CRMPM/2798/2022 on 30 December 2022

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.M.P. (M) No. 2798 of 2022

Date of decision: 30.12.2022 Varun Kumar …Petitioner. Versus State of Himachal Pradesh. …Respondent.

Coram

The Hon’ble Mr. Justice Vivek Singh Thakur, Judge. Whether approved for reporting? For the Petitioner. Mr.Umesh Kanwar and Mr.Pranay Pratap Singh, Advocates. For the Respondent: Mr.Hemant Vaid, Additional Advocate General.

Vivek Singh Thakur, Judge (Oral) Petitioner has approached this Court seeking bail under Section 439 Code of Criminal Procedure (in short ‘Cr.P.C.’), in FIR No.5 of 2020, dated 05.01.2020, registered in Police Station Banjar, District Kullu, H.P., under Sections 20 and 25 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as ‘NDPS Act’).

2. Status report stands filed. Record has also been made available.

Prosecution case is that during Nakka at Sindhwa

Bridge, on 05.01.2020, at about 4.30 a.m., a vehicle coming from Banjar side was stopped for checking of documents. Driver was asked to produce documents. When driver was being asked to show documents, driver and a person sitting on the front seat threw a bag, kept near hand brake, on the rear seat. Persons sitting on the back seat hide the bag which raised suspicion and, therefore, name and addresses of the occupants were asked. Naresh Kumar was driving the vehicle, Shashi Pal was sitting on the front seat. Whereas, Harish Kumar and petitioner Varun Kumar alias Tanu were sitting on the back seat. Due to early hours, no independent witness was available. Therefore, by constituting searching party alongwith police officials, bag hidden by two persons sitting on the back seat was checked, wherefrom 1.605 kilograms charas was recovered and, thereafter, after completing the proceedings in accordance with prescribed procedure, contraband was seized, FIR was lodged and petitioner alongwith other co-accused was arrested. Since then, after remaining for some time in police custody he is in judicial custody.

Learned Additional Advocate General submits that earlier bail application Cr.MP(M) No. 350 of 2022, titled Varun Kumar vs. State filed by petitioner was dismissed on merits and there is no change in circumstances and, therefore, present petition deserves to be dismissed.

Learned counsel for petitioner submits that earlier Bail Application was filed on the different ground that petitioner was not having any knowledge about procuring the contraband by co- accused and previous petition was dismissed keeping in view the pronouncements of the Supreme Court in Union of India vs. Md. Nawaz Khan, (2021) 10 SCC 100, and in recent judgment dated 19.07.2022, passed by the Supreme Court in Special Leave to Appeal (Crl.) No.6128-29 of 2021, titled as Narcotics Control Bureau vs. Mohit Aggarwal, whereas in present petition prayer for bail is being made on different grounds. He further submits that petitioner was arrested on 5.1.2020 for having been found travelling in vehicle along with three other co-accused, wherefrom 1.605 Kg. charas has been alleged to be recovered and since then petitioner is behind the bars for about three years and till date, only 6 witnesses, out of 17 witnesses, have been examined or given up. He further submits that two witnesses were examined in December, 2021, two witnesses on 2.9.2021 and one witness was examined on 9.9.2022 and thereafter, case has been listed for recording the evidence on 16th and 17th January, 2023. It has been submitted that keeping in view the previous history and stage of trial, it would not be possible to conclude the trial in near future and petitioner, who is aged 33 years, is suffering incarceration as under-trial prisoner and therefore, prayer for enlarging the petitioner on bail has been made.

It has been contended by learned Additional Advocate General that petitioner is involved in commission of heinous crime which has adverse impact not only on individual but also damages the society and Nation at large and being a case of commercial quantity rigors of Section 37 of NDPS Act are applicable in present case and, thus, petitioner is not entitled for bail.

Learned counsel for the petitioner, to substantiate plea for bail, has referred pronouncement of the order dated 1.8.2022 passed by the Supreme Court in a petition for Special Leave to Appeal (Crl.) No. 3961 of 2022, titled as Abdul Majeed Lone Vs. Union of Territory of Jammu 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.

