Kuram Dutt vs State Of H.P

Anoop Chitkara, J

 1. The petitioner, incarcerating upon his arrest for possessing commercial quantity of charas, has come up before this Court under Section 439 of

CrPC, seeking bail.

Earlier, the petitioner had filed the following bail petitions:

(a) Cr.MP(M) No.37 of 2021, filed by the petitioner before this Court was dismissed as withdrawn vide order 20.01.2021, reserving liberty to file

fresh.

(b) Cr.MP(M) No.688 of 2021, filed by the petitioner before this Court was withdrawn by the petitioner vide order 04.05.2021, reserving liberty to file

fresh by annexing report under Section 173 (2) Cr.P.C.

In Para 12 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 6.12.2020, police party of the aforesaid police station was patrolling in their jurisdiction. At

9:15 p.m., they noticed two persons sitting on the road side and one bag was lying in between. Police party inquired the reasons about sitting at such

late hours, then they became perplexed and could not give satisfactory reply. On inquiry, they revealed their names as Him Dutt and Kuram Dutt. Due

to imposition of curfew, no independent witness was available at that time. As such, the investigator conducted search of the bag, which led to

recovery of 1.398 Kg. of Charas. After that, the investigator complied with the provisions of NDPS Act and Cr.P.C and arrested the accused. Based

on these allegations, the Police registered the FIR mentioned above.

Ld. Counsel for the petitioner submits 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 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 accused has yet not discharged 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:

Mr. V.S. Chauhan, learned Senior Advocate, has argued that since the bag was lying in between, as such, the petitioner cannot be said to be in its

exclusive, joint or conscious possession. He further argued that there is nothing to connect him with the bag. However, when the quantity of

contraband is commercial, the burden shifts on the accused to comply with the requirements of Section 37 of the NDPS Act, which he fails to do so.

The explanation offered in paragraphs 7 of the bail, which needs proof at the time of trial and no findings can be based on such disclosure.

The quantity of charas allegedly recovered from the petitioner is 1 kg and 398 grams, and thus falls in the category commercial quantity. The

petitioner has not stated anything to discharge the rigors of S. 37 of NDPS Act. 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, 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.

Given above, In the facts and circumstances peculiar to this case, the petition is dismissed. However, the petitioner shall be at liberty to file a new

petition on the same cause of action or different grounds.