Single Judge of HC HP dismissed regular bail petition in NDPS case involving commercial quantity of Charas. Court held petitioner's eight-year fugitive status and nature of offence precluded bail at that stage.
Petition dismissed with liberty to file a new bail application.
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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr.MP(M) No.1092 of 2021
Reserved on: June 25, 2021
Date of Decision: July 2, 2021
Nikka Ram
...Petitioner.
Versus
State of Himachal Pradesh
...Respondent.
Coram:
The Hon’ble Mr. Justice Anoop Chitkara, Judge.
Whether approved for reporting?1 NO
For the petitioner: Mr. Maan Singh, Advocate.
For the respondent: Mr. Ram Lal Thakur, Assistant Advocate General and Mr. Rajat Chauhan, Law Officer, for the State.
THROUGH VIDEO CONFERENCE
| FIR No. | Dated | Police Station | Sections |
|---|---|---|---|
| 28 of |
5.12.2012 | State CID, Bharari, District | 20, 29 of ND&PS |
| 2012 | Shimla, H.P. | Act. |
Anoop Chitkara, Judge.
The petitioner, who was arrested after eight years of registration of FIR and arrest of the other accused, incarcerating upon his arrest, for possessing commercial quantity of Charas, has come up before this Court under Section 439 of Cr.PC, seeking regular bail, on the grounds that the co-accused who were arrested earlier
1 Whether reporters of Local Papers may be allowed to see the judgment?
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had been acquitted by a Division Bench of this Court and SLP whereof is also dismissed.
2. Earlier, the petitioner had filed a petition under Section 439 Cr.PC before the concerned Sessions Court. However, vide order dated 14.10.2020, learned Special Judge-(I) Mandi, District Mandi, H.P., dismissed the petition because the quantity involved is commercial.
3. In Para 12 of the bail application, the petitioner declares having no criminal history relating to the offences prescribing sentence of seven years and more, or when on conviction, the sentence imposed was more than three years.
4. Briefly, the allegations against the petitioner are that the Police arrested Padam Singh, Ravi Kumar and Sanjay Kumar for possessing 15.450 Kilograms of Charas in their car, somewhere on 4.12.2012. The interrogation revealed involvement of bail petitioner, Nikka Ram. However, he absconded and was fugitive till the end of July, 2020. On 31st July, 2020, he had filed an application for anticipatory bail, which was withdrawn, and on 3.9.2020, the Police arrested him and he is in judicial custody.
5. Learned counsel for the petitioner contends that the petitioner is a first offender
and incarceration before the proof of guilt would cause grave injustice to the petitioner and family.
6. On the contrary, the State contends that the Police have collected sufficient evidence against the bail petitioner and the co-accused. Another argument on behalf of the State is that the crime is heinous, the accused is a risk to law-abiding people, and bail might send a wrong message to society.
REASONING :
7. Previously, the petitioner had filed a bail petition being Cr.MP(M) No.29 of
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“As far as arguments that Division Bench of this Court acquitted the co-accused in Cr. Appeal No.352 of 2014, Cr. Appeal No.353 of 2014 and Cr. Appeal No.354 of 2014, titled as Padam Singh vs. State, Ravi Kumar vs. State and Sanjay Kumar vs. State, respectively and SLP against those was dismissed, is concerned, those people faced trial and were acquitted on merits. The argument that since the persons from whose possession Charas was recovered were acquitted as such petitioner cannot be convicted, would arise at the time of framing of charges. If the Special Judge would not find any evidence against the petitioner, then obviously he would not frame charge against him and close the prosecution, but to raise such argument is not satisfaction of Section 37 of the ND&PS Act because the contraband is commercial quantity. The conduct of the accused to remain fugitive for eight years itself is a circumstance which prima facie goes against him.”
8. A perusal of the bail petition reveals that charges have not been framed as yet. Furthermore, in case on the grounds of acquittal of co-accused, the Special Judge does not find any case to proceed further, he would discharge the petitioner and in case learned Sessions Judge does frame charges, this accused cannot only file bail application but can also challenge the said order if he so desires.
9. Counsel for the petitioner has also made several other arguments. Still, given
that this Court is not inclined to grant bail, on the reasons mentioned above, discussion of the same will be an exercise in futility. Any detailed analysis of the evidence may prejudice the case of the prosecution or the accused.
10. Given above, in the facts and circumstances peculiar to this case and as of now there is no changed circumstance after the order dated 4.2.2021, as such at this stage the petitioner fails to make out a case for bail. The petition is dismissed with liberty to file a new bail application.
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11. Any observation made hereinabove is neither an expression of opinion on the
merits of the case, nor shall the trial Court advert to these comments.
The petition is dismissed.
Anoop Chitkara, Judge
July 2, 2021 ( ks ).
2 issues framed by the court
Whether regular bail can be granted to petitioner charged with possession of commercial quantity of Charas despite acquittal of co-accused.
Whether the petitioner has made out a case for bail given his fugitive status and the commercial quantity of contraband involved.
2 provisions across 2 enactments
Nikka Ram
State of Himachal Pradesh
Anoop Chitkara
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
