Khem Chand vs State Of H.P

Anoop Chitkara, J

The petitioner, who is in custody under Narcotics Drugs and Psychotropic Substances Act, 1985 (NDPS Act), w.e.f. 21.11.2018 for possessing

1.28 Kg of charas, has now 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, Mr. Mandeep Chandel, 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 that 21.11.2018, police officials were patrolling in the jurisdiction of aforementioned police station

and they noticed one person coming. On seeing the police officials, he started running. he was backpack, which raised suspicion in the mind of the

police and inquired from him reason for his running. He could not give satisfactory reply and then after associating independent witnesses, police

searched bag, which was fond to be containing charas, which when weighed, it measured 1.28 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.

Laboratory tested the same positive for charas. Status report reveals the total weighed of charas as 1.28 Kg, which is a commercial quantity.

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 and that independent witnesses have not supported the case of the prosecution at all.

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.

Arguments of learned counsel for the petitioner that independent witnesses did not support the case of the prosecution, as such, he is entailed for

bail. It is very well settled that testimony of police officials is also credible unless shown to be prejudiced by the accused. The quantity of charas

recovered from the petitioner is commercial and as such, he is not entitled for bail, at this stage.

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