Hem Singh 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.

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.

In Para 8 of the bail application, the petitioner declares having no criminal history. The status report also does not mention any criminal past of the

accused.

Briefly, the allegations against the petitioner are that on 03.11.2019, police party headed by Sub-Inspector were patrolling within their jurisdiction to

detect crime. At around 3:30 p.m., when police officials reached at a place near Garkhal, then they started checking the vehicles. At about 4:35 p.m.,

one motorcycle, on which, apart from a driver, there was a pillion rider, came from the side of Garkhal. The passengers were not wearing helmets and

on noticing the police, they stopped the motorcycle and started to take U-turn, however, at that time, engine of the motorcycle suddenly turned off its

own. It gave the police a chance and they nabbed the persons. On inquiry, the persons revealed their names as Hem Singh, the present petitioner, who

was the driver of the motorcycle and the pillion rider revealed his name as Surinder Kumar, both aged 24 years. The pillion rider was carrying a

rucksack on his lap. Due to their conduct, police apprehended concealment of contraband in the rucksack. Thus, they decided to conduct search of the

bag and then associated independent witnesses. After that police opened the bag and recovered charas, which when weighed on electronic weighing

scale, was measured 1.100 Kg. After that, the investigator conducted procedural requirements of NDPS act and Cr.P.C 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 co-accused. 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.

Although the bag containing charas was carried by the pillion rider, but it was driver of the motorcycle, who on seeing the police, turned it back. To

meet the conditions of Section 37 of the Act, the burden is on the accused to satisfy this Court that he is not guilty of the offence.

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, 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.