CRMPM/1530/2017 on 29 December 2017

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

Cr. MP(M) No.: 1530 of 2017

Date of Decision: 29.12.2017 ______________________________________________________________________ Okechuku Mathew

…..Petitioner.

Vs.

State of Himachal Pradesh

…..Respondent.

Coram:

The Hon’ble Mr. Justice Ajay Mohan Goel, Judge Whether approved for reporting?1 No. For the petitioner: Mr. Anoop Chitkara, Advocate.

For the respondent: Mr. Vikram Thakur, Deputy Advocate General.

ASI Dhani Ram, Police Station Kullu (Sadar) present alongwith records of the case.

Ajay Mohan Goel, Judge:

By way of this petition filed under Section 439 of the Code of Criminal Procedure, the petitioner has prayed for grant of bail in FIR No. 25 of 2017, dated 11.02.2017, registered at Police Station Kullu, District Kullu, under Sections 21 and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985.

2. I have heard the learned counsel for the petitioner as well as learned Deputy Advocate General, who has also filed latest status report, which is ordered to be taken on record. I have also perused the Whether the reporters of the local papers may be allowed to see the Judgment?

record of the case, which has been made available by the learned Deputy Advocate General.

3. It is a matter of record that the petitioner had earlier filed an application under Section 439 of the Code of Criminal Procedure for grant of regular bail in FIR (supra), which has been rejected by the Court of learned Additional Sessions (Special) Judge, Kullu vide order, dated 04.10.2017.

4. Learned counsel for the petitioner has submitted that the entire process initiated against the petitioner by the State is illegal, without jurisdiction and in fact, the petitioner stands “kidnapped” by the police of the State from a place beyond its jurisdiction and for this reason alone, the petitioner is entitled to be granted bail. He has placed reliance on a judgment passed by the Hon’ble Supreme Court in Wazir Chand and another Vs. The State of H.P. and others, AIR 1954 (SC) 415.

5. No other point was urged.

6. Records demonstrate that from the possession of one accused Parveen Kumar, 15 grams of heroin was recovered, who disclosed to the police that he had purchased the same from the present petitioner and during the course of investigation, when the residence of the petitioner was searched at New Delhi, 1 Kgs. and 500 grams heroin was recovered from his possession. A perusal of the status report filed by the State categorically demonstrates that heroin weighing 1 Kgs. and 500 was found from exclusive and conscious possession of the petitioner, who incidentally is a foreign National. Now, this recovery was made in the course of investigation, which the police was conducting pursuant to the arrest of co-accused Parveen Kumar, who admittedly, was arrested by the police officials of Police Chowki Manikaran, District Kullu on 11.02.2017. The contention of the learned counsel for the petitioner that the process initiated against the petitioner by the State is illegal, void and without jurisdiction is without any merit, because it is in the course of investigation of an offence committed in the State of Himachal Pradesh, in which involvement of the present petitioner was alleged, the petitioner was apprehended with huge quantity of heroin.

6. Section 223(d) of the Code of Criminal Procedure, 1973 clearly provides that persons accused of different offences committed in the course of the same transaction can be charged and tried together. On the other hand, the judgment relied upon by the learned counsel for the petitioner, in my considered view, has no application in the peculiar facts of the present case, because therein the Hon’ble Supreme Court was dealing with an issue that goods in the possession of a person who is not lawfully in possession of them, cannot be seized except under authority of law. In the present case, the facts are that a person was held by the police of Police Post Manikaran from whose possession, heroin was recovered and in the course of investigation, he disclosed that he had purchased the same from the present petitioner and further, in the course of investigation, 1 Kgs. and 500 of heroin was recovered from the residence of the petitioner at New Delhi. Therefore, the judgment cited by the learned counsel for the petitioner is of no assistance. Even otherwise, in my considered view, in a petition under Section 439 of the Code of Criminal Procedure, the Court has to see the gravity of the offence and also the fact as to whether the release of the accused on bail will in any manner effect investigation and whether the accused shall be available for the purpose of trial or not. In my considered view, the gravity of the offence with which the petitioner is charged is enormous. As per the State, heroin weighing 1 Kgs. and 500 grams stood recovered from his exclusive and conscious possession during the course of investigation of an FIR registered at Police Station Kullu. He allegedly also supplied heroin to co-accused Parveen Kumar. The petitioner is a citizen of Nigeria. It is also the case of the State that though heroin was recovered from the petitioner from his residence at New Delhi, however, the offence committed by the petitioner at New Delhi and the one committed at Kasol in District Kullu, Himachal Pradesh forms part of the same criminal conspiracy. Besides this, taking into consideration the fact that the quantity involved is a commercial in nature, Section 37 of the NDPS Act also creates a bar on release of such a person, unless conditions stipulated in the said statutory provision are satisfied. In the present case, learned Deputy Advocate General has opposed the application and further this Court is not satisfied that there are reasonable grounds to believe that the petitioner is not guilty of the offence alleged or that he is not likely to commit any offence while on bail.

Accordingly, as there is no merit in the present petition, the same is dismissed.

(Ajay Mohan Goel)

Judge December 29, 2017 (bhupender)