Biru vs State Of H.P

Anoop Chitkara, J

The petitioner, incarcerating upon his arrest for jointly possessing 5 kilograms of charas with co-accused Tiwalu alias Shiv Chand, which is a

commercial quantity, has come up before this Court under Section 439 of CrPC, seeking bail.

A perusal of the petition reveals that the petitioner straightaway filed the bail petition before High Court, which is permissible given the decision of a

three Judges Bench of HP High Court, in Mohan Lal v Prem Chand, AIR 1980 HP 36, (Para 9 & 15), wherein the Full bench holds that a person can

directly apply for an anticipatory bail or regular bail to the High Court without first invoking the jurisdiction of the Sessions Judge.

The bail petition is silent about criminal history, however, Ld. Counsel for the bail petitioner states on instructions that the petitioner 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 three years.

The status report explicitly states that the petitioner has no criminal past of the accused.

Briefly, the allegations against the petitioner are that on 05.10.2019, police officials were patrolling in official vehicle. While patrolling, they noticed

two persons sitting on a stone. On this, the investigator wanted to inquire from them and he asked his driver to stop the vehicle. On seeing the police,

they suddenly stood up. There was a bag lying in between them. Looking at their facial expression, the investigator wanted to search the bag. The

investigator tried to associate independent witnesses, but none was available there. Subsequently, he checked the bag, which was found to be

containing charas, which when weighed on electronic scale, it measured 5 Kg. After completing procedural requirement under the NDPS Act, the

investigator arrested the accused. Based on these allegations, the Police registered the FIR mentioned above.

Ld. Counsel for the petitioner 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 in custody for more than a year. The 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:

The quantity of charas allegedly recovered from the petitioner is 5 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 three years is also not a legal

ground to overcome the rigors of S. 37 of NDPS Act. Given above, in the facts and circumstances peculiar to this case, at this stage, the petitioner

fails to make out a case for bail.

Ld. Counsel for the petitioner submitted that as per newspaper reports, the State of Himachal Pradesh is legalizing cannabis (Charas), subject to the

rules and regulations framed in this regard. Be that as it may, the petitioner may explore what benefits such rules, regulations, and the policy change

might apply to the persons involved in the commercial quantity of charas (Cannabis). The policy change may open new possibilities for bail to the

persons involved in the commercial quantity of charas (Cannabis) by making out the new grounds for bail. Thus, it shall be open for the petitioner to

file a new bail petition pointing out the new grounds in the changed scenario if it happens. He may also file another application on changed

circumstances or with better particulars.

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.

The petition is dismissed with liberty as mentioned above.