Diwan Chand vs State Of H.P
2021 Latest Caselaw 845 HP

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

Cr.MP(M) No.70 of 2021

.

                                             Reserved on: 19.01.2021





                                             Date of Decision: 04.02.2021





    Diwan Chand                                                 ...Petitioner

                              Versus

    State of H.P.                                           ...Respondent

    Coram:

The Hon'ble Mr. Justice Anoop Chitkara, Judge.

Whether approved for reporting?1NO

_____________________________________________________________

For the petitioner: Mr. Manoj Pathak, Advocate.

For the respondent: Mr. Ajay Vaidya, Senior Additional

Advocate General with ,Mr. Bhupender Thakur & Mr. Gaurav Sharma, Deputy Advocates General, and Mr. Rajat

Chauhan, Law Officer.

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        FIR     Dated           Police Station                 Sections
        No.
        108     12.10.2020      Kumarsain, District 20 and 29 of
                                Shimla, H.P.        NDPS Act.

    Anoop Chitkara, Judge.

The petitioner, incarcerating upon his arrest has

come up before this Court under Section 439 CrPC, for selling

Whether reporters of Local Papers may be allowed to see the judgment?

commercial quantity of charas to the main accused from whose

possession the Police had recovered it, has come up before this

.

Court under Section 439 of CrPC, seeking bail.

2. Earlier, the petitioner had filed a petition under

Section 439 CrPC before the concerned Sessions Court.

However, vide order dated 11.11.2020, Ld. Special Judge-II,

Kinnaur at Rampur, HP, dismissed the petition. The petitioner

had again filed another bail petition before this Court, however,

the same was withdrawn by him with liberty to file fresh one, if

so advised.

3. The bail petition is silent about criminal history,

however, Mr. Manoj Pathak, Ld. 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.

4. Briefly, the allegations against the petitioner are that

on 12.10.2020, the investigator of Special Investigating Unit was

on patrolling duty and was also checking traffic towards Fagu-

Theog-Narkanda-Kumarsain-Rampur. In the morning, at 9:50

a.m., he noticed one Bolero vehicle coming from Rampur

towards Shimla. The investigator signaled the driver to stop the

vehicle. Police made inquiries from him about the purpose of

.

his travel, but he became perplexed and could not give

satisfactory reply, which led to his possessing some contraband.

After that, the investigator associated two local persons as

witnesses and conducted further inquiry and the said persons

revealed his name as Raj Kumar. During search of the vehicle,

charas. to below the driver seat, police recovered one bag, which contained

When the same weighed on electronic scale, it

measured 2.058 Kg. After that, the investigator conducted

procedural requirements of NDPS act and Cr.P.C and arrested

the accused. He prepared a Rukka, which led to registration of

FIR mentioned above. During interrogation of Raj Kumar, police

came to know about the involvement of bail petitioner, Diwan

Chand and, thus, he added Section 29 of the Act and arrested

the petitioner. The police obtained call details and came to

know that both the accused had talked to each other on 11th

and 12th October, 2020. The CDRs revealed that calls were

exchanged between phone Nos.........040 of Raj Kumar and

.........291 of Diwan Chand. The report of the laboratory test

opined the substance to be charas. Police prepared the challan

and filed the same in the Court on 04.01.2021. Based on these

allegations, the Police registered the FIR mentioned above.

.

5. Ld. Counsel for the petitioner contends that 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.

6. On the contrary, arguments for State are that the

Police have collected sufficient evidence by tracing frequent calls

made by the bail petitioner, the main accused, and the seller of

charas, which prima facie points out towards his involvement.

He also contended that the accused has yet not discharged the

presumption under S. 35 of NDPS Act, and further that the

quantity involved is commercial, and restrictions of S. 37 of the

NDPS Act do not entitle the accused for bail. The further

contention for the State is that offence is heinous, accused is a

risk to law-abiding people, and bail is likely to send a wrong

message to the society.

.

7. Learned counsel for the petitioner has based his

arguments on the status report. Given the fact that

prosecution was launched only on 4th January, 2021 by filing

report under Section 173(2) of Cr.P.C. As such, in all

probabilities, the petitioner would not have received the same.

Due to Covid pandemic, this Court does not think appropriate

to call the police file and let the accused obtain his documents

under Section 207 of Cr.P.C, if not already obtained. The

arguments addressed are only superfluous and do not make out

a case to satisfy the conditions of Section 37 of NDPS Act.

8. 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.

9. The contention that confessional statement of the co-

accused is hit by S. 25 & 26 of Indian Evidence Act, is well

.

founded. Ld. Additional Advocates General have failed to point

out towards any incriminating evidence against the accused

except the allegations of co-accused.

10. S. 37 of the NDPS Act implies that the accused

should satisfy its twin conditions and come out clean. The

confessional statement of one of the accused is legally

insufficient to deny bail to the other accused, in the absence of

any other incriminating evidence or allegations. Thus, the

petitioner has satisfied the first condition. To take care of the

second condition, the petitioner pleaded in Para 3(ix) of bail that

he has no criminal history. The State also does not dispute it.

To take care of the second condition, stringent conditions would

suffice.

11. 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.

12. 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.

13. 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.

Anoop Chitkara, Vacation Judge.

February 4, 2021 R.Atal