Shashi Kumar vs State Of H.P

Anoop Chitkara, J

 1. The petitioner, incarcerating upon his arrest for possessing commercial quantity of Codine Phosphate, has come up before this Court under

Section 439 of CrPC, seeking bail.

Earlier, the petitioner had filed following bail petition(s) under Section 439 CrPC:

a). Bail Application filed before the Court Special Judge-II, Sirmour at Nahan was dismissed by the said Court vide order dated 21.8.2020.

b). Cr.MP(M) No. 1900 of 2020, filed by the petitioner was dismissed by this Court vide order dated 4.2.2021.

(c) Cr.MP(M) No.746 of 2021, filed before this Court was withdrawn by the petitioner vide order dated 23.4.2021.

In Para 9 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 6th April, 2020, the police officials were conducting patrolling in their jurisdiction in a private

Car. At 5.15 p.m., when the police officials reached at a place known as Rampurghat, they received a secret information that two persons are coming

on a motorcycle bearing registration No.UK16A-9615, black coloured Splender, towards Rampurghat. The informant further revealed that the driver

of the motorcycle is Shashi Kumar wearing particular clothes and the pillion rider is Irshad. The informant specifically said that in between these two

persons there is a bag, in which there is psychotropic substance. The informant also told that they are out for delivery and in case they are not nabbed,

it would not be possible for the Police to recover the contraband. The investigator believed the information to be correct and complied requirement of

Section 42 of the NDPS Act. After that he associated two local persons as witnesses and waited for the motorcycle to come. At about 6.00 p.m., the

said motorcycle arrived and its rider on seeing the police became perplexed, however, the police officials were prepared and they nabbed them. On

inquiry, the driver of the motorcycle revealed his name as Shashi Kumar, petitioner herein and the pillion rider as Irshad. The police also noticed a bag

lying in between them. On opening it had 15 bottles of Chlorpheniramine maleate and codiene Phosphate syrup. Thereafter the police conducted other

procedural requirements under NDPS Act and Cr.PC and arrested the accused. 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. He also places reliance upon the

decisions of this Court in Budhi Singh v. State of H.P., CrMPM 595 of 2020; Rehmat Ali v. State of Himachal Pradesh, Cr.MP(M) No.203 of 2019,

Naveen Bura v. State of HP, 2018 Law Suit (HP) 478, Thakur Dass v. State of H.P., CrMPM 167 of 2010; Stynder Singh v. State of Himachal

Pradesh, 2010(1) SimLC 490, and Nisar Ahmed Thakkar v. State of H.P., CrMPM 672 of 2008.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.

Another argument on behalf of the State is that the accused is a proven habitual offender. The crime is heinous, the accused is a risk to law-abiding

people, and bail might send a wrong message to society.

Counsel for the petitioner has also made several other arguments. Still, given that this Court is not inclined to grant bail, on the reasons mentioned

above, discussion of the same will be an exercise in futility. Any detailed analysis of the evidence may prejudice the case of the prosecution or the

accused.

Given above, in the facts and circumstances peculiar to this case, at this stage, the petitioner fails to make out a case for bail. The petition is

dismissed with liberty to file a new bail application.

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.

The petition is dismissed.