Lal Singh vs State Of Himachal Pradesh

Anoop Chitkara, J

The petition coming on for orders this day, the Court passed the following:

FIR No.

Dated

Police Station

Section

131/2020

26.8.2020

PALAMPUR, DISTT. KANGRA

20, 25, 29 NDPS

The petitioner, incarcerating upon his arrest has come up before this Court under Section 439 CrPC, for jointly 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) Criminal Misc. Petition (Main) No.1530 of 2021, which was dismissed as withdrawn on 10.8.2021.

In Para 2 (xii) 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 26.8.2020, the police officials were patrolling in their jurisdiction. At around 11.55 p.m. when they reached at Holta near Wool Federation Gate, then they noticed two vehicles parked on the road side and their cabin lights were on. Nobody was found sitting in one vehicle bearing registration No.HP02K-1661, whereas in another car number HP76-3352 EON, which was parked behind the earlier car, four persons were sitting. The police officials inquired from such persons about their sitting in the car in odd hours. On this, they could not give any satisfactory answer and rather became perplexed. The person who was sitting on the driver seat revealed his name as Lal Singh (A-2), petitioner herein. The person sitting adjacent to the seat of the driver told his name as Shrawan Singh (A-1) and the persons sitting on the back seat revealed their names as Sher Singh (A-3) and Shri Kishan Chand (A-4). The investigator got suspicion that these persons might be in possession of some stolen property or intoxicating substance and as such, he called independent witnesses. Once the independent witnesses had reached, the investigator conducted the search of the car. In front of Shrawan Kumar, who was sitting adjacent to the seat of the driver, one bag was lying. On opening the same, the police recovered 1.154 kgs of charas. After that, the investigator completed the other procedural requirements under NDPS Act and arrested the accused. Based on these allegations, the Police registered the FIR mentioned above.

Ld. Counsel for the petitioner submits that once the investigator had realized that the car might contain intoxicating substance then it was incumbent upon him to follow the mandatory provisions of Section 42 of the NDPS Act. Learned counsel further argued that admittedly the prosecution did not follow the requirements of Section 42 of the NDPS Act, as such the violation of the mandatory provisions vitiate the trial. Given above, there is no justification to deny bail to the petitioner.

On the contrary Mr. Nand Lal Thakur, learned Additional Advocate General has opposed such argument and stated that it was not a case of prior information and Section 42 would come into operation only if the information about the concealment of the contraband under the NDPS Act is received. The State further 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:

Section 42 of the NDPS Act states that when the empowered officer mentioned in such Section has "reason to believe from persons knowledge or information given by any person and taken down in writing" that any offence has been committed then he has to follow the mandatory provisions of Section 42 as mentioned therein. In the present case, the investigator did not conduct search based upon any secret information or any other information about concealment of drugs in the car. Thus, it is not a case based on information given by any person. So what is to be seen at this stage is that whether the investigator had reasons to believe from persons knowledge or not. The words used are reasons to believe and not suspicion. In this case, even the suspicion was not specific about violation of any offence under NDPS Act but the investigator suspected that the person might have concealed some stolen property or intoxicating substance. In case the apprehension was only about concealment of intoxicating substance still depending upon other factors, it could have been a case where Section 42 might have been required to be complied with but the investigator explicitly stated that he suspected concealment of some stolen property OR intoxicating substance. This Court at this stage cannot devoid anything beyond what has been mentioned in police documents, based on which the FIR was registered and prosecution was launched to infer that the investigator had acquired reasons to believe and would be violating the principle of audi alteram partem. Thus, suspicion of the investigator would not prima facie fall in violation of Section 42 of NDPS Act. However, it is subject to examination in chief and cross-examination of the investigator and other witnesses for the purpose of bail.

The decision of this Court in Satinder Kumar v. State of H.P., 2020 SCC OnLine HP 3276, covers the proposition of law involved in this case, wherein this Court has held that satisfying the fetters of S. 37 of the NDPS Act is candling the infertile eggs. The ratio of the decision is that to get the bail in commercial quantity of substance, the accused must meet the twin conditions of S. 37 of NDPS Act. It implies that the accused should satisfy its twin conditions and come out clean.

The quantity of charas allegedly recovered from the petitioner is greater than one kilogram, and thus falls in the category commercial quantity. Given above, at this stage, the petitioner fails to overcome the rigors of S. 37 of NDPS Act and does not 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.