case of the petitioner that petitioner and Govind Thakur were never together at the same time and petitioner has been falsely implicated, who has no past criminal history and has also not been named in FIR and the calls made by Govind Thakur were for arranging room and he was desiring to stay in the house of the petitioner-Dabe Ram ::: Downloaded on - 29/12/2022 20:32:48 :::CIS Cr.MP(M) No.2272 of 2022 ...7...
and as Dabe Ram had noticed that both Govind Thakur and his companion girl were under intoxication, therefore, he .
refused to arrange the room for them or to allow them to stay in his house and in case petitioner-Dabe Ram and Govind Thakur had been together, there was no occasion for petitioner-Dabe Ram to make a call to him and to send messages and further that petitioner-Dabe Ram has joined investigation and is cooperating Investigating Agency and there is no direct or indirect evidence against him.
17. Learned counsel for the petitioner has referred order dated 10.01.2022 passed by Supreme Court in Special Leave to Appeal (Crl.) No.242 of 2022, titled as State by (NCB) Bengaluru vs. Pallulabid Ahamad Arimutta & another, wherein taking note of earlier judgment passed by the Supreme Court in Tofan Singh vs. State of Tamil Nadu, (2021) 4 SCC 1, Supreme Court has upheld grant of bail to the accused persons, who were arrayed as accused and arrested on the basis of disclosure statement of co-accused only, but without having any admissible evidence against them except the disclosure statement of co-accused and Call Detail Records (CDRs).
18. By referring the aforesaid judgment in Lallulabid Ahamad Arimutta's case, it has been submitted on behalf of the petitioner that in present case also petitioner-Dabe Ram ::: Downloaded on - 29/12/2022 20:32:48 :::CIS Cr.MP(M) No.2272 of 2022 ...8...
has falsely been implicated, only on the basis of statement of co-accused and CDRs and, therefore, in view of .
pronouncement of the Supreme Court, he deserves to be enlarged on bail.
19. Learned Additional Advocate General has submitted that petitioner has not been implicated only on the basis of disclosure statement of co-accused and CDRs, but for hiding himself immediately after arrest of Govind Thakur and during this period, he kept his mobile phone switched off and CDRs not only establish talks between Govind Thakur and petitioner but also indicate meeting of Govind Thakur and present petitioner at one place during midnight/odd hours, journey of Govind Thakur from Baddi to the petitioner's place and his return journey immediately thereafter from the place of the petitioner to Solan and, therefore, there are material circumstances other than CDRs and disclosure statement of co-accused, indicating involvement of the petitioner.
20. Learned counsel for the petitioner has submitted that cardinal principle of criminal jurisprudence is that 'bail is rule and jail is exception' and keeping in view the right of personal liberty guaranteed under Article 21 of the Constitution of India, coupled with presumption of innocence of an accused, petitioner is entitled for bail.
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21. It has been contended by learned Additional Advocate General that in present case amount of Charas .
recovered is of commercial quantity of 1.260 kgs and for considering the provisions of Section 37 of the NDPS Act and the period of detention of the petitioner, vis-à-vis pace of the trial, it cannot be said that right to personal liberty of the petitioner is being infringed without any reasonable cause. It has been further submitted that the petitioner has been found involved in commission of offence under the NDPS Act, which is harming not only the individuals but also well being of the society and the nation at large and further that there is a presumption against the accused provided under Sections 35 and 54 of the NDPS Act. Therefore, learned Additional Advocate General has opposed the grant of bail.
22. Without commenting upon merits of the case, but taking into consideration material placed before me and rival contention of parties and also taking into consideration factors and parameters required to be considered for adjudication of bail application, I find that petitioner has failed to make out a case for grant of anticipatory bail.
23. In view of above, the petition is dismissed being devoid of any merit.
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24. 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 petition stands disposed of.
( Vivek Singh Thakur )
December 26, 2022(sd) Judge.
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