Khurshi Ram vs State Of H.P

Anoop Chitkara, J

The petitioner, incarcerating since 16-12-2020, upon his arrest for transporting 3.277 kilograms of charas,which is a commercial quantity, through his

co-accused Durga Prasad, has come up before this Court under Section 439 of CrPC, seeking bail.

Earlier, the petitioner had filed the following bail petitions in this Court:

(a) CrMPM 2293 of 2020; filed by the petitioner before this Court was withdrawn by him vide order dated 07.01.2021 and he was given liberty to file

afresh at an appropriate stage.

(b) CrMPM 179 of 2021. filed by the petitioner before this Court was also withdrawn by him vide order dated 04.02.2021 and liberty was granted to

file fresh with better particulars.

In Para 14 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 03.11.2020, police officials were patrolling and checking vehicles in their jurisdiction. The

investigator realized that some vehicles were turning back on seeing the police. On this, he asked one police constable to stand at some distance to

stop those vehicles, which were reversing on taking U-turn. In the meantime, one Nano car came and it took U-turn, on which, it was stopped. During

inquiry, the person sitting in it, became extremely perplexed and put his hands on his forehead. It raised suspicion in the mind of the investigator and he

conducted search of the vehicle, which led to recovery of 3.277 Kg. of charas. After completing procedural requirement under NDPS Act, police

arrested the accused. Based on these allegations, the Police registered the FIR mentioned above.

Ld. Counsel for the petitioner referred to the contents of the bail petition, specifically to Para 11, and submitted that the Petitioner has satisfied the

twin conditions of S. 37 of NDPS Act, and consequently he has made out a case for bail. Ld. Counsel further argued that the evidence collected

against the petitioner is legally inadmissible.Ld. Counsel for the petitioner further contends that the petitioner is a first offender and in custody for more

than five months. The 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. Further, the quantity involved is commercial, and S. 37 of the

NDPS Act's restrictions do not entitle the accused to bail. The contention of the State is that the material relied upon by the petitioner does not absolve

him by preponderance of probability and the accused has failed to discharge the presumption under S. 35 of the NDPS Act. The crime is heinous, the

accused is a risk to law-abiding people, and bail might send a wrong message to society.

REASONING:

The quantity of charas allegedly recovered from the petitioner is 3.277 kilograms and thus falls in commercial quantity. The stand of the petitioner is

that the phone calls might be for business purposes. However, the petitioner did not place on record extracts of any account books to substantiate the

same. It is not his case that the phone calls were only for business-related enquires which never matured into any business transactions.

The stand that the accused is in custody for more than three years is also not a legal ground to overcome the rigors of S. 37 of NDPS Act. Given

above, in the facts and circumstances peculiar to this case, at this stage, the petitioner fails to make out a case for bail.

Ld. Counsel for the petitioner submitted that as per newspaper reports, the State of Himachal Pradesh is legalizing cannabis (Charas), subject to the

rules and regulations framed in this regard. Be that as it may, the petitioner may explore what benefits such rules, regulations, and the policy change

might apply to the persons involved in the commercial quantity of charas (Cannabis). The policy change may open new possibilities for bail to the

persons involved in the commercial quantity of charas (Cannabis) by making out the new grounds for bail. Thus, it shall be open for the petitioner to

file a new bail petition pointing out the new grounds in the changed scenario if it happens. He may also file another application on changed

circumstances or with better particulars.

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 with liberty as mentioned above.