JYOTSNA REWAL DUA,J. -
(1.)Commercial quantity of 1.073 Kgs of cannabis was allegedly recovered from the petitioner on 19.11.2019. FIR No.274 of 2019 was registered against him on 20.11.2019 at Police Station Nurpur, District Kangra, under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short 'NDPS Act'). Petitioner was taken into custody on 20.11.2019. He is confined in jail for the last about a year. Through present petition, he seeks enlargement on bail under Section 439 of the Code of Criminal Procedure (Cr.PC in short).
(2.)The bail petition was heard on 19.08.2020, when respondent-State was directed to make available the records of the case. Matter thereafter was heard on 01.09.2020 through video conference and on 02.09.2020 in open Court. During arguments, Sh. N.K. Thakur, learned Senior Counsel appearing for the petitioner, while raising the plea of innocence and false implication of the petitioner, narrated the events of 19.11.2019 as per petitioner's version. The narration implicated those very police personnel, who were members of the patrolling party, which had statedly recovered the contraband from the petitioner.
Contraband involved in the case was of commercial quantity, thereby attracting the provisions of Section 37 of the NDPS Act, wherein for enlargement on bail, besides compliance of Section 439 Cr.PC, the twin conditions, viz.
(i) Existence of reasonable grounds for believing that the accused is not guilty of alleged offence; and (ii) He is not likely to commit any offence while on bail, are required to be recorded/satisfied. It is not very often that satisfaction of these two conditions get recorded in cases involving commercial quantity of contraband. However, minute by minute, sequence of events of 19.11.2019 recounted by learned Senior Counsel for the petitioner during the arguments, led the Court to pass following order on 02.09.2020:-
"02.09.2020 Present: Mr. N.K. Thakur, Senior Advocate alongwith Mr. Divya Raj Singh, Mr. Karan Veer Singh and Mr. Atul Kumar, Advocates, for the petitioner.
Mr. Anil Jaswal, Additional Advocate General with Mr. Manoj Bagga, Assistant Advocate General, for the respondent-State.
HC Vinod Kumar No.48, Police Station Nurpur, District Kangra and HC Rishi Vansh, SNCCIFU, CID Unit, Kangra, present alongwith record.
Petitioner is accused of possessing commercial quantity of Cannabis measuring 1.73 kg allegedly recovered by a police patrolling party from a Nano Car bearing No.HP 38D 1491 owned by him. The recovery is stated to have been effected on 19.11.2019 at around 6:15 pm at Kulhari Mod, Nurpur, District Kangra. The status report records the factum of petitioner standing alongside his aforenumbered car and on seeing the police patrolling party, throwing a bag held by him, inside the car, from which the recovery was allegedly effected. FIR No.274 of 2019 was registered the next day, i.e. on 20.11.2019 at Police Station Nurpur, District Kangra.
2. Whereas, according to the petitioner, the Nano car was parked and locked by him around Mangal Kiryana Shop near Kandwal on 19.11.2019. This vehicle was unauthorizedly driven away from the said place by some unknown persons at around 3:12 pm, who according to learned Senior Counsel, the petitioner apprehends, were policemen. The incident is said to have been captured on CCTV camera installed in front of Mangal Kiryana Shop. It has further been submitted by learned Senior Counsel that a Wagon R car bearing No.HP 68B 7888, registered in the name of Rishi Vansh (Head Constable and IO in the case), was parked near Kandwal Barrier on 19.11.2019 since 3:08 pm. Three persons alighted from this vehicle at around 3:39 pm and chased the petitioner near Kandwal Toll Tax Barrier. At 3:43 pm, these persons after overpowering the petitioner, hurled him inside another vehicle (Hyundai i20) bearing No.HP 57A 4001 (registered in the name of Manjeet Kumar, IO in the case). Whereafter both these cars Hyundai i20 and Wagon R, reversed back to Nurpur side. It has been submitted that these incidents at Kandwal Toll Tax Barrier, happened between 3:08 pm to 4:00 pm on 19.11.2019 have also been captured in the CCTV camera installed at Kandwal Toll Tax Barrier.
