Gulshan Alias Goli 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 commercial quantity of charas,

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 09.09.2020, Ld.

Special Judge-II, Kullu, dismissed the petition for the reason that since it is case of recovery of commercial quantity of contraband, the fetters imposed

section 37 of the NDPS Act would come into play as the facts prima facie point that the petitioners have committed an offence by consciously

possessing the contraband and abetting the same.

Though, the bail application is silent about criminal history of the petitioner, but as per status report, the petitioner has following criminal history:

a) FIR No.132, dated 10.8.2013, registered under Sections 22-61-85 of NDPS Act in police station Kharar, Punjab.

b) FIR No.108, dated 29.08.2019, registered under Section 20 of NDPS Act in Police Station Ladbharol.

Briefly, the allegations against the petitioner are that on 20.07.2020, police officials of the aforesaid police station were patrolling in private vehicle.

At around 10.30 a.m., when police party was present at Fagupul, then one car came from Banjar side. Police officials signaled the car to stop and the

driver parked the same. On seeing the police, driver got perplexed and when he was asked to show papers, he was reluctant. On inquiry, driver

revealed his name as Manjit Singh (A-1). The person sitting on the adjacent front seat disclosed his name as Ashwani Rana (A-2). There was a bag

lying between them and when the police inquired about its contents, then they could not give satisfactory explanation. After that, police officials joined

independent witnesses and in their presence, the bag was searched, which contained charas, which when weighed on electronic scale, it measured

1.515 Kg. After that, the investigator conducted procedural requirements of NDPS act and Cr.P.C and arrested the accused. During interrogation, the

accused revealed involvement of the present bail petitioner, Gulshan Kumar (A-3). He made them to talk to Jitender Singh (A-4). Police obtained

CDRs of phone calls of these four persons, namely, Manjit Singh (A-1), Ashwani Rana (A-2), Gulshan Kumar (A-3) and Jitender Singh (A-4). The

laboratory opined the contraband to be Charas. Based on these allegations, the Police registered the FIR mentioned above.

Ld. Counsel for the petitioner contends that the petitioner a maiden 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 co-accused as well.

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.

The police had obtained the call details and there are frequent phone calls between the accused persons and as such, they did not discharge the

burden under Section 37 of the Act. Another reason for dismissal is previous criminal history of petitioner, Gulshan Kumar (A-3), who was involved in

similar case and bailed out by this Court in Cr.MP(M) No.1731 of 2019 on 20.09.2019. Despite being released on bail, he kept on doing the business of

charas, as such, he is not entitled to any bail.

Ld. Counsel for the petitioner referred to certain statements and memos from the police report, prepared under section 173(2) CrPC, copies of

which the accused had duly received in compliance to S. 207 CrPC. 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.

Counsel for the petitioner has also made several other arguments. Still, as 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.