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2020 DIGILAW 637 (HP)

Tara Chand v. State of H. P.

2020-09-23

ANOOP CHITKARA

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JUDGMENT : Anoop Chitkara, J. 1. An under-trial prisoner, in custody from 29.7.2020, has come up before this Court under Section 439 of the Code of Criminal Procedure, 1973 (Cr.PC), seeking bail, under Section 20 & 29 of Narcotic Drugs, and Psychotropic Substances Act, 1985 (NDPS Act), for abetting possession of 4.100 kilograms of Charas (Cannabis). 2. The police arrested the petitioner, in FIR No. 107 of 2020, dated 05.07.2019, registered under Sections 20, 29 of the NDPS Act, in Police Station, Patlikuhal, District Kullu, Himachal Pradesh, disclosing cognizable and non-bailable offenses. 3. I have read the status report(s) and heard learned counsel for the parties. 4. The gist of the Prosecution's case is that on 4th July 2020, the Police nabbed one person named Vinay Kumar and from his possession recovered 4.100 kilograms of charas. After his arrest, the police interrogated him and he revealed to the police that he had purchased this charas from Tara Chand, petitioner herein. After obtaining call details, the police arraigned, the petitioner as an accused. 5. The counsel for the petitioner states that the accused has no criminal history. 6. Mr. Yashveer Singh, learned counsel for the petitioner has also argued that the accused was not present at the spot and the only evidence available against him is call details, which alone cannot be construed as sufficient evidence to refuse bail. He further submits that the police do not get any details of money transaction between the accused and the petitioner. He further submits that the overall investigation itself is shady, being without any time, place and other facts. 7. On the contrary, Mr. Nand Lal Thakur, learned Additional Advocate General submits that there was so many calls between the accused and other persons, but they did not arraigned them as accused, because the accused are a part of drug mafia. This shows the bonafide on the part of the prosecution. The petitioner has not attributed any malafide against the police officials, as such, there is no reason for the police to falsely implicate the petitioner. Learned Additional Advocate General further submits that the quantity involved is commercial, and restrictions of Section 37 of the NDPS Act do not entitle the accused for bail. He further contended that the burden is on the accused to satisfy the twin conditions of Section 37 of NDPS Act, which he has failed to establish. 8. Learned Additional Advocate General further submits that the quantity involved is commercial, and restrictions of Section 37 of the NDPS Act do not entitle the accused for bail. He further contended that the burden is on the accused to satisfy the twin conditions of Section 37 of NDPS Act, which he has failed to establish. 8. The decision of this Court in Satinder Kumar v. State of H.P., Cr.MP(M) No. 391 of 2020, decided on 4th Aug 2020, covers the proposition of law involved in this case, wherein this Court has held that Satisfying the fetters of Section 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 Section 37 of NDPS Act. 9. The contentions made by learned counsel for the petitioner are dealt with in the following seriatim: (a) The arguments that the entire case of the prosecution appears to be shady, flimsy and without any reference to time, place and other facts have any bearings on the bail petition, unless the main accused gets bail. It is not the case of the petitioner that the main accused stands released on bail. (b) The next argument is that there are only call details allegedly obtained by the investigator between the petitioner and the main accused and call details alone are not sufficient in the absence of other material. The answer to this contention lies in the fact that the petitioner has been arraigned as accused with the aid of Section 29 of the NDPS Act, which is in the nature of criminal conspiracy. The mafias work in a clandestine manner and once there is a call detail and investigator attributes the calls for conspiracy attracting Section 29 of NDPS Act, the burden is on the accused to repel the same. (c) Learned counsel further contends that there is no other evidence qua the nature of transaction. The answer lies in the fact that online or internet transactions happen only in legal contracts and not in illegal. It is common knowledge that cash transaction takes the majority shares of overall transactions. Thus, it is not for this Court to presume such transactions at pre-evidence stage. 10. The answer lies in the fact that online or internet transactions happen only in legal contracts and not in illegal. It is common knowledge that cash transaction takes the majority shares of overall transactions. Thus, it is not for this Court to presume such transactions at pre-evidence stage. 10. Given above, the call details between the petitioner and the accused itself is sufficient to arrive at a conclusion that the petitioner is not entitled to bail. Resultantly, the present petition stands dismissed. 11. Any detailed discussions about the evidence may prejudice the case of the prosecution or the accused. Suffice it to say that due to the reasons mentioned above, and keeping in view the nature of allegations, no case for bail is made out in favour of the petitioner. 12. Any observation made hereinabove is neither an expression of opinion on the merits of the case, nor shall the trial Court advert to these comments. Petition dismissed.