Personal liberty of a person cannot be curtailed for the purpose of assuring the arrest of the accused: High Court of Himachal Pradesh

 Hig h C o urt of H.P on 07 07 CIS IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Cr.M.P.No. 9421 Reserved on: 26.6.2021 Date of decision: 7.7.2021 Raj Kumar. …Petitioner. Versus State of Himachal Pradesh. …Respondent. Coram The Hon’ble Mr. Justice Vivek Singh Thakur Judge. Whether approved for reporting 1 For the Petitioner: Mr.Rahul Singh Verma Advocate through Video Conferencing. For the Respondent: Mr.Raju Ram Rahi Deputy Advocate General through Video Conferencing. Vivek Singh Thakur Judge Petitioner has been arrested on 6.3.2021 under Section 27A of Narcotic Drugs and Psychotropic Substances Actand Section 212 of the Indian Penal Codein case FIR No. 221 dated 11.2.2021 registered under Sections 15 29 27A of NDPS Act and Section 212 IPC in Police Station Paonta Sahib District Sirmour H.P. 2. Perusal of status report filed by respondent State reveals that on 11.2.2021 on the basis of reliable information Police Party had recovered and seized 200.278 Kilograms of Poppy Straw from a truck and 150.500 Kilograms Poppy Straw from pits of sand in Khera Valley on the bank of Yamuna river and thereafter on the basis of link evidence some of accused persons were arrested on 19.2.2019. On interrogation during Police Custody on 20.2.2021 on disclosure of Whether the reporters of the local papers may be allowed to see the Judgment Yes Hig h C o urt of H.P on 07 07 CIS Cr.M.P.No. 9421 2accused Mohamad Deen 101.530 Kilograms of Poppy Straw was recovered from Satiwala Jungal Khud. 3. During investigation it has come on record in statements of co accused that one Parveen Kumar who is son in law of petitioner is also one of the main accused whereupon efforts were made to trace and apprehend him. On 15.2.2021 his wife was informed and asked to join investigation but on the same date Parveen Kumar along with his wife and daughter had hidden himself in his in laws at Atalpur Meerut Uttar Pradesh. On receiving reliable information Police Party reached Meerut on 2.3.2021 and with the help of local Police it had come in the knowledge of Police party that petitioner and his wife Anita instead of sending their son in law Parveen Kumar to Police Station Paonta Sahib have sent him to Rajasthan to stay with relative. 4. It is further stated in the status report that Parveen Kumar was harboured by his father in law and mother in law despite the fact that he had committed a serious offence and also ignoring the fact that Rakesh Kumar brother of Parveen Kumar since 15.2.2021 had been informing father in law and mother in law of Parveen Kumar to produce Parveen Kumar before Police. However petitioner neither produced Parveen Kumar before the Police nor joined investigation himself whereas Rakesh Kumar by understanding the seriousness of the case had brought all facts in the knowledge of the petitioner however petitioner after harbouring Parveen Kumar in his house had sent him to other place situated in Rajasthan. As petitioner did not cooperate legally with the Police upon this Section 27A of NDPS Act and Section 212 of IPC were also added in the challan and petitioner Hig h C o urt of H.P on 07 07 CIS Cr.M.P.No. 9421 3was arrested on 6.3.2021. Petitioner after remaining in Police custody on his arrest on 6.3.2021 is in judicial custody since 15.3.2021. 5. Learned counsel for the petitioner has submitted that accusation against the petitioner is that he had harboured his son in law in his house whereas the fact is that petitioner was not knowing about involvement of his son in law in commission of offence under NDPS Act as alleged by prosecution and he had not harboured his son in law as an accused but due to ignorance about his involvement in the offence he had permitted his family to stay in his house who had left the house before arrival of the Police from Paonta Sahib but without informing anybody and therefore it is stated that it was not possible for the petitioner to trace his son in law. He has further submitted that petitioner has been implicated and arrested in the case only in order to create a pressure upon Parveen Kumar to surrender but despite that Parveen Kumar has not surrendered but the petitioner is suffering for no fault on his part. Lastly it is stated that as and when petitioner would know about whereabouts of Parveen Kumar he undertakes to disclose inform it to the Police Court. He has submitted that for assuring the arrest of accused Parveen Kumar personal liberty of the petitioner cannot be curtailed and petitioner is also ready to furnish local surety and therefore he has advocated for release of petitioner on bail. 6. It is also pointed out that Parveen Kumar had approached this Court seeking anticipatory bail under Section 438 Cr.P.C in April Hig h C o urt of H.P on 07 07 CIS Cr.M.P.No. 9421 42021 by filing Cr.M.P.No. 5621 which was dismissed on 9th April 2021. 7. Considering the entire facts and circumstances of the case placed on record by way of status report and also submissions of learned counsel for the petitioner and respondent State I am of the opinion that in present case petitioner can be treated differently than the other main accused. The petitioner has no antecedents regarding commission of offence under NDPS Act. Considering principles and factors relevant to be considered at the time of deciding bail application with reference to entire facts and circumstances of the case nature and gravity of offence alleged to be committed by petitioner I am of the opinion that at this stage petitioner is entitled to be enlarged on bail. 8. Accordingly petitioner is ordered to be enlarged on bail subject to furnishing personal bond in the sum of `1 00 000 with one local surety as undertaken in the like amount to the satisfaction of trial Court Special Judge within a period of two