Satisfying the Fetters of Section 37 of the NDPS Act is Candling the Infertile Eggs: High Court of Shimla

 Hig h C o urt of H.P on 08 04 HCHP 1 IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLACr. MP(M) No. 6721Reserved on: 7th April 2021.Date of Decision: 08th April 2021.Surender Kumar ...Petitioner.VersusState of H.P. ...Respondent.Coram:The Hon’ble Mr. Justice Anoop Chitkara Judge.Whether approved for reporting 1 NO For the petitioner:Mr. Yashveer Singh Rathore Advocate. For the respondent:Mr. Rajat Chauhan Law Officer. FIR No.DatedPolice StationSections62 1823.2.2018Sadar Mandi DistrictMandi20 & 29 NDPS Act and 181M.V. ActAnoop Chitkara Judge. An under trial prisoner in custody since 23rd February 2018 for possessingcommercial quantity of Charas has come up before this Court under Section 439 ofCrPC seeking bail.2.Earlier the petitioner had filed a petition under Section 439 CrPC before thisCourt. However vide order dated 04.02.2021 the same was dismissed.3.The petition is silent about criminal history however Mr. Yashveer SinghRathore learned Counsel for the bail petitioner states on instructions that thepetitioner has no criminal past relating to the offences prescribing sentence of sevenyears and more or when on conviction the sentence imposed was more than threeyears. The status report also does not mention any criminal past of the accused.4.Briefly the allegations against the petitioner are that on 23rd February 2018 the Police officials of the Police Station mentioned above had erected a Nakka at aplace known as Vindravani on National Highway No.21 and were checking the1Whether reporters of Local Papers may be allowed to see the judgment Hig h C o urt of H.P on 08 04 HCHP 2 vehicles. At around 10.00 a.m. one car came from the Pandoh side which wassignaled to stop. Five youth were sitting in this Car. When the Police officials askedthe driver to show the documents he failed to produce either the documents of thevehicle or the driving licence. It raised a suspicion that vehicle may be of theft. Thepolice inquired from them about the ownership of the car but they could not give anysatisfactory reply. It prima facie made the investigator to believe that the vehicle is astolen property and they are concealing something. Then with a view to search thevehicle the investigator associated two local witnesses and also called an automobilemechanic. The owner revealed his name as Surender Kumarand the personssitting on the rear seat as Vijay BharatVikram Singhand AmarNo.17520 and Sanjay Kumarv. State of Himachal Pradesh CrMPM 21720.6.Mr. Rajat Chauhan Law Officer submits they do not intend to file the statusreport because the entire facts have already been mentioned in the order passed bythis Court in Cr. MP(M) No. 321 and other requisite documents are part of thepetitioner. Therefore this Court had observed that the status report was not requiredto be filed. He further submits that the Police have collected sufficient evidenceagainst the accused which prima facie points out towards his involvement. He alsocontended that the quantity involved is commercial and restrictions of S. 37 of theNDPS Act do not entitle the accused for bail. While opposing the bail the alternative Hig h C o urt of H.P on 08 04 HCHP 3 contention on behalf of the State is that if this Court is inclined to grant bail such abond must be subject to very stringent conditions. 7.The decision of this Court in Satinder Kumar versus State of H.P. Cr.MP(M)No. 3920 decided on 4th Aug 2020 covers the proposition of law involved inthis case wherein this Court has held that Satisfying the fetters of S. 37 of the NDPSAct is candling the infertile eggs. The ratio of the decision is that to get the bail incommercial quantity of substance the accused must meet the twin conditions of S.37 of NDPS Act.8.Learned counsel for the petitioner has placed reliance on the judgment videwhich the Supreme Court had released one of the accused Amit Kumar Moniwho was sitting on the front left seat and the charas was recovered from front leftwindow i.e. adjacent to him. The order of Hon’ble Supreme Court passed inCriminal appeal No.6620 reads as follows:“Leave granted. This appeal challenges the order dated 10.07.2020 passed by theHigh Court of Himachal Pradesh Shimla in Crl. M.P.No.1107 of2020. The appellantis facing prosecution in Case No.135of 2018 on the file of the Special Judge II District Mandi HimachalPradesh in connection with crime registered pursuant to FIR No.62 dated23.02.2018 with Police Station Sadar Mandi District Mandi HimachalPradesh for the offences punishable under Sections 20 and 29 of theNarcotic Drugs & Psychotropic Substances Act 1985. The application preferred by the appellant for release on bailunder Section 439 of the Code of Criminal Procedure 1973having been rejected by the High Court the appellant haspreferred this appeal. According to the case of the prosecution in a vehicle occupied byfive persons including the appellant contraband materialJudge.April 08 2021 (ps). 

Summary: The ratio of the decision is that to get the bail in commercial quantity of substance, the accused must meet the twin conditions of Section 37 of NDPS Act. This honorable judgement was passed by the High Court of Shimla in the case of Surender Kumar Versus State of H.P. [Cr. MP(M) No. 675 of 2021] by The Hon’ble Mr. Justice Anoop Chitkara. An under-trial prisoner, for possessing commercial quantity of Charas, has come up before this Court under Section 439 of CrPC, seeking bail. The petitioner had filed a petition under Section 439 CrPC before this Court. However, vide order, the same was dismissed. The petition was silent about criminal history. The allegations against the petitioner are that on, the Police officials, had erected a Nakka at a place known as Vindravani on National Highway No.21 and were checking the vehicles. One car came, which was signaled to stop. Five youth were sitting in this Car. When the Police officials asked the driver to show the documents, he failed to produce either the documents of the vehicle or the driving licence. It raised a suspicion that vehicle may be of theft. Its prima facie made the investigator to believe that the vehicle is a stolen property and they are concealing something. Then, with a view to search the vehicle, the investigator associated two local witnesses and also called an automobile mechanic. The cover of the front left door was found to have not been properly fixed. When raised, the police could notice some packet inside. After that they removed the cover of the left door and inside noticed brown coloured packets. On opening the same, it had Charas, which when weighed on electronic scale measured 3 kilogram 285 grams. Thereafter the police conducted other procedural requirements under NDPS Act and Cr.PC and arrested the accused. The learned council referred the case of Chuni Lal v. State of H.P., Beli Ram v. State of Himachal Pradesh, and Sanjay Kumar v. State of Himachal Pradesh, and Satinder Kumar versus State of H.P., 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.”