Himachal Pradesh High Court
Mangal Chand vs State Of Himachal Pradesh on 1 December, 2022
Author: Vivek Singh Thakur
Bench: Vivek Singh Thakur
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IN THE HIGH COURT OF HIMACHAL PRADESH
SHIMLA
Cr.M.P(M) No.2271 of 2022
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Date of Decision: December 1, 2022
Mangal Chand ...Petitioner.
Versus
State of Himachal Pradesh ..Respondent.
Coram:
The Hon'ble Mr. Justice Vivek Singh Thakur, Judge.
Whether approved for reporting?1
For the Petitioner: Mr. Bhupinder Singh Ahuja, Advocate.
For the Respondent: Mr.Hemant Vaid, Additional Advocate
General.
PSI Ishant Sen, Police Station Manali,
District Kullu, H.P., is present in person.
Vivek Singh Thakur, J (oral)
Petitioner has approached this Court, invoking provisions of Section 439 of Code of Criminal Procedure (in short 'Cr.PC'), seeking regular bail in case FIR No. 138 of 2019, dated 26.08.2019, registered under Section 20 of Narcotic Drugs and Psychotropic Substances Act (in short 'NDPS Act') in Police Station Manali, District Kullu, H.P.
2. Status report stands filed. Record has also been made available.
3. As per status report, on 26.08.2019, police party on patrolling, at about 7.15 p.m., noticed a person who was walking alone on Shanag road, near Sewti Nallah. On noticing police party, he turned back and started running causing suspicion and 1 Whether reporters of the local papers may be allowed to see the judgment?
::: Downloaded on - 02/12/2022 20:32:28 :::CIS 2leading to overpowering him by the police officials at some distance. He was appearing to be afraid and perplexed. On inquiry, he disclosed his name as Mangal Chand (petitioner) and .
his address. He could not answer the queries of the police officials satisfactorily and, therefore, police party decided to search his person. On giving option, petitioner gave consent for search before Gazetted Officer. It was dark night and secluded place and no independent witness was available for a considerable long time and there was no movement of vehicles also and, therefore, police officials were associated in search and seizure process and after taking consent under Section 50 of NDPS Act, petitioner was searched and during search a carry bag was found in his coat. On opening the carry bag, 1.110 kilogram charas was recovered. After sending Rukka to the Police Station, FIR was registered and investigation was carried on. On finding sufficient ground for the arrest of the petitioner, he was arrested on the same day and since then he is in custody.
4. As per status report, case has been fixed for recording evidence on 07.12.2022. As on date, out of 14 witnesses, 5 witnesses have been examined.
5. Learned counsel for the petitioner has submitted that petitioner is behind the bars for about 3 years and 3 months and keeping in view the pace of trial, he has submitted that petitioner is entitled for bail.
6. Learned counsel for the petitioner, to substantiate plea for bail, has referred pronouncement of the order dated 01.08.2022 passed by the Supreme Court in a petition for Special ::: Downloaded on - 02/12/2022 20:32:28 :::CIS 3 Leave to Appeal (Crl.) No.3961 of 2022, titled as Abdul Majeed Lone vs. Union Territory of Jamu and Kashmir, wherein petitioner facing trial for having been found in possession of 1100 grams .
commercial quantity of charas was enlarged on bail for suffering incarceration for over 2 years and 5 months, observing that there was no likelihood of completion of trial in near future; and order dated 12.10.2020, passed by Three Judges' Bench of the Supreme Court, in Criminal Appeal No.668 of 2020, titled as Amit Singh Moni vs. State of Himachal Pradesh, whereby petitioner therein, facing trial for recovery of 3.285 kilograms charas from a vehicle, alongwith four other persons, was enlarged on bail for having been in detention of 2 years and 7 months, as till then out of 14 witnesses, 7 witnesses were yet to be examined and last witness was examined in February 2020 and, thereafter, there was no further progress in the trial.
7. Learned counsel for the petitioner has referred pronouncement of the Supreme Court in Nitish Adhikary @ Bapan v. The State of West Bengal, Special Leave to Appeal (Crl.) No.5769 of 2022, decided on 1.8.2022, whereby the accused, under Sections 21(c) and 37 of NDPS Act, was ordered to be enlarged on bail after detention of 1 year and 7 months, observing that the trial was at a preliminary stage.
8. Learned counsel for the petitioner has also placed reliance on order dated 7.2.2020 passed by the Supreme Court in Criminal Appeal No. 245 of 2020, titled as Chitta Biswas Alias Subhas Vs. The State of West Bengal, whereby accused having found in possession of Codeine mixture above commercial ::: Downloaded on - 02/12/2022 20:32:28 :::CIS 4 quantity, was enlarged on bail after 1 year 7 months, at the stage of trial when out of 10 witnesses, 4 witnesses have been examined in the trial.
