IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.M.P.M. No. 1177 of 2008. Date of decision: November 28, 2008. Jitender Kumar ….. Petitioner. Vs. State of H.P. …. Respondent. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting?1 For the petitioner : Mr. Anup Chitkara & Mr. Chaman Negi, Advocates. For the Respondent : Mr. A.K. Bansal, Addl. Advocate General. Kuldip Singh, Judge (oral). This an application, under Section 439 Cr.P.C., for releasing the petitioner on bail in FIR No. 41, registered on 29.3.2008 at Police Station, Anni, under Sections 20, 29 and 27-A of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short, the Act), status report has been filed. 2. Heard and perused the record. The prosecution case in brief is that on 29.3.2008, ASI Ludar Singh and others were at place near Samsar (Anni) in connection with traffic checking. At about 6.45 p.m., a jeep came from Gugra side, it was signalled to stop and it ultimately stopped. In vehicle No. HP-35B-0177, three persons including the driver were sitting on the front seats. The moment ASI Whether the reporters of the local papers may be allowed to see the Judgment? …2… Ludar Singh asked the driver of the vehicle to show the papers, the two persons jumped out of the vehicle from opposite window and fled away alongwith an envelop and a bag. ASI Ludar Singh overpowered with the help of other policemen one person, the second person threw the bag, which he was holding in his hand and ran towards Nalla. The person, who was overpowered disclosed his name Kehar Singh and driver of the jeep disclosed his name Rinku. On inquiry, Rinku disclosed that Kehar Singh and Jebi Ram boarded his jeep just behind Gugra. Jebi Ram was holding a bag while Kehar Singh was holding an envelop. The bag, which was thrown by Jebi Ram was searched and it was found to contain charas. There was no arrangement of light on the spot, therefore, ASI Ludar Singh and other policemen alongwith Kehar Singh and driver came to police station. The charas found in the bag was recovered and on weighment, it was found to be 5 Kilograms, sampling was done on the spot and the remaining bulk quantity was sealed. The polythene envelop which Kehar Singh was carrying was also searched after he gave his consent for search. On search, currency notes amounting to Rs.1,20,000/- were found in the envelop, which was sealed. 3. The investigation was got conducted by ASI Ludar Singh. Kehar Singh was arrested. During the course of investigation, it was found that Kehar Singh is the servant of Jitender Kumar, who runs a cloth/ tailoring shop. On 29.3.2008 at about 11.00/12.00 o’clock Jitender Kumar and Kehar Singh went towards Naldehra (Anni) and searched for Jebi Ram. Jitender Kumar gave Rs.1,90,000/- to Kehar Singh and Jebi Ram for purchasing 15 …3… kilograms charas, but they could purchase only 5 Kilograms charas for Rs.70,000/-. Kehar Singh was returning with balance amount of Rs.1,20,000/- when he was apprehended. Kehar Singh also disclosed during investigation that they had purchased this charas from Nari Ram and Khimi Ram. Jitender Kumar called Kehar Singh and Jebi Ram on mobile phone from 11.00 a.m. to 8.15 p.m. for about seven or eight times. Jitender Kumar was arrested on 3.4.2008. On 5.4.2008, the case was investigated by Inspector Nathu Ram. The house and shop of Jitender Kumar were searched and pass books, currency notes and small pocket diary were recovered from there. In the diary, Jitender Kumar had noted accounts of charas. In the bank accounts of Jitender, several transactions of lacs of rupees were found. Jitender Kumar had also purchased 11 biswas land and Mahindra Scorpio jeep. It was found during investigation that sim No. 98169-66001 was in the name of Naresh Kumar, but on verification no person of this name was found and this sim was used by Jitender Kumar. It was also found during investigation that Jitender Kumar had given Rs.1,90,000/- to Jebi Ram and Kehar Singh for purchasing charas, both of them could purchase only 5 Kilograms charas but on the spot Kehar Singh was caught, Jebi Ram had thrown 5 Kilograms charas bag on the spot. On these facts, the accused were booked under the Act. 4. The learned counsel for the petitioner has submitted that there is no material on record that petitioner deals in charas and uses carriers for the said purpose. There is no legal material on record to show that Kehar Singh had allegedly purchased charas on behalf of …4… the petitioner. There is no presumption that an employee acts on behalf of the employer for illegal activities. The pocket diary allegedly recovered during investigation nowhere connects the petitioner with the offence. The transactions mentioned in the diary are not of charas. There is no evidence that mobile sim No. 98169-66001 was used by the petitioner. The alleged confession made by Kehar Singh is hit by Section 25 of the Evidence Act. The bank transactions relied by the prosecution have no connection with the alleged dealing of the petitioner with the contraband. The petitioner has wholesale and retail business of cloth and he has employed three tailors for stitching the clothes. The evidence collected by the prosecution is tainted. The petitioner has been implicated on suspicion. There is nothing on record that in case the petitioner is released on bail then he will tamper with the prosecution evidence. The petitioner is in Jail and no purpose of the prosecution will be served by keeping the petitioner in jail for indefinite period. The rigour of Section 37 is not applicable in the present case. The petitioner is a respectable person, he earlier filed bail applications in the case, which were rejected. The learned counsel for the petitioner has prayed for grant of bail to the petitioner. 5. The learned Additional Advocate General has opposed the bail application on the ground that petitioner deals in narcotics and he operates through carriers on the basis of his money power. There is sufficient legal material on record against the petitioner showing his involvement in the commission of the offence. The bail application of the petitioner was rejected by this court on 10.7.2008 …5… and there is no change of circumstance. The learned counsel for the petitioner has submitted that the present bail application has been filed on new grounds or such grounds which were not considered earlier when the bail application of the petitioner was rejected by this court on 10.7.2008. 6. I have considered the rival contentions of the learned counsel for the parties. The allegations against the petitioner are that petitioner operates in illegal trade of selling and purchasing of contraband through carriers and for this purpose he gives money to other persons. In the present case, he used Kehar Singh and Jebi Ram for purchasing 5 Kilograms charas, which was recovered by the police. The prosecution case is that petitioner had given Rs.1,90,000/- to Kehar Singh and Jebi Ram for purchasing 15 Kilograms charas. They could purchase only 5 Kilograms charas for Rs.70,000/- and balance amount Rs.1,20,000/- was recovered from Kehar Singh. It has not been elaborated by the learned counsel for the petitioner why the rigour of Section 37 of the Act is not applicable in the present case at this stage. I am not purposely going into the merits of the case in detail, but prima facie, on the basis of material on record it cannot be said that no case is made out against the petitioner under the Act. 7. In view of above, the petitioner is not entitled to bail. Resultantly, the application is dismissed. Any observation made herein above shall not be construed as an expression of opinion on the merits of the case. November 28, 2008. ( Kuldip Singh ) (Hem) Judge.