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2020 Supreme(HP) 745
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Anoop Chitkara, J.
Ram Chand - Appellant
Versus
State of Himachal Pradesh - Respondent
Criminal Miscellaneous Petition (Main) No. 2271 of 2020
Decided On : 31-12-2020
Gobind Korla, Advocate, S.C. Sharma & Nand Lal Thakur, Advocate
Satisfying the conditions of Section 37 of the NDPS Act is crucial for obtaining bail in cases involving commercial quantity of substances.
Headnote:
Charas - Bail under NDPS Act - The court dismissed the bail application of the petitioner who was in custody for possessing 2 kilograms of charas, emphasizing that satisfying the conditions of Section 37 of the NDPS Act is crucial for obtaining bail in cases involving commercial quantity of substances.
Fact of the Case:
The petitioner was in custody for possessing 2 kilograms of charas and sought regular bail under Section 439 of the CrPC and Section 20 of the NDPS Act.
Finding of the Court:
The court found that the petitioner failed to meet the twin conditions of Section 37 of the NDPS Act for obtaining bail in cases involving commercial quantity of substances, and therefore dismissed the bail application.
Issues: The key issue was whether the petitioner could be granted bail despite being in custody for possessing commercial quantity of charas.
Ratio Decidendi: The court emphasized that satisfying the conditions of Section 37 of the NDPS Act is crucial for obtaining bail in cases involving commercial quantity of substances, and the pendency of the trial would also be important when the accused has already been incarcerated for a significant period.
Final Decision: The court dismissed the bail application, stating that no case for bail was made out at that stage.
JUDGMENT
Anoop Chitkara, J. - For possessing 2 kilograms of charas (Cannabis), the petitioner, who is in custody since 31st March 2019, has come up before this Court under Section 439 of the Code of Criminal Procedure, 1973 (CrPC), seeking regular bail, under Section 20 of Narcotics Drugs and Psychotropic Substances Act, 1985 (NDPS Act).
2. The police arrested the petitioner, in FIR No.10 of 2019, dated 31.03.2019, registered under Sections 20 of the NDPS Act, in Police Station, Patlikuhal, District Kullu, Himachal Pradesh, disclosing cognizable and non-bailable offenses. Earlier, the petitioner had filed a petition under Section 439 CrPC before this Court. However, vide order dated 19th November, 2020, the same was dismissed.
3. Status report reveals that the petitioner has no criminal history relating to the offences prescribing sentence of greater than seven years of imprisonment or when on conviction, the sentence imposed was more than three years.
4. Briefly, the allegations against the petitioner are that on 31.3.2019, at around 6.00 p.m., the police party led by SHO was on patrolling in the area of Neri within the jurisdiction of Police Station, Patlikulah. At around 7.20 p.m., when the police officials were present at place known as Rashadi, they noticed one Alto Car coming from Fojal side. There was nobody, other than the driver, in the Car. The police officials stopped the car and on inspection, they noticed that the rare number plate was missing. After that they inquired from the driver of the car that from where he is coming, he told the police that it is none of their business. When the Police officials inquired about the papers, then the driver of the car in local dialect said that he is in hurry. It arose suspicion in the mind of the SHO and he searched the car. On opening the bonnet, the police noticed one carry bag placed therein. Further opening, it contained charas, which on weighing was measured as 2 kilograms. After that the police completed the procedural requirement of the NDPS Act and Cr.P.C. and arrested the accused.
5. Mr. Gobind Korla, learned counsel for the petitioner submits that he has no criminal antecedents and he is in custody since 31st March, 2019. He further submits that incarceration before the proof of guilt would cause grave injustice to the petitioner and family, and contends that the allegations are false and concocted.
6. To the contrary, Mr. S.C. Sharma and Mr. Nand Lal Thakur, learned Additional Advocate General submitted that the absence of criminal antecedents are not material in commercial quantity where the burden is on the accused to come out of the rigors of Section 37 of the NDPS Act.
7. Pre-Trial incarceration needs justification depending upon the offense's heinous nature, terms of the sentence prescribed in the statute for such a crime, probability of the accused fleeing from justice, hampering the investigation, criminal history of the accused, and doing away with the victim(s) and witnesses. The Court is under an obligation to maintain a balance between all stakeholders and safeguard the interests of the victim, accused, society, and State. However, while deciding bail applications, the Courts should discuss evidence relevant only for determining bail. The difference in the order of bail and final judgment is similar to a sketch and a painting. However, some sketches are in detail and paintings with a few strokes.
8. The decision of this Court in Satinder Kumar versus State of H.P., Cr.MP(M) No. 391 of 2020, decided on 4th Aug 2020, covers the proposition of law involved in this case, wherein this Court has held that Satisfying the fetters of S. 37 of the NDPS Act is candling the infertile eggs. The ratio of the decision is that to get the bail in commercial quantity of substance, the accused must meet the twin conditions of S. 37 of NDPS Act.
9. Wherever, the quantity of contraband falls in the category of commercial quantity , merely because, it was his first offence, is no gro
