Himachal Pradesh High Court
____________________________________________________________________ vs Narcotics Control Bureau on 7 January, 2021
Bench: Anoop Chitkara
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr.MP(M) No. 2077 of 2020
Date of Decision: 7th Jan, 2021.
.
____________________________________________________________________
Dev Raj ...Petitioner.
Versus
Narcotics Control Bureau, Chandigarh ...Respondent.
Coram:
The Hon'ble Mr. Justice Anoop Chitkara, Judge.
Whether approved for reporting?1 No
For the petitioner:
r to
Ravi Tanta, Advocate
For the respondent: Mr. Ashwani Pathak, Sr. Advocate assisted by Mr. Sandeep
Sharma, Advocate.
THROUGH VIDEO CONFERENCE
FIR No. Dated Police Station Sections
66/2019 7.11.2019 NCB, Chandigarh 8, 18, 20, 25, 28, 29
and 60
Anoop Chitkara, Judge.
An under-trial prisoner, in judicial custody since 2.7.2020 for selling 8.750 Kgs
of Charas, which is commercial quantity and 1.020 Kgs of Opium, who has been
arraigned as an accused, 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 12.11.2020, Ld. Special Judge,
Nalagarh, District Solan, HP, dismissed the petition because the accused is a habitual
offender.
3. The bail petition is silent about criminal history.
Whether reporters of Local Papers may be allowed to see the judgment?
4. Briefly, the allegations against the petitioner are that on 7.11.2019 the
Intelligence officer of the Narcotics Control Bureau received secret information that
two persons namely Kuldeep and Hardeep are in possession of huge consignment of
.
contraband and are on the way to deliver the same to a person namely Karamveer
Singh. The information further revealed that they are carrying a contraband in a
Mahindra pickup No.HP12J-4403. After that, the police traced the said vehicle and
recovered 8.750 Kgs of charas and 1.020 Kgs of opium from a special cavity
designed in the vehicle. The police, after conducting the procedural requirements of
NDPS Act and CrPC, registered the aforesaid FIR.
5. During investigation, the Intelligence Officer, NCB, Chandigarh was able to
trace the call details of Dev Raj, the bail petitioner as well as the three accused
persons Kuldeep, Hardeep and Karamveer.
6.
Mr. Ravi Tanta, 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 Satish Kumar v State of HP, CrMPM 299 of 2020;
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. He further argues that although the Intelligence Officer
had collected all the information in the month of December, 2019, but they arrested
the petitioner only on 2.7.2020, which shows that they were never interested to
arrest the petitioner. He further contends that the call details between the petitioner
and the third accused Karamveer Singh were in the course of regular business. He
has drawn the attention of this Court to the pleadings and an application supported
by various bills in this regard.
7. On the contrary, Mr. Ashwani Pathak learned senior Advocate assisted by Mr.
Sandeep Sharma, Advocate, submits that the Intelligence Officers 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.
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.
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. Reasoning: Since the petitioner has been arrested with the aid of Section 29 of
the NDPS Act, which is in the nature of criminal conspiracy and participation in
crime, the investigator has collected sufficient call details between the bail petitioner
and the main accused from his mobile No.xxxxx67931. The explanation, which the
petitioner is offering is that the call details were in connection with the business.
However, the fact remains that the recovery was made from a specially designed
secret chamber of the vehicle and the vehicle was regularly used in connection with
the business activities of the petitioner. Thus, the petitioner has failed to discharge
the burden as contemplated in Section 37 of NDPS Act.
12. 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.
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)
Judge.
Jan 7, 2021 (mamta)
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