Gulam Hussan 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 possessing 41 bottles of 100 ml each, in all 4.1 liters of cough syrup containing codeine phosphate, which per prosecution is commercial quantity, has come up before this Court under Section 439 of CrPC, seeking 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.

The bail petition is silent about criminal history, however, 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 on 7.11.2020, the investigator received a secret information that the petitioner sells cough syrup, correx on a general merchandise. On reaching the place, the investigator recovered 41 bottles of cough syrup from the shop. 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 the petitioner is a first offender and incarceration before the proof of guilt would cause grave injustice to the petitioner and family.

On the contrary, the State contends that the Police have collected sufficient evidence against the bail petitioner and the quantity of contraband comes under commercial quantity, being greater than 250 grams, and entire mixture of 4.1 liters has to be counted. Another argument on behalf of the State is that the crime is heinous, the accused is a risk to law-abiding people, and bail might send a wrong message to society.

REASONING:

Ld. Counsel for the petitioner referred to certain statements and memos. However, the documents which the Ld. Counsel referred were neither filed with the petition, nor its copies supplied to the Court and the State. Thus, the Court cannot base any finding on a document in the Counsel's brief and not on Court's file.

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.

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.