IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
ON THE 1st DAY OF SEPTEMBER, 2021
.
BEFORE
HON'BLE MR. JUSTICE VIVEK SINGH THAKUR
CRIMINAL MISC. PETITION (MAIN) No.1578 OF 2021
Between:-
LAVKESH KUMAR (AGED ABOUT
38 YEARS),
S/O SHRI CHAMAN LAL,
R/O HOUSE NO. 302, NEEM WALA
VEHRA, NEAR HATHI GATE,
AMRITSAR, PUNJAB
....PETITIONER
(BY SH. MALAY KAUSHAL ADVOCATES)
AND
STATE OF HIMACHAL PRADESH
...RESPONDENT
(BY SHRI YUDHVIR SINGH THAKUR, DEPUTY ADVOCATE
GENERAL)
(ASI PRADEEP KUMAR I.O.P.S. TISSA IS PRESENT)
Whether approved for reporting?
This petition coming on for orders this day, the Court passed the following:
ORDER
Petitioner has approached this Court seeking regular bail under Section 439 Cr.P.C. in case FIR No. 4 of 2021, dated 10.01.2021, registered in Police Station Tissa, District Chamba under Sections 20, 25, 29 of Narcotic Drugs and Psychotropic Substances Act (in short 'NDPS Act').
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2. Status report stands filed wherein circumstances have been detailed in which petitioner was found in possession of 1.874 .
Kg. charas at Kaphadi Moad near Chanju road, in a remote area of District Chamba.
3. Learned counsel for petitioner has placed on record the disability certificate issued by Office of Civil Surgeon, Amritsar wherein petitioner has been shown 75% disabled, but, the nature and kind of disability has not been specified in the certificate and at the top of certificate, a stamp has been affixed declaring that "not valid for Court purpose".
4. It is also an admitted fact that petitioner is resident of Amritsar (Punjab) and he has been arrested by police in a remote area of District Chamba at Kaphadi Moad near Chanju road, falling in the area of Tissa, which is about 300 Km. away from the place of residence of petitioner. There is nothing on record about purpose of visit of petitioner to such a remote area in Himachal Pradesh.
5. Learned counsel has submitted that considering exceptions provided under Section 437 Cr.P.C., in favour of person under age of 16 years, women, sick or infirm, petitioner is entitled for bail notwithstanding provisions contained in Section 37 of NDPS Act.
6. Learned counsel for petitioner has also placed a reliance on judgment passed by Single Bench of Allahabad High Court in case Prem Narain Sharma vs. State of U.P., (1992(2) CCR 2066) ::: Downloaded on - 31/01/2022 22:59:29 :::CIS 3 wherein after referring the pronouncement of Apex Court in Narcotic Control Bureau vs. Kishan Lal and others (AIR 1991 .
SC 558) it has been observed that first proviso to Section 437 Cr.P.C., enabling an infirm person to be entitled to bail does apply to person seeking bail, who is accused under NDPS Act inspite of limitation contained under Section 37 of NDPS Act.
7 The Supreme Court in Kishan Lal's case referred supra,
8
r to
has observed that power to grant bail under Section 439 Cr.P.C. is subject to the limitation contained in Section 37 of NDPS Act.
I am also of considered opinion that no straight-jacket formula can be formulated for applying the exceptions of Section 437 Cr.P.C. in the cases related to NDPS Act including the cases covered under Section 37 of NDPS Act. Every case is to be decided on its own facts and merits.
9 In present case, keeping in view the nature and gravity of offence, place where petitioner was apprehended, period of detention of petitioner, the quantum of contraband recovered from petitioner and veracity of document, produced before me, with respect to disability, at this stage, I do not find it a fit case for exercising the discretion to grant the bail to petitioner by applying the exceptions provided under first proviso of Section 437 Cr.P.C.
Therefore, petition is dismissed.
September 01,2021 (Vivek Singh Thakur)
(ms) Judge
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