Chirag Grover vs State of Himachal Pradesh

Kuldip Singh, Judge

This judgment shall dispose of Cr. M.P.(M) No. 635 of 2012 and Cr. M.P.(M) No. 636 of 2012 filed by Chirag Grover and Ravinder Kumar u/s 439 Cr.P.C., respectively, for releasing them on bail in FIR No. 70/2012 dated 22.04.2012, registered at Police Station, Kullu, u/s 20 of the Narcotic Drugs and Psychotropic Substances Act ( for short ''Act''). The facts, in brief, as projected by petitioners are that on 22.04.2012 above case has been registered and the petitioners were arrested on 22.04.2012. The custodial interrogation of the petitioners was not required and the petitioners were sent to judicial custody.

The case against the petitioners is false, they are innocent and have committed no offence. The petitioners have been falsely implicated. There is nothing incriminating against the petitioners to connect them with the commission of offence.

The investigation is complete, nothing is to be recovered from the petitioners. The F.S.L. report has been received. The report u/s 173 Cr.P.C. has been filed. The petitioners are ready to furnish bail bonds.

The alleged quantity of ''Charas'' i.e. separated resin involved in the case comes to 37.88% w/w out of 2.177kg bulk quantity allegedly recovered from petitioners. The actual quantity of ''Charas'' in the bulk quantity on the basis of separated resin comes to 787.146 grams. The quantity of ''Charas'' allegedly recovered from the petitioners comes to less than commercial quantity. Therefore, rigor of Section 37 of the Act is not applicable. The petitioners are in custody for the last more than 2 months.

The Notification dated 18.11.2009 has been wrongly construed by the learned Special Judge, Fast Track Court, Kullu. The notification dated 18.11.2009 has been issued in violation of the Act. The petitioners had earlier filed bail applications u/s 439 Cr.P.C. which were dismissed by learned Special Judge, Fast Track Court, Kullu, on 19.05.2012. The petitioner Chirag Grover filed another bail application which has been dismissed by learned Special Judge, Fast Track Court, Kullu, on 30.06.2012. The submission has been made for releasing the petitioners on bail.

The status report has been filed in Cr. M.P.(M) No. 635 of 2012. It has been stated that case has been registered on 22.04.2012 on the basis of rukka. On 22.04.2012, the police party was checking traffic at place ahead ''Cheel''. At about 1.00 p.m., car No. DL-9CR-8410 Swift came from Manikaran side, which was stopped. The driver on the wheels was asked to produce the papers and he disclosed his name Ravinder Kumar. He could not produce original insurance. He was looking perplexed. The other person sitting in the car disclosed his name Chirag Grover.

The occupants of the car were asked to come out of the car and car was searched. It was found that in the left rear window of the car something had been concealed. On search, 5 bundles of ''Charas'' weighing 2.177kg were found. The sampling and sealing were done. The offending material was taken into possession, so also the car. The petitioners were arrested on 22.04.2012. The petitioners during police remand disclosed that they had purchased ''Charas'' from some unknown person from the forests of ''Kheerganga'' and ''Kalka''. They could not tell the name of the person from whom they had purchased the ''Charas''.

It has come in the investigation that both the petitioners had come from Delhi and stayed together at ''Purnima Guest House'', Kasol. The report from F.S.L., Junga, has been received and the quantity of the resin has been found in exhibit and is ''Charas'' 37.88% w/w. The challan has been submitted in the Court on 07.06.2012. The learned Additional Advocate General has stated that case is now fixed for consideration of charge on 27.07.2012. The submission has been made for rejection of the bail applications.

Heard and perused the record. The learned counsel for the petitioners has submitted that petitioners are innocent. In any case for the purpose of bail, it has been submitted that the alleged quantity of contraband recovered from the petitioners is 2.177kg, but Chemical Examiner has found quantity of resin in the contraband 37.88% w/w. Therefore, actual quantity of ''Charas'' comes to about 787.146 grams which is less than commercial quantity and more than small quantity. The rigor of Section 37 of the Act is not applicable. The notification dated 18.11.2009 has been wrongly construed by learned Special Judge in the order dated 30.06.2012. It has been submitted that in any case notification dated 18.11.2009 is no bar for releasing the petitioners on bail. The petitioners belong to Delhi is no ground for rejection of the bail applications.

The learned counsel for the petitioners has relied Harshad S. Mehta and Others Vs. The State of Maharashtra, Ram Chandra Bhagat Vs. State of Jharkhand, , Academy of Nutrition Improvement and Others Vs. Union of India (UOI), . I have gone through these judgments and except Sami Ullaha (supra), the judgments are on interpretation of statutes. The bail applications of the petitioners are to be considered in accordance with the settled principles of law for granting or refusing bail.

In Sami Ullaha (supra) the bail granted in favour of the appellant was cancelled on the basis of report of analyst. The Supreme Court has observed that authorized laboratory at Neemuch categorically found that the seized substance did not contain any contraband. For the purpose of grant of bail, the Court cannot be said to have committed any illegality in relying thereupon. There exists a difference of opinion insofar as the Central Revenue Control Laboratory, New Delhi, has since opined that sample contained 2.6% heroin. The effect of the said contradictory report must be gone into only at trial. When two views are possible, the view which leans in favour of an accused must be favoured. For the purpose of cancellation of bail, the statutory requirement must be satisfied. In the present case, there are not two contradictory reports. Therefore, the petitioners cannot take benefit of Sami Ullaha (supra).

The Supreme Court in Harjit Singh Vs. State of Punjab, has considered the notification dated 18.11.2009, which is as follows:-

In the Table at the end after Note 3, the following Note shall be inserted, namely:

(4) The quantities shown in Column 5 and Column 6 of the Table relating to the respective drugs shown in Column 2 shall apply to the entire mixture or any solution or any one or more narcotic drugs or psychotropic substances of that particular drug in dosage form or isomers, esters, ethers and salts of these drugs, including salts of esters, ethers and isomers, wherever existence of such substance is possible and not just its pure drug content.

The Supreme Court has observed, thus, it is evident that under the aforesaid notification, the whole quantity of material recovered in the form of mixture is to be considered for the purpose of imposition of punishment. It was observed that said notification dated 18.11.2009 cannot be applied retrospectively and has no application so far that case was concerned. In that case opium was recovered on 04.07.2003.

In the present case, the ''Charas'' has been allegedly recovered from the petitioners on 22.04.2012 much after the notification dated 18.11.2009.The Supreme Court in Harjit Singh (supra) has held that under the notification dated 18.11.2009 the whole quantity of material recovered in the form of mixture is to be considered for the purpose of imposition of punishment. In these circumstances, the rigor of Section 37 of the Act is applicable inasmuch as the offending material recovered from the petitioners is 2.177kg. The petitioners are, thus, not entitled to bail. The applications are dismissed. The observations made in the judgment are for disposal of the bail applications and shall not be construed as expression of opinion on the merits of the case.