8. Learned counsel for the petitioner has referred pronouncements 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.

9. Learned counsel for the petitioner has 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 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.

10. 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 v. 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.

11. 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 field 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.

12. Learned counsel has also placed reliance on order dated 22.8.2022 passed by the Supreme Court in Special Leave to Appeal (Crl.) No. 5530 of 2022 titled as Mohammad Salman Hanif Shaikh Vs. The State of Gujarat, whereby Supreme Court has enlarged the petitioner therein on bail only on the ground that he had spend about two years in custody and conclusion of trial would have taken sometime.

13. Reliance has also been placed on order dated 5.8.2022 passed in Criminal Appeal No. 1169 of 2022, titled as Gopal Krishan Patra alias Gopalrusma Vs. Union of India, whereby the Supreme Court has enlarged the petitioner on bail, considering the custody of 1 year 7 months undergone by him, in a case

involving offence punishable under Sections 8, 20, 27(a), 28 and 29 of NDPS Act.

14. Learned counsel for the petitioner has also referred order dated 28th July, 2022, passed by Co-ordinate Bench of this Court, in Cr.M.P. (M) No. 1255 of 2022 titled as Puran Chand Vs. State of H.P., wherein a person, arrested for having possession of 1.996 Kilograms of charas, was enlarged on bail for length of custody of more than 2 years 9 months.

15. Learned counsel for the petitioner has also placed reliance upon order dated 4.11.2022 passed by Co-ordinate Bench of this Court in Cr.M.P. (M) No. 2273 of 2022, titled Madan Lal Vs. State of H.P., wherein accused arrested on 27.12.2019, for having found in possession of 1.695 Kilograms of charas, was enlarged on bail for non completion of trial and accused had suffered detention of 2 years 10 months.

16. Learned Additional Advocate General has submitted petitioner cannot be treated at par with co-accrued Gulshan and Jatinder who were sitting on the rear seats, whereas petitioner was sitting on front seat alongwith driver and charas recovered was found kept on the hand break between two front seats and thus on this ground also grant of bail to the petitioner has been opposed.

17. Learned Additional Advocate General referring order passed by the Supreme Court, dated 19.7.2022 in Narcotics Control Bureau Vs. Mohit Aggarwal, 2022 SCC Online SC

891:AIR 2022 SC 3444, has contended that period of detention cannot be a ground for enlarging the petitioners on bail.

18. Learned counsel appearing for the petitioner has submitted that in Mohit Aggarwal’s case huge quantity of 20 Kilograms of Tramadol, against minimum commercial quantity of 250 grams, was recovered, whereas in present case recovered quantity is little more than commercial quantity. It has been further contended that the Supreme Court in order dated 11.7.2022 in case titled as Satinder Kumar Antil Vs. Bureau of Investigation, (2022) 10 SCC 51, has observed that period of detention is also a relevant factor for considering the bail application alongwith other factors.

Taking into consideration the entire facts and circumstances, but without commenting on merits thereon and taking into account factors and parameters required to be considered at the time of adjudication of bail application as propounded by the Courts, including the Supreme Court, I am of the considered opinion that at this stage petitioner may be enlarged on bail.

Accordingly, present petition is allowed and petitioner is ordered to be enlarged on bail, subject to furnishing personal bonds in the sum of Rs.1,00,000/- with one in the like amount, to the satisfaction of trial Court/Special Judge and upon such further conditions as may be deemed fit and proper by the trial Court,

including the conditions enumerated hereinafter, so as to assure presence of the petitioner 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. 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;

(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 keep on informing about the change in address, landline number and/or mobile number, if any, for his availability to Police and/or during trial; and

(ix) the petitioner shall not leave India without permission of the Court.

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, enlarged on bail, 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.

In case the petitioner violates any conditions 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.

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.

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 parties are permitted to produce copy of order downloaded from the High Court website and trial Court shall not insist for certified copy of the order, however, if required, passing of order can be verified from the High Court website or otherwise. The petition stands disposed of in the aforesaid terms.

(Vivek Singh Thakur), 30th December, 2022 Judge.

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