Sanjeev Kumar vs State Of H.P

Anoop Chitkara, J

The petitioner, incarcerating upon his arrest for possessing commercial quantity of 1 Kg 855 gram Charas has come up before this Court under

Section 439 of CrPC, seeking regular bail.

Earlier, the bail petitioner had filed the following bail petitions:

(a) Bail application i.e. CNR No. HPKU01-00001-2021, titled as Sanjeev Kumar Vs. State of HP was filed before the Court of learned Special

Judge-I, Kullu and the same stood dismissed on 15.1.2021.

(b) Bail application i.e. Cr.MP(M) No. 127 of 2021, titled as Sanjeev Kumar Vs. State of HP was also filed before this Court and the same stood

dismissed vide order dated 4.2.2021.

(c) Thereafter bail application i.e. Cr.MP(M) No. 631 of 2021 was also filed by the same petitioner and the same was dismissed as withdrawn.

In Para 4 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 20.12.2020 police party of the aforesaid Police Station were patrolling within their

jurisdiction to detect the crime of intoxicants. At around 3:30 am (night time), when the Investigator reached at a spot known as ‘Khaladanala’

bridge near ‘Shishamati’, then two persons were walking on the road. On seeing them, the Investigator asked the driver to stop the vehicle.

After that the Investigator inquired from these two persons of their wandering at such mid night. On this, both of them became perplexed. One person

was carrying a hand bag, who tried to conceal it behind him. The Investigator asked him about the bag and about his name, on which the said person

told his name as Inder Dev, whereas the other person told his name as Sanjeev Kumar. When the Investigator asked them why in Covid19 pandemic

they are walking at such odd hours, then they could not give any satisfactory answer. It raised suspicion in the mind of the Investigator and he decided

to conduct search of the bag. Because the time was odd, as such despite efforts the Investigator could not associate independent witnesses and

conducted search in presence of the police officials. From the bag which was carried by accused Inder Dev, police recovered contraband, which

when weighed, the same was found to be 1.855 Kg Charas. After that the police party complied with all procedural requirements of NDPS Act and

Cr.PC and arrested the accused persons. 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. C.S. Thakur, learned counsel for the petitioner argued that the accused arraigned simply because of call details between him and co-accused

Manjeet juvenile offender, who is on bail. Learned counsel for the petitioner further submitted that the call details between Sanjeev Kumar and

Manjeet were due to the reason that they belong to the same school and were quite close. To prove this, he has annexed school leaving certificates of

Manjeet and Sanjeev Kumar. A perusal of school leaving certificates, Ext. P-1 reveals that petitioner Sanjeev Kumar had studied in Government

Higher School, Falan from 7th April, 2012 to 31st March, 2015. The other accused Manjeet had also studied in the same school w.e.f. 24th June, 2014

till 31st March, 2017. Given above, both of them were together in the same school from 24th June, 2014 till 31.3.2015. Thus even if there were call

details between them, it is quite possible that they were calling in normal course being schoolmates. However, burden on the petitioner Sanjeev Kumar

was not just the call details but he was arrested along with main accused Inder Dev from whose possession, the police party had recovered 1 kg 855

gram of charas. Although accused Inder Dev was carrying charas in his hand but on seeing the police party, both of them got perplexed. On the basis

of call details, the police party arrested another accused person. Investigation revealed that they had purchased charas from juvenile offender. Even if

petitioner Sanjeev Kumar has come out of call details and has explained the same but still his presence with Inder Dev is prima facie proved by

photographs which form part of the challan. A perusal of the bail petition does not point out that petitioner was not present there at the spot.

Accordingly, the reverse burden is on the accused. Thus given the commercial quantity involved, the rigors of Section 37 of the NDPS Act is on the

accused to at least explain that what was he doing with the main accused at such odd hours during lockdown. Although this Court is satisfied about

the call details between Manjeet and petitioner but due to his presence with main accused at odd hours, this Court is not satisfied that there are

reasonable grounds for giving him bail as he was not guilty of such offence. However, the petitioner may file a fresh petition placing better particulars

so as to discharge the burden and make this court believe that he was not guilty of such offence so as to comply with the mandate of Section 37 of the

NDPS Act.

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 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 1 kilogram 855 gram, 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 1 and half year

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.