CRMPM/2390/2022 of HARISH KUMAR Vs STATE OF HP on 30 December 2022

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

Cr.M.P. (M) No. 2390 of 2022

Date of decision: 30.12.2022

Harish Kumar

State of Himachal Pradesh.

Versus

…Petitioner.

…Respondent.

CoramThe Hon’ble Mr. Justice Vivek Singh Thakur, Judge.

Whether approved for reporting?

For the Petitioner. Mr.Rajiv Rai,Advocates.For the Respondent:Ms. Seema Sharma, Deputy AdvocateGeneral.

Vivek Singh Thakur, Judge (Oral)

Petitioner has approached this Court seeking bail underSection 439 Code of Criminal Procedure (in short ‘Cr.P.C.’), in FIRNo.5 of 2020, dated 05.01.2020, registered in Police StationBanjar, District Kullu, H.P., under Sections 20 and 25 of the NarcoticDrugs and Psychotropic Substances Act, 1985 (hereinafter referredto as ‘NDPS Act’).

2. Status report stands filed. Record has also been madeavailable.

3Prosecution case is that during Nakka at SindhwaBridge, on 05.01.2020, at about 4.30 a.m., a vehicle coming fromBanjar side was stopped for checking of documents. Driver wasasked to produce documents. When driver was being asked toshow documents, driver and a person sitting on the front seatthrew a bag, kept near hand brake, on the rear seat. Personssitting 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 onthe front seat. Whereas, Harish Kumar and petitioner Varun Kumaralias Tanu were sitting on the back seat. Due to early hours, noindependent witness was available. Therefore, by constitutingsearching party alongwith police officials, bag hidden by twopersons sitting on the back seat was checked, wherefrom 1.605kilograms charas was recovered and, thereafter, after completingthe proceedings in accordance with prescribed procedure,contraband was seized, FIR was lodged and petitioner alongwithother co-accused was arrested. Since then, after remaining forsome time in police custody he is in judicial custody.

4 Learned Deputy Advocate General submits that earlierbail application Cr.MP(M) No. 417 of 2020 titled Harish Kumar vs.State filed by petitioner was dismissed on the ground that petitioner had failed to make out a case to satisfy twin conditionsprovided under Section 37 of NDPS Act and there is no change incircumstances and therefore, present petition deserves to bedismissed.

5Learned counsel for petitioner submits that nowpetitioner has approached this Court on different grounds. Hefurther submits that petitioner was arrested on 5.1.2020 forhaving been found travelling in vehicle along with three other co-accused wherefrom 1.605 Kg. charas has been alleged to berecovered and since then petitioner is behind the bars, afterdeducting period of his interim bail, for about two years fivemonths and till date, only 6 witnesses, out of 17 witnesses, havebeen examined or given up. He further submits that two witnesseswere examined in December, 2021, two witnesses on 2.9.2021 andone witness was examined on 9.9.2022 and thereafter, case hasbeen listed for recording the evidence on 16[th] and 17[th] January,2023. It has been submitted that keeping in view the previoushistory and stage of trial, it is not possible to conclude the trial innear future and petitioner, who is aged 24 years, is sufferingincarceration as under-trial prisoner and therefore, prayer forenlarging the petitioner on bail has been made.

6It has been contended by learned Deputy AdvocateGeneral that petitioner is involved in commission of heinous crimewhich has adverse impact not only on individual but also damagesthe society and Nation at large and being a case of commercialquantity rigors of Section 37 of NDPS Act are applicable in presentcase and, thus, petitioner is not entitled for bail.

7Learned counsel for the petitioner, to substantiate pleafor bail, has referred pronouncement of the order dated 1.8.2022passed by the Supreme Court in a petition for Special Leave toAppeal (Crl.) No. 3961 of 2022, titled as Abdul Majeed LoneVs. Union of Territory of Jammu and Kashmir, whereinpetitioner facing trial for having been found in possession of 1100grams commercial quantity of charas was enlarged on bail forsuffering incarceration for over 2 years and 5, months observingthat there was no likelihood of completion of trial in near future;and order dated 12.10.2020, passed by Three Judges’ Bench of theSupreme Court, in Criminal Appeal No.668 of 2020, titled asAmit Singh Moni vs. State of Himachal Pradesh, wherebypetitioner therein, facing trial for recovery of 3.285 kilogramscharas from a vehicle, alongwith four other persons, was enlargedon bail for having been in detention of 2 years and 7 months, as tillthen out of 14 witnesses, 7 witnesses were yet to be examined and last witness was examined in February 2020 and, thereafter, therewas no further progress in the trial.

8. Learned counsel for the petitioner has referredpronouncements 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 accusedunder Sections 21(c) and 37 of NDPS Act was ordered to beenlarged on bail after detention of 1 year and 7 months, observingthat the trial was at a preliminary stage.

9. Learned counsel for the petitioner has placed relianceon order dated 7.2.2020 passed by the Supreme Court in CriminalAppeal No. 245 of 2020, titled as Chitta Biswas Alias SubhasVs. The State of West Bengal, whereby accused having found inpossession of Codeine mixture above commercial quantity, wasenlarged on bail after 1 year 7 months, at the stage of trial whenout of 10 witnesses, 4 witnesses have been examined in the trial.10.Reliance has also been placed on order dated10.11.2021, passed by the Supreme Court in Special Leave toAppeal (Criminal) No. 5187 of 2021, titled as Kulwant Singhv. The State of Punjab, whereby accused after detention of morethan 2 years, was enlarged on bail despite the fact that recoveredcontraband was of commercial quantity, for prayer to grant of bail was on the ground of advanced age of petitioner, period of custodyundergone by him and the fact that trial would take time toconclude.

