Allowed

Nikhil Bekta v. State of Hp.

Himachal Pradesh HC6 Mar 2024CRMPM/318/2024

Case brief

AI extract

What is this about?

The High Court allowed the bail application of Nikhil Bekta under Section 439 CrPC and Sections 21, 29 of the NDPS Act. The Court noted changed circumstances, parity with a released co-accused, and acknowledged that the charge involved non-commercial quantity of drugs, reducing the rigors of Section 37.

What did the court decide?

Applicant ordered to be released on bail by furnishing personal bond of Rs. 50,000 with one surety in like amount, subject to standard bail conditions.

Nikhil Bekta Vs State of Hp. — Narcotics (NDPS) | Himachal Pradesh HC (2024)

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IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA

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Cr. MP(M) No. 318 of 2024 Decided on: 06.03.2024

Nikhil Bekta

…...Applicant

Versus

State of Himachal Pradesh ...Respondent

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Coram

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Hon’ble Mr. Justice Virender Singh, Judge Whether approved for reporting?

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For the Applicant(s):Mr. Sandeep K. Pandey, Advocate.

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For the Respondent : Mr. Tejasvi Sharma, & Mr. P.K. Nadda, Addl. A.G.

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Virender Singh, Judge ( Oral )

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Applicant Nikhil Bekta has filed the present application, under Section 439 of the Code of Criminal Procedure (hereinafter referred to as ‘Cr.P.C.’), for releasing him on bail, during pendency of the trial, in case FIR No.82 of 2023, dated 31.10.2023, registered with Police Station, Kotkhai,

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District Shimla, H.P., under Sections 21 and 29 of the Narcotic Drugs & Psychotropic Substances Act (hereinafter referred to as ‘the NDPS Act”).

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The applicant has pleaded the fact that he is an innocent person and has falsely been implicated in the present case. Applicant is stated to be the permanent resident of the address, as mentioned in the bail application, and belongs to a respectable family.

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According to the applicant, the main accused, in the present case, have already been released on bail, as such, relief has been claimed, on the basis of parity.

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According to the applicant, there is no likelihood of his fleeing away from the course of the law, and he is having deep roots in the society.

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The applicant has given certain undertakings,

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for which, he is ready to abide by, in case ordered to be released on bail.

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Applicant has tried their luck before the learned Additional Sessions Judge-II, Shimla, by filing bail application, however, the same has been dismissed, vide order dated 13.02.2024.

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On these submissions, a prayer has been made to allow the application.

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When put to notice, Police has filed the status report, disclosing therein that on 30.10.2023 ASI Ambi Lal, Incharge, Special Cell-I Shimla, along with other police officials, was on patrolling, traffic checking, and to prevent the crime duty. They moved towards Dhalli, Theog, Narkanda, Kumarsain, Bagi, Sidhpur side, in their private vehicles.

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8.1. When, ASI Ambi Lal was present at Baghi Ghati, on 31.10.2023, at about 8:00 a.m., then, he received a secret information that one Balbir Singh, Vipin, Raman Dhiman and Ganesh Nepali had gone to bring chitta/heroin. As per the information, they used

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to come in buses, via Hatkoti, Rohru, Tikkar and Baghi.

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8.2. It has further been apprised to the I.O., by way of secret information, that if the buses enroute from Rohru to Narkanda are checked, in that eventuality, large quantity of chitta/heroin could be recovered from the above persons. Said information was found to be reliable. As such, genesis of the information was prepared, under Section 42(2) of the NDPS Act and the same was sent to Supervising Officer, Police Station, Kotkhai, through HHC Sunil Kumar.

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8.3. Thereafter, when the I.O., along with other police officials, was present at about 11:15 a.m. at Baghi Ghati near Gumma, on the bifurcation, then, he noticed a HRTC bus, No.HP-10A-9717, being driven by its driver, coming from Baghi side. The said bus was stopped for checking.

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8.4. As per the information, ASI Ambi Lal had started checking the passengers, sitting in the bus.

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There were 20-22 passengers in the bus. When, the I.O. while checking the bus, reached at seats No.15 (window side) and 16, then he noticed two persons sitting there.

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8.5. The person, sitting on seat No. 15, was having rucksack, in his lap. When, reasons for travelling in the bus were inquired, they became perplexed and could not give satisfactory answers, as such, a suspicion got developed, in the mind of the I.O. that they might be having some objectionable article, as such, person sitting on seat No. 10 (window side), and the bus conductor were called and apprised about the factual position.

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8.6. On inquiry, the person sitting on seat No.10 had disclosed his name as Mohinder Singh and the conductor has disclosed his name as Pramod Singh. They were associated in the investigation of the case.

