CRMPM/1508/2022 of AJMER SINGH Vs STATE OF HP on 30 December 2022

IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA

Cr.MP(M) Nos. 1508, 1512, 1485 & 1409 of 2022Date of Decision 30th Dec.,2022

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The Hon’ble Mr. Justice Vivek Singh Thakur, J.

Whether approved for reporting?

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For the Petitioner(s): Mr. Rahul Singh Verma, Advocate inCr.MP(M) Nos. 1508 and 1512 of2022.

Mr. Deepak Kaushal, Advocate inCr.MP(M) No. 1485 of 2022.

Mr. Topender Kumar Verma,Advocate in Cr.MP(M) No. 1409 of2022

For the Respondent(s): Mr. Hemant Vaid, AdditionalAdvocate General.

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Vivek Singh Thakur, J.

Since all these petitions arise out of the same FIR,the same are consolidated and disposed of together in order toavoid repetition and for the sake of convenience.

2 Petitioners have approached this Court under Section439 of Criminal Procedure Code (in short ‘Cr.P.C.’) for grantingthem bail in case FIR No. 21 of 2021 dated 11.02.2021,registered under Sections 15, 29, 27-A of Narcotic Drugs andPsychotropic Substances Act (hereinafter in short ‘NDPS Act’) inPolice Station Paonta Sahib, District Sirmaur (H.P.).

3 Status Report stands filed, wherein it is brought onrecord that on 11.02.2021, at about 6 a.m., on the basis ofreliable information that from Truck No. HP-11-4991 goingtowards Banjara Basti huge poppy-straw can be recovered, thesaid information was transmitted to Sub Divisional Police Officer as required under Section 42 (2) of NDPS Act and police partyrushed towards Banjara Basti where aforesaid Truck was foundcoming towards Satiwala Chowk main road. However, on seeingthe PCR van of police, person driving the Truck, after parking itcame out from driver side and had fled towards Yamuna River bytaking benefit of darkness and dense fog, and despite takinghelp of torch and mobile light, he could not be chased by policeofficials, and during checking of Truck, 8 plastic bags were foundin rear portion of Truck and on opening of one bag, poppy-strawwas found therein, which created suspicion that other 7 plasticbags might be containing poppy-straw, whereupon house ownersof houses, adjacent to the spot, were asked to join search andseizure process, but, by citing their difficulties, they refused tocome on spot, whereupon Panchayat Pardhan Anjana and Up-Pardhan Satnam Singh were called on spot from their housesthrough PCR van and were asked to join search and seizureprocess, but, they also refused to join as independent witnessesby referring their own limitations and problems. Thereafter, aConstable was sent to Toll Tax Barrier Bahral in search ofindependent witness wherefrom Toll Tax Barrier employee ArunSharma agreed to become an independent witness and thus, hewas associated in search and seizure process. Thereafter, 8

plastic bags were unloaded from Truck and each bag was openedand checked, wherein poppy-straw was found. On weighing withelectronic scale available in police vehicle, in total 200.278 Kgpoppy-straw was found in those bags. Thereafter, by sending aruka, FIR was registered in Police Station and recoveredcontraband was seized and taken in possession by InvestigatingOfficer. After that, SI Gian Singh along with police officials went toKhaira valley of Yamuna river in search of accused. In that valleyalso, he found 6 plastic bags of poppy-straw and two spades andone belcha kept in pits of sand under cover of bushes. In thesebags, in total 150.500 Kg poppy-straw was found, which was alsotaken in possession along with belcha and spades.

