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2017 DIGILAW 218 (HP)

Veerdeen @ Biru v. State of Himachal Pradesh

2017-03-21

DHARAM CHAND CHAUDHARY

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Dharam Chand Chaudhary, J. (Oral) Heard further. 2. The petitioner, who is an accused in a case registered against him under Section 15 of the NDPS Act vide FIR No. 39/17 in Police Station, Haroli, District Una, H.P., had approached the Court of learned Special Judge, Una by filing an application under Section 438 of the Code of Criminal Procedure for the grant of pre-arrest bail. Learned Special Judge after having taken note of the facts of the case and the manner in which poppy husk weighing 18.140 Kgs. was allegedly recovered from his possession has dismissed the application on the ground of maintainability and also on merits. Learned Special Judge after having taken note of the law laid down by a Co-ordinate Bench of this Court in Rakesh Kumar @ Kukka V. State of H.P. 2003 Cri.L.J. 3503 has held that in view of the provisions contained under Section 37 of the NDPS Act, an application under Section 438 of the Code of Criminal Procedure is not maintainable. 3. The allegations against the accused-petitioner, in a nut-shell, are that on 12.02.2017, when search of the cow-shed of the accused-petitioner situated near Bolewal chowk was conducted, poppy husk weighing 18.140 Kgs was recovered therefrom. Therefore, a case under Section 15 and 25 of the Narcotic Drugs and Psychotropic Substances Act (hereinafter referred to as the ‘NDPS Act’) has been registered against the accused-petitioner. 4. The rigor of Section 37 of the Act in the matter of grant of bail, against an offender are attracted only in a case where an offender is booked for the commission of offence punishable under Section 19 or Section 24 or 27(a) and also the offences involving commercial quantity under the Act. The present is not a case of commission of offence by the accused-petitioner either under Section 19 or 24 or Section 27(a) of the Act and for that matter even in a case involving recovery of commercial quantity for the reason that the poppy husk weighing 18.140 kgs allegedly recovered from the accused is not commercial quantity but intermediatory i.e. above smaller quantity and less than commercial quantity. Therefore, perhaps the ratio of the judgment of a Co-ordinate Bench of this Court in Rakesh Kumar @ Kukka (supra) is not attracted in the given facts and circumstances of this case nor the rigor of Section 37 of the NDPS Act applicable. Therefore, perhaps the ratio of the judgment of a Co-ordinate Bench of this Court in Rakesh Kumar @ Kukka (supra) is not attracted in the given facts and circumstances of this case nor the rigor of Section 37 of the NDPS Act applicable. Otherwise also, a Division Bench of the Gauhati High Court in Baljit Singh V. State of Assam, 2004(3) Crimes 433, has held that the Act nowhere exclude the maintainability of an application under Section 438 of the Code of Criminal Procedure in a case registered under the provision thereof and has taken a view of the matter that an application filed under Section 438 of the Code of Criminal Procedure by the accused booked for the commission of the offence under the NDPS Act is maintainable. Even as per the provisions contained under Section 37 of the Act in the matter of bail and bonds the provisions in the Code of Criminal Procedure are applicable. The question of maintainability of this application as raised by learned Additional Advocate General hardly carries any force. Any how, since no such issue is involved in the case in hand, therefore, this aspect of the matter is left open to be considered in an appropriate case if came for consideration before this Court. 5. So far as the case in hand is concerned, the poppy husk has been recovered from a ‘Barra’ (kachha structure) allegedly cow-shed of the accused-petitioner. It may not be appropriate to make any observation qua the manner and place from where the contraband allegedly poppy husk has been recovered as in that event prejudice is likely to be caused to the case of either party. However, suffice would it to say that when seven criminal cases are/were registered against him in the recent past and present is the 8th one for the commission of various offences under the Indian Penal Code and also Indian Forest Act, Excise Act as well as the NDPS Act, the present is not a case where the pre-arrest bail should be granted to him. Rather in order to take the investigation to its logical end, his custodial interrogation is required. The application, as such, is dismissed.