Sunil Kumar v. State of Himachal Pradesh

Hon(cid:146)ble Mr.Justice S.S.Thakur ,J. Whether approved for reporting1? No For the petitioner : Mr. M.S. Chandel, Advocate with Mr. N.S. Chandel, Advocate. For the respondent : Mr. J.S. Guleria, Law Officer. ___________________________________________________________ Surinder Singh, J, (oral) The instant application has been moved under Section 439 of the Code of Criminal Procedure for enlarging the petitioner on bail. The petitioner was arrested in F.I.R. No. 32 of 2006 dated

11.5.2006 registered with Police Station Nirmand, under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 for allegedly keeping in his possession 1 Kg 500 grams of charas. Presently, the petitioner is lodging in judicial lock-up. The sample of the recovered quantity was drawn and sent as per procedure to C.T.L. Kandaghat which contained 34.07 % of resin which in the opinion of the Chemical Examiner, the exhibit contained the contents of charas. Thus, the total quantity of the resin in the total recovered substance comes to about 512 grams. There is Whether the reporters of local newspapers are allowed to see the Judgment? Yes. no mention in the report regarding the other substance which means that was a neutral substance. In Dharam Pal v State of Himachal Pradesh (Latest HLJ (2007) 827), the Division Bench of this Court has held that it is the quantity of resin which is to be taken while considering the question of (cid:145)small(cid:146) or (cid:145)commercial quantity(cid:146).

In E. Micheal Raj v. Intelligence Officer Narcotic Control Bureau (2008 Cr.L.J. 225), the Supreme Court has held that when any narcotic drug or any psychotropic substance is found mixed with one or more neutral substance, for the purpose of imposition of punishment it is the content of narcotic drug and psychotropic substance which shall be taken into consideration. Thus, the purity of the substance is not irrelevant and in the present case, the resin content is only 512 grams as aforesaid in the whole stuff recovered which falls under the definition of (cid:145)charas(cid:146) and is more than the (cid:145)small quantity(cid:146) but less than the (cid:145)commercial quantity. The rigor of Section 37 (1) (b) is only applicable to the (cid:145)commercial quantity(cid:146) and not to the quantity if it is more than (cid:145)small quantity(cid:146) and less than (cid:145)commercial quantity(cid:146).

Since the petitioner was found in possession of the contents of charas less than the commercial quantity, his case is required to be dealt with under the general provisions of Bail provided under the Code of Criminal Procedure. Learned Law Officer has objected to the bail of the petitioner on the ground that in case the petitioner is enlarged on bail, he will not be available to face the trial as he is resident of Haryana and may not turn up to face the trial. But while granting the bail the objection raised by learned Law Officer shall be taken care of by imposing the conditions to secure his presence during the trial. Therefore, keeping in view the facts and circumstances of the case and the quantity involved, the petitioner is hereby enlarged on bail on his furnishing bail bonds to the tune of rupees 50,000/- with one surety in the like amount to the satisfaction of Judicial Magistrate Rampur, in addition, the petitioner shall also deposit the cash security of rupees 30,000/- with the said Court . This bail is subject to the further following conditions :- a) b) That the petitioner shall make himself available during the trial of the case; He shall not tamper with the prosecution evidence in any manner and shall also not mis-use the liberty of the bail in any manner. The application is accordingly disposed of. Dasti order. September 11, 2008. (bm) (Surinder Singh) Judge.