Hukum Chand vs State Of H.P
2021 Latest Caselaw 2879 HP

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.MP(M) No. 867 of 2021 Reserved on: 25.05.2021

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                                                           Date of Decision: 31.05.2021





    Hukum 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: Ms.Anubhuti Sharma, Advocate.

For the respondent: Mr. Nand Lal Thakur, Additional Advocate General.

                            THROUGH VIDEO CONFERENCE


        FIR No.     Dated        Police Station                        Sections




        264         28.11.2017   Manali, District Kullu, H.P.          20 of NDPS Act





    Anoop Chitkara, Judge.

The petitioner, incarcerating upon his arrest has come up before this

Court under Section 439 CrPC, for possessing 3.924 kilograms of charas, which is a commercial quantity, has come up before this Court under Section 439 of CrPC, seeking bail.

2. A perusal of the petition reveals that the petitioner straightaway filed the bail petition before High Court, which is permissible given the decision of a three Judges Bench of HP High Court, in Mohan Lal v Prem Chand, AIR 1980 HP 36, (Para 9 & 15), wherein the Full bench holds that a person can directly apply for an

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

anticipatory bail or regular bail to the High Court without first invoking the jurisdiction of the Sessions Judge.

3. In Para 4 of the bail application, the petitioner declares having no

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criminal history. The status report also does not mention any criminal past of the

accused.

4. Briefly, the allegations against the petitioner are that on 28.11.20217,

police officials were patrolling in their jurisdiction. At about 1:00 p.m., they noticed a person walking and carrying a rucksack. On seeing the police, he became perplexed and on inquiry, he revealed his name as Hukum Chand, petitioner herein. On seeing

his facial expression of the person, SHO raised suspicion that he might be carrying some stolen articles or contraband. They tried to search for independent witnesses, but none was present there. Subsequently, on checking the bag, it was found to be containing charas, which when weighed on electronic scale, it measured 3.924 Kg.

After completing procedural requirement under NDPS Act, police arrested the

accused. Based on these allegations, the Police registered the FIR mentioned above.

5. Ld. Counsel for the petitioner submits that the evidence collected against the petitioner is legally inadmissible.Ld. Counsel for the petitioner further

contends that the petitioner is a first offender and in custody for three and a half years. The incarceration before the proof of guilt would cause grave injustice to the

petitioner and family.

6. On the contrary, the State contends that the Police have collected

sufficient evidence. Further, the quantity involved is commercial, and S. 37 of the NDPS Act's restrictions do not entitle the accused to bail. The accused has yet not

discharged the presumption under S. 35 of the NDPS Act. The crime is heinous, the accused is a risk to law-abiding people, and bail might send a wrong message to society.

REASONING:

7. The quantity of charas allegedly recovered from the petitioner is 3.924 kilograms, and thus falls in the category commercial quantity. The petitioner has not stated anything to discharge the rigors of S. 37 of NDPS Act. The stand that the accused is in custody for more than three years is also not a legal ground to overcome the rigors of S. 37 of NDPS Act. Given above, in the facts and circumstances peculiar to this case, at this stage, the petitioner fails to make out a

case for bail.

8. Learned counsel argued that, as per newspaper reports, the State of Himachal Pradesh is legalizing cannabis (Charas), subject to the rules and

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regulations to be framed in this regard. The petitioner may explore what benefits

such rules, regulations, and the policy change might apply to the persons involved in the commercial quantity of charas (Cannabis). The policy change may open new

possibilities for bail to the persons involved in the commercial quantity of charas (Cannabis) by making out the new grounds for bail. Thus, it shall be open for the petitioner to file a new bail petition pointing out the new grounds in the changed

scenario if it happens. Since the petition is skeleton, as such the petitioner may also file a new bail petition, if so advised.

9. 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 with liberty as mentioned above.

Anoop Chitkara, Judge.

May 31, 2021

(R.Atal)