3. The record shows that one Sh. Hardeep Singh, brother of the petitioner, moved an application before the learned Additional Chief Judicial Magistrate, Nurpur, District Kangra, seeking direction that footage of the CCTV cameras installed at Kandwal Toll Tax Barrier and Mangal Kiryana Shop at Kandwal be got collected to enable the petitioner to prove his innocence. In this application, learned Additional Chief Judicial Magistrate, Nurpur, passed following order on 19.12.2019:-
"19.12.2019 Pr:- Shri Tippu Khan, Advocate, for the applicant.
: Shri Tarsem Kumar, Ld. APP, for the State.
: HC Vinod Kumar No.78, I.O. Police Station, Nurpur in person along with case file.
Ld. Counsel for the applicant as well as the Investigating Officer present in the Court have submitted that CDs of the CCT footage of the relevant date and time have been procured by the police. In view thereof, the application has now become infructuous and accordingly, the same is hereby dismissed as such. Papers be tagged with the concerned case FIR and be sent to the Court concerned.
19.12.2019. (Nitin Mittal), Addl. Chief Judicial Magistrate, Nurpur, District Kangra HP."
4. Charge-sheet was presented before the learned Trial Court on 17.02.2020. Indisputably, the footage of relevant date and time of the CCTV cameras installed at the two locations in question stated to have been procured by the police and taken note of by the learned Additional Chief Judicial Magistrate, Nurpur, District Kangra in the above extracted order dated 19.01.2019, has not been made part of the charge-sheet. Status report does not indicate any previous criminal antecedent of the petitioner.
5. Petitioner alongwith the instant bail petition has placed on record a pen drive statedly containing footage from the aforementioned CCTV cameras of relevant date and time. Heavy reliance has been placed upon the footage of CCTV cameras for proving innocence of the petitioner, to make out reasonable grounds that he was not guilty of the offences and thus, entitled to be released on bail under Section 37 of the Narcotic Drugs and Psychotropic Substances Act, 1985.
The Court cannot close its eyes to the above submissions and facts placed on record, even though it is a bail petition. Ground of false implication has been strongly urged. Serious allegations levelled against the police officials in the facts and circumstances of the case as have been projected, cannot be brushed aside. Hon'ble Apex Court has repeatedly held that fundamental rights guaranteed to the citizens have to be zealously guarded. Investigation has to be necessarily fair and credible.
It is, therefore, felt that the matter needs to be inquired into by higher authority. Accordingly, the Superintendent of Police, Kangra at Dharamshala, through the learned Additional Advocate General, is directed to inquire into the above aspects and find out the truth in the allegations levelled by the petitioner. The inquiry shall be conducted by the Superintendent of Police, Kangra at Dharamshala, himself within a period of three weeks from today and inquiry report shall be made available to the Court in a sealed cover on the next date.
It shall be open for the petitioner to present the footage of CCTV cameras available with him alongwith his representation to the Superintendent of Police, Kangra at Dharamshala, through his brother Hardeep Singh/any of his relation, on 4th September, 2020 by 5:00 pm. List on 23rd September, 2020.
Authenticated copy of this order be supplied to learned counsel for the parties by the Secretary."
(3.)Inquiry report in sealed cover has been supplied by Sh. Anil Jaswal, learned Additional Advocate General, which is made part of the Court file. In this detailed inquiry report running into seventy pages, the Superintendent of Police, Kangra at Dharamshala, has thoroughly examined the matter from all angles. Statements of 15 persons, viz.
