CRMPM/1043/2011 of SUBHASH CHAND Vs STATE on 29 December 2011

IN THE HIGH COURT OF HIMACHAL PRADESH,SHIMLA Cr.M.P.(M) No. 1043 of 2011

Date of decision: 29.12.2011.

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Subhash Chand son of late Sh. Atma Ram, R/O VPO Paprola, Tehsil Baijnath, Distt Kangra, H.P. at present, R/O Bhutta Chappal Line, Lakkar Bazar, Shimla, H.P. at present lodged in judicial custody at Sub Jail, Kaithu, Shimla, H.P.

.. Petitioner.

Versus

State of Himachal Pradesh.

…. Respondent.

Petition under Section 439 Cr.P.C. for grant of bail in case FIR No.296/2004 dated 27.9.2004 under Section 20 of the ND&PS Act, registered with the police of P.S. Sadar, District Shimla, H.P.

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Coram

The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting?[1]No For the Petitioner : Mr. M.L. Brakta, Advocate. For the Respondent : Ms. Ruma Kaushik, Addl.Advocate General with Mr. J.S. Rana, Assistant A.G.

Kuldip Singh, J (Oral)

This is an application for releasing the petitioner on bail under Section 439 Cr.P.C. in FIR No.296 dated 27.9.2004, registered at Police Station, Sadar, Distt Shimla for offence punishable under Section 20 of the Narcotics Drugs and Psychotropic Substances Act, 1985 (for short ‘Act’).

2. It has been stated in the application that petitioner has been arrested by the police of P.O. Cell, Shimla on 4.11.2011 in FIR No.296/2004 dated 27.9.2004, under Section 20 of the Act. The petitioner was declared proclaimed offender by the learned Judicial Magistrate Ist Class, Court No.1, Shimla in case No.2-3 of 2005 on 30.7.2010. The petitioner is in custody since 4.11.2011. The next date of hearing in the Court below is fixed on 7,9,10.1.2012.

3. It has been stated that petitioner could not attend the Court below due to bonafide reasons. He had to go to his native place Paprola, Tehsil Baijanath and had to stay there due to some domestic activities. Thereafter he remained out of station in connection with his work.

4. The non-appearance of the petitioner before the Court below is neither intentional nor willful but due to the bonafide reasons. The petitioner has been roped falsely by the police on the allegations that he was found in possession of about 30 grams of charas. The petitioner is innocent. He has committed no offence.

5. The petitioner is ready and willing to furnish bail bonds in accordance with the directions of this Court. The petitioner is the only bread earner in the family having wife and two school going children. It has been stated that the bail application of the petitioner has been dismissed by learned Judicial Magistrate Ist Class, Court No.1 Shimla on 11.11.2011and another bail application filed by the petitioner has also been dismissed by learned Sessions Judge, Shimla on 29.11.2011, The prayer has been made for releasing the petitioner on bail.

6. The bail application has been opposed by the State by filing status report. It has been stated that on 27.9.2004, 30 grams of charas was recovered from the petitioner and thereupon FIR No.296/04 dated 27.9.2004 has been registered under Section 20 of the Act at Police Station, Sadar, Shimla. The petitioner was arrested on 27.9.2004. He was released on bail on 29.9.2004 by learned Chief Judicial Magistrate, Shimla. On completion of investigation, the challan was submitted in the Court on 31.12.2004. The petitioner upto 23.7.2004 and 18.10.2005 appeared in the Court. Thereafter he stopped appearing in the Court below. He was not available at his village address as well as Shimla address. He was declared proclaimed offender on 30.7.2010 and he was arrested only on 10.11.2011 and since 11.11.2011 the petitioner is in judicial custody. The prayer has been made for rejection of the bail application.

7. I have heard both sides and perused the police file. The learned counsel for the petitioner has submitted that in view of allegations against the petitioner the maximum punishment provided for the alleged offence is imprisonment of six months. The petitioner is in custody since 10.11.2011. The petitioner did not receive any intimation of the various dates fixed in the Court below and therefore, he did not appear in the Court below. The learned Additional Advocate General has stated that petitioner is not entitled to bail on account of his conduct. The possibility can not be ruled out that the petitioner will again disappear and flee from justice in case he is released on bail.

8. I have considered the arguments of both sides. There is no denial of the fact that petitioner did not appear in the Court below for more than six years which has delayed the decision in the case. The contention of the learned counsel for the petitioner that petitioner did not receive the intimation of the dates of the Court below and therefore he did not appear in the Court below has no force. It has not been denied by learned counsel for the petitioner that petitioner had engaged a counsel in the court below. In normal circumstances the accused remains in contact with his advocate during trial. On behalf of the petitioner no explanation has been given why petitioner did not remain in contact with his advocate during the trial.

9. The petitioner changed his residence at Shimla. He was not available either at Shimla address or at his village address. The petitioner was arrested only when he was declared proclaimed offender. There is substance in the submission of the learned Addl. Advocate General that possibility cannot be ruled out that in case the petitioner is released on bail, he will flee from the justice. The next date of hearing in the Court below has already been fixed on 7,9,10.1.2012 for evidence. The learned Addl. Advocate General has stated that there are in all 12 prosecution witnesses. In these circumstances the trial will not take much time. There is no merit in the petition. Hence, the petition is dismissed.

December 29, 2011

(sks)

(Kuldip Singh), Judge.