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2014 DIGILAW 1364 (HP)

Sunil Kumar v. State of H. P.

2014-09-26

SURESHWAR THAKUR

body2014
JUDGMENT : - Sureshwar Thakur, J (oral) The instant application has been filed under Section 439 Cr.P.C. The bail applicant is undergoing judicial detention for his having allegedly committed offence under Sections 21,22 & 29 of NDPS Act, 1985 in pursuance to FIR No. 51 of 2013 of 8.12.2013 lodged in Police Station, Nerwa, District Shimla. H.P. The learned Deputy Advocate General was previously directed to place on record an appropriate report divulging the factum of the weight of each of the items in the haul of contraband/psychotropic substances, allegedly recovered from the exclusive and conscious possession of the bail applicant, so as to constitute theirs falling within the category of more than small quantity, less than commercial quantity or commercial quantity. The said report has been placed on record. A perusal thereof discloses that the weight of the entire haul of the bottles of REXCOF syrup recovered from the purported conscious and exclusive possession of the bail applicant renders the said item to fall within the category of commercial quantity. However, it is also divulged therein that the weight of the other item of contraband, in as much, as, the weight of codeine renders, it to fall in the category of more than small and less than commercial quantity. In the face of it having remained established by the prosecution at this stage, that even if a part of or some item constituting the entire haul aforesaid rendered it to fall within the category of commercial quantity and the weight of the other item comprising the entire haul constituted it to fall in the category of less than commercial quantity, nonetheless the entire haul irrespective of a part thereof not falling in the category of commercial quantity, is, to be reckoned with, for determining whether the rigor of Section 37 of the NDPS is or is not attracted for denying or affording bail to the bail applicant, as segregation of the weights of the different items of contraband/psychotropic substance jointly comprising the entire haul recovered from the conscious and exclusive possession of the accused may be impermissible at this stage. Moreso, when the distinct weights of two separate items of contraband/psychotropic substance recovered from the alleged conscious and exclusive possession of the bail applicant would lead to absurd results inasmuch, as, even when the weight of one of the items comprising the entire haul may sequel an inference of bail being grantable to the bail-applicant, yet the weight of the other item in the haul would forbid this Court in according the facility of bail to the bail applicant. To obviate the above absurdity, it is ordered that given the fact of the weight of one of the items of contraband/psychotropic substance comprised in the entire haul allegedly recovered from the conscious and exclusive possession of the bail applicant, falling in the category of more than commercial quantity, hence when it attracts the rigor of Section 37 of NDPS Act, regardless of the fact that the weight of the other item comprised in the haul of contraband/ psychotropic substance recovered from his alleged conscious and exclusive possession does not attract the rigor of Section 37 of the NDPS Act, as such, the bail application merits dismissal. It is made clear that any expression made hereinabove shall have no bearing on the merits of the main case.