Dev Raj vs Narcotics Control Bureau, Chandigarh

Anoop Chitkara, J

An under-trial prisoner, in judicial custody since 2.7.2020 for selling 8.750 Kgs of Charas, which is commercial quantity and 1.020 Kgs of Opium,

who has been arraigned as an accused, has come up before this Court under Section 439 of CrPC, seeking bail.

Earlier, the petitioner had filed a petition under Section 439 CrPC before the concerned Sessions Court. However, vide order dated 12.11.2020, Ld.

Special Judge, Nalagarh, District Solan, HP, dismissed the petition because the accused is a habitual offender.

The bail petition is silent about criminal history.

Briefly, the allegations against the petitioner are that on 7.11.2019 the Intelligence officer of the Narcotics Control Bureau received secret

information that two persons namely Kuldeep and Hardeep are in possession of huge consignment of contraband and are on the way to deliver the

same to a person namely Karamveer Singh. The information further revealed that they are carrying a contraband in a Mahindra pickup No.HP12J-

4403. After that, the police traced the said vehicle and recovered 8.750 Kgs of charas and 1.020 Kgs of opium from a special cavity designed in the

vehicle. The police, after conducting the procedural requirements of NDPS Act and CrPC, registered the aforesaid FIR.

During investigation, the Intelligence Officer, NCB, Chandigarh was able to trace the call details of Dev Raj, the bail petitioner as well as the three

accused persons Kuldeep, Hardeep and Karamveer.

Mr. Ravi Tanta, learned counsel for the bail petitioner submits that the evidence collected against the petitioner is legally inadmissible. He also

places reliance upon the decisions of this Court in Satish Kumar v State of HP, CrMPM 299 of 2020; Budhi Singh v. State of H.P., CrMPM 595 of

2020; Rehmat Ali v. State of Himachal Pradesh, Cr.MP(M) No.203 of 2019, Naveen Bura v. State of HP, 2018 Law Suit (HP) 478, Thakur Dass v.

State of H.P., CrMPM 167 of 2010;S tynder Singh v. State of Himachal Pradesh, 2010(1) SimLC 490, and Nisar Ahmed Thakkar v. State of H.P.,

CrMPM 672 of 2008. He further argues that although the Intelligence Officer had collected all the information in the month of December, 2019, but

they arrested the petitioner only on 2.7.2020, which shows that they were never interested to arrest the petitioner. He further contends that the call

details between the petitioner and the third accused Karamveer Singh were in the course of regular business. He has drawn the attention of this Court

to the pleadings and an application supported by various bills in this regard.

On the contrary, Mr. Ashwani Pathak learned senior Advocate assisted by Mr. Sandeep Sharma, Advocate, submits that the Intelligence Officers

have collected sufficient evidence by tracing frequent calls made by the bail petitioner, the main accused, and the seller of charas, which prima facie

points out towards his involvement. He also contended that the accused has yet not discharged the presumption under S. 35 of NDPS Act, and further

that the quantity involved is commercial, and restrictions of S. 37 of the NDPS Act do not entitle the accused for bail.

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.

The contention that confessional statement of the co-accused is hit by S. 25 & 26 of Indian Evidence Act, is well founded.

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. Thus, the petitioner

has satisfied the first condition. To take care of the second condition, the petitioner pleaded in Para 3(ix) of bail that he has no criminal history. The

State also does not dispute it. To take care of the second condition, stringent conditions would suffice.

Reasoning : Since the petitioner has been arrested with the aid of Section 29 of the NDPS Act, which is in the nature of criminal conspiracy and

participation in crime, the investigator has collected sufficient call details between the bail petitioner and the main accused from his mobile

No.xxxxx67931. The explanation, which the petitioner is offering is that the call details were in connection with the business. However, the fact

remains that the recovery was made from a specially designed secret chamber of the vehicle and the vehicle was regularly used in connection with

the business activities of the petitioner. Thus, the petitioner has failed to discharge the burden as contemplated in Section 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, no case for bail is made out in favour of the petitioner.

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.