4 During investigation, on interrogation Truck ownerAjmer Singh (petitioner) disclosed that on 10.2.2021 ParveenKumar resident of Satiwala, who was his neighbour, approachedhim in the morning for his Truck to shift the goods therein andhe (Ajmer) agreed for that and in the evening Parveen andSubhash came to his house and asked him to bring the Trucknear Reliance Petrol Pump, Taruwala by saying that both of themwould meet him there, whereupon, Ajmer drove his Truck fromhis house and Parveen and Subhash followed him in his(Ajmer’s) Alto car and thereafter, Parveen telephonically informed Ajmer that Mohammad Deen @ Kala and Chaman @Tinku will meet him before the petrol pump and asked him(Ajmer) to hand over the key of Truck to them and accordingly he(Ajmer) handed over the key of Truck to Mohammad Deen andChaman @ Tinku and started coming back on foot towardsBadripur and by that time, Parveen and Subhash, who hadbrought his car, handed over the car to him and thereafter he(Ajmer) went home.

5 It is stated in status report that since 12.02.2021,police attempted to search Mohammad Deen @ Kala, Chaman @Tinku, Subuash and Parveen in their homes, but, they abscondedto avoid their arrest and thereafter, on 19.2.2021, MohammadDeen @ Kala and Budh Ram could be traced after great difficultyand were associated in the investigation alongwith Ajmer Singhand during interrogation, Mohammad Deen disclosed that poppy-straw was brought out of State in another Truck with help ofParveen, Subhash and Chaman @ Tinku and thereafter,Mohammad Deen @ Kala, Ajmer Singh and Budh Ram werearrested on 19.02.2021 and their police remand was obtained on20.02.2021.

6 As per status report, on 20.02.2021, MohammadDeen had made a disclosure statement under Section 27 of Indian Evidence Act in the presence of independent witnessGaurav Dhiman, Block Development Officer Paonta Sahib and ASIRam Lal and in pursuant thereto, 4 bags of poppy-straw wererecovered from Satiwala forest/Khudd wherein in total 101.530Kg. poppy-straw was recovered.

7 The recovered contraband was sent for chemicalanalysis to the State FSL Junga and it has been reported by StateFSL that recovered material was poppy-straw.

The recovered contraband was sent for chemical 8 As per status report, Budh Ram had used his TractorNo. HP-17D-9357 for loading and unloading the poppy-strawunder instructions of Parveen Kumar petitioner and car of Ajmerbearing No. HP-17E-9340 was used by Parveen Kumar andSubhash and another car HP-17F-4020 was also used byMohammad Deen @ Kala, Mushatkeen and Praveen to procurepoppy-straw from Jharkhand and to load in Truck No. HR-55A-4876 along with driver Deepak in the month of January, 2021 inthe bags of rice. All these vehicles except Truck No.HR-55L-4876,were taken in possession by police. It is also stated in statusreport that after taking possession of aforesaid Truck HR-55L-4876 by Finance Company in Banaras, Mohammad Deen andMushatkeen had returned home, but, Truck driver Deepak hadstayed there.

9 As per status report, for bringing poppy husk/straw,Mohammad Deen @ Kala contacted Ahsaan resident of villageDharmawala in District Dehradun and used Truck No.HR-55L-4876 for consideration of Rs.1,50,000/- and out of that,Rs.80,000/- were received by Ahsaan from Mohammad Deenand, therefore, Ahsaan was also arrested under Section 29 ofNDPS Act on 23.02.2021, who after remaining in police custodyfor three days, is in judicial custody since 26.02.2021.

10 As per prosecution case, co-accused Praveen Kumarhad denied acquaintance with arrested persons including Ajmerwith submission that he had not been keeping mobile phonesince last one year. Whereas, from CDR of mobile, it was foundthat Ajmer Singh and Praveen Kumar were in active contact witheach other and on 10.02.2021 also they talked with each otherfor fourteen times, wherein six times Ajmer Singh called PraveenKumar and they were in regular contact with each other throughWhatsapp calls.

