Mark Hegedus vs State of Himachal Pradesh

Kuldip Singh, Judge

This is an application u/s 439 Cr.P.C. for releasing the petitioner on bail in FIR No. 90/2012 dated 11.05.2012, registered at Police Station, Kullu, u/s 20 of the Narcotic Drugs and Psychotropic Substances Act ( for short ''Act''). It has been stated that a case u/s 20 of the Act has been registered against the petitioner, who is in judicial custody since 11.05.2012. The prosecution case, in brief, is that on 11.05.2012 at about 5.00 p.m., the police party was at ''Reuni Nala''. The petitioner was coming towards Chowki through a short-cut. The petitioner disclosed that he was going to Malana village. The petitioner was carrying a bag which was checked and ''Charas'' weighing 1.970kg was recovered from him.

The petitioner has been falsely implicated, he is innocent. The police has presented the challan on 24.06.2012 and the case in the trial Court is fixed on 24.07.2012. The resin contents as per report of F.S.L. comes to about 800 grams. Thus, ''Charas'' allegedly recovered from the petitioner is not a commercial quantity, the rigor of Section 37 of the Act is not attracted. There is no legal evidence to connect the petitioner with the commission of offence. The investigation in the case is complete. The petitioner is ready to furnish bail bonds. It has been submitted that petitioner had earlier filed bail application which has been dismissed by learned Special Judge, Fast Track Court, Kullu, on 03.07.2012. The submission has been made for releasing the petitioner on bail.

The status report has been filed. It has been stated that case has been registered on the basis of rukka dated 11.05.2012. The police party was at ''Reuni Nala'' on 11.05.2012 at about 5.00 p.m. A foreigner with steely bag on his back was going towards Chowki at place Katagala. He was stopped. On inquiry, he disclosed his name Mark Attila. He had shown his passport and was found to be a national of England. He was asked why he was going through forest path, he told that he was aware of the path and was going to Malana village. He asked the police to check his bag. In fact, petitioner himself helped in opening the bag. On close scrutiny of the bag, it was found that something was very cleverly concealed in the bag and ultimately 1.970 kg ''Charas'' was recovered from the bag. The sampling and sealing were done on the spot. The sample and bulk quantity of ''Charas'' were taken into possession. The N.C.B. forms were filled. The petitioner committed offence u/s 20 of the Act. He was arrested. The S.F.S.L., Junga, found resin 37.49% w/w and opined the sample ''Charas''. The challan has been submitted in the Court on 06.07.2012. The submission has been made for rejection of the bail application.

Heard and perused the record. The learned counsel for the petitioner has submitted that the resin contents in the sample were 37.49% as per chemical examiner report. Therefore, the actual quantity of ''Charas'' comes to 800 grams from the bulk stuff 1.970 kg allegedly recovered from the petitioner. He has submitted that 800 grams ''Charas'' is less than commercial quantity. Therefore, rigor of Section 37 of the Act is not applicable. The submission has been made for releasing the petitioner on bail.

The learned Additional Advocate General has submitted that offence has been committed by the petitioner after the notification dated 18.11.2009 and as per that notification whole quantity of the offending material is to be considered. The notification dated 18.11.2009 has been considered by the Supreme Court in Harjit Singh Vs. State of Punjab, . The notification dated 18.11.2009 is as follows:-

In the Table at the end after Note 3, the following Note shall be inserted, namely:

(4) The quantities shown in Column 5 and Column 6 of the Table relating to the respective drugs shown in Column 2 shall apply to the entire mixture or any solution or any one or more narcotic drugs or psychotropic substances of that particular drug in dosage form or isomers, esters, ethers and salts of these drugs, including salts of esters, ethers and isomers, wherever existence of such substance is possible and not just its pure drug content.

The Supreme Court in Harjit Singh (supra) has held, it is evident that under the aforesaid notification the whole quantity of material recovered in the form of mixture is to be considered for the purpose of imposition of punishment. In the present case, offence has been allegedly committed after the notification dated 18.11.2009. In view of allegations of the prosecution, rigor of Section 37 of the Act is applicable, the petitioner is not entitled to bail. The petition is dismissed.

The observations made in the judgment are for disposal of the bail application and shall not be construed as expression of opinion on the merits of the case.