11. Learned counsel for the petitioner has also placedreliance upon order dated 7.12.2021, passed by the SupremeCourt in Criminal Appeal No. 1570 of 2021, titled as MahmodKurdeya Vs. Narcotics Control Bureau, whereby petitionerapprehended with thousands of tablets of Tramadol X-225, wasenlarged on bail. In this case, quantity of drug recovered was morethan 50 Kilograms. However, in this case bail was granted bytaking into consideration the fact that charge-sheet was field on23.9.2018 and thereafter even charges had not been framed nortrial had commenced till grant of bail to the petitioner, whereasmanufacturer who sold the drug to the accused had been grantedbail.

12. Learned counsel has also placed reliance on order dated22.8.2022 passed by the Supreme Court in Special Leave toAppeal (Crl.) No. 5530 of 2022 titled as Mohammad SalmanHanif Shaikh Vs. The State of Gujarat, whereby SupremeCourt has enlarged the petitioner therein on bail only on theground that he had spend about two years in custody andconclusion of trial would have taken sometime.

13. Reliance has also been placed on order dated 5.8.2022passed in Criminal Appeal No. 1169 of 2022, titled as GopalKrishan Patra alias Gopalrusma Vs. Union of India, wherebythe Supreme Court has enlarged the petitioner on bail, consideringthe custody of 1 year 7 months undergone by him, in a caseinvolving offence punishable under Sections 8, 20, 27(a), 28 and29 of NDPS Act.

14. Learned counsel for the petitioner has also referredorder dated 28[th] July, 2022, passed by Co-ordinate Bench of thisCourt, in Cr.M.P. (M) No. 1255 of 2022 titled as Puran ChandVs. State of H.P., wherein a person, arrested for havingpossession of 1.996 Kilograms of charas, was enlarged on bail forlength of custody of more than 2 years 9 months.

15. Learned counsel for the petitioner has also placedreliance upon order dated 4.11.2022 passed by Co-ordinate Benchof this Court in Cr.M.P. (M) No. 2273 of 2022, titled Madan LalVs. State of H.P., wherein accused arrested on 27.12.2019, forhaving found in possession of 1.695 Kilograms of charas, wasenlarged on bail for non completion of trial and accused hadsuffered detention of 2 years 10 months.

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

17. Learned Deputy Advocate General referring orderpassed by the Supreme Court, dated 19.7.2022 in NarcoticsControl Bureau Vs. Mohit Aggarwal, 2022 SCC Online SC891:AIR 2022 SC 3444, has contended that period of detentioncannot be a ground for enlarging the petitioners on bail.

18. Learned counsel appearing for the petitioner hassubmitted that in Mohit Aggarwal’s case huge quantity of 20Kilograms of Tramadol, against minimum commercial quantity of250 grams, was recovered, whereas in present case recoveredquantity is little more than commercial quantity. It has beenfurther contended that the Supreme Court in order dated11.7.2022 in case titled as Satinder Kumar Antil Vs. Bureau of Investigation, (2022) 10 SCC 51, has observed that period ofdetention is also a relevant factor for considering the bailapplication alongwith other factors.

19Taking into consideration the entire facts andcircumstances, but without commenting on merits thereon andtaking into account factors and parameters required to be considered 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 petitioner may beenlarged on bail.

20 Accordingly, present petition is allowed and petitioner isordered to be enlarged on bail, subject to furnishing personalbonds in the sum of Rs.1,00,000/- with one in the like amount, tothe satisfaction of trial Court/Special Judge and upon such furtherconditions as may be deemed fit and proper by the trial Court,including the conditions enumerated hereinafter, so as to assurepresence of the petitioner at the time of trial:-

(i) That the petitioner shall make himself available to thePolice or any other Investigating Agency or Court in the presentcase as and when required;

(ii) that the petitioner shall not directly or indirectly make anyinducement, threat or promise to any person acquainted withthe facts of the case so as to dissuade him/her from disclosingsuch facts to Court or to any police officer or tamper with theevidence. He shall not, in any manner, try to overawe orinfluence or intimidate the prosecution witnesses;

(iii) that the petitioner shall not obstruct the smooth progressof the investigation/trial;

(iv) that the petitioner shall not commit the offence similar tothe offence to which he is accused or suspected;

(v) that the petitioner shall not misuse his liberty in anymanner;

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

(vii) that in case petitioner indulges in repetition of similaroffence(s) then, his bail shall be liable to be cancelled on takingappropriate steps by prosecution;

(viii) that the petitioner shall keep on informing about thechange in address, landline number and/or mobile number, ifany, for his availability to Police and/or during trial; and

21

(ixi) 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 thepetitioner, enlarged on bail, as deemed necessary in the facts andcircumstances of the case and in the interest of justice andthereupon, it will also be open to the trial Court to impose anyother or further condition on the petitioner as it may deemnecessary in the interest of justice.

22In case the petitioner violates any conditions imposedupon him, his bail shall be liable to be cancelled. In sucheventuality, prosecution may approach the competent Court of lawfor cancellation of bail, in accordance with law.

23Learned 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.

24Observations 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 or otherwise.

The petition stands disposed of in the aforesaid terms.

30[th] December, 2022 (ms)

(Vivek Singh Thakur), Judge.