IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.MP(M) No. 994 of 2021 Date of Decision: 04^th June, 2021.

Ramesh Singh ...Petitioner.

Versus State of H.P. ...Respondent.

Coram:

The Hon’ble Mr. Justice Anoop Chitkara , Judge.

Whether approved for reporting?¹ NO For the petitioner : Mr. Daleep Singh Kaith, Advocate.

For the respondent : Mr. Nand Lal Thakur, Addl. Advocate General.

THROUGH VIDEO CONFERENCE FIR No. Dated Police Station Sections

44/2021 16.03.2021 Sadar, District Solan 18 & 20 NDPS Act Anoop Chitkara, Judge.

The petitioner, who is in custody since 16^th March, 2021 for possessing 274 grams of Charas and 452 grams of opium, has come up before this Court under Section 439 of CrPC, seeking bail, on the grounds that the quantity of contraband allegedly seized is intermediate quantity and does not restrict bail, because the quantity greater than one kilogram of Charas and 2.5 kilograms of Opium, falls in the category of the commercial quantity; hence the restrictions for bail imposed in S. 37 of NDPS Act, do not apply, and in the present case he is in custody for a considerable time.

2. Earlier, the petitioner had filed the following bail petitions:

(a) Bail Application No.35-S/22 of 2021, dismissed by learned Special Judge, Solan, on 24.5.2021.

3. The bail petition is silent about criminal history, however, Mr. Daleep Singh Kaith, learned Counsel for the bail petitioner states on instructions that the petitioner 1 Whether reporters of Local Papers may be allowed to see the judgment?

has no criminal past relating to the offences prescribing sentence of seven years and more, or when on conviction, the sentence imposed was more than thPree years. The status report also does not mention any criminal past of the accused.

4. Briefly, the allegations against the petitioner are that on 16.3.2021, the police officials of the above said police station were patrolling. At around 10.00 p.m., when they reached near P.G. College Solan Boys Hostel, th en they noticed one person carrying a rucksack standing there. The police officials found his presence to be suspicious and inquired his name. On inquiry, he revealed his name as Ramesh Singh, petitioner herein, citizen of Nepal, who usually resides in Kinnaur. When the investigator asked him for the reasons tto be present in Solan, then he could not give satisfactory reply. The investigator realized that he may flee and thus nabbed him. After that they conducted search of his rucksack, which led to recovery of 274 grams of Charas and 452 grams of opium. After that the investigator arrested the accused and conducted the procedural requirement.

5. Learned Counsel for the petitioner contends that incarceration before the proof of guilt would cause grave injustice to the petitioner and family.

6. While opposing the bail, learned Additional Advocate General states that if this Court is inclined to grant bail, then such a bond must be subject to very stringent conditions.

REASONING

7. In Sami Ullaha v Superintendent Narcotic Control Bureau, (2008) 16 SCC 471, the Hon’ble Supreme Court holds that in intermediate quantity, the rigors of the provisions of Section 37 may not be justified. In Sunny Kapoor v State of HP CrMPM 2168 of 2020, (Para 15), this Court observed that when the quantity is less than commercial, the rigors of Section 37 of the NDPS Act will not attract, and factors become similar to bail petitions under regular statutes. Thus, when the maximum sentence cannot exceed ten years, and the accused is yet to be proved guilty, the grant of bail is normal, unless the Prosecution points towards the exceptional circumstances, negating the bail.

8. The people from Nepal are usually working in Agricultural and Horticultural activities in Himachal Pradesh. Most of them are now residing for sufficient long time and some of them are even residing for the last 2-3 generations. Thus, the Court has to believe that they would not abscond and would face the triPal. Given the quantity of contraband, his further d