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9. Reliance has also been placed on order dated 10.11.2021 passed by the Supreme Court in Special Leave to Appeal (Criminal) No. 5187 of 2021, titled as Kulwant Singh Vs. The State of Punjab, whereby accused after detention of more than 2 years, was enlarged on bail despite the fact that recovered contraband was of commercial quantity, for prayer to grant of bail was on the ground of advanced age of petitioner, period of custody undergone by him and the fact that trial would take time to conclude.
10. Learned counsel for the petitioner has also placed reliance upon order dated 7.12.2021 passed by the Supreme Court in Criminal Appeal No. 1570 of 2021, titled as Mahmod Kurdeya Vs. Narcotics Control Bureau, whereby petitioner apprehended with thousands of tablets of Tramadol X-225, was enlarged on bail. In this case, quantity of drug recovered was more than 50 Kilograms. However, in this case bail was granted by taking into consideration the fact that charge-sheet was filed on 23.9.2018 and thereafter even charges had not been framed nor trial had commenced till grant of bail to the petitioner, whereas manufacturer who sold the drug to the accused had been granted bail. Referring aforesaid pronouncements, learned counsel for the petitioner has pleaded that petitioner is also entitled for bail on the same analogy.
::: Downloaded on - 02/12/2022 20:32:28 :::CIS 511. Learned Additional Advocate General has submitted that petitioner has been found involved in commission of heinous crime of such a nature which is not only ruining the individuals, .
but also damaging the families, society and Nation and, therefore, petitioner is not entitled for bail.
12. Taking into consideration the entire facts and circumstances, but, without commenting on merits thereon and taking into account factors and parameters, as propounded by the Supreme Court and this Court, required to be considered at the time of adjudication of bail application, I am of the opinion that petitioner may be enlarged on bail in present case at this stage.
13. Accordingly, present petition is allowed and petitioner is directed to be enlarged on bail, subject to his furnishing personal bond in the sum of `1,00,000/- with one surety in the like amount to the satisfaction of the trial Court/Special Judge, upon such further conditions as may be deemed fit and proper by the trial Court, including the conditions enumerated hereinafter, so as to assure the presence of petitioner/accused at the time of trial:-
(i) That the petitioner shall make himself available to the police or any other Investigating Agency or Court in the present case as and when required;
(ii) that the petitioner shall 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 such facts to Court or to any police officer or tamper with the evidence.::: Downloaded on - 02/12/2022 20:32:28 :::CIS 6
He shall not, in any manner, try to overawe or influence or intimidate the prosecution witnesses;
(iii) that the petitioner shall not obstruct the smooth progress of the investigation/trial;
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(iv) that the petitioner shall not commit the offence similar to the offence to which he is accused or suspected;
(v) that the petitioner shall not misuse his liberty in any manner;
(vi) that the petitioner shall not jump over the bail;
(vii) that in case petitioner indulges in repetition of similar offence(s) then, his bail shall be liable to be cancelled on taking appropriate steps by prosecution;
(viii) that the petitioner shall not leave the territory of India without prior permission; and
(ix) that the petitioner shall inform the Police/Court his contact number and shall keep on informing about change in address and contact number, if any, in future.
14. It will be open to the prosecution to apply for imposing and/or to the trial Court to impose any other condition on the petitioner as deemed necessary in the facts and circumstances of the case and in the interest of justice and thereupon, it will also be open to the trial Court to impose any other or further condition on the petitioner as it may deem necessary in the interest of justice.
15. In case the petitioner violates any condition imposed upon him, his bail shall be liable to be cancelled. In such eventuality, prosecution may approach the competent Court of law for cancellation of bail, in accordance with law.
::: Downloaded on - 02/12/2022 20:32:28 :::CIS 716. Trial Court is directed to comply with the directions issued by the High Court, vide communication No.HHC.VIG./Misc.
Instructions/93-IV.7139 dated 18.03.2013.
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17. 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.
18. Petition is disposed of in aforesaid terms.
19. Copy dasti.
20. Petitioner is permitted to produce/use copy of this order, downloaded from the web-page of the High Court of Himachal Pradesh, before the trial Court/Special Judge, and the said Court shall not insist for production of a certified copy but if required, may verify it from Website of the High Court.
(Vivek Singh Thakur), Judge.
December 1, 2022 (Purohit) ::: Downloaded on - 02/12/2022 20:32:28 :::CIS