Anil Kumar @ Sonu vs State Of Himachal Pradesh

Anoop Chitkara, J

The petitioner, incarcerating upon his arrest for possessing commercial quantity of Charas, has come up before this Court under Section 439 of

CrPC, seeking bail.

Earlier, the petitioner had filed the following bail petitions before this Court:

(a) Cr.MP(M) No.2456 of 2019, which was dismissed on 30.6.2020.

(b) Cr.MP(M) No.88 of 2021, which was dismissed as withdrawn on 20.1.2021; and

(c) Cr.MP(M) No.419 of 2021, which was dismissed as withdrawn on 1.4.2021 with liberty to file afresh.

In Para 1(l) of the bail application, the petitioner declares having criminal history under Sections 279, 337, 338 of the IPC in Case No.485 of 2016,

pending in District Sonipat, Haryana.

Briefly, the allegations against the petitioner are that on 13.4.2019, the Investigator of the above mentioned Police Station alongwith police officials

was patrolling within their jurisdiction. When the police officials were present at a place known as Gharatgarh which is 2 kilometers ahead of Deori,

then at 1:00 p.m., one truck was coming from the side of Gharatgarh towards Deori. The Police officials signaled the said truck to stop. The

Investigator asked the truck driver to show the documents but the driver as well as the person sitting on the adjacent seat became perplexed and

started looking at each other. Thus, it raised suspicion in the mind of the Investigator that they might be carrying some contraband and he thought it

appropriate to conduct search. After that, the Investigator sent Constable Jatinder Kumar to bring an independent witness. After 10 minutes, the said

police official reached the spot accompanied by one person namely Krishan Singh. The Investigator, in the presence of an independent witness as well

as other police officials, inquired the name of the driver, who revealed his name as Anil Kumar @ Sonu, resident of Haryana, petitioner herein. The

person sitting on the seat adjacent to the driver revealed his name as Om Parkash, resident of District Mandi. On opening the bag, it contained

polythene bag which had Charas in it. In this carry bag itself, the police found photocopy of Driving License of Driver Anil Kumar, RC and Insurance

of the vehicle. The Investigator weighed the said Charas with electronic scale and it weighed 2.135 kilograms. After that, Charas alongwith

documents was put back in the same carry bag and was sealed. Subsequently, the Investigator complied with the procedural requirements of ND&PS

Act and Cr.PC and arrested the accused.

Mr. Bhupinder Ahuja, learned counsel for the petitioner argued that the co-accused Om Parkash has criminal history and there are cases under

ND&PS Act pending against him. Learned counsel argued that once co-accused had criminal history, as such, prima facie the contraband belong to

him and placed reliance upon paragraph 9 of the judgment passed by this Court in Cr.MP(M) No.109 of 2021, titled as Ashu vs. State of H.P.,

decided on 4.2.2021. The second argument of learned counsel is that the story of the police regarding recovery of documents of the truck from the

bag containing Charas is so improbable that no prudent man who is carrying documents would keep such documents in it. Learned counsel submits

that the possibility of these documents shown in the carry bag by the police cannot be ruled out. Ld. Counsel for the petitioner also submits that the

evidence collected against the petitioner is legally inadmissible. Ld. Counsel for the petitioner further contends that the petitioner is a first offender and

incarceration before the proof of guilt would cause grave injustice to the petitioner and family.

On the contrary, the State contends that the Police have collected sufficient evidence. Further, the quantity involved is commercial, and S. 37 of the

NDPS Act's restrictions do not entitle the accused to bail. The accused has yet not discharged the presumption under S. 35 of the NDPS Act. The

crime is heinous, the accused is a risk to law-abiding people, and bail might send a wrong message to society.

REASONING:

A perusal of the status report reveals that one case under Section 20 of the ND&PS Act was registered against co-accused Om Parkash vide FIR

No.122 of 2012 dated 20.10.2012 at Police Station Gohar, District Mandi. However, he stands acquitted in that case. As such, it is inconsequential to

draw any inference about his criminal history. However, supplementary status report dated 26.6.2021 reveals that another case was registered under

Section 18 of ND&PS Act vide FIR No.576 of 2018 dated 18.9.2018 at Police Station, Shehar Bahadurgarh, Haryana and such case is pending trial.

