Himachal Pradesh High Court
___________________________________________________________ vs State Of Himachal Pradesh on 24 March, 2023
Author: Sushil Kukreja
Bench: Sushil Kukreja
1 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA .
Cr. MP (M) No. 551 of 2023 Reserved on: 22.03.2023 Decided on: 24.03.2023 ___________________________________________________________ Ashwani Mehta ....Petitioner Versus State of Himachal Pradesh ....Respondent Coram The Hon'ble Mr. Justice Sushil Kukreja, Judge.
Whether approved for reporting?1 For the petitioner : Mr. Aakash Thakur, Advocate. For the respondent : Mr. B.N. Sharma, Addl. AG with Mr. R.P. Singh and Ms. Avni Kochhar, Dy. AGs.
Sushil Kukreja, Judge By way of instant petition, filed under Section 439 of the Criminal Procedure Code, the petitioner is seeking bail in case F.I.R. No. 27/2023, dated 03.02.2023, registered at Police Station, West Shimla, District Shimla H.P., under Section 21 of the Narcotic Drugs and Psychotropic Substances Act (hereinafter referred to as "NDPS Act").
1 Whether reporters of Local Papers may be allowed to see the judgment? Yes.
::: Downloaded on - 24/03/2023 20:39:51 :::CIS 22. The prosecution story, in brief, is that on .
03.02.2023 a rukka was received at Police Station West, Shimla that on 02.02.2023, at around 4:50 P.M., while the police party was on routine patrolling duty at Police Barrier Shoghi, they signaled one HRTC bus, bearing registration No. HP-25A-5111, coming from Solan side, to stop. The police party started checking the bags of the occupants of the bus and when they reached near seat No. 29(W), they saw one person sitting there, who was carrying a bag with him. The police party asked the purpose of his travelling in the bus, however, he could not give any satisfactory answer. On suspicion, the police party associated driver Harish Chand and conductor Vidya Sagar as independent witnesses in the proceedings, in whose presence, the person sitting on seat No. 29(W) disclosed his name as Ashwani Mehta (petitioner herein).
During search of the bag of the petitioner, a light yellow coloured solid substance was recovered, which on the basis of experience was found to be chitta/heroin. On weighment, the recovered contraband was found to be 30 grams. Thereafter, the police completed all the codal ::: Downloaded on - 24/03/2023 20:39:51 :::CIS 3 formalities and FIR as detailed hereinabove was .
registered against the accused. Consequently, he was arrested.
3. Learned counsel for the petitioner has contended that the petitioner is innocent and has been falsely implicated in this case. He has further contended that investigation in this case is almost complete and nothing remains to be recovered at the instance of the petitioner, as such, the petitioner, who is in custody since his arrest, is required to be released on bail.
4. Per contra, the learned Additional Advocate General opposed the bail application on the ground that keeping in view the gravity of the offence alleged to have been committed by the petitioner, he is not entitled to be enlarged on bail. He further contended that the petitioner is habitual offender and many cases have been registered against him at different police stations, as such, he does not deserve to be released on bail.
5. I have heard the learned counsel for the petitioner as well as learned Additional Advocate General and have also gone through the record of the case. The ::: Downloaded on - 24/03/2023 20:39:51 :::CIS 4 perusal of the record indicates that the quantity of .
chitta/heroin, involved in the present case is 30 grams, which is an intermediate quantity. Therefore, rigors of Section 37 of the NDPS Act are not applicable in the present case. The petitioner was arrested on 03.02.2023 and since then he is behind the bars. There is no evidence on record to suggest that the petitioner will tamper with the prosecution evidence or will flee from justice, if released on bail, as he is permanent resident of District Shimla. Moreover, the chargesheet in the case is yet to be filed and trial may take sufficiently long time to conclude.
Therefore, no fruitful purpose will be served if the petitioner is kept behind the bars for an unlimited period.
The learned Additional Advocate General contended that many cases in past have been registered against the petitioner, i.e. (1) FIR No. 74/2013, dated 26.04.2013, under Sections 341, 354, 354D & 506 of IPC, registered at Police Station Rampur, (2) FIR No. 200/2013, dated 02.12.2013, under Sections 354C & 354D of IPC, registered at Police Station Dhalli, (3) FIR No. 112/2014, dated 09.09.2014, under Sections 341 & 323 of IPC, ::: Downloaded on - 24/03/2023 20:39:51 :::CIS 5 Registered at Police Station Rampur, (4) FIR No. 7/2018, .
Dated 05.02.2018, under Sections 452, 323, 504 & 506 of IPC, registered at Police Station Nankhari and (5) FIR No. 5/2021, dated 09.01.2021, under Section 160 of IPC, registered at Police Station Nankhari and is not entitled to be released on bail, as he is a habitual offender. However, this contention of the learned Additional Advocate General cannot be accepted, as registration of some cases in the past against the petitioner is no ground to deny bail to him in the present case, as those cases will be decided by the concerned Courts on their own merits. Moreover, as per the status report, no case under the NDPS Act has been registered against the petitioner.
6. Considering the overall facts and circumstances of the case and since the quantity of chitta/heroin involved in this case is 30 grams, which is an intermediate quantity, this Court finds that the present is a fit case where judicial discretion to admit the petitioner on bail is required to be exercised in his favour.
Accordingly, the bail application is allowed and it is ordered that the petitioner, who has been arrested by the ::: Downloaded on - 24/03/2023 20:39:51 :::CIS 6 police, in case F.I.R. No. 27/2023, dated 03.02.2023, .
registered at Police Station West, District Shimla, H.P., under Section 21 of NDPS Act, shall be forthwith released on bail, subject to his furnishing personal bond to the tune of Rs. 50,000/- (Rupees fifty thousands), with one surety in the like amount to the satisfaction of learned
(i) r to Trial Court. This bail order is subject, however, to the following conditions:-
that the petitioner will appear before the Court and the Investigating Officer whenever required ;
(ii) that he will 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 any facts to the Court or the police;
(iii) that he will not tamper with the prosecution evidence nor he will try to win over the Prosecution witnesses or terrorise them in any manner;
(iv) that he will not repeat the offence, as is alleged to have been committed by him.
(v) that he will not deliberately and intentionally act in a manner which may tend to delay the investigation or the trial of the case.
(vi) that he will not leave India without prior permission of the Court.
7. Needless to say that the Investigating agency shall be at liberty to move this Court for cancellation of the bail, if any of the aforesaid conditions is violated by the petitioner.
::: Downloaded on - 24/03/2023 20:39:51 :::CIS 78. Be it stated that any expression of opinion .
given in this order does not mean an expression of opinion on the merits of the case and the trial Court will not be influenced by any observations made therein.
(Sushil Kukreja)
March 24, 2023 Judge
(raman)
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