Surender Kumar vs State Of H.P

Anoop Chitkara, J

An under-trial prisoner, in custody since 23rd February, 2018, for possessing commercial quantity of Charas, has come up before this Court under

Section 439 of CrPC, seeking bail.

Earlier, the petitioner had filed a petition under Section 439 CrPC before the concerned Sessions Court. However, vide order dated 12.11.2020,

learned Special Judge, Mandi dismissed the petition.

The petition is silent about criminal history, however, Mr. S.K. Banyal, learned Counsel for the bail petitioner states on instructions that the

petitioner has no criminal past relating to the offences prescribing sentence of seven years and more, or when on conviction, the sentence imposed

was more than three years. The status report also does not mention any criminal past of the accused.

Briefly, the allegations against the petitioner are that on 23rd February, 2018, the Police officials of the Police Station mentioned above, had erected

a Nakka at a place known as Vindravani on National Highway No.21 and were checking the vehicles. At around 10.00 a.m. one car came from the

Pandoh side, which was signaled to stop. Five youth were sitting in this Car. When the Police officials asked the driver to show the documents, he

failed to produce either the documents of the vehicle or the driving licence. It raised a suspicion that vehicle may be of theft. The police inquired from

them about the ownership of the car, but they could not give any satisfactory reply. It prima facie made the investigator to believe that the vehicle is a

stolen property and they are concealing something. Then, with a view to search the vehicle, the investigator associated two local witnesses and also

called an automobile mechanic. The owner revealed his name as Surender Kumar (A-1). The person sitting on the front seat revealed his name as

Amit Singh Moni (A-2) and the persons sitting on the rear seat as Vijay Bharat (A-3), Vikram Singh (A-4), and Amar (A-5). The cover of the front

left door was found to have not been properly fixed. When raised, the police could notice some packet inside. After that they removed the cover of

the left door and inside noticed brown coloured packets. On opening the same, it had Charas, which when weighed on electronic scale measured 3

kilogram 285 grams. 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.

Learned counsel for the bail 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.

Learned Deputy Advocate General submits that the Police have collected sufficient evidence against the accused, which prima facie points out

towards his involvement. He also contended that the quantity involved is commercial, and restrictions of S. 37 of the NDPS Act do not entitle the

accused for bail. While opposing the bail, the alternative contention on behalf of the State is that if this Court is inclined to grant bail, such a bond must

be subject to very stringent conditions.

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.

Learned counsel for the petitioner has placed reliance on the judgment, vide which the Supreme Court had released one of the accused Amit

Kumar Moni (A-2), who was sitting on the front left seat and the charas was recovered from front left window i.e. adjacent to him. The order of

Hon’ble Supreme Court, passed in Criminal appeal No.668 of 2020, reads as follows:

“ Leave granted.

This appeal challenges the order dated 10.07.2020 passed by the High Court of Himachal Pradesh, Shimla in Crl. M.P. (M) No.1107 of 2020.

The appellant (accused no.2) is facing prosecution in Case No.135 of 2018 on the file of the Special Judge-II, District Mandi, Himachal Pradesh in

connection with crime registered pursuant to FIR No.62 dated 23.02.2018 with Police Station Sadar Mandi, District Mandi, Himachal Pradesh, for the

offences punishable under Sections 20 and 29 of the Narcotic Drugs & Psychotropic Substances Act, 1985.

The application preferred by the appellant for release on bail under Section 439 of the Code of Criminal Procedure, 1973 (‘the Code’, for short)

having been rejected by the High Court, the appellant has preferred this appeal.

According to the case of the prosecution, in a vehicle occupied by five persons including the appellant, contraband material (“Charasâ€) weighing

3285 grams was found concealed behind the panel of the front left side door of the vehicle.

It is accepted that seven witnesses have already been examined in the trial and seven more witnesses are yet to be examined. The last witness was

examined in February 2020 whereafter there is no further progress in the trial because of the COVID-19 pandemic situation. It is also accepted that

the appellant was taken in custody on 23.02.2018 and, as such, he has completed more than 2 years 7 months of actual custody.

Considering the facts and circumstances on record, in our view, the appellant is entitled to the benefit under Section 439 of the Code. We order

accordingly.

The appellant shall be produced before the Trial Court within three days from today and the Trial Court shall release him on bail, subject to such

conditions as the Trial Court may deem appropriate to impose to ensure his presence and participation in the pending trial.

We may also observe that since seven witnesses have already been examined, the Trial Court shall conclude the trial as early as possible. With the

aforesaid observations, the appeal is allowed.â€​

The case of the petitioner is on different footings. He was the person having the keys of the vehicle and thus had dominion and control over the

same. Other persons may not be aware that what was concealed by the person who had the keys of the vehicle. As such the accused is not entitled

to bail.

Given above, this petition is dismissed. However, keeping in view the fact that the case is pretty old, this Court requests learned Sessions Judge to

expedite the trial on priority basis.

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 dismissed.