Allowed

Sanjay Thakur v. State of Hp

Himachal Pradesh HC6 Mar 2024CRMPM/272/2024

Case brief

AI extract

What is this about?

Regular bail application under the NDPS Act alleging the petitioner's bank account was used to transfer Rs. 49,000 for heroin purchase. The court found 21.03 grams was an intermediate quantity, Section 37 rigour did not apply, co-accused were already released on bail, and no evidence showed the petitioner's knowledge; bail was granted with conditions.

What did the court decide?

Petitioner released on bail on furnishing bail bond of Rs. 25,000 with one surety, subject to conditions including joining investigation, not intimidating witnesses, attending trial, and informing pol

Sanjay Thakur Vs State of Hp — Narcotics (NDPS) | Himachal Pradesh HC (2024)

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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

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Cr. MP (M) No. 272 of 2024 Reserved on: 27.02.2024 Date of Decision: 06.03.2024

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Sanjay Thakur ...Petitioner Versus

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State of Himachal Pradesh ...Respondent

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Coram

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Hon’ble Mr. Justice Rakesh Kainthla , Judge. Whether approved for reporting?¹ No

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For the Petitioner : Mr. Manoj Pathak, Advocate. For the Respondent : Mr. Jitender Sharma, Additional Advocate General with SI Ashish Kaushal, PS Sadar, District Solan, H.P.

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Rakesh Kainthla, Judge:

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The petitioner has filed the present petition for seeking regular bail. It has been asserted that the petitioner was arrested for the commission of offences punishable under Sections 21 and 29 of the Narcotics Drugs and Psychotropic Substances Act (in short ‘NDPS Act’) registered vide FIR No.266

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1 Whether reporters of Local Papers may be allowed to see the judgment? Yes.

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of 2023 dated 18.12.2023 at Police Station Sadar, District Solan, H.P.

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As per the prosecution case, the police have recovered 21.03 grams of heroin from a vehicle. Sandeep Thakur and Sunil Kumar were arrested on the spot. They made the disclosure statements leading to the arrest of Bikram, Jitender and petitioner. Some suspicious bank transactions were found between the co-accused and the petitioner. The allegations against the petitioner are false and he has no connection with the case. The petitioner is innocent and he was falsely implicated. The story of the prosecution is highly unbelievable. The investigation is complete and the main accused-Sunil Kumar was released on bail on 31.01.2024. Bikram and Jitender were also released on bail by learned Special Judge, Solan on 24.01.2024. The petitioner would abide by all the terms and conditions, which may be imposed by the Court. Hence, the petition.

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The petition is opposed by filing a status report asserting that the police received a secret information on 17.12.2023 that a vehicle was parked on Solan, Kumarhatti Bypass road. Two persons Sandeep Thakur alias Banni and Sunil

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Kumar were present in the vehicle. They had brought huge quantities of heroin. The police reduced the information to writing and searched the vehicle in the presence of the witnesses and recovered heroin from it. The police seized the heroin and arrested the occupants of the vehicle. Sandeep Thakur revealed on inquiry that Pradeep Kumar asked him to transfer ₹ 49,000/-. Sandeep Thakur asked his brother-Sanjay Thakur-the present petitioner to transfer the amount. The petitioner transferred the amount. Sandeep Thakur purchased heroin from Pradeep. He was to sell the heroin but he was arrested by the police. The police seized the mobile phone of Sandeep Thakur and found the chat and calls pertaining to the purchase of the heroin. It was found during the investigation that Sandeep Thakur had used the account of his brother Sanjay Thakur, the present petitioner for the transfer of ₹ 49,000/-. The Police arrested the other persons. The result of the analysis shows that the substance recovered from the spot was heroin. As per the certificate of identity, no case has been registered against the petitioner. Hence, it was prayed that the present petition be dismissed.

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I have heard Mr. Manoj Pathak, learned counsel for the petitioner and Mr. Jitender Sharma, learned Additional Advocate General, for the respondent/State.

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Mr Manoj Pathak, learned counsel for the petitioner, submitted that the main accused has been released on bail. As per the prosecution, the account of the petitioner was used for the transfer of the money. The petitioner is not involved in the commission of the offence in any manner and he had transferred the money at the instance of his brother; therefore, he prayed, that the present petition be allowed and the petitioner be released on bail.

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Mr Jitender Sharma, learned Additional Advocate General, for the respondent/State submitted that the petitioner is involved in the commission of a heinous offence. He had transferred the money to the co-accused on an earlier occasion as well. The petitioner cannot claim any parity. Hence, he prayed that the present petition be dismissed.

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I have given considerable thought to the submissions at the bar and have gone through the record carefully.

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8. The parameters for granting bail were considered by

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the Hon’ble Supreme Court in Bhagwan Singh v. Dilip Kumar @ Deepu @ Depak , 2023 SCC OnLine SC 1059, wherein it was observed as under:-

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“ 12. The grant of bail is a discretionary relief which necessarily means that such discretion would have to be exercised in a judicious manner and not as a matter of course. The grant of bail is dependent upon contextual facts of the matter being dealt with by the Court and may vary from case to case. There cannot be any exhaustive parameters set out for considering the application for a grant of bail. However, it can be noted that;

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(a) While granting bail the court has to keep in mind factors such as the nature of accusations, severity of the punishment, if the accusations entail a conviction and the nature of evidence in support of the accusations;

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(b) reasonable apprehensions of the witnesses being tampered with or the apprehension of there being a threat for the complainant should also weigh with the Court in the matter of grant of bail.

