Sarwan vs State Of H.P

Anoop Chitkara, J

The petitioner, incarcerating upon his arrest has come up before this Court under Section 439 CrPC, for possessing commercial quantity of 1.154

kilograms Charas, has come up before this Court under Section 439 of CrPC, seeking bail.

A perusal of the petition reveals that the petitioner straightaway filed the bail petition before High Court, which is permissible given the decision of a

three Judges’ Bench of HP High Court, in Mohan Lal v Prem Chand, AIR 1980 HP 36, (Para 9 & 15), wherein the Full Bench holds that a

person can directly apply for an anticipatory bail or regular bail to the High Court without first invoking the jurisdiction of the Sessions Judge.

In Para 17 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 25th August, 2020, a police team were patrolling in their jurisdiction. At around 11:55 pm,

when they reached near Wool Federation Gate at Holta, then they noticed two vehicles parked over there. The cabin lights of the said vehicles were

switched on. The police officials came near the vehicles and then they noticed one vehicle i.e. Maruti bearing registration No. HP02K-1661 was

without any occupants, whereas in other vehicle i.e. EON bearing registration No. HP76-3352, four persons were sitting on it. The police official

inquired from them for the reasons for sitting in the car at such late hours. None of them was able to give a satisfactory reply. On inquiry, they

revealed their names as Lal Singh (A-2), who was sitting on the driver seat, Sarwan (A-1), who was sitting on the front left seat, Sher Singh (A-3)

and Kishan Chand (A-4), who were sitting on the back seat. The Investigator had acquired reasons to believe that these persons might be in

possession of some contraband or stolen property. Upon this, he sent one of the police official to look independent witness. On the arrival of the

independent witness, the police officials conducted search of the car. From the front left seat there was a rucksack bag and the Investigator checked

it. The Investigator was able to recovered Charas, which when weighed with electronic scale it was found 1.154 kilogram Charas. After that the

police officials arrested all the accused persons. Subsequently, the Investigator conducted procedural requirements under NDPS and Cr.PC and also

conducted other investigation. 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:

The quantity of charas allegedly recovered from the petitioner is 1.154 kilograms, 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 three years 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.

Learned counsel for the petitioner relying upon para-6 of the petition argued about the innocence of the petitioner Kishan Chand. It would be

appropriate to reproduce para-6 of the petition, which is extracted as follows:

“That the story of the prosecution is totally false and without any basis. It is submitted that the petitioner by occupation is doing the work of

extraction of Gum resin (Biroja). In fact petitioner along with Sher Singh and Kishan Chand went to Palampur to meet contractor in vehicle No.

HP02K-1661 Maruti, which belongs to Sher Singh and while returning from Palampur the petitioner saw some altercation was taking place between

Lal Singh and some other persons at Palampur Bazaar and as such since he was known to petitioner being the resident of same area and as the

petitioner intervene in the matter and thereafter some police personnel came on the spot and this false case was fastened upon the petitioner and

occupant of the vehicle No. HP02K-1661 Maruti. It is further submitted that nothing has been recovered from the vehicle No. HP02K- 1661 Maruti

and a false story has been concocted against the petitioner. The applicant can never afford to commit such kind of offence.â€​

That the plea taken by the petitioner needs to be proved by preponderance of probability. During examination of the witnesses, the petitioner has not

annexed any complaint filed about false implication nor has made out any other grounds to come out of rigors of Section 37 of the NDPS Act.

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.