HP HC | Exclusive and conscious possession of contraband substance under NDPS Act can be a deterring ground for grant of bail; petition dismissed

Himachal Pradesh High Court: Chander Bhusan Barowalia J., while rejecting the present petition observed that the ingredients of Section 37 NDPS Act seem to be adequately met in the given factual matrix and, “Therefore, the present is not a fit case where the judicial discretion to admit the petitioner on bail is required to be exercised in his favour.”

 The present bail application has been maintained by the petitioner under Section 439 of the Code of Criminal Procedure seeking his release under Sections 20, 25 and 29 of the NDPS Act. As per the case of the petitioner, he is innocent and been falsely implicated in the present case. Neither is he in a position to tamper with the prosecution evidence nor in a position to flee from justice. Therefore, no fruitful purpose will be served by keeping him behind the bars for an unlimited period, so he be released on bail.

It is submitted by the counsel for the State, S.C. Sharma, Additional Advocate General with Kuldeep Thakur, Deputy Advocate General, that the petitioner was caught red-handed in exclusive and conscious possession of a huge quantity of charas. In case he is enlarged on bail, the petitioner may flee from justice or tamper with the prosecution evidence, as the trial is yet to begin.

The Court discussed the rationale of Mohan Lal v. State of Punjab, (2018) 17 SCC 627, and emphasized how it cannot find relevance in the present facts and circumstances. The Court observed, “True it is that there is presumption of innocence until a person is held guilt and the prosecution cannot be allowed to rest its case on preponderance of probabilities. However, for grant of bail each case has to be examined on vital contours, viz., to secure the presence of the accused for trial, his being in a position to tamper the prosecution evidence, his chances of fleeing etc. and this list of contours can be stretched depending upon facts and circumstances of