Praveen Kumar vs State Of Himachal Pradesh

Anoop Chitkara, J

An under-trial prisoner, in custody since 4.2.2020, has come up before this Court under Section 439 of the Code of Criminal Procedure, 1973

(CrPC), seeking bail, under Sections 21 and 22 of the Narcotics Drugs and Psychotropic Substances Act, 1985 (NDPS Act) and Section 18(C) of

Drugs and Cosmetic Act for possessing 28 vials of Cough Syrup, out of which 21 vials were of Welcyrex and 7 were of Tuflex, 100 Ml. each and on

counting the strips of medicines, it were 11 in number of Nitravet-10, Nitrazepam containing 151 tablets of 10 Mg each. Apart from this, 6 strips

containing total 285 coloured capsules were also found, which as per prosecution comes under commercial quantity.

The police arrested the petitioner, in FIR No. 34 of 2020, dated 4.2.2020, registered under Sections 21 & 22 of the NDPS Act and Section 18 (C)

of Drugs and Cosmetic Act, in Police Station West, District Shimla, Himachal Pradesh, disclosing cognizable and non-bailable offenses.

The gist of prosecution case is that petitioner had earlier filed bail application in the Court of Learned Special Judge (CBI), Shimla, which was

dismissed on 15.2.2020. After dismissal of bail application, the petitioner has also filed bail application before this Court, being Cr.MP(M) No. 289 of

2020, which was also withdrawn by him on 1.5.2020. Interestingly, when on two occasions petitioner did not succeed, he has also filed bail application

before the Court of learned Special Judge-I, Shimla bearing Bail Application No.234 of 2020, which was dismissed on 22.7.2020. Hence this petition.

I have read the status report(s) and heard counsel for the parties.

The counsel for the petitioner states that the accused has no criminal history.

The learned counsel for the bail petitioner submits that the investigator while conducting checking of the bus noticed the petitioner seating on Seat

No.25 holding a bag in his hand. On getting suspicious that this bag contained some contraband, he associated driver and conductor of the bus as

witnesses. In the presence of witnesses, the investigator conducted search of the bag and found the contraband mentioned above. Mr. Vishal Bindra,

learned counsel for the petitioner argues that this is unusual for any person to keep on holding the bag while sitting in the bus and further there is no

witness, who noticed the petitioner holding the bag. Learned counsel for the petitioner further argues that investigation is silent about that how many

seats were adjacent to Seat No. 25 and whether it was a window seat or aisle. He further submits that the inventory prepared later on creates a

serious doubt in the prosecution case. The contentions of learned counsel for the petitioner are that appreciation of evidence, which is a subject matter

of trial and at the time of bail.

On the other hand Mr. Ashwani K. Sharma, learned Additional Advocate General assisted by Ms. Divya Sood, learned Deputy Advocate General,

contends that the burden is on the accused to satisfy this Court about the quantity involved is commercial, and restrictions of S. 37 of the NDPS Act,

which he failed to do so and do not entitle the accused for bail. They further contended that the burden is on the accused to satisfy the twin conditions

of S. 37 of NDPS Act, which he has failed to discharge.

The decision of this Court in Satinder Kumar v. State of H.P., Cr.MP(M) No. 391 of 2020, decided on 4th Aug 2020, covers the proposition of law

involved in this case.

S. 37 of the NDPS Act implies that the accused should satisfy its twin conditions and come out clean. In the bail petition, the petitioner is silent and

his only contention is that he has been falsely roped in, but does not offer any reasons for such implication. Ld. Counsel offered some explanations, but

it is impermissible to make such submissions in the absence of similar pleadings. The burden shifts on the petitioner to prove his lack of knowledge and

possession over the alleged contraband. Thus, the petitioner has failed to make out a case for bail.

Any detailed discussions about the evidence may prejudice the case of the prosecution or the accused. Suffice it to say that due to the reasons

mentioned above, and keeping in view the nature of allegations, no case for bail is made out in favour of the petitioner.

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 the above reasoning, in my considered opinion, no case for bail is made out at this stage. Resultantly, the present petition stands dismissed.

All pending applications, if any, stand closed.

Petition dismissed.