Prem Singh vs State Of Himachal Pradesh

Anoop Chitkara, J

An under-trial prisoner, in custody since 15.12.2019, has come up before this Court under Section 439 of the Code of Criminal Procedure, 1973 (Cr.PC), seeking bail, under Section 20 of Narcotics Drugs and Psychotropic Substances Act, 1985 (NDPS Act), for possessing 2.369 kilograms of Charas (Cannabis).

The police arrested the petitioner, in FIR No.346 of 2019, dated 11.12.2019, registered under Sections 20, 29 of the NDPS Act, in Police Station Sundernagar, District Mandi, Himachal Pradesh, disclosing cognizable and non-bailable offenses.

The petitioner had also filed a bail petition (being Cr.MP(M) No.115 of 2020), earlier before this Court, which was disposed of vide order dated 30.5.2020.

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

The gist of the First Information Report and the status report is that on Dec 11, 2019, a Police party was conducting patrolling and traffic checking at a place known as Pungh within the jurisdiction of Police Station Sundernagar, Distt. Mandi, HP. During day time at around 2 O'clock, one bus bearing Punjab registration number, came from Sundernagar side, and it was bound from Manikaran to Chandigarh. Head Constable Lalit Kumar signaled the driver of the bus to halt on which he stopped the bus and parked it on the side. After that, the police started conducting checking the bus, and when they reached near seat No. 25, then they noticed that a person sitting on seat No. 25 was holding a back-pack on his lap. The police officials asked the said person to get his bag checked, and on this, he became perplexed and stated that there was nothing in his bag. This aroused suspicion in Head Constable Lalit Kumar's mind that this person might be having some articles of theft. After that, the police inquired from the passengers sitting in the adjoining seats, but all of them refused to associate as witnesses. Subsequently, the police associated the bus driver and the conductor as witnesses and, in their presence, inquired from the said person about his name, who revealed his name as Kuldeep Kaushik, resident of Rohtak Haryana. On checking the bag, police recovered Charas which, when weighed, measured 2.369 kilograms. Subsequently, the police party seized the contraband, complied with the procedural requirements under the NDPS Act, and the CrPC and arrested the said person, namely Kuldeep Kaushik. The Forensic Science Report tested the said substance to be cannabis.

After the arrest of Kuldeep, Kaushik police conducted his interrogation. He revealed to the police that he had befriended one Lalit @ Shivnath Baba in Rohtak Math. He also told that he, along with Lalit @ Shivnath Baba, would smoke cannabis, after now called as 'charas'. Two-three months ago, he said that Baba had visited Himachal Pradesh and told Kuldeep Kaushik that he had befriended one who smokes marijuana, and the said person had told Shivnath Baba that in case he needs charas then he would arrange for the same. On Dec 5/6, 2019, the said Shivnath @ Baba had called Kuldeep Kaushik on his mobile phone and asked him to bring rupees 1.5 to 2 lacs to purchase charas.

On Dec 10, 2019, said Kuldeep Kaushik reached Bhuntar along with the money and said Lalit @ Shivnath Baba was also there. They talked to each other on the phone and decided the place to meet each other. After the meeting, the said Lalit @ Shivnath Baba made a phone call to Prem Singh (petitioner herein) on his Mobile No. 88948 49311 from his Mobile No. 86838 12506. Prem Singh told Lalit @ Shivnath that he could not come on that day. Consequently, both Lalit @ Shivnath and Kuldeep Kaushik stayed in a hotel at Bhuntar.

On Dec 11, 2019, said Shivnath Baba again made a phone call to Prem Singh, and on this Prem Singh told him that he is reaching Bhuntar in his car bearing No. HP49A 0837. On reaching there, he took Lalit @ Shivnath Baba and Kuldeep Kaushik in his vehicle towards a place known as Ropa. On reaching Ropa, Prem Singh made a phone to Nika Ram on his Mobile No. 9816607114 and asked him to bring the cannabis. After some time, said Nika Ram reached Ropa and sat inside the car mentioned above.

After that, inside the car of Prem Singh (petitioner), the said Nika Ram negotiated sale of the Charas to him and agreed to sell the same for a sum of rupees 1.49 lacs. Subsequently, on payment of the amount, Nika Ram handed over the Charas to Prem Singh. On receiving the money, Prem Singh took out rupees eight thousand as his commission and also gave rupees two thousand to Lalit @ Shivnath as his commission. Subsequently, all these four persons reached near Ropa bus stand where Prem Singh (petitioner) dropped Lalit @ Shivnath and Kuldeep Kaushik near the bus stand Ropa and himself along with Nika Ram proceeded further towards Sainj.

On reaching the bus stand, Ropa, Lalit @ Shivnath, and Kuldeep Kaushik boarded a private bus and arrived towards Aut where Kuldeep got down from the bus, and Lalit @ Shivnath went in the different direction.

The police procured the call details of these phone numbers and found that there were telephonic conversations between them. The police could not arrest Nika Ram and consequently moved an application under Section 82 CrPC for declaring him as a Proclaimed Offender.

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

The learned counsel for the bail petitioner submits that he has been arraigned as an accused on the basis of confessional statement of the co-accused, which is inadmissible for the reasons that it is hit by Sections 25 & 26 of Indian Evidence Act. He further submits that the allegations of phone calls between the petitioner and another accused is bereft of any merits because the said sim was not issued in the name of the other accused. His next contention is that as per the case of the prosecution, all the accused were together, but the call details show their presence at different location.

On the contrary, Ld. Additional Advocates General submitted that the quantity involved is commercial, and restrictions of Section 37 of the NDPS Act do not entitle the accused for bail. She further contended that the burden is on the accused to satisfy the twin conditions of Section 37 of NDPS Act, which he has failed to establish.

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, wherein this Court has held that Satisfying the fetters of Section 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 Section 37 of NDPS Act.

The contention that confessional statement of the co-accused is hit by Sections 25 & 26 of Indian Evidence Act, is well founded. However, the Investigator has collected other evidence against the accused/petitioner. Thus, it is to be seen that the petitioner makes out a case even qua this part and satisfies the rigors of Section 37 of NDPS Act. Qua the other submissions, suffice to say that it is matter of trial to establish that who was using the phone from which the calls were made to the petitioner. Furthermore, the location of mobile would also depend upon the mobile services being used, and because of the distance in location of some towers, there is nothing to presume that the location has to be accurate. Thus, the prosecution has established a prima facie case against the accused. Consequently, the burden shifts on the petitioner, which at this stage, he has failed to explain.

Section 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. 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.