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2020 Supreme(HP) 229
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Anoop Chitkara, J.
Sandeep Kumar – Petitioner
Versus
State of Himachal Pradesh - Respondent
Cr.MP(M) No. 469 of 2020
Decided On : 15-07-2020
For the Petitioner:Mr. Virender Singh Kanwar, Advocate.
For the Respondent:Mr. Nand Lal Thakur, Mr. Ashwani K. Sharma Additional Advocates General with Mr. Ram Lal Thakur, Asstt. A.G. & Mr. Rajat Chauhan, Law Officer, Mr. Ankush Dass Sood, Senior Advocate with Ms. Shweta Joolka, Advocate as Amicus Curiae.
The main legal point established is that bail in cases involving commercial quantities of contraband under the NDPS Act is subject to the stringent conditions of Section 37, and the court must be satisfied that the accused is not guilty and not likely to commit any offence while on bail.
Headnote:
NDPS Act - Bail - Section 20 of NDPS Act - [20] - The court discussed the rigors of Section 37 of the NDPS Act and the legal principles governing bail in cases involving commercial quantities of contraband.
Fact of the Case:
The petitioner sought bail after being arrested for allegedly hiring individuals to purchase charas. The police arrested the petitioner under Section 20 of the NDPS Act for possessing a commercial quantity of charas.
Finding of the Court:
The court found that the petitioner failed to satisfy the rigors of Section 37 of the NDPS Act and did not establish a case for bail.
Issues: The main issue was whether the petitioner was entitled to bail under the NDPS Act, considering the evidence and the rigors of Section 37.
Ratio Decidendi: The court emphasized the need to satisfy the conditions of Section 37 of the NDPS Act for granting bail in cases involving commercial quantities of contraband.
Final Decision: The court dismissed the bail petition, citing the failure to meet the requirements of Section 37 of the NDPS Act.
JUDGMENT :
Anoop Chitkara, J.
The petitioner, who is under incarceration from 15th Jan 2020, for allegedly hiring accused Balkar and Manjeet Singh for purchasing 1 kilogram and 218 grams of charas, has come up before this Court seeking bail.
2. Based on a First Information Report (FIR), the police arrested the petitioner, in FIR No.198 of 2019, dated 30.08.2019, registered under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (after now called “NDPS Act”), in Police Station, Boileauganj, District Shimla, Himachal Pradesh, disclosing cognizable and non-bailable offences.
3. The petitioner filed a petition under Section 439 CrPC before Special Judge (II), Shimla, District Shimla, H.P. However, vide order dated 29.01.2020, the Court dismissed the petition, because, in the opinion of the Court, the petitioner could not cross the rigors of S. 37 of the NDPS Act and the petitioner and the main accused, from whose possession the Investigator had recovered the charas, had made multiple phone calls between them, which calls immediately preceded such seizure.
4. I have read the status reports and heard Ld. Counsel for the parties. Learned counsel for the petitioner has annexed the status report filed by the respondent-State. Learned Additional Advocate General submits that he does not want to present the new status report, and the status report filed with the petition may be considered.
FACTS:
5. The allegations in the First Information Report and the gist of the evidence collected by the Investigator are on Aug 30, 2019, a police party headed by ASI, was on traffic control duty at Police Check Post, Khwara Chowki, Shoghi. At around 6.30 p.m., one motorcycle came from the Shimla side. Apart from the driver, it had a pillion rider. The ASI signaled the bike to stop, on which the driver parked it on the side of the road. The pillion rider had a cloth bag on his lap. The moment the police officer asked the driver of the motorcycle to show documents, the pillion rider opened the bag's zip, and the Police could notice the charas in it. On this, the Police inquired the names of the driver of the motorcycle, who revealed his name as Balkar, accused No.1, and the pillion rider told his name as Manjeet Singh, accused No.2. After that, the Police weighed the charas, which measured one kilogram and 218 grams. After completing the procedural requirement under the NDPS Act and CrPC, the Police sent the ruqa for registration of FIR and arrested these two accused persons. On the next day, the Police interrogated accused Balkar and Manjeet Singh. During the investigation, both the accused told the Investigator that Sandeep Kumar, the bail petitioner, a resident of Mohali (Punjab), had hired them to purchase the charas from one Govind Singh, resident of Kullu. The said Sandeep Kumar had also given the phone number of Govind Singh and his phone number to both these accused persons Balkar and Manjeet Singh. It transpired during the investigation that there was an exchange of calls between Sandeep Singh, Balkar, and Govind Singh. The Police obtained a call details record (CDR) to establish its case. After that, the Police started searching Sandeep Kumar and Govind Singh. On Jan 15, 2020, the Police traced the bail petitioner Sandeep Kumar from Badmazra, Panjab, and arrested him.
SUBMISSIONS:
6. The learned counsel for the bail petitioner submits that the evidence collected against the petitioner is legally inadmissible. He also places reliance upon the orders of this Court in Budhi Singh v. State of H.P., CrMPM 595 of 2020; Naveen Bura v. State of HP, 2018 Law Suit (HP) 478, Thakur Dass v. State of H.P., CrMPM 167 of 2010; Stynder Singh v. State of Himachal Pradesh, 2010(1) SimLC 490; and Nisar Ahmed Thakkar v. State of H.P., CrMPM 672 of 2008.
7. On the contrary, Mr. Nand Lal Thakur, learned Additional Advocate General, contends that the Police have collected sufficient evidence by tracing frequent calls made by the bail petitioner, the main
