Irshad vs State Of H.P

Anoop Chitkara, J

The petitioner, incarcerating upon his arrest for possessing commercial quantity of Codine Phosphate, 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 this Court. However, vide order dated 09.11.2020, a coordinate Bench of

this Court, dismissed the petition.

The bail petition is silent about criminal history, however, Mr. Kushh Sharma, learned 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 6th April, 2020, the police officials were conducting patrolling in their jurisdiction in a private

Car. At 5.15 p.m., when the police officials reached at a place known as Rampurghat, they received a secret information that two persons are coming

on a motorcycle bearing registration No.UK16A-9615, black coloured Splender, towards Rampurghat. The informant further revealed that the driver

of the motorcycle is Shashi Kumar wearing particular clothes and the pillion rider is Irshad. The informant specifically said that in between these two

persons there is a bag, in which there is psychotropic substance. The informant also told that they are out for delivery and in case they are not nabbed,

it would not be possible for the Police to recover the contraband. The investigator believed the information to be correct and complied requirement of

Section 42 of the NDPS Act. After that he associated two local persons as witnesses and waited for the motorcycle to come. At about 6.00 p.m., the

said motorcycle arrived and its rider on seeing the police became perplexed, however, the police officials were prepared and they nabbed them. On

inquiry, the driver of the motorcycle revealed his name as Shashi Kumar, and the pillion rider as Irshad, petitioner herein. The police also noticed a bag

lying in between them. On opening it had 15 bottles of Chlorpheniramine maleate and codiene Phosphate syrup. Thereafter the police conducted other

procedural requirements under NDPS Act and Cr.PC and arrested the accused. Based on these allegations, the Police registered the FIR mentioned

above.

Mr. Kush Sharma, learned Counsel for the petitioner contends that the petitioner is maiden offender and incarceration before the proof of guilt

would cause grave injustice to the petitioner and family. He further submits that when the cough syrup was sent for testing then the report mentions it

as manufactured by ‘Talabali Chanda Nazal Panchvati Colony, Lasudia Moridevas, Naka Indore (MP)-452010, and at the time of recovery the

address is mentioned as ‘Globin Pharmaceutical Private Limited, Puhana Chowk, Dehradun Road Roorkee (UK).

On the contrary, the learned Deputy Advocate General 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.

The arguments of Mr. Kush Sharma is that the drug, which was tested in the Laboratory, was not the drug recovered from the petitioner because

there appeared change in the name of the Company. In the status report dated 22.1.2021, the State has clarified that in the seizure memo, they have

mentioned the name and address of the Company whereas it was manufactured by ‘Globin Pharmaceutical Private Limited, Puhana Chowk,

Dehradun Road Roorkee (UK). Thus, it was a contract manufacturing on behalf of the Company and that is why both the names were written and

both were correct. Given the status report, it is a matter of appreciation of evidence after looking at the case property, when it will be produced in the

Court during the trial. At this stage, the quantity is commercial and the petitioner has failed to make out a case for bail.

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.

The alternative submissions of Mr. Kush Sharma, learned counsel for the petitioner is that in case this Court is not inclined to grant bail, then the

trial be expedited.

Given the fact that the petitioner is in jail from April 2020 and the substance is just 15 bottles of cough syrup containing Codiene Phosphate, as

such, learned Special Judge is requested to conclude the trial on the top priority, as early as possible. It is also clarified that neither the accused nor

prosecution shall seek unnecessary adjournments in this Case. Registry is directed to sent a copy of this order to learned Special Judge, Sirmaur for

compliance.

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.

Petition dismissed.