Kuldeep Singh vs State of H.P.

Surinder Singh, J.—Both the accused persons/Petitioners were apprehended by the police in FIR No. 111 of 209 registered in Police Station Parwanoo on 31st December, 2009 allegedly for having in their possession 2 kg. of charas while traveling in a private vehicle. They have approached this Court for seeking bail u/s 439 of the Code of Criminal Procedure.

The facts in brief, as alleged can be stated thus. 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 stopped and tried to reverse the vehicle. On getting 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. Kuldip Singh Petitioner was driver. He is a shop-keeper running a grocery shop at Anni (Kullu) and the other person sitting on the rear seat was Guddu Ram of village Luhargi, falling in the jurisdiction of Police Station Anni. Another man besides him was Khem Chand of the same area. Khem Chand was having a blue coloured bag in his lap.

ASI Hoshiar Singh suspected that they might be transporting some contraband and informed the higher authorities in writing to satisfy the provisions Section 42(2) of the Narcotic Drugs and Psychotropic Substances Act in short ''the Act''. Thereafter the bag was searched and the police recovered 2 kg. charas contained in two envelops. The samples were drawn and sealed and completed other formalities, as required under the Act on the spot and the accused-Petitioners were arrested. The case property and the car were taken into possession. Sample was sent for analysis it tested positive. Police also took into possession certain documents from the Hotel showing, the stay of the Petitioners at Kasauli.

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

The notice of these applications was given to the Respondent. Mr. J.S. Rana learned Assistant Advocate General opposed their bail.

Mr. O.C. Sharma, learned Counsel for the Petitioners argued that the Petitioners were alleged to have been found transporting 2 kg. stuff containing 33.09% of resin contents extracted from cannabis plant which comes to less than 1 kg and is not a "commercial quantity", therefore, the rigours of Section 37 of the Act are not applicable.

I have considered the above contentions. The report of the Forensic Science Laboratory has been perused by me. It shows that the resin contents in the sample were 33.09%, which falls within the definition of charas. Therefore, the quantity of the contraband in the stuff recovered from the Petitioners comes to less than 1 kg. which is not a "commercial quantity".

Further, the report shows the presence of tetrahydrocannabinol a psychotropic substance in the sample. Unless its percentage is not revealed, it cannot be said that it was a ''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 tetrrahydrocannabinol could 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)a 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.

In the instant case, it is a positive case of the prosecution that the Petitioners were transporting charas, the resin contents were found to be less than the commercial quantity.

The record shows that the Petitioners are permanent residents of Ani Sub Division in District Kullu. They have roots in the society. There is no allegation that they have earlier involved in such type of activities. The investigation of the case is complete. The trial of the case may take sometime for its disposal. Therefore, in these circumstances the Petitioners can be safely enlarged on bail. Thus, it is ordered that the Petitioners arrested in FIR No. 111 of 2009 dated 31st December, 2009 u/s 20 of the Act be enlarged on bail on their furnishing bail bonds in the sum of Rs. 25,000/- each with two sureties each in the like amount to the satisfaction of the Chief Judicial Magistrate, Shimla and this bail shall be subject to the conditions that the Petitioners:

(a) shall join the investigation of the case, if any, and shall present themselves 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 Petitioners flout any of the conditions aforesaid, the liberty of bail shall be cancelled.

The observations made hereinabove are strictly for the disposal of these bail petitions 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, Shimla for information and necessary action at his end. If the parties apply for copy urgently, it be supplied to them forthwith as per rules.

Both the petitions shall stand disposed of.