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8.7. Thereafter, inquiry from the persons sitting on seat Nos. 15 and 16 was done. The person sitting on seat No. 15 has disclosed his name as Balbir Singh, and the person sitting on seat No. 16 has disclosed his name, as Vipin.

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8.8. On inquiry Balbir Singh disclosed that the persons sitting on seat No. 20 (window side) and 21 along with him, had gone to Delhi. Thereafter, the name of person, sitting on seat No. 20 (window side) was inquired, who has disclosed his name as Ganesh Kumar, whereas the person, sitting on seat No. 21 has disclosed his name as Raman Dhiman. When, the above named persons were inquired, in the presence of witnesses, they disclosed that they had gone to Delhi together.

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8.9. On the basis of secret information, their bags were checked. When, the blue and grey coloured rucksack, which accused Balbir Singh was having, in his lap, was checked, the same was found containing

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chitta, which, on weighment, was found to be 107.93 grams. Other codal formalities were completed on the spot.

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8.10. Thereafter, ruqua was prepared and sent to the Police Station, upon which, FIR, in question, was registered. Initial investigation of the case was done by ASI Ambi Lal and further investigation was handed over to HC Anil No. 208, I.O., Police Station, Kotkhai. He has prepared the spot map and recorded the statements of the witnesses, under Section 161 Cr. P.C. The above accused persons were arrested on 31.10.2023.

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8.11. During investigation, it was found that accused Balbir Singh, Raman Dhiman, Vipin and Ganesh Kumar had come into contact with each other. Accused Balbir Singh is stated to be involved in the smuggling of Narcotic drugs, whereas, Vipin and Raman Dhiman were found to be involved, in the business of chitta/heroin. Both of them were stated to

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be addicted to heroin/chitta. They used to purchase chitta from Balbir Singh and sell it. On 29.10.2023, Balbir Singh, along with Vipin, Raman Dhiman and Ganesh Kumar had gone to Delhi to purchase the chitta/heroin, weighing 107.93 grams.

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8.12. On 1.11.2023, all the above persons were remanded to police custody by the learned Additional Chief Judicial Magistrate, Theog. During police custody, accused Balbir Singh has disclosed that he is selling chitta from the last six months and prior to this, he was indulged in the business of selling charas/opium. Vipin, Ganesh and Raman were also stated to be involved in the illegal business of selling chitta. Vipan and Raman are found to be addicts of chitta.

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8.13. For purchasing the chitta from Delhi, Vipin had got the deal done with one Prem Prajapati. Said Prem Prajapati is stated to be the driver of taxi/auto. All the above noted persons had gone to Delhi, on

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27.10.2023 and purchased 107.93 grams of chitta, for a sum of Rs. 1,50,000/- from said Prem Prajapati and other smugglers. On 29.10.2023, they were going to their village Sidhpur by HRTC bus, from Rohru, via Haridwar. On 2.11.2023, house, as well as, hotel/ dhaba of Balbir Singh was searched, but, nothing incriminating, was found.

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8.14. Bank accounts/transactions/UPI details of all the aforesaid persons were checked and number of transactions were found to be done, in the account of Balbir Singh, bearing No. 50100286263569, HDFC Branch, Ratnadi. As per the status report, in the last six months, Pankaj Sharma, Akshay Chauhan, Inder Bahadur and Nikhil Bekta (applicant) have transferred the money to the bank account of Balbir Singh, through UPI. When the account details, KYC and CDRs were obtained for analysis, then, it was found that Pankaj Sharma, Akshay Chauhan, Inder Bahadur and Nikhil Bekta (applicant) had transferred a sum of

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Rs. 3,90,000/- in the account of Balbir Singh. Pankaj Sharma has transferred a sum of Rs.51,400/- w.e.f. 7.6.2023 to 25.10.2023, through UPI mode, in the account of Balbir Singh, whereas, accused Inder Bahadur has transferred a sum of Rs. 1,20,000/w.e.f. 8.7.2023 to 17.10.2023, through UPI mode. Akshay Chauhan has transferred a sum of Rs.33,700/- w.e.f. 27.9.2023 to 24.10.2023, through UPI mode, in the account of Balbir Singh. On 15.11.2023, Pankaj Sharma was arrested.

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8.15. Lastly, it has been apprehended, in the status report, that in case, the applicant is ordered to be released on bail, he may coerce the witnesses and may not be available for the trial. As such, a prayer has been made to dismiss the application.

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The applicant has approached this Court on the ground that there are changed circumstances, as, according to learned counsel appearing for the applicant, at the time of decision of bail, by this Court

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on 18.12.2023, investigation was not complete. Now, as per the stand taken by the Police, investigation, in the present case, is complete, and Challan has been filed in the Court of learned Sessions Judge, Shimla on 28.12.2023.

