Tara Chand v. State of H.P

The Hon(cid:146)ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting?1 For the petitioner : Mr. Ajay Kochhar, Advocate. For the Respondent : Mr. A.K.Bansal, Addl. Advocate General. Kuldip Singh, Judge (oral). Heard and gone through the record.

This is an application, under Section 439 of the Code of Criminal Procedure, for releasing the petitioner on bail in case FIR No. 17, dated 19.1.2006, registered at Police Station, Kumarsain, under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short, the Act).

The prosecution case against the petitioner is that on

19.1.2006, charas weighing 1.500 Kilograms was recovered from the bag which the petitioner was carrying and accordingly FIR No. 17 was registered at Police Station, Kumarsain on 19.1.2006. The petitioner Whether the reporters of the local papers may be allowed to see the Judgment? (cid:133)2(cid:133) is in custody since 19.1.2006. The next date of hearing is fixed on

22.4.2008 in the court below. It is also the prosecution case that petitioner had brought 1.500 kilograms charas from co-accused Gobind Ram, who has absconded and till now could not be arrested, though he has been declared proclaimed offender.

The learned counsel for the petitioner has submitted that petitioner is in custody since 19.1.2006. As per allegations against the petitioner, 1.500 kilograms charas was recovered from him. The Chemical Examiner in his report found 34.78% resin in the recovered stuff and, therefore, resin content in the recovered stuff is less than one kilogram, which is not commercial quantity and, therefore, rigour of Section 37 of the Act is not applicable for releasing the petitioner on bail. The learned counsel has relied Dharam Pal vs. State of H.P. Latest HLJ 2007 (HP) 827 and order dated 3.9.2007 of this court passed in Cr.M.P. (M) No. 589 of 2007. He has prayed for releasing the petitioner on bail. The learned Additional Advocate General has submitted that even if rigour of Section 37 of the Act is not applied at this stage, still the petitioner is not entitled to bail in the facts and circumstances of the present case. He has submitted that simply because Section 37 of the Act is not applicable that does not mean the petitioner is entitled to bail automatically. In the present case, it has come in investigation that petitioner has arranged 1.500 kilograms contraband from co-accused Gobind Ram, who has absconded and has been declared as proclaimed offender. The possibility cannot be ruled out that in case the petitioner is released on bail he will indulge in purchasing and selling of charas again (cid:133)3(cid:133) surreptitiously. The impact of offence is to be seen on the society also. The quantity recovered from the petitioner is quite large, which fact cannot be ignored. Dharam Pal(cid:146)s case (Supra), was decided on merits and in Cr.M.P.(M) No. 589 of 2007, the recovery was made from the person of a woman. The bail application of Gobind Ram, under Section 438 Cr.P.C. has been rejected by this court on

10.2.2006. Prima-facie, case under Section 20 of the Act has been made out against the petitioner, which is a serious offence and therefore, the petitioner is not entitled to bail.

I have considered the respective contentions of the learned counsel appearing for the parties. The learned counsel for the petitioner has submitted that for granting bail to the petitioner, rigour of Section 37 of the Act is not applicable, therefore, the petitioner is entitled to bail more particularly when he is in custody since 19.1.2006. The petitioner is involved in a serious case. The co- accused Gobind Ram has absconded. However, fact remains that large quantity of contraband weighing 1.500 kilograms was recovered from the petitioner and even if as per the contention of learned counsel for the petitioner, the recovered stuff is considered less than the commercial quantity, in that case also the punishment for such type of offence is imprisonment for a term which may extend to ten years and fine which may extend to rupees one lac. The possibility cannot be ruled out that petitioner will indulge in similar type of offence, if released on bail. The co-accused Gobind Ram has not been arrested till now. The cases under the Act are increasing, which (cid:133)4(cid:133) affect the society. Therefore, keeping in view the seriousness of the case, the petition is rejected.

Any observation made herein above shall not be construed as an expression of opinion on the merits of the case. March 25, 2008. (Hem) ( Kuldip Singh ) Judge.