11 As per status report, Truck No.HR-55L-4876 was notregistered in the name of Ahsaan, but in the name of AshuMalhotra son of Sh.Dharam Pal Malhotra, resident of Ambala.The said Ashu Malhotra had handed over the said Truck toParamjeet Singh son of Sh.Narender Singh, resident of Nahan, by executing General Power of Attorney (GPA) in favour of ParamjeetSingh. Paramjeet Singh vide agreement dated 28.12.2020 hadsold this Truck to Ahsaan for a consideration of Rs.2,25,000/-.Out of which Rs.1,60,000/- had been paid and balance amount ofRs.65,000/- was to be paid within two months thereafter and asper agreement, Truck was with Ahsaan since 28.12.2020. On thebasis of GPA and agreement, produced by its driver Deepak (co-accused) this Truck was found in possession and under control ofAhsaan and Deepak as a driver was employed by Ahsaan on theTruck and this Truck was provided by Ahsaan to Mohammad Deenfor transportation of poppy straw from Jharkhand. However, onthe way, this Truck was taken in possession by the FinanceCompany at Banaras and thereafter poppy straw was transportedfrom Banaras to Selaqui in Truck No.HR-69A-9217, owned byAmzad Khan.

12 As per status report, when possession of Truck No.HP-55L-4876 was taken by Finance Company, then Mohammad Deen@ Kala had contacted Amzad Khan and had asked him to providehis Truck to bring rice from Varanasi to Ludhiana on urgent basisas Mohammad Deen had expressed apprehension that delay mayspoil the rice whereupon Amzad Khan had handed over his Truckto Deepak at Muradabad who brought the rice in his Truck from Banaras to Selaqui. Statement of Amzad has been recordedunder Section 161 Cr.P.C.

13It has further been stated in the status report thatfrom Selaqui to the spot where Truck was intercepted by thepolice, poppy straw was transported in Truck No.HP-11-4991owned and possession by Ajmer Singh. This Truck was taken toSelaqui by driver Chaman Lal @ Tinku. When Chaman Lal wasgoing to Selaqui, one Surender Singh had also gone with him inthe Truck, but he did not return and during investigation, it wasfound that the said Surender Singh was not knowing aboutpurpose for which Chaman Lal was going to Selaqui and,therefore, he was associated in the investigation as a witnessand his statement under Section 164 Cr.P.C. was also recordedbefore learned Additional Chief Judicial Magistrate, Paonta Sahib.It is further case of the police that at Selaqui poppy straw fromTruck No.HR69-A9217 was shifted, to Truck No.HP-11-4991 andbrought to near bridge of Banjara Basti, Satiwala and some bagsof poppy straw were shifted, to Tractor No.HP-17D-9357belonging to Budh Ram, for hiding those bags in the forestadjacent to Yamuna River and during that process, PraveenKumar noticed light of some vehicle, therefore, some bags ofpoppy straw were left in the Truck. Whereas, bags loaded in the Tractor were taken to the forest and thrown in the pits alreadyprepared for hiding contraband and thereafter accused fled fromthe spot. As per police, accused Subhash had identified thoseplaces wherefrom poppy straw was recovered by the police afterintercepting the Truck.

Petitioners Ajmer Singh, Ahsan and Chaman Lal have preferred Cr.MP(M) No. 1466, 2134 and 2100 of 2021respectively which were dismissed vide order dated 29.12.2021.

15Learned Additional Advocate General has submittedthat after taking into consideration the claim of petitioners forenlarging them on bail, this Court has already dismissed theirpetitions on merits and there is no changed circumstance andtherefore, for the findings and observations made in aforesaidpetitions, preferred by Ajmer, Ahsan and Chaman, these petitionsalso deserve to be dismissed.

16 Learned counsel for petitioners submit that petitionsof Ajmer, Ahsan and Chaman were rejected on 21[st] December,2021 and after that Supreme Court in Special Leave to Appeal(Crl.) No. 242 of 2022, titled as State by (NCB) Bengaluru vs.

Palluabid Ahamad Arimutta has upheld the bail granted byKarnataka High Court to persons similarly situated to petitioners,who were arrested by NCB on the basis of statement recorded under Section 67 of NDPS Act and CDRs and nothing had beenrecovered from personal possession of them so as to establishknowledge and involvement of petitioners in transporting thecontraband recovered from vehicle in reference.

