Anoop Chitkara, J
1. The petitioner, incarcerating upon his arrest, for possessing commercial quantity of Charas, has come up before this Court under Section 439 of
CrPC, seeking regular bail.
2. Earlier, the petitioner had filed a petition under Section 439 Cr.PC before the concerned Sessions Court. However, vide order dated 29.10.2020,
learned Special Judge-II, Sirmaur District at Nahan, H.P., dismissed the petition because the accused is a habitual offender.
3. In Para 7 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 on 9.3.2016, when the Police officials of aforesaid Police Station were on patrolling duty and
were present at Giripul, they noticed one Maruti Car which was coming from Sanaura village and leading towards Solan side. The Police officials
signaled the driver to stop and noticed that in the car three more persons were sitting. On inquiry, they revealed their names as Dharam Singh, Ajay
Kumar and Baljinder Singh. The Police searched the vehicle and found that below the driver seat, there was a bag and the Police inquired from the
occupants that who owned that bag. On this, Baljinder Singh stated to the Police that the said bag belonged to him. On opening the same, the Police
recovered a black coloured substance, which on the basis of smell and experience was found to be Charas. On weighing the substance, it was found
to be 1.978 Kilograms. After that, the Police Officials conducted the procedural requirements under ND&PS Act and Cr.PC and arrested the
accused. Thereafter, FIR mentioned above was registered. The Forensic Science Laboratory tested the substance as Charas. During investigation,
the Police found that Suresh Kumar, present bail petitioner, also drove the car from Chandigarh and was involved in the transportation of the
contraband. The Police also collected the call details of the Mobile Phones of Baljinder Singh and Suresh Kumar. However, the said SIM was not
responding and it was switched off right from 10.3.2016 onwards. The Police could not trace the other co-accused, Ajay Kumar and Dharam Singh
and applied to JMIC, Rajgarh under Section 82 Cr.PC for declaring them as Proclaimed Offenders.
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. The Status report reveals that the petitoner had filed an application for anticipatory bail before this Court and vide order dated 17.10.2019, the same
was dismissed. Despite the dismissal of the bail application, the petitioner did not surrender, but kept on evading the arrest. It was only on 28.2.2020
that the Police arrested him, i.e. after a gap of more than 4 months. On inquiry about the fate of accused Baljinder, learned Assistant Advocate
General, has brought to the notice of this Corut that the said Baljinder stands convicted by the Special Court. He has filed an appeal against his
conviction, which is registered as Cr. Appeal No.349 of 2018 and the same is pending adjudication before this Court.
8. Learned counsel for the petitioner has failed to satisfy this Court that how the presence of bail petitioner would be secured once he is released on
bail. As such, on this ground, the petition is dismissed at this stage.
9. Learned counsel for the petitioner referred to certain statements and memos from the police report, prepared under section 173(2) CrPC, copies of
which the accused had duly received in compliance to S. 207 CrPC. However, the documents which the leanrd counsel referred were neither filed
with the petition, nor its copies supplied to the Court and the State. Thus, the Court cannot base any finding on a document which is in the Counsel's
brief and not on the Court's file.
10. 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.
11. Given above, in the facts and circumstances peculiar to this case, 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.
12. 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.