weeks from today upon such further conditions as may be deemed fit and proper by the trial Court including conditions enumerated hereinafter so as to ensure the presence of the accused during trial and also subject to following further conditions: That the petitioner shall make himself available to the police or any other Investigating Agency or Court in the present case as and when required that the petitioner shall not directly or indirectly make any inducement threat or promise to any person acquainted with the facts of the case so as to dissuade him her from disclosing such facts to Court or to any Police Officer or tamper with the evidence. He shall not in any manner try to overawe or influence or intimidate the prosecution witnesses Hig h C o urt of H.P on 07 07 CIS Cr.M.P.No. 9421 5(iii) that the petitioner shall not obstruct the smooth progress of the investigation trial that the petitioner shall not commit the offence similar to the offence to which he is accused or suspected that the petitioner shall not misuse his liberty in any manner that the petitioner shall not jump over the bail that the petitioner shall keep on informing about the change in address landline number and or mobile number if any for his availability to Police and or during trial that the petitioner shall not leave India without permission of the Court. 9. It will be open to the prosecution to apply for imposing and or to the trial Court to impose any other condition on the petitioner as deemed necessary in the facts and circumstances of the case and in the interest of justice and thereupon it will also be open to the trial Court to impose any other or further condition on the petitioner as it may deem necessary in the interest of justice. 10. In case the petitioner violates any conditions imposed upon him his bail shall be liable to be cancelled. In such eventuality prosecution may approach the competent Court of law for cancellation of bail in accordance with law. 11. Learned trial Court is directed to comply with the directions issued by the High Court vide communication No.HHC.VIG. Misc. Instructions 93 IV.7139 dated 18.03.2013. 12. Observations made in this petition hereinbefore shall not affect merits of the case in any manner and are strictly confined for the disposal of the bail application. 13. The petitioner is permitted to produce copy of order downloaded from the High Court website and the trial Court shall not Hig h C o urt of H.P on 07 07 CIS Cr.M.P.No. 9421 6insist for certified copy of the order however it may verify the order from the High Court website or otherwise. The petition stands disposed of in the aforesaid terms. Dasti copy on usual terms. 7th July 2021 Judge. 

Summary: A person who is not involved in an offence and has no antecedents to the offence committed, but has provided shelter to the accused and not brought him before the police, cannot be treated the same as the main accused and the liberty of such a person cannot be curtailed for the purpose of arresting the main accused. This was decreed by the Hon’ble court of Himachal Pradesh by Hon’ble Justice Sri Vivek Singh Thakur in the case of Raj Kumar Vs. State of Himachal Pradesh [Cr.M.P. (M) No. 946 of 2021] on the 7th of July 2021. The brief facts of the case are, the respondent-State recovered and seized a truck of 200 Kg of poopy straw from a truck and 150 Kg of poppy straw from a sand pit on 11.2.2021. The accused persons were arrested on 19.2.2021. During the investigation, it was revealed that Parveen Kumar, son-in-law of the petitioner was the main accused. On 15.02.2021, the wife of the accused was informed about this and was asked to held with the investigation. However, on the same day the accused with his wife and family fled to Uttar Pradesh to reside at the petitioner’s house. The local police reached the house of the petitioner to arrest the accused only to find that the accused and his wife were sent to Rajasthan by the petitioner and his wife instead of submitting him at the police station. Since the petitioner did not cooperate with the police legally, the petitioner was arrested asper section 27A of the NDPS Act and Section 212 of the Indian Penal Code. The petitioner after remaining in Police custody on his arrest on 6.3.2021, is in judicial custody since 15.3.2021. The present petition has been filed to release the petitioner on bail. The counsel for the respondent-state submits that the accused was harbored by the petitioner and his wife despite the knowledge of the fact that the accused was involved in a serious offence. It was also brought to the notice of the court that Rakesh Kumar, brother of Parveen Kumar, since 15.2.2021, had been informing father-in-law and mother-in-law of Parveen Kumar to produce Parveen Kumar before Police. Despite this, the petitioner continued to shelter the accused and also helped him move to Rajasthan and did not cooperate with the police. The counsel for the petitioner contended that he had harbored his son-in- law in his house, whereas the fact is that petitioner was not knowing about involvement of his son-in-law in commission of offence under NDPS Act, as alleged by prosecution and he had not harbored his son-in-law as an accused, but due to ignorance about his involvement in the offence, he had permitted his family to stay in his house, who had left the house before arrival of the Police without informing anybody and, therefore, it is stated that it was not possible for the petitioner to trace his son-in-law. It was also submitted that the petitioner was being implicated to create pressure on the accused to surrender. It was also noticed that the accused had applied for an anticipatory bail which was dismissed by the trial court. The counsel for the petitioner further submits that the petitioner is ready to disclose information as and when it comes to his knowledge and is also ready to furnish local surety.