Learned counsel has placed on record the details of the said case which is pending trial as case No.34 of 2018 titled as State vs. Om Parkash in the

Court of learned Additional Sessions Judge, Jhajjar, Haryana. A perusal of the copy of FIR in the said case reveals that the police had recovered two

packets of Opium containing 787 grams and 382 grams, in all 1.169 kilograms of Opium. Thus, there is no doubt that Om Parkash, the co-accused is

involved in a case under ND&PS Act and has criminal past.

Be that as it may, this Court in Cr.MP(M) No.109 of 2021, titled as Ashu vs. State of H.P., held as follows:-

“8. The quantity involved is commercial as such, it is for the petitioner to satisfy the rigors of Section 37 of the NDPS Act. The petitioner Ashu, is

woman aged about 20 years. She is married to accused Gian Chand Mohan, who is 29 years of age. The status report reveals that Gian Chand Mohan

has criminal history and one case for possession Charas is already pending against him. It appears that she must have married within last two years.

Other accused Mohan Singh is also a previous offence of possessing Charas.

The possibility of young woman aged 20 years, who must have recently married to a person who has criminal history of possessing charas and was

travelling with another person, who also had a similar criminal history, cannot be ruled out that she was not aware of the contents of the bag which

was on the front seat near the driver. She has no criminal history of her own. As such, on this ground alone, she has satisfied the rigors of Section 37

of the NDPS Act, and has made out a case for bail.â€​

A perusal of the order passed in Ashu (supra) reveals that the petitioner in that case was a young women aged 20 years and married to the main

accused only two years prior to that. The facts of the said case were as follows:-

“Briefly, the allegations against the petitioner are that on 12. 8.2020, the police officials were conducting investigation in some case and in that

context they were present at Dadi bypass. At that time one vehicle came, which on noticing the Police started taking U turn. It raised suspicion in the

mind of the investigator and the police officials were able to nab the driver. One male and a female were also sitting on the back seat. On inquiry, the

driver told his name as Mohan (A-2). The male sitting on the back seat told his name as Gian Chand (A-1) and the lady as Ashu (A-3), petitioner

herein. In the presence of the independent witnesses, the police searched the vehicle and in front seat there was a bag, which on opening had

cannabis sticks in it. On weighing it on electronic scale, it measured as 1 kg and 76 grams of Charas. Thereafter the police conducted other procedural

requirements under NDPS Act and Cr.PC and arrested the accused. The laboratory tested the substance as Charas. Based on these allegations, the

Police registered the FIR mentioned above.â€​

Given above, this judgment does not apply to the facts of the present case because in this case, the police had recovered photocopies of the RC,

Driving Licence of Anil Kumar and RC & Insurance of the truck in the said carry bag, which also contained Charas. The arguments of learned

counsel that it is highly improbable for any accused to keep his identification documents with the contraband and thus the possibility of the same being

planted by the police is a factor that needs prima facie satisfaction. As for now, a perusal of the bail petition reveals that the petitioner did not even

whisper about the allegations of the police officials planting such documents in the carry bag or any enmity with them. To come out of the rigors of

Section 37 of ND&PS Act, which provides reverse burden in case of commercial quantity, the petitioner has to make out a case for false implication

or innocence. The arguments of learned counsel in the Court which are not supported by the pleadings in the bail petition, is inconsequential. Without

commenting on the probability of any accused keeping the identity documents with the contraband, for the purpose of this bail petition, petitioner did

not reverse burden placed upon him by the Legislature under Section 37 of the ND&PS Act.

The decision of this Court in Satinder Kumar v. 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. It implies that

the accused should satisfy its twin conditions and come out clean.

The quantity of Charas allegedly recovered from the petitioner is 2.135 kilograms, and thus falls in the category commercial quantity. The

petitioner has not stated anything to discharge the rigors of S. 37 of NDPS Act. The stand that the accused is in custody for more than two years is

also not a legal ground to overcome the rigors of S. 37 of NDPS Act. Given above, at this stage, the petitioner fails to make out a case for bail.

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

Given above, in the facts and circumstances peculiar to this case, the petition is dismissed. However, the petitioner shall be at liberty to file a new

petition on the same cause of action or different grounds.