17Learned counsel for petitioners have placed relianceon paragraphs 9 and 10 of the above referred pronouncement ofthe Supreme Court in Pulluabid Ahamad Arimutta’s case,which read as under:-

“9. Having gone through the records alongwith the tabulated statement of therespondents submitted on behalf of thepetitioner/NCB and on carefully perusing theimpugned orders passed in each case, itemerges that except for the voluntarystatements of A-1 and A-2 in the first case andthat of the respondents themselves recordedunder Section 67 of the NDPS Act, it appears,prima facie, that no substantial material wasavailable with the prosecution at the time ofarrest to connect the respondents with theallegations leveled against them of indulgingin drug trafficking. It has not been denied bythe prosecution that except for therespondents in CLP (Crl.) No. 1569 of 2021,none of other respondents were found to be inpossession of commercial quantities of psychotropic substances, as contemplatedunder the NDPS Act.

10. It has been held in clear terms in TofanSingh vs. State of Tamal Nadu, (2021)4 SCC 1that a confessional statement recorded underSection 67 of the NDPS Act will remaininadmissible in the trial of an offence underthe NDPS Act. In the teeth of the aforesaiddecision, the arrests made by the petitioner-NCB, on the basis of the confession/voluntarystatements of the respondents or the co-accused under Section 67 of the NDPS Act,cannot form the basis for overturning theimpugned orders releasing them on bail. TheCDR details of some of the accused or theallegations of tampering of evidence on thepart of one of the respondents is an aspectthat will be examined the stage of trial. Forthe aforesaid reason, this Court is not inclinedto interfere in the orders dated 16[th] January,2020, 19[th] December, 2019 and 20[th] January,2020 passed in SLP (Crl.) No. DiaryNo.22702/2020, SLP (Crl.) No.1454/2021, SLP(Crl.) No. 1465/2021, SLP (Crl.) No. 1773-74/2021 and SLP (Crl.) No. 2080/2021respectively. The impugned orders are,accordingly, upheld and the Special LeavePetitions filed by the petitioner-NCB seekingcancellation of bail granted to the respectiverespondents, are dismissed as meritless.”

18It has been contended that Ajmer Singh has beenimplicated in the case only for using his truck to transportcontraband whereas it is the case of prosecution that his truckwas taken on request by Parveen Kumar without disclosing thematerial to be transported therein and further that exceptdisclosure statement of co-accused and CDR indicating his talkswith Parveen there is nothing on record to connect him withtransportation of contraband. It has also been submitted thatbeing neighbour there is nothing abnormal in talks on mobilephone and also in handing over truck on request.

19It has been further contended that Ahsan is truckowner whose truck was hired by main accused Mohammad Deen@ Kala, Mustkeen and Parveen Kumar for transporting rice fromJharkhand to Ludhiana and he was not present at the time ofloading of contraband or rice at Jharkhand but had come intopicture when his truck was taken in possession by Financier andthereafter material loaded in truck was transported in truck ofAmjad. It has been submitted that Ahsan and Amjad are on equalfooting and Ahsan has been arrayed as co-accused whereasAmjad has been cited as a witness.

20It has been contended on behalf of Deepak that he isdriver by profession and he was engaged by Mohammad Deen @

Kala and Ahsan to bring his truck from Jharkhand to Ludhianaloaded with rice on ground that their driver had abandoned thetruck on road and thereafter Deepak had gone to bring the truckwhich was taken in possession by Financier at Varanasi andthereafter he was again engaged for driving truck of Amjad fromVaranasi to Selaqui and on completion of job, he was paidRs.5000/- only which indicates that he was not party intransporting the connivance but he was acting as driver totransport material loaded therein stated to be rice. It has beencontended that he being a driver did not know that there weresome bags containing contraband.

