Dharampal vs State Of H.P

Anoop Chitkara, J

On the allegations of recovery of 5700 capsules containing Tramadol, and 84000 tablets of Lomitil (Diphenoxylate hydrochloride IP 2.5 mg Altropine Sulphate IP 0.025 mg, the petitioner, incarcerating upon his arrest has come up before this Court under Section 439 CrPCseeking 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.

Para 8 of the bail petition and status report mentions the following criminal history:

a) Conviction under Section 27 (b)(ii) and 28 of Drugs and Cosmetics Act in Criminal Complaint No.500/3 of 2011 and sentenced to under simple imprisonment for one year and to pay fine of Rs.5000/-

b) The petitioner has also been imposed fine of Rs.8000/- in case FIR No.145, dated 24.04.2020, registered under Sections 188, 269, 270 of IPC and Section 39(1)(a) of HP Excise Act, in police station Nalagarh.

Briefly, the allegations against the petitioner are that on 08.11.2020, the investigator received a secret information that Dharmarpal, petitioner herein, indulges in illicit sale of intoxicating drugs and he conceals the drugs in the coop of husk. in his fields. After that, the investigating officer associated independent witnesses including Pradhan and raided the said place. On reaching there, he noticed a person near the coop of husk. On inquiry, he disclosed is name Dharampal, petitioner herein. From the search of the coop of husk, the investigator recovered capsules and tablets as mentioned hereinbefore. After that the investigator completed other procedural requirements under the NDPS Act and arrested the accused. Based on these allegations, the Police registered the FIR mentioned above.

Ld. Counsel for the petitioner contends that learned counsel for the bail petitioner submits that the evidence collected against the petitioner is legally inadmissible. He submits that the recovery was from khasra no. 691, whereas the revenue records annexed as Annexure P-1 and sale deed (Annexure P-2) establishes that the petitioner was not owner in possession of the said land.

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.

Learned counsel for the petitioner did not argue on the point that capsules and tablets are not of commercial quantity and do not fall under the caption Commercial Quantity and it remains undisputed that both the drugs are prohibited under the NDPS Act.

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 contention that the petitioner did not own the land from where the recovery was effected is not a valid ground to be taken at the bail stage because its outcome and inference would be subject to cross-examination during the trial. If this argument is taken at face value, then all recoveries from public places would lose all legal sanctity in the absence of the possession over the land.

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.

Given above, in the facts and circumstances peculiar to this case, at this stage, the petitioner fails to make out a case for bail. The petition is dismissed with liberty to file a new bail application.

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.