Biru Ram vs State Of Himachal Pradesh

Anoop Chitkara, J

For possessing 5 kilograms of charas, an under-trial prisoner, in custody since 5th October 2019, has come up before this Court under Section 439

of the Code of Criminal Procedure, 1973 (CrPC), seeking bail.

The police arrested the petitioner, in FIR Number 113/19, dated Oct 5, 2019, registered under Section 20 of the Narcotic Drugs and Psychotropic

Substances Act, 1985 (after now called “NDPS Actâ€), in Police Station, Patlikuhal, District Kullu, HP, disclosing cognizable and non-bailable

offences.

Earlier, the petitioner had filed a petition under Section 439 CrPC before the concerned Sessions Judge. However, the petitioner withdrew it from

the Court of Ld. Additional Sessions Judge, Kullu.

I have read the detailed status report and heard counsel for the parties.

FACTS:

The gist of the Investigator's evidence is that on Oct 5, 2019, a Police party consisting of HC Lal Chand, HHC Tara Chand, and Constable Vijay

Negi were on patrol duty in Government vehicle driven by HHC Munshi Ram. At about 7.00 a.m., the Police team reached Bhulangbihal Bridge, and

they noticed two persons sitting on a rock. At that point, the Head Constable asked the driver to stop the vehicle, and the Police officials alighted from

the vehicle. On seeing the police party, both the persons at once stood up, leaving behind a carry bag, which was lying in between them. The

Investigator got suspicious of this bag contained some contraband. On this, he asked the persons their names and addresses to which they disclosed

their names as one Tivalu and Biru (bail petitioner). When the police party asked about the substance contained in a carry bag, they could not give a

satisfactory answer, where after the alleged bag was opened, and inside the bag, the stick-shaped black material was found. After smelling the

substance, the same was found to be charas. On weighing on an electronic scale, it measured 5 kilograms of charas. After that, the Police conducted

procedural formalities. HC Lal Chand allegedly conducted the investigation at the spot, who prepared the seizure memo, sealed the cloth parcel

containing the alleged contraband, filled the NCB forms in triplicate, and sent HHC Tara Chand with Rukka to Police Station, Patlikuhal for

registration of FIR.

PREVIOUS CRIMINAL HISTORY

The Counsel for the petitioner states that the accused has no criminal history and the respondent does not dispute this fact.

SUBMISSIONS:

The learned Counsel for the bail petitioner has made the following submissions:

a) The petitioner is behind the bars since 5.10.2019. No recovery whatsoever is to be made from the present petitioner and challan has already been

filed before the Trial Court in the year 2019 itself, however, trial has not commenced yet and is delayed due to Covid-19 pandemic situation.

b) The investigation in this case is vitiated as the complainant and investigator is the same person namely HC Lal Chand. On this ground itself the

entire prosecution launched against the bail petitioner is vitiated on the anvil of law laid down by the Hon’ble Supreme Court of India in Mohan Lal

v. State of Punjab, (AIR 2018, SC 3853.) It is held that if a police official, who registers a complaint and is also the investigator of the matter, it would

invite possibility of biased investigation, thereby risking the very foundation of fair trial. It is also apt to state that fair investigation, free from any form

of bias, is one of the fundamental cannons of Indian Criminal Jurisprudence and is encompassed within mandate contained in Articles 20 & 21 of the

Constitution of India.

c) A perusal of FSL Report would reveal that only 50.0 grams of the contraband was sent for analysis by the investigating agency. Without admitting,

even assuming the applicability of the FSL Report, it is most respectfully submitted that in that case also the bail petitioner is liable to be convicted for

small quantity i.e. 50.0 grams. The petitioner is behind the bars since October 2019. For the said reasons also keeping him in custody would amount to

his wrongful incarceration.

d) Learned counsel for the petitioner has also placed reliance upon the judgment of Hon’ble High Court of Punjab and Haryana, in CrM-M No.

8094 of 2020, Sukhvir Singh @ Sukha versus State of Punjab.

On the contrary, Mr. Nand Lal Thakur, Additional Advocate General, contended that the quantity involved is commercial, and restrictions of S. 37

of the NDPS Act do not entitle the accused for bail.

ANALYSIS AND REASONING:

It’s undisputed that the 5 kg charas is commercial quantity, being greater than 1 kg prescribed in the schedule mentioning commercial quantity

for Charas (cannabis). On the effect of S. 37 of NDPS Act, decision of this Court in Cr.MP(M) No. 469 of 2020, Sandeep Kumar v. State of HP,

decided on 15th July 2020, applies on all fours.

The law propounded by three-member benches of Hon’ble Supreme Court in Mohan Lal v. State of Punjab, AIR 2018 SC 3853, and Varinder

Kumar v. State of Himachal Pradesh, 2019 (1) RCR (Criminal) 1003 ,were laid down while deciding the post-conviction appeals. Whether the

Investigating officer continued to conduct the investigation even after getting an opportunity to hand over the same to some other officer is similar to

the beginning and end of twilight, leading to the breaking of the day or fall of the night. The stage for handing over the investigation by the Complainant

Investigator would depend upon the nature of evidence adduced during the trial; and after affording a proper opportunity to the Complainant to explain

her stand and explanation to the cross-examination by the defence. Even the preparation and filing of the Police report under S. 173(2) CrPC is not

sufficient to decipher the appropriate stage for the Investigator taking a back seat.

The contention that the Police had tested only 50 grams of charas and not the whole of the substance needs evidence during the trial to

demonstrate the delinking of the sample representing the whole. To consider this just by reading the report under S. 173(2) CrPC, would depend on

case to case. In this case, on perusing the Police report, there is no ground for granting bail on this ground.

The judicial precedence of High Court of Punjab and Haryana, in CrM-M No. 8094 of 2020, Sukhvir Singh @ Sukha versus State of Punjab,

neither lays down any proposition law on bail nor does it apply on the facts.

Without commenting on the merits of the evidence collected so far, the petitioner has failed to cross the hurdle of S. 37 of NDPS Act.

Any detailed discussions about the evidence may prejudice the case of the prosecution or the accused. Suffice it to say that due to the reasons

mentioned above, and keeping in view the nature of allegations, and quantity involved, no case for bail is made out in favour of the petitioner.

Resultantly, the present petition stands dismissed. All pending applications, if any, stand closed.

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.

I express my gratitude to my Law Intern Ms. Ananya Saxena for excellent assistance with her profound insight.

Petition dismissed.