21It has been contended on behalf of Chaman Lal thathe is also driver by profession ad he was hired by MohammadDeen to drive the truck of Ajmer and he was not aware aboutmaterial loaded in truck and there is nothing material on recordto establish his connivance with main accused, who had plannedtransportation of contraband from Jharkhand to HimachalPradesh. It has been further submitted that petitioner did not fleefrom the spot but after parking the vehicle at destination told byMohammad Deen and Mustkeen he had left the spot prior toarrival of police.

22It has been contended on behalf of all fourpetitioners that Mohammad Deen and Mustkeen are mainaccused who had arranged contraband from Jharkhand and weretransporting it along with rice whereas petitioners either beingowner of vehicle or as drivers were not aware abouttransportation of contraband and all of them have beenimplicated on the basis of disclosure statement of co-accusedand except that there is no material against them.

23Learned Additional Advocate General has submittedthat petitioners are members of a big racket involved insupplying the narcotic drugs in the State and involvement ofAjmer Singh is writ large as he not only handed over the Truck,but took Truck to the spot and handed over the key to the co-accused persons. It has further been submitted that involvementof Ajmer Singh is substantiated from the facts that Truck washanded over to co-accused on 10.02.2021 and thereafter, it wastaken into possession by the police and Ajmer Singh wasassociated in the investigation after 12.02.2021, but till then,Ajmer Singh did not inquire about his Truck and did not file anyapplication for release of the Truck as he was knowing well thatfor what purpose he had handed over the Truck to co-accused. Ithas further been submitted by learned Deputy Advocate General that it is an un-explained behave on the part of Ajmer Singh thathe has handed over the keys of Truck without driver to thepersons, without asking for the nature of material to be loadedand unloaded in or of the Truck. It has further been submittedthat call details also strengthen the prosecution case withrespect to active involvement of Ajmer Singh in commission ofoffence. It has also been submitted that not only Truck of Ajmerbut car was also used by co-accused facilitating transportation ofrecovered contraband.

24Learned Additional Advocate General by referring thematerial on record has submitted that so far as Ajmer Singh isconcerned, his active role in commission of offence standsestablished for his conduct came in light during investigation andalso for his inaction for getting Truck released from the policeafter its seizure. It has been submitted that had petitioner AjmerSingh been innocent, then first reaction on his part would havebeen to take immediate steps to get his Truck released, but inpresent case he remained silent for about three days and openedhis mouth only when he was subjected to interrogation by thepolice. It has further been contended that it is not a case whereonly on the basis of suspicion petitioner Ajmer Singh has beenimplicated, but there is ample evidence, including call detail records about involvement of petitioner Ajmer Singh incommission of offence.

25 Learned Additional Advocate General has submittedthat petitioner Ahsaan had agreed to transport the contrabandfor having heavy amount of consideration i.e. Rs.1,50,000/- anddriver Deepak was engaged by him, who was acting under hiscontrol and was in his regular contact. Further that when Truckof Ahsaan was taken in possession by the Finance Company,then load of the Truck was shifted to another Truck and at thattime also, Deepak remained with the material loaded in the Truckand at the time of shifting also he was actively involved and,therefore, there is more than sufficient evidence on record toconnect petitioner Ahsaan with commission of offence.Therefore, recovery or no recovery of contraband from Ahsaan isan immaterial fact.

26Learned Additional Advocate General has furthersubmitted that petitioner Chaman Lal @ Tinku was also knowingabout transportation of contraband and he has activelyparticipated by taking Truck bearing No.HP-11-4991 to Selaquiand not only in his presence but with his help the poppy strawwas shifted to the Truck of Ajmer Singh and Truck was brought toSatiwala and near bridge of Banjara Basti some bags of poppy straw were shifted to Tractor of Budh Ram and at that time,police party intercepted the Truck and Chaman fled from thespot. It has been contended that in case Chaman was innocentor not knowing about transportation of contraband, then therewas no occasion or reason for him to flee from the spot.Therefore, there is sufficient evidence on record to connectChaman Lal also with commission of offence as a member ofgang involved in commission of offence under the NDPS Act.

