Tara Chand vs State Of Himachal Pradesh

Anoop Chitkara, J

An under-trial prisoner, has come up before this Court under Section 439 of the Code of Criminal Procedure, 1973 (CrPC), seeking bail, under Sections 20, 29 of Narcotics Drugs and Psychotropic Substances Act, 1985 (NDPS Act), for abetting to possessing 4 kilograms and 100 grams of charas (Cannabis).

The police arrested the petitioner, in FIR No.107 of 2020, dated 5.7.2020, registered under Sections 20, 29 of the NDPS Act, in Police Station, Patlikuhal, District Kullu, Himachal Pradesh, disclosing cognizable and non-bailable offences.

The petitioner's criminal history relating to the offences prescribing sentence of greater than seven years of imprisonment or when on conviction, the sentence imposed was more than three years: The contents of the petition and the status report do not reveal any criminal history.

Briefly, the allegations against the petitioner are that on 4.7.2020, the police recovered 4 kilograms and 100 grams of charas (Cannabis) from Vinay Kumar. After his arrest, when he was interrogated, then the Investigator came to know about the involvement of the present bail petitioner. Further investigation revealed the telephonic communication between the petitioner and Vinay Kumar during the same time when Vinay Kumar was in possession of the said Charas. After that, the police arrested the bail petitioner with the aid of Section 29 of the NDPS Act.

The Counsel for the petitioner contends that further incarceration before the proof of guilt would cause grave injustice to the petitioner and family, and contends that the allegations are false and concocted.

While opposing the bail, the contention on behalf of the State is that the quantity involved is commercial, and restrictions of S. 37 of the NDPS Act do not entitle the accused for bail, and the burden is on the accused to satisfy the twin conditions of S. 37 of NDPS Act, which he has failed to establish.

Pre-trial incarceration needs justification depending upon the offense's heinous nature, terms of the sentence prescribed in the statute for such a crime, probability of the accused fleeing from justice, hampering the investigation, criminal history of the accused, and doing away with the victim(s) and witnesses. The Court is under an obligation to maintain a balance between all stakeholders and safeguard the interests of the victim, accused, society, and State. However, while deciding bail applications, the Courts should discuss evidence relevant only for determining bail. The difference in the order of bail and final judgment is similar to a sketch and a painting. However, some sketches are in detail and paintings with a few strokes.

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.

The contention that confessional statement of the co-accused is hit by S. 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 S. 37 of NDPS Act. However, the investigation points out towards calls made to the petitioner, during the same time when the substance was being transported. 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.

S. 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.

Petition dismissed.