CRMPM/2289/2020 of SURAJ SINGH Vs STATE OF HP on 31 December 2020

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

Cr.MP(M) No. 2289 of 2020

Date of Decision: December 31, 2020

Suraj Singh ...Petitioner.

Versus

State of Himachal Pradesh

Coram:

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

Whether approved for reporting?[1]Yes.

...Respondent.

COURT PROCEEDINGS CONVENED THROUGH VIDEO CONFERENCE

Anoop Chitkara, Judge.

For possessing 1 kilogram and 344 grams of charas (Cannabis), the petitioner,who is in custody since 9[th] November 2019, has come up before this Court underSection 439 of the Code of Criminal Procedure, 1973 (CrPC), seeking regular bail,under Section 20 of Narcotics Drugs and Psychotropic Substances Act, 1985 (NDPSAct).

2. The police arrested the petitioner, in FIR No.122 of 2019, dated 9.11.2019,registered under Sections 20 of the NDPS Act, in Police Station, Padhar, DistrictMandi, 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petition under Section 439 CrPC before this Court.However, vide order dated 8[th] July, 2020, the same was dismissed as withdrawn.

3. Para 10 of the petition states that the petitioner has no criminal history relatingto the offences prescribing sentence of greater than seven years of imprisonment orwhen on conviction, the sentence imposed was more than three years.

4. Mr. S.C. Sharma, and Mr. Nand Lal Thakur, learned Additional AdvocateGeneral assisted by Mr. Ram Lal Thakur, learned Assistant Advocate General, submits that they do not want to file the status report, because in the pleadings itself,the petitioner has failed to make out a case for bail.

5. Mr. Gobind Korla, learned counsel for the petitioner argues that it is his firstoffence. He further submits that he has no criminal antecedents and he is in custodysince 9[th] November, 2019. He further submits that incarceration before the proof ofguilt would cause grave injustice to the petitioner and family, and contends that theallegations 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 iscandling 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 commercial quantity,merely because, it was his first offence, is no ground for the purpose of satisfying theconditions of Section 37 of the NDPS Act. The pendency of the trial would also beimportant when the accused has already incarcerated around half of the sentence. Forcommercial quantity, the minimum sentence, that can be imposed is ten years. In the present case the accused is in Jail for around thirteen months. Therefore, the petitionerhas 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.