27 Learned Additional Advocate General has submittedthat Deepak was the party in shifting the load of truck from thetruck of Ahsan and at that time, it must have been come in hisknowledge that apart from rice, there was contraband beingtransported in the truck but he remained silent and acted asparty to the transportation of that contraband. Therefore, itcannot be said that he was not having any knowledge ofcommission of offence rather it substantiates his companion incommission of offence.

28It has been submitted by learned counsel for partiesthat petitioners are ready to abide by any condition imposed byCourt for assuring their presence after their enlargement on bailand to furnish legal surety as well as surety of relative for thatpurpose.

29 Taking into consideration the entire facts andcircumstances, but without commenting on merits thereon andtaking into account factors and parameters required to beconsidered at the time of adjudication of bail application aspropounded by the Courts, including the Supreme Court, I am ofthe considered opinion that at this stage petitioners may beenlarged on bail.

30. Accordingly, present petitions are allowed andpetitioners are ordered to be enlarged on bail, subject to theirfurnishing personal bonds each in the sum of Rs.1,00,000/- withtwo sureties each one of them shall be local surety and anothershall be relative of respective petitioners, as undertaken, in thelike amount, to the satisfaction of trial Court/Special Judge andupon such further conditions as may be deemed fit and properby the trial Court, including the conditions enumeratedhereinafter, so as to assure presence of the petitioner at the timeof trial:-

(i) That the petitioners shall make themselvesavailable to the Police or any other InvestigatingAgency or Court in the present case as and whenrequired; available to the Police or any other InvestigatingAgency or Court in the present case as and whenrequired;

(ii) that the petitioners shall not directly or indirectlymake any inducement, threat or promise to anyperson acquainted with the facts of the case soas to dissuade him/her from disclosing such factsmake any inducement, threat or promise to anyperson acquainted with the facts of the case soas to dissuade him/her from disclosing such facts to Court or to any police officer or tamper with theevidence. They shall not, in any manner, try tooverawe or influence or intimidate theprosecution witnesses;

(iii) that the petitioners shall not obstruct the smoothprogress of the investigation/trial; progress of the investigation/trial;

(iv) that the petitioners shall not commit the offencesimilar to the offence to which they are accusedor suspected;similar to the offence to which they are accusedor suspected;

(v) that the petitioners shall not misuse their liberty inany manner;any manner;

(vi) that the petitioners shall not jump over the bail;

(vii) that in case petitioners indulges in repetition ofsimilar offence(s) then, their bail shall be liable tobe cancelled on taking appropriate steps byprosecution;similar offence(s) then, their bail shall be liable tobe cancelled on taking appropriate steps byprosecution;

(viii) that the petitioners shall keep on informing aboutthe change in address, landline number and/ormobile number, if any, for their availability toPolice and/or during trial; andthe change in address, landline number and/ormobile number, if any, for their availability toPolice and/or during trial; and

(ix) the petitioners shall not leave India withoutpermission of the Court. 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 conditionon the petitioners, enlarged on bail, as deemed necessary in thefacts and circumstances of the case and in the interest of justiceand thereupon, it will also be open to the trial Court to impose

any other or further condition on the petitioner as it may deemnecessary in the interest of justice.

32In case the petitioners violate any conditionsimposed upon them, their bail shall be liable to be cancelled. Insuch eventuality, prosecution may approach the competentCourt of law for cancellation of bail, in accordance with law.

33Learned trial Court is directed to comply with thedirections issued by the High Court, vide communicationNo.HHC.VIG./Misc. Instructions/93-IV.7139 dated 18.03.2013.

34Observations made in this petition hereinbefore shallnot affect the merits of the case in any manner and are strictlyconfined for the disposal of the bail application.

The parties are permitted to produce copy of orderdownloaded from the High Court website and trial Court shall notinsist for certified copy of the order, however, if required, passingof order can be verified from the High Court website orotherwise.

The petitions stand disposed of in the aforesaid terms.

December 30, 2022(Vivek Singh Thakur) (ms) Judge