Himachal Pradesh High Court
___________________________________________________________________ vs State Of Himachal Pradesh on 30 August, 2019
Author: Anoop Chitkara
Bench: Anoop Chitkara
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA .
Cr.MP(M) No.1429/2019 Reserved on : 16th August,2019 Date of Decision: 30th August, 2019 ___________________________________________________________________ Hem Raj ... Petitioner.
Versus State of Himachal Pradesh Coram:
r to The Hon'ble Mr. Justice Anoop Chitkara, Judge.
...Respondent Whether approved for reporting?1 No. For the Petitioner : Mr. R.S. Chandel, Advocate. For the Respondent : Mr. Nand Lal Thakur, Additional Advocate General and Mr. Amit Dhumal, Deputy Advocate General, for the State.
Anoop Chitkara, Judge The petitioner, who is under arrest, on being arraigned as an accused in FIR disclosing non-bailable offences, has come up under Section 439 of the Code of Criminal Procedure, seeking regular bail.
2. I have seen the status report(s) as well as the police file to the extent it was necessary for deciding the present petition, and the same stands returned to the police official. I have heard 1 Whether reporters of Local Papers may be allowed to see the judgment?
::: Downloaded on - 29/09/2019 02:54:32 :::HCHPMr. R.S. Chandel, learned counsel for the petitioner and Mr. Nand Lal Thakur, learned Additional Advocate General for the .
respondent/State.
FACTS:
3. The gist of the First Information Report and the investigation is as follows:
a) The case of the prosecution is that more than 4 Kg. and 100 grams of Charas has been recovered from the possession of the bail petitioner, which is a commercial quantity under Section 20 (ii) (C) of Narcotic Drugs and Psychotropic Substances Act.
b) It is stated that when the police laid down a Naka to detect the crime, then at that time, one Esteem Car came from the side of Banikhet, in which apart from the driver, one more person was also sitting on the front seat. When, window pane of the car was lowered down, then police present there noticed smell of the Canabis, emanating from the vehicle.
Thereafter, police, inquired the name of the occupants of the car who revealed the names as Hem Raj, the present petitioner and Kulwant Singh, the co-accused.
c) After following the procedural formalities, when the car was searched, then from the seat adjacent to that of the driver seat, where the bail petitioner was sitting, there was a bag in front of his legs. On checking the said bag, police ::: Downloaded on - 29/09/2019 02:54:32 :::HCHP recovered the Charas, which on weighing, was 4Kg. and 100 grams.
.
REASONING:
4. The bail petitioner has come up before this Court on the ground mentioned in Paragraph-5 of the petition, wherein he states that his father is a patient of Asthma and the mother is a patient of heart and paralysis and she is admitted in a hospital in Chamba. He further states that there is no family member to look after his ailing parents. However, the petitioner has not placed on record any document to prove the illness. If the mother was admitted in the hospital, then there must be prescription slip and admit card, which he has not placed on record. These averments were made simply in the bail petition and without any corroboration from the documents.
5. Since the quantity of the Charas is commercial, therefore, the mandate of Section 37 restricts the grant of bail, unless there is a satisfaction of the Court that a case for grant of bail is made out despite the restriction and rigors of Section 37 of the NDPS Act.
6. Even if, all these submissions are accepted to be accurate, still this Court can release a person /accused of an ::: Downloaded on - 29/09/2019 02:54:32 :::HCHP offence punishable under the NDPS Act for possessing a commercial quantity of contraband on clearance of the rigors .
contained in Section 37 of the Act. Section 37 of the Act is extracted as under:-
"37. Offences to be cognizable and non-bailable.
(1)Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974)
(a) every offence punishable under this Act shall be cognizable;
(b) no person accused of an offence punishable for 2[offences under section 19 or section 24 or section 27A and also for offences involving commercial quantity] shall be released on bail or on his own bond unless
(i) the Public Prosecutor has been given an opportunity to oppose the application for such release, and
(ii) where the Public Prosecutor opposes the application, the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail.
(2) The limitations on granting of bail specified in clause (b) of sub-section (1) are in addition to the limitations under the Code of Criminal Procedure, 1973 (2 of 1974) or any other law for the time being in force, on granting of bail."::: Downloaded on - 29/09/2019 02:54:32 :::HCHP
7. Reading of Section 37(1)(b)(ii) mandates that two .
conditions are to be satisfied before a person/accused of possessing a commercial quantity of drugs or psychotropic substance, is to be released on bail.
The first condition is when the Public Prosecutor does not oppose the bail application.
The second stipulation is that the Court must be satisfied that the reasonable grounds exist for believing that the accused is not guilty of such offence and also he is not likely to commit any offence while on bail. Be that it may, if such a finding is arrived at by the Court, then it is equivalent to giving a certificate of discharge to the accused. Even on fulfilling one of the conditions that the reasonable ground to believe that during the period of bail, the accused is not guilty of such an offence, still, it is not possible for the Court to give a finding or assurance that the accused is not likely to commit any such crime. However, the grant of bail or denial of bail for possessing commercial quantity would depend on facts of each case.
8. To understand that why is the present bail petitioner not entitled to the discretion of pre-arrest bail, the following illustration is relevant. Take somewhat an identical case where ::: Downloaded on - 29/09/2019 02:54:32 :::HCHP some person, when he sees the police or when the cops challenge him, throws away his bag, containing the prohibited contraband in .
it, and runs away from the spot. At a later stage Investigating Officer arrests the person by claiming it was the same person who had run away on seeing the police party. But such person leads primary evidence of alibi by proving his presence at some other place, or some allegations that the police let off the real culprit, on some extraneous considerations, and that the police is making him a scapegoat.
9. In the present case, there is not even a whisper or a word in the pleadings of the accused which suggest that the petitioner was not present in the car at the time of the alleged recovery of the contraband. It is also not pleaded that there is some hostility with the police personal. The only contention raised is that the police is falsely implicating the accused.
10. In the facts and circumstances of the case, the petitioner is unable to clear the check-post of Section 37 of the NDPS Act.
11. In view of the above discussions and in the absence of any documentary evidence to support the hospitalization, just submissions on the bail petition, are not sufficient. Therefore, the ::: Downloaded on - 29/09/2019 02:54:32 :::HCHP petition is dismissed. However, the petitioner may file fresh bail petition on the same and similar grounds by placing on record the .
relevant documents. The dismissal of this bail shall not come in the way of the petitioner filing subsequent bail petitions.
12. Any observation made in this order shall not be taken as an expression of opinion on the merits of the case, and the Court(s) shall decide the matter uninfluenced by any observation made hereinabove.
(Anoop Chitkara) Judge 30th August, 2019 (KS) ::: Downloaded on - 29/09/2019 02:54:32 :::HCHP