Petitioner sought bail for NDPS offence involving small quantity of drug. Court held Section 37 rigors not attracted and granted bail subject to personal bond and conditions.
Petitioner released on bail subject to furnishing personal bond of `50,000/- with one surety in like amount.
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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr. MP(M) No. 464 of 2017
Decided on: 22nd May, 2017
__________________________________________________________________ Mukesh Kumar ....Petitioner.
Versus
State of Himachal Pradesh. …Respondent.
Coram
The Hon’ble Mr. Justice Chander Bhusan Barowalia, Judge. Whether approved for reporting?1 No.
| For the petitioner: | Mr. H.S. Rana and Mr. Amrinder Singh Rana, Advocates. |
|---|---|
| For the respondent: | Mr. Virender K. Verma, Addl. AG, with Mr. Pushpinder Jaswal, Dy. AG. |
| ASI Rattan Singh, I.O. Police Station Nalagarh, Baddi, District Solan, H.P. |
Chander Bhusan Barowalia, Judge (oral).
The present bail application has been maintained by the petitioner under Section 439 of the Code of Criminal Procedure seeking his release in case FIR No. 138 of 2016, dated 26.07.2016, under Section 21 of the Narcotic Drugs & Psychotropic Substances, Act (hereinafter referred to as “NDPS Act”), registered at Police Station Nalagarh, District Solan, H.P.
1 Whether reporters of Local Papers may be allowed to see the judgment?
and neither in a position to tamper with the prosecution evidence nor in a position to flee from justice, so he may be released on bail.
Conversely, the learned Additional Advocate General has argued that the petitioner has committed a serious offence and in case he is enlarged on bail he may again indulge in such kind of activities and may also tamper with the prosecution evidence, so he prayed that the bail application of the petitioner may be dismissed.
Mehboob Khan 2013(3) Himachal Law Report (FB) 1834, a larger Bench of this Court, in a case of recovery of charas, has held that presence of tetrahydrocannabinol and cystolithic reveals that sample contains the resin contents and as such, sufficient to hold that the sample is of charas . The resin obtained from the cannabis plants may be in ‘crude’ or ‘purified’ form and charas is hand made drug made from the extract of cannabis plant.
Therefore, any mixture with or without any neutral material of any of the forms of the cannabis is to be considered as a contraband article. However, in the case in hand, whether the remaining contents of ‘Corex’ have also to be treated as codeine phosphate or not need further consideration and as such it is not deemed appropriate to go to this aspect of the matter at this stage and rather the same is left open to be considered at an appropriate stage during the course of trial. The facts however, remain that the present is a case of recovery of narcotic drug, i.e., codeine phosphate 4 grams, which is small quantity and as such, rigors of Section 37 of the NDPS Act, which is extracted hereunder for the sake of convenience, are not attracted in the case in hand:
“[37. Offences to be cognizable and non-bailable.-
committed, is not only against an individual, but against the society as a whole, however, he is yet to be tried and if found to
have committed the alleged offence to be dealt with in accordance with law. The petitioner is 40 years of age, having two school going children, and there is possibility that he was carrying the contraband for his own use.
Copy dasti.
(Chander Bhusan Barowalia) 22nd May, 2017 Judge
(virender)
2 issues framed by the court
Whether the rigorous provisions of Section 37 of the NDPS Act apply given the quantity of drugs recovered was small.
Whether bail should be granted considering the petitioner is a local resident in judicial custody for over nine months.
Colour shows how this judgement treated each authority
Sunil Kumar vs. State of H.P.Followed¶22
Cr.MP(M) No. 499 of 2017, Sunil Kumar vs. State of H.P.
State of Himachal Pradesh vs. Mehboob KhanReferred¶24
State of Himachal Pradesh vs. Mehboob Khan 2013(3) Himachal Law Report (FB) 1834
3 provisions across 2 enactments
Mukesh Kumar
State of Himachal Pradesh
Chander Bhusan Barowalia
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
