Khem Chand vs State of H.P.

Surinder Singh, J.—The Petitioner was apprehended in a case of recovery of 2 Kgs. of Charas alongwith Kuldeep Singh and Guddu Ram, in terms of FIR No. 111 of 2009 registered in Police Station Parwanoo, on 31st December, 2009. The instant application has been moved u/s 439 of the Code of Criminal Procedure, for the grant of bail.

Precisely, the facts of the case are that during the intervening night of 30th/31st December, 2009 ASI Hoshiar Singh was heading a Naka party on the National High way (NH 22) at Kasauli Chowk. At about 4.30 a.m. a red coloured Car came from the side of Kasauli. On noticing the presence of the police, its driver named Kuldeep Singh stopped it and then tried to reverse. Police got suspicious. ASI Hoshiar Singh directed, HHG Bhupinder Kumar and HHG Deepak Kumar, who were patrolling nearby to stop the vehicle. They stopped it and brought it to the traffic point at Kasauli Chowk. The said car was bearing registration No. HP 35B-0300. Besides, Kuldip Singh aforesaid, two other persons including the Petitioner were occupants of the vehicle. All of them are residents of district Kullu. The Petitioner was having a blue coloured bag in his lap. On its search, 2 Kgs. Charas was recovered, which was kept into two envelopes. The samples were drawn and sealed and completed other codal formalities under the Act on the spot and all the accused persons including the Petitioner were arrested. The case property and the vehicle were taken into possession. Sample was sent for analysis to the laboratory, which tested positive.

As per the report of analysis, the quantity of resin found in the sample was 33.09% w/w.

Notice of this application was given to the Respondent. Mr. A.K. Bansal, learned Additional Advocate General put in appearance and opposed the bail of the Petitioner.

Mr. O.C. Sharma, learned Counsel for the Petitioner submitted that as per the definition of Charas, 33.09% of resin contents wee found in the sample, which were allegedly extracted from cannabis plant and it comes to less than "commercial quantity", therefore, the rigors of Section 37 of the Act are not applicable and the case of the Petitioner has to be dealt with under the general law of bail.

I have considered the above contentions and perused the report of analysis. It shows that the resin contents in the sample are 33.09%, which prima-facie falls within the definition of charas. Therefore, the quantity of the contraband in the stuff recovered from the Petitioners is less than "commercial quantity".

Further, the report also shows the presence of tetra- hydro-cannabinol, a psychotropic substance in the sample. Its percentage is not revealed, therefore, at this stage it cannot be said that the Petitioner was having such a contraband, which fell within the purview of "commercial quantity". It is also pertinent to note that resin is present in the leaves flowering and fruit tops, stem and seeds of cannabis plant. Therefore, the tetra hydro cannabinol could also be found therein. But resin is charas separated from cannabis plant or its parts but possession of such parts is not covered under the definition of charas u/s 2 (iii) of the Act, as observed in Criminal Appeal No. 267 of 2007 titled Sunil v. State and Ors. connected matters, by a Division Bench of this Court, of which I was one of its member.

The Petitioner is a permanent resident of village Tandi, Tehsil Banjar, District and roots in the society, therefore, he can safely be enlarged on bail. Hence, his request for bail is allowed and it is ordered that the Petitioner be enlarged on bail, on his furnishing the bail bonds in the sum of Rs. 25,000/- with two sureties of each amount to the satisfaction of the learned Chief Judicial Magistrate, Solan and this bail shall be subject to the conditions that the Petitioner:

(a) shall join the investigation of the case, if any, and shall present himself in the Court as and when required;

(b) shall not tamper with the prosecution evidence in any manner;

(c) shall not, directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the court or to any police officer; and

(d) shall not commit similar offence in future.

Needless to say that if the Petitioner flout any of the conditions aforesaid, the liberty of bail shall be cancelled.

The observations made hereinabove are strictly for the disposal of this bail petition and the same shall not be treated as an expression of opinion on the merits of the case.

An authenticated copy of this order be sent to the Chief Judicial Magistrate, Solan for information and necessary action at his end. If the parties apply for copy urgently, it be supplied to them forthwith as per rules.

Petition stands disposed of.