Charanjeet vs State Of H.P

Anoop Chitkara, J

The petitioner, incarcerating upon his arrest w.e.f. 25-5-2020, for possessing 321.724 grams of Tramadol, which is a commercial quantity, has come

up before this Court under Section 439 of CrPC, seeking bail.

Earlier, the petitioner had filed the following bail petitions:

(a) Bail application No.256-D/XXII/2020, filed by the petitioner before Special Judge-II, Kangra, at Dharamshala, was dismissed vide order dated

26.09.2020.

(b) Cr.MP(M) No.2296 of 2020, filed by the petitioner before this Court was also dismissed vide order dated 04.02.2021.

Para VI of the bail petition and status report mentions the following criminal history:

a) FIR No.08/1999, registered under Section 61(i)(a) of Punjab Excise Act, in police station Indora.

b) FIR No.220/1999, registered under Section 61(i)(a) of Punjab Excise Act, in police station Indora.

c) FIR No.237/1999, registered under Section 61(i)(a) of Punjab Excise Act, in police station Indora.

d) FIR No. 188/2001, registered under Section 61(i)(a) of Punjab Excise Act, in police station Indora.

e) FIR No. 21/2002, registered under Section 61(i)(a) of Punjab Excise Act, in police station Indora.

f) FIR No. 157/2002, registered under Section 61(i)(a) of Punjab Excise Act, in police station Indora.

g) FIR No. 240/2007 registered under Section 61(i)(a) of Punjab Excise Act, in police station Indora.

h) FIR No. 274/2009, registered under Section 61(i)(a) of Punjab Excise Act, in police station Indora.

i) FIR No. 219/2011, registered under Section 61(i)(a) of Punjab Excise Act, in police station Indora.

j) FIR No. 386/2012, registered under Section 39(1)(a) of H.P. Excise Act, 2011 in police station Indora.

k) FIR No. 386/2011, registered under Sections 341 and 509 of IPC of Punjab Excise Act, in police station Indora.

Briefly, the allegations against the petitioner are that on 25.05.2020, the Investigator alongwith other police officials of the abovementioend police

station were patrolling in their jurisdiction. At around 8.40 p.m., when they reached at Indora, and were checking the vehicles, then one scooty came.

The driver of the scooty was not wearing mask and, as such, the police officials signaled him to stop. The police officials asked him to show

documents of the vehicle. On this, he started making false excuses. When the Investigator told that he would impound the scooty in case he does not

show the documents, on this, he became perplexed. After that Head Constable checked the dickey of the scooty and noticed one polythene pouch.

It raised suspicion in the mind of the investigator and he has reasons to believe that it contains some prohibited substance. On this, the Investigator

sent one of the police officials to get independent witnesses. However, due to lockdown, none was present.

Upon this, the Investigator made further inquiry from the driver and he revealed his name as Charanjeet, petitioner herein. On checking the polythene

pouch, it was found containing 599 capsules of RIDLEY, having Tramadol. The investigator conducted procedural requirement under the NDPS Act

and Cr.P.C. Based on these allegations, the Police registered the FIR mentioned above. After that, the capsules were sent to laboratory, which gave

the following report :

“THE EXHIBIT MAROON COLORED CAPSULES (stated as capsules of Ridely) IS A SAMPLE OF TRAMADOL HYDROCHLORIDE

CAPSULES†TOTAL WEIGHT MAROON COLORED SHELL OF CAPSULE (RIDLEY imprinted of capsule shells) containing white power,

transparent poly packet Total Capsules =598, Average weight of Capsules=634.0 mg. Total weight of Capsules=379.132 g. Average weight of

Powder=538.0 mg/Capsules, Total weight of powder=321.724 g’

Ld. Counsel for the petitioner contends that learned counsel for the bail petitioner submits that the evidence collected against the petitioner is legally

inadmissible.

On the contrary, the State contends that the Police have collected sufficient evidence by tracing frequent calls between the bail petitioner and the

co-accused. The telephonic conversation prima facie points out his involvement. 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. Another

argument on behalf of the State is that the accused is a proven habitual offender. Given the past conduct, the accused is likely to repeat the offense,

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

REASONING:

In Sunny Kapoor v State of HP, CrMPM 2168 of 2020, (Para 30 & 31), this Court after considering the relevant judicial precedents observed that

in reckoning the number of cases as criminal history, the prosecutions resulting in acquittal or discharge; or when Courts quashed the FIR; the

prosecution stands withdrawn, or Prosecution filed a closure report; cannot be included. The criminal history must be of cases where the accused was

convicted, including the suspended sentences and all pending First Information Reports, wherein the bail petitioner stands arraigned as an accused.

While considering each bail petition of the accused with a criminal history, it throws an onerous responsibility upon the Courts to act judiciously with

reasonableness because arbitrariness is the antithesis of law. Although crime is to be despised and not the criminal, yet for a recidivist, the contours of

a playing field are marshy, and graver the criminal history, slushier the puddles.

The decision of this Court in Satinder Kumar v. State of H.P., Cr.MP(M) No. 391 of 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.

S. 37 of the NDPS Act implies that the accused should satisfy its twin conditions and come out clean. The confessional statement of one of the

accused is legally insufficient to deny bail to the other accused, in the absence of any other incriminating evidence or allegations.

The recovery was from direct possession of the petitioner. The petitioner fails to bring any factors that entitle him for bail.

Ld. Counsel for the petitioner has also made several other arguments. Still, given that this Court is not inclined to grant bail, on the reasons

mentioned above, discussion of the same will be an exercise in futility. Any detailed analysis of the evidence may prejudice the case of the prosecution

or the accused.

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.