Sh. Hardeep Singh S/o Sh. Bishan Singh, Sh. Daleep Kumar S/o Sh. Kartar Chand, Sh. Darshan Singh S/o Sh. Pritam Singh, Sh. Mangal Singh S/o Sh. Paddu Ram, Sh. Randhir Singh S/o late Sh. Kuldeep Singh, Sh. Arvind Kumar Guleria S/o late Sh. Dhyan Singh, Sh. Jarnail Singh S/o Sh. Pinju Ram, Sh. Chanchal Singh S/o Sh. Jagdish Singh, Sh. Raghuvir Singh S/o Sh. Paddu Ram, Sh. Karan Singh S/o Sh. Yudhvir Singh, HC Rishi Vansh, IO SNCC Field Unit Kangra, HHC Manjeet Singh, SNCC Field Unit Kangra, HC Vinod Kumar No.48, Police Station Nurpur, Constable Rocky Kumar, SNCC Field Unit Kangra and Sh. Kuldeep Singh S/o Sh. Bishan Singh (petitioner), were recorded. These included accused/petitioner-Kuldeep Singh, his brother Hardeep Singh, HC Rishi Vansh, HHC Manjeet Singh, SNCC Field Unit Kangra, HC Vinod Kumar and Constable Rocky Kumar, SNCC Field Unit Kangra. Call detail reports of mobile numbers belonging to accused/petitioner, HC Rishi Vansh and HHC Manjeet Singh were collected and analysed. Tower mapping of CDRs were obtained. CCTV footage regarding the incidents of 19.11.2019, provided by Sh. Hardeep Singh pertaining to Toll Tax Barrier Kandwal, Mangal Kiryana Store and Police Post Kandwal were sent to State Forensic Science Laboratory (SFSL), Junga for expert opinion regarding addition, deletion, editing or tampering with the footages.
SFSL Junga reported the footage as genuine, continuous and without any editing. The footage was comprehensively examined during inquiry. After scrutinizing the entire record, the Superintendent of Police, Kangra at Dharamshala, recorded his findings as under:-
On The basis of all the evidence i.e. CCTV footages, statements of witnesses and CDRs, it is conclusively substantiated that Kuldeep Kumar was inside the Wagon R HP68B 7888 which came at Kandwal Toll barrier at 03:08 pm on 19.11.2019 and got parked near Toll Barrier. At around 03:39 PM Kuldeep Singh ran from this Wagon R towards Baba Peer Mandir but was chased by two occupants of this car. After few minutes, he was caught in the fields across the railway track and was put in the i20 car No.HP 57A 4001 and taken towards Jassur. Thereafter, as per police record, Kuldeep Singh was caught at 06:15 PM with 1 kg and 073 gms of charas at Defence road Nurpur. The Wagon R HP 68B 7888 is owned by Head Constable Rishi Vansh who is the IO of this case and i20 car No.HP 57A 4001 is owned by HHC Manjeet Singh who was member of SNCC team which caught Kuldeep with Charas and registered case against him. Since none of the witnesses have identified the persons who had chased and picked up Kuldeep Singh, so it cannot be conclusively stated as to who picked up Kuldeep Singh from the Toll Barrier Kandwal. However, Kuldeep Singh stated that he was picked up by three unknown persons and made to sit in a Car. It is only after this that Kuldeep Singh speaks about involvement of Manjeet Singh when he was taken to Jassur in the car by four persons. It is also apparent that Kuldeep Singh has only identified Manjeet Singh and none else. From the detail of involved vehicles, the role of SNCC officials cannot be denied. The Nano car of Kuldeep Singh bearing registration number HP 38D 1491 was removed by some unknown person from Kandwal and driven towards Nurpur at around 04:17 PM (as per PP Kandwal CCTV footage time) and this car, as per police record, was used in the commission of the offence by Kuldeep Singh. Witnesses have also not been able to identify the persons involved in this act.
In view of the findings arrived at, the SDPO Nurpur has been directed to conduct further investigation in the case FIR No.274/2019 registered under NDPS Act in the Police Station Nurpur. Moreover, necessary information is being shared with DIG SNCC Shimla for taking appropriate action against the police officials namely Head Constable Rishi Vansh and HHC Manjeet Singh posted with SNCC FU District Kangra, in accordance with law. It is respectfully prayed that the detailed enquiry report into the allegations projected by the petitioner may kindly be taken on record in the interest of justice please."