The main legal point established is that the rigors of S. 37 of NDPS Act must be satisfied for granting bail involving commercial quantities, and bail must be subject to stringent conditions.

JUDGMENT

Anoop Chitkara, J. - An under-trial prisoner, in custody for being part of the chain for selling, and transporting 3.934 kilograms of charas (Cannabis), since Aug 2, 2019, has come up before this Court under Section 439 of the Code of Criminal Procedure, 1973 (CrPC), seeking bail, under Section 20 of Narcotics Drugs and Psychotropic Substances Act, 1985 (NDPS Act).

2. The police arrested the petitioner, in FIR No. 03 of 2019, dated 12.07.2019, registered under Sections 20, 29 of the NDPS Act, and S. 177 of Motor Vehicle Act, in Police Station SV & ACB Mandi, District Mandi, Himachal Pradesh, disclosing cognizable and non-bailable offenses.

3. The co-accused Ram Lal (A-1) had filed a bail petition before this Court. Vide order dated 5-12-2019, passed in CrMPM 2060 of 2019, a co-ordinate bench of this Court dismissed it having been withdrawn. The petitioner had also filed a similar petition, CrMPM No. 190 of 2020, which met the similar fate.

4. I have read the status report(s) and heard counsel for the parties as well as Ld. Amicus Curiae.

FACTS:

5. The gist of the Prosecution's case is that on 12th July 2019, the Inspector of Police received secret information about transportation of charas through a Motorcycle. After that, the Investigator complied with the procedural requirements of the NDPS Act and associated independent witnesses. The Police set up a trap on the route of the bike and spotted it. The pillion rider had a bag on his lap, and he tried to throw it, but the Police were able to grab it. After that, both the riders of the bike scuffled with the Police party. On inquiry, the motorcycle driver revealed his name as Narain Dass (A-3), and the pillion rider as Hem Raj (A-2). The search of the bag led to the recovery of 3.934-kilo grams of charas. On interrogation, the Police came to know about the involvement of its seller Ram Lal alias Raju (A-1). In the meantime, when the accused were scuffling with the Police, passersby made a video recording of the incident, which became viral on social media. One Manish saw such video and informed the Police that the accused persons had also transported particular articles, including the bag containing charas, in his taxi. He recognized the accused as the persons. On this, the Police produced Manish before Ld. Judicial Magistrate, where he made a statement under S. 164 CrPC, implicating the accused. The Police traced calls on 9th July 2019, between the accused Ram Lal (A-1) and the bail petitioner Satinder, and arraigned him as an accused with the aid of S. 29 of NDPS Act.

PREVIOUS CRIMINAL HISTORY

6. The counsel for the petitioner states that the accused has no criminal history, except one similar case, where he was acquitted.

SUBMISSIONS:

7. The learned counsel for the bail petitioner submits that the evidence collected against the petitioner is legally inadmissible. He also places reliance upon the decisions of this Court in Budhi Singh v. State of H.P., CrMPM 595 of 2020; Rehmat Ali v. State of Himachal Pradesh, Cr.MP(M) No.203 of 2019, Naveen Bura v. State of HP, (2018) LawSuit(HP) 478 , Thakur Dass v. State of H.P., CrMPM 167 of 2010; Stynder Singh v. State of Himachal Pradesh, (2010) 1 ShimLC 490 , and Nisar Ahmed Thakkar v. State of H.P., CrMPM 672 of 2008.

8. On the contrary, Mr. Nand Lal Thakur, Additional Advocate General, submitted that the Police have collected sufficient evidence by tracing frequent calls made by the bail petitioner, the main accused, and the seller of charas, which prima facie points out towards his involvement. He also relies upon the decision of this Court in CrMPM 126 of 2018, Manohar Lal v. State of H.P.; CrMPM 1084 of 2020, Om Parkash v. State of H.P.; and Cr.MP(M) No. 469 of 2020, Sandeep Kumar v. State of HP. He also contended that the accused has yet not discharged the presumption under S. 35 of NDPS Act, and further that the quantity involved is commercial, and restrictions of S. 37 of the NDPS Act do not entitle the accused for bai