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(c) While it is not accepted to have the entire evidence establishing the guilt of the accused beyond reasonable doubt but there ought to be always a prima facie satisfaction of the Court in support of the charge.

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(d) Frivolity of prosecution should always be considered and it is only the element of genuineness that shall have to be considered in the matter of grant of bail and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused is entitled to have an order of bail.

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13. We may also profitably refer to a decision of this Court in Kalyan Chandra Sarkar v. Rajesh Ranjan @ Pappu Yadav (2004) 7 SCC 528 where the parameters to be taken into consideration for the grant of bail by the Courts has been explained in the following words:

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“11. The law in regard to grant or refusal of bail is very well settled. The court granting bail should exercise its discretion in a judicious manner and not as a matter of course. Though at the stage of granting bail a detailed examination of evidence and elaborate documentation of the merit of the case need not be undertaken, there is a need to indicate in such orders reasons for prima facie concluding why bail was being granted particularly where the accused is charged of having committed a serious offence. Any order devoid of such reasons would suffer from nonapplication of mind. It is also necessary for the court granting bail to consider among other circumstances, the following factors also before granting bail; they are:

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( a ) The nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence.

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( b ) Reasonable apprehension of tampering with the witness or apprehension of threat to the complainant.

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( c ) Prima facie satisfaction of the court in support of the charge. (See Ram Govind Upadhyay v. Sudarshan Singh [(2002) 3 SCC 598: 2002 SCC (Cri) 688 ] and Puran v. Rambilas [(2001) 6 SCC 338: 2001 SCC (Cri) 1124 ].)”

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A similar view was taken in State of Haryana vs

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Dharamraj 2023 SCC Online 1085, wherein it was observed:

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7. A foray, albeit brief, into relevant precedents is warranted. This Court considered the factors to guide the

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grant of bail in Ram Govind Upadhyay v. Sudarshan Singh, (2002) 3 SCC 598 and Kalyan Chandra Sarkar v. Rajesh Ranjan, (2004) 7 SCC 528 . In Prasanta Kumar Sarkar v. Ashis Chatterjee, (2010) 14 SCC 496 , the relevant principles were restated thus:

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‘9. … It is trite that this Court does not, normally, interfere with an order passed by the High Court granting or rejecting bail to the accused. However, it is equally incumbent upon the High Court to exercise its discretion judiciously, cautiously and strictly in compliance with the basic principles laid down in a plethora of decisions of this Court on the point. It is well settled that, among other circumstances, the factors to be borne in mind while considering an application for bail are:

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(i) whether there is any prima facie or reasonable ground to believe that the accused had committed the offence;

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(ii) nature and gravity of the accusation;

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(iii) severity of the punishment in the event of conviction;

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(iv) danger of the accused absconding or fleeing, if released on bail;

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(v) character, behaviour, means, position and standing of the accused;

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(vi) likelihood of the offence being repeated;

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(vii) reasonable apprehension of the witnesses being influenced; and

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(viii) danger, of course, of justice being thwarted by grant of bail.’

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The present case has to be decided as per the

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parameters laid down by the Hon’ble Supreme Court.

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The status report is silent regarding the quantity of the heroin recovered from the possession of Sunil Kumar and Sandeep Thakur; however, a perusal of the copies of the orders passed by learned Special Judge, Solan and learned Special Judge, Nalagarh shows that the quantity of heroin was found to be 21.03 grams, which is an intermediate quantity. Therefore, the rigour of Section 37 does not apply to the present case.

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It is undisputed that Bikram, Jitender, and Sunil have been ordered to be released on bail by the learned Special Judge. The allegations against the petitioner are that the amount was transferred by using his account. Even if it is accepted to be correct, the same will show that the amount was transferred for the purchase of an intermediate quantity of heroin. There is no evidence to show that the petitioner was aware of the fact that the amount was being transferred for the purchase of the heroin or that he was involved in the sale of the heroin. When other accused persons have been released on bail, it would be improper to detain the petitioner in custody, especially when no other criminal case was found to be registered against him.

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Therefore, the present petition is allowed and the petitioner is ordered to be released on bail subject to his furnishing of bail bond in the sum of ₹ 25,000/- with one surety in the like amount to the satisfaction of the learned Trial Court. While on bail, the petitioner will abide by the following terms and conditions:

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(i) The petitioner will join the investigation as and when directed to do so by means of a written hukamnama.

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(ii) The petitioner will not intimidate the witnesses nor will he influence any evidence in any manner whatsoever.

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(iii) The petitioner shall attend the trial in case a charge sheet is presented against him and will not seek unnecessary adjournments.

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(iv) The petitioner will not leave the present address for a continuous period of seven days without furnishing the address of the intended visit to the I.O/SHO of the concerned Police Station.

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(v) The petitioner will furnish his mobile numbers, and social media contacts to the Police and the Court and will abide by the summons/notices received from the Police/Court through SMS/WhatsApp/Social Media Account. In case of any change in the mobile number or social media accounts, the same will be intimated to

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the Police/Court within five days from the date of the change.

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It is expressly made clear that in case of violation of

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any of these conditions, the prosecution will have the right to file a petition for cancellation of the bail.

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The observation made herein before shall remain confined to the disposal of the petition and will have no bearing, whatsoever, on the merits of the case.

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( Rakesh Kainthla) Judge

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3^rd March, 2024 (Saurav Pathania)

Sanjay Thakur v. State of Hp

Case brief

What is this about?

What did the court decide?

Sanjay Thakur v. State of Hp

Case brief

What is this about?

What did the court decide?

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