Himachal Pradesh High Court
Aslam Khan vs State Of Himachal Pradesh on 8 December, 2020
Author: Chander Bhusan Barowalia
Bench: Chander Bhusan Barowalia
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr.MP(M) No. 2132 of 2020
Reserved on 07.12.2020
Decided on: 08.12.2020
Aslam Khan ....Petitioner
.
Versus
State of Himachal Pradesh ...Respondent
Coram
The Hon'ble Mr. Justice Chander Bhusan Barowalia, Judge.
Whether approved for reporting?1 Yes.
(Through video conference)
For the petitioner: Mr. Rajesh Kashyap, Advocate.
For the respondent/State: Mr. Gaurav Sharma, Deputy Advocate
General.
______________________________________________________________________
Chander Bhusan Barowalia, Judge. (oral)
The matter is taken up through video conference.
2. The present bail application has been maintained by the petitioner under Section 439 of the Code of Criminal Procedure seeking his release, in case FIR No. 307 of 2018, dated 28.12.2018, under Section 20 of the ND&PS Act, registered in Police Station Manali, District Kullu, H.P.
3. As per the averments made in the petitions, the petitioner is innocent and has been falsely implicated in the present case. He is permanent resident of District Shimla and neither in a position to tamper with the prosecution evidence nor in a position to flee from 1 Whether reporters of Local Papers may be allowed to see the judgment? Yes. ::: Downloaded on - 08/12/2020 20:18:50 :::HCHP 2 justice. No fruitful purpose will be served by keeping him behind the bars for an unlimited period, so he be released on bail.
4. Police report stands filed. As per the prosecution story, on 28.12.2018, at about 05:00 a.m., a police team was on routine patrol .
duty and at about 06:00 a.m. the team reached a place known as 16 Meel near a rain shelter. A car came from Manali side and the driver of the car, on seeing the police, switched off the lights of the vehicle and stopped it. On suspicion, police approached the vehicle and found it to be bearing registration plate having No. HP01B-0311. The driver of the vehicle seemed baffled and he disclosed his name as Aslam Khan (petitioner herein). Police, upon search of the vehicle, found three brownish packets in the vehicle, which was wrapped with tape. The aforesaid packets were checked and found stuffed with charas and on weighment it was found to be 1.484 Kgs. Thereafter, the police completed all the codal formalities. Police prepared the spot map, recorded the statements of the witnesses and registered a case against the petitioner. The petitioner was arrested and during the course of interrogation he divulged that one unknown Nepali person had handed over the contraband to him at Manali and told him to transport the same to Shimla. He has further disclosed that he was given Rs.6000/-, as transportation charges, and the aforesaid Nepali person told him that someone will collect the packets at Shimla from the petitioner. However, upon being intensively searched, no such Nepali person was ::: Downloaded on - 08/12/2020 20:18:50 :::HCHP 3 traced by the police. The contraband, on chemical examination, was found to be sample of charas. As per the police, investigation in case is complete and challan stands presented in the learned trial Court. Lastly, it is prayed that the bail application of the petitioner be .
dismissed, as the petitioner was found involved in a serious offence. The petitioner, at this stage, in case enlarged on bail, may tamper with the prosecution evidence and may flee from justice, so the bail application may be dismissed.
5. I have heard the learned Counsel for the petitioner, learned Deputy Advocate General for the State and gone through the record, including the police report, carefully.
6. The learned Counsel for the petitioner has argued that the petitioner has been falsely implicated in the present case. He has further argued that the petitioner is permanent resident of District Shimla and neither in a position to tamper with the prosecution evidence nor in a position to flee from justice. He has argued that no fruitful purpose will be served by keeping the petitioner behind the bars for an unlimited period, especially when nothing remains to be recovered at his instance, investigation is complete, challan stands presented in the learned Trial Court, custody of the petitioner is not at all required by the police, so the bail application may be allowed and the petitioner be enlarged on bail. Conversely, the learned Deputy Advocate General has argued that the petitioner has committed a ::: Downloaded on - 08/12/2020 20:18:50 :::HCHP 4 serious offence. He has further argued that the petitioner was nabbed by the police when he was in exclusive and conscious possession of 1.484 Kgs of charas and in case the petitioner is enlarged on bail, he may flee from justice, may tamper with the prosecution evidence and .
may again indulge in such activities. He has argued that the trial is yet to begin, so the bail application of the petitioner be dismissed.
7. In rebuttal the learned Counsel for the petitioner has argued that the petitioner is permanent resident of District Shimla, thus neither in a position to tamper with the prosecution evidence nor in a position to flee from justice, nothing is to be recovered at his instance, custody of the petitioner is not at all required by the police, as the investigation is complete and challan stands presented in the learned Trial Court, so the application be allowed and the petitioner be enlarged on bail.
8. At this stage, considering the quantity of the recovered contraband, which is 1.484 Kgs, thus a commercial quantity, the manner in which the same is alleged to have been recovered from the exclusive and conscious possession of the petitioner, the fact that in case the petitioner is, at this stage, enlarged on bail, may flee from justice, tamper with the prosecution evidence and may again indulge in such type of activities, also considering the fact that the trial is yet to begin, the fact that the records suggest that the petitioner had knowledge that the packets contain charas and 1.484 Kgs of charas ::: Downloaded on - 08/12/2020 20:18:50 :::HCHP 5 cannot, even for the sake of imagination, be kept by the petitioner for his own use, considering all the facets of the case and without discussing the same at length, at this stage, this Court finds that the present is not a fit case where the judicial discretion to admit the .
petitioner on bail is required to be exercised in his favour.
9. In view of what has been discussed hereinabove, the petition sans merits, deserves dismissal and is accordingly dismissed.
10. Needless to say that the observations made hereinabove are confined for the adjudication of the present petition only and shall have no bearing, whatsoever, on the merits of the main case, which shall be adjudged and decided on its own merits.
(Chander Bhusan Barowalia)
8th December, 2020 Judge
(virender)
::: Downloaded on - 08/12/2020 20:18:50 :::HCHP