Diwan Chand vs State Of H.P

Anoop Chitkara, J

The petitioner, incarcerating upon his arrest has come up before this Court under Section 439 CrPC, for selling commercial quantity of charas to the

main accused from whose possession the Police had recovered it, 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 11.11.2020, Ld.

Special Judge-II, Kinnaur at Rampur, HP, dismissed the petition. The petitioner had again filed another bail petition before this Court, however, the

same was withdrawn by him with liberty to file fresh one, if so advised.

The bail petition is silent about criminal history, however, Mr. Manoj Pathak, Ld. Counsel for the bail petitioner, states on instructions that the

petitioner has no criminal past relating to the offences prescribing sentence of seven years and more, or when on conviction, the sentence imposed

was more than three years. The status report also does not mention any criminal past of the accused.

Briefly, the allegations against the petitioner are that on 12.10.2020, the investigator of Special Investigating Unit was on patrolling duty and was

also checking traffic towards Fagu-Theog-Narkanda-Kumarsain-Rampur. In the morning, at 9:50 a.m., he noticed one Bolero vehicle coming from

Rampur towards Shimla. The investigator signaled the driver to stop the vehicle. Police made inquiries from him about the purpose of his travel, but he

became perplexed and could not give satisfactory reply, which led to his possessing some contraband. After that, the investigator associated two local

persons as witnesses and conducted further inquiry and the said persons revealed his name as Raj Kumar. During search of the vehicle, below the

driver seat, police recovered one bag, which contained charas. When the same weighed on electronic scale, it measured 2.058 Kg. After that, the

investigator conducted procedural requirements of NDPS act and Cr.P.C and arrested the accused. He prepared a Rukka, which led to registration of

FIR mentioned above. During interrogation of Raj Kumar, police came to know about the involvement of bail petitioner, Diwan Chand and, thus, he

added Section 29 of the Act and arrested the petitioner. The police obtained call details and came to know that both the accused had talked to each

other on 11th and 12th October, 2020. The CDRs revealed that calls were exchanged between phone Nos.……..040 of Raj Kumar and ………291

of Diwan Chand. The report of the laboratory test opined the substance to be charas. Police prepared the challan and filed the same in the Court on

04.01.2021. 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 also places reliance upon the decisions of this Court in 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; Stynder Singh v. State of Himachal Pradesh, 2010(1) SimLC 490, and Nisar Ahmed Thakkar v. State of H.P., CrMPM 672 of 2008.

On the contrary, arguments for State are that the Police 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 further contention for the State is that offence is heinous, accused is a risk to law-abiding people, and bail is

likely to send a wrong message to the society.

Learned counsel for the petitioner has based his arguments on the status report. Given the fact that prosecution was launched only on 4th January,

2021 by filing report under Section 173(2) of Cr.P.C. As such, in all probabilities, the petitioner would not have received the same. Due to Covid

pandemic, this Court does not think appropriate to call the police file and let the accused obtain his documents under Section 207 of Cr.P.C, if not

already obtained. The arguments addressed are only superfluous and do not make out a case to satisfy the conditions of Section 37 of NDPS Act.

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. Ld. Additional

Advocates General have failed to point out towards any incriminating evidence against the accused except the allegations of co-accused.

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.

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.