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The Police has also mentioned the fact that FIR No.103/2022, under Sections 21 and 29 of the NDPS Act, and FIR No.46/2011, dated 14.03.2011, under Section 307 read with Section 34 IPC, have been registered, against the applicant with Police Station, Kotkhai. Trial of the said case has admittedly not been concluded, nor any conviction has been inflicted, against him.

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The applicant is in judicial custody, from the date of his arrest. The chances of commencement and conclusion of trial, against the applicant, are not so bright. The contraband, allegedly, recovered by the Police, in this case, does not fall within the definition

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of ‘commercial quantity’, as such, rigors of Section 37 of the NDPS Act, are not applicable.

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The role, allegedly played by the applicant, for the commission of the crime, will be proved, during trial.

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The applicant is permanent resident of District Shimla, as such, it cannot be apprehended that in case, the applicant is released on bail, he may not be available for the trial.

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So far as the apprehensions, which have been expressed by the Police, in the status report, that in case, the applicant is released on bail, he may coerce the witnesses and also may create hurdles in the process of trial is concerned, those apprehensions are not sufficient to decline the relief to the applicant, for which, he is otherwise entitled, as such, for those apprehensions, reasonable conditions can be imposed. 15. Keeping in view the fact that the Challan has now been filed in the Court on 28.12.2023, after the

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dismissal of the earlier bail application, this Court is of the view that there is change in circumstances. Moreover, chances of commencement and conclusion of trial, against the applicant, are not so bright, as such, no useful purpose would be served, by keeping him in judicial custody, that too, for indefinite period.

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Even on the ground of parity, the applicant is entitled for the relief, as prayed for, as, his co-accused Akshay Chauhan, has already been released, on bail, by this Court, while deciding Cr.MP(M) No.94 of 2024, on 12.01.2024.

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Considering all these facts, this Court

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is of the view that the bail application is liable to be allowed and is accordingly allowed. The applicant is ordered to be released on bail in case FIR No.82 of 2023, dated 31.10.2023, under Sections 21 and 29 of the NPDS Act, registered with Police Station, Kotkhai, District Shimla, H.P., on his furnishing personal bond

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in the sum of Rs.50,000/-, with one surety in the like

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amount, to the satisfaction of learned trial Court.

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This order of release, however, shall be subject

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to the following conditions, that :

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“a) He shall make himself available for the purpose of interrogation, if so required and regularly attend the trial Court on each and every date of hearing and if prevented by any reason to do so, seek exemption from appearance by filing appropriate application;

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b) He shall not tamper with the prosecution evidence nor hamper the investigation of the case, in any manner, whatsoever;

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c) He shall not make any inducement, threat or promises to any person acquainted with the facts of the case so as to dissuade them from disclosing such facts to the Court or the Police Officer; and

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d) He shall not leave the territory of India without the prior permission of the Court”

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Any of the observations made herein above

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shall not be taken as an expression of opinion on the

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merits of the case, as these observations are confined

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only to the disposal of the present bail application.

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It is made clear that the respondent-State is at liberty to move an appropriate application, in case, any of the bail conditions, is found to be violated, by the applicant.

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The Registry is directed to forward a soft copy of the bail order to the Superintendent of Jail, District Jail, Kaithu, through email, with a direction to enter the date of grant of bail in the eprison software.

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In case, the applicant is not released within a period of seven days from the date of grant of bail, the Superintendent of Jail, District Jail, Kaithu, is directed to inform this fact to the Secretary, DLSA, Shimla. The Superintendent of Jail, District Jail, Kaithu, is further directed that if the applicant fails to furnish the bail bonds, as per the order passed by this Court, within a period of one month from today, then, the said fact be submitted to this Court.

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(Virender Singh)

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Judge

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March 06, 2024 (ps)

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Digitally signed by KARAN SINGH KANWAR DN: C=IN, O=HIGH COURT OF HIMACHAL PRADESH, OU=HIGH COURT OF HIMACHAL PRADESH SHIMLA, KARAN Phone= 84c56a3b8f7868712974087154d73f59e80c39f7c3c3b2c9 6099a032dbd3936c, PostalCode=171001, S=Himachal Pradesh, SERIALNUMBER= SINGH 9b72faf266a1e783d9d187288c6909df3236ec19407465bd 50727f28fe45a07c, CN=KARAN SINGH KANWAR Reason: I am approving this document Location: KANWAR Date: 2024.03.06 16:40:56+05'30' Foxit PDF Reader Version: 2023.2.0

Nikhil Bekta v. State of Hp.

Case brief

What is this about?

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Nikhil Bekta v. State of Hp.

Case brief

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