BELI RAM Vs. STATE OF H.P.

JUDGEMENT

(1.) PRESENT bail application filed under Section 439 of Code of Criminal Procedure 1973 pleading therein that applicant has not committed any offence and he has been falsely implicated in present case. It is pleaded that there is nothing incriminating against the applicant in order to connect the applicant with commission of alleged offence. It is pleaded that applicant is head in the temple of Mata Bhagasidh Talpini District Kullu and it is further pleaded that applicant did not abscond. It is pleaded that police investigation is complete and nothing is to be recovered from possession of applicant. It is further pleaded that applicant is in custody for more than two and half months and there is no direct evidence to connect the applicant with commission of offence. It is further pleaded that applicant will not directly and indirectly make any inducement, threat or promise to any person acquainted with facts of the case. It is further pleaded that applicant will not tamper with prosecution evidence. It is further pleaded that applicant earlier filed bail application before learned Special Judge Kullu which was dismissed on dated 22.4.2014 and thereafter applicant filed another bail application before Hon'ble High Court of Himachal Pradesh which was registered as Cr. MP(M) No. 505 of 2014 which was also dismissed as withdrawn on dated 15.5.2014. Prayer for acceptance of bail application is sought.

(2.) PER contra police report filed. As per police report case under Sections 20 and 29 of ND & PS Act and under Sections 201 and 419 of IPC has been registered at P.S. Bhunter against the applicant vide FIR No. 23/2014 dated 24.01.2014. There is recital in police report that on dated 24.01.2014 police party was on patrolling duty in connection with theft case registered vide FIR No. 28/2014 and all vehicles were checked. There is further recital in police report that at about 6.30 AM a bus came from Bhunter side which was approaching towards Mandi and stopped at Bye Pass Garsa road. There is further recital in police report that one person boarded down from the back window of the bus and tried to run away. On suspicion he was caught and he disclosed his name as Rakesh Kumar son of Jai Narayan aged 40 years. There is further recital in police report that person was having a bag in his hand and on search of the bag cannabis weighing 9 Kg 790 grams found. There is further recital in police report that 50 grams taken out for sample purpose and sealed in cloth parcel with seal impression 'O' and remaining cannabis was also sealed in separate sealed parcel with seal impression 'O'. There is further recital in police report that NCB Form in triplicate was prepared and seal after use was handed over to HC Krishan Lal No. 17. There is further recital in police report that statements of prosecution witnesses recorded under Section 161 Cr.P.C. There is further recital in police report that on dated 20.1.2014 Rakesh Kumar came from Panipat to Manikaran in a bus and reached at Manikaran at 9 AM on dated 21.1.2014. There is further recital in police report that thereafter co -accused Rakesh Kumar contacted Ravi Kumar from Panipat through his telephone No. 97287 -27790 qua cannabis. There is further recital in police report that co -accused Rakesh Kumar mortgaged his plot in consideration amount of Rs. 550000/ - (Five lacs fifty thousand only) to Dr. Rajinder and came to Manikaran along with an amount of Rs. 470000/ - (Four lac seventy thousand only). There is further recital in police report that thereafter Ravi Kumar who is originally resident of Nepal telephoned him at Manikaran and he also came there at Manikaran and took co -accused Rakesh Kumar on foot through passage for 2.30 hours. There is further recital in police report that thereafter Ravi Kumar purchased 2.500 Kg. cannabis from Pardhan and co -accused paid Rs. 450000/ - (Four lac fifty thousand only) to Ravi Kumar. There is further recital in police report that thereafter Ravi Kumar took him to another village where Ravi Kumar was residing as tenant. There is recital in police report that Babu Ram, Lambu Ram and Ravi Kumar all used to reside in same rented room and they resided there for two days. There is further recital in police report that thereafter Ravi Kumar shown him 20 packets of cannabis containing 10 Kg. Thereafter he along with Ravi Kumar came back to Manikaran along with cannabis and in the morning at 5 AM he boarded Jalandhar Punjab Roadways bus. There is further recital in police report that Rakesh Kumar also informed that case under Section 307 IPC was also registered against him and he was released from Ambala jail on dated 4.1.2014. Medical examination of accused was conducted at PHC Bhunter and MLC was obtained. There is further recital in police report that disclosure statement of Rakesh Kumar was also recorded under Section 27 of Indian Evidence Act 1872 and thereafter co -accused Rakesh has given disclosure statement that he purchased 10 Kg. of cannabis from Beli Ram applicant in consideration amount of Rs. 4,50,000/ - (Four lac fifty thousand only). There is also recital in police report that co -accused Rakesh Kumar located the house of Beli Ram in pursuance to disclosure statement but co -accused Beli Ram was not found in his house. There is further recital in police report that thereafter co -accused Beli Ram was arrested on dated 01.04.2014 under Section 29 of ND & PS Act 1985. There is further recital in police report that thereafter call details of Beli Ram were collected and as per call details Beli Ram has direct conversation from his phone with prime co -accused. There is further recital in police report that as per the expert report the contraband is extract of cannabis and sample of charas. Beli Ram applicant is co -accused in present case under Section 29 of ND & PS Act 1985 and under Section 201 IPC. As per police report Beli Ram had sold cannabis to the extent of 9 Kg. 790 grams in consideration amount of Rs. 450000/ - (Four lac fifty thousand only). There is further recital in police report that co -accused Beli Ram had continued telephone calls with Rakesh Kumar @ Vishavjit w.e.f. 22.01.2014 to 24.01.2014. There is further recital in police report that applicant Beli Ram is influenced person and he will threat the prosecution witnesses. There is further recital in police report that challan has already been filed in Court on dated 14.5.2014 which is pending before learned Additional Sessions Judge Kullu. Prayer for rejection of bail application sought.

(3.) SUBMISSION of learned Advocate appearing on behalf of the applicant that investigation is complete and nothing is to be recovered from the applicant and there is no direct evidence to connect the applicant with commission of alleged offence and on this ground bail application be allowed is rejected being devoid of any force for the reasons hereinafter mentioned. At the time of granting bail following factors are considered. (i) Nature and seriousness of the offence. (ii) Character and behaviour of accused. (iii) Circumstances peculiar to the accused. (iv) Reasonable possibility of securing the presence of the accused at the trial and investigation. (v) Reasonable apprehension of the witnesses being tampered with. (vi) Larger interests of the public and state. (See : AIR 1978 Apex Court 179 DB, titled Gurcharan Singh vs. State and also see : 1962 Apex Court 253 Full Bench titled State Vs. Captain Jagjit Singh). In present case allegations against the applicant are that applicant committed criminal conspiracy to commit offence punishable under Section 29 of Narcotic Drugs and Psychotropic Substances Act 1985 and under Section 201 of IPC. Rakesh Kumar @ Vishavjit has given disclosure statement under Section 27 of Indian Evidence Act that he purchased 10 Kg. of cannabis in consideration amount of Rs. 450000/ - (Four lac fifty thousand only) from applicant Beli Ram. There is additional provision of bail under Section 37 of the Narcotic Drugs and Psychotropic Substances Act 1985. Section 37 of the Narcotic Drugs and Psychotropic Substances Act 1985 is a special Act and it is well settled law that when there is conflict between general law and special law then provision of special law always prevails upon general law. As per Section 37 of Narcotic Drugs and Psychotropic Substances Act 1985 bail in commercial quantity of contraband has been prohibited. As per Section 37 of Narcotic Drugs and Psychotropic Substances Act 1985 bail qua commercial quantity can be granted only when the Court is satisfied that there are reasonable grounds for believing that accused is not guilty of offence under Narcotic Drugs and Psychotropic Substances Act 1985. At this stage such findings cannot be given by Court till regular trial is not concluded. In view of the rider imposed under Section 37 of Narcotic Drugs and Psychotropic Substances Act 1985 qua commercial quantity it is not expedient in the ends of justice to release applicant on bail at this stage.