CRMPM/2271/2020 of RAM CHAND Vs STATE OF HP on 31 December 2020

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

Cr.MP(M) No. 2271 of 2020

Reserved on: December 30, 2020

Date of Decision: December 31, 2020

Ram Chand ...Petitioner.

Versus

State of Himachal Pradesh

...Respondent.

Coram:

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

COURT PROCEEDINGS CONVENED THROUGH VIDEO CONFERENCE

Anoop Chitkara, Judge.

For possessing 2 kilograms of charas (Cannabis), the petitioner, who is incustody since 31[st] March 2019, has come up before this Court under Section 439 ofthe Code of Criminal Procedure, 1973 (CrPC), seeking regular bail, under Section 20of 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, DistrictKullu, 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 19[th] November, 2020, the same was dismissed.

3. Status report reveals that the petitioner has no criminal history relating to theoffences prescribing sentence of greater than seven years of imprisonment or whenon conviction, the sentence imposed was more than three years.

4. Briefly, the allegations against the petitioner are that on 31.3.2019, at around6.00 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 policeofficials were present at place known as Rashadi, they noticed one Alto Car comingfrom Fojal side. There was nobody, other than the driver, in the Car. The policeofficials stopped the car and on inspection, they noticed that the rare number platewas missing. After that they inquired from the driver of the car that from where he iscoming, he told the police that it is none of their business. When the Police officialsinquired about the papers, then the driver of the car in local dialect said that he is inhurry. It arose suspicion in the mind of the SHO and he searched the car. Onopening the bonnet, the police noticed one carry bag placed therein. Furtheropening, it contained charas, which on weighing was measured as 2 kilograms. Afterthat 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 nocriminal antecedents and he is in custody since 31[st] March, 2019. He further submitsthat incarceration before the proof of guilt would cause grave injustice to thepetitioner 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 AdditionalAdvocate General submitted that the absence of criminal antecedents are not materialin commercial quantity where the burden is on the accused to come out of the rigorsof Section 37 of the NDPS Act.

7. Pre-trial incarceration needs justification depending upon the offense's heinousnature, terms of the sentence prescribed in the statute for such a crime, probability of theaccused fleeing from justice, hampering the investigation, criminal history of theaccused, and doing away with the victim(s) and witnesses. The Court is under anobligation to maintain a balance between all stakeholders and safeguard the interests ofthe victim, accused, society, and State. However, while deciding bail applications, theCourts should discuss evidence relevant only for determining bail. The difference in theorder of bail and final judgment is similar to a sketch and a painting. However, somesketches 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 4[th] Aug 2020, covers the proposition of law involved in thiscase, wherein this Court has held that Satisfying the fetters of S. 37 of the NDPS Act is

Ratio decidendi

candling the infertile eggs. The ratio of the decision is that to get the bail in commercialquantity 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 commercialquantity , merely because, it was his first offence, is no ground for the purpose ofsatisfying the conditions of Section 37 of the NDPS Act. The pendency of the trialwould also be important when the accused has already incarcerated around half of thesentence. For commercial quantity, the minimum sentence, that can be imposed is tenyears. In the present case the accused is in Jail for around twenty one months.Therefore, the petitioner has failed to make out a case for grant of bail.

10. Any detailed discussions about the evidence may prejudice the case of theprosecution or the accused. Suffice it to say that due to the reasons mentioned above,and keeping in view the nature of allegations, no case for bail is made out in favour ofthe petitioner.

11. Any observation made hereinabove is neither an expression of opinion on themerits of the case, nor shall the trial Court advert to these comments.

12. Given the above reasoning, in my considered opinion, no case for bail is made outat this stage. Resultantly, the present petition stands dismissed.

December 31, 2020 (ps)

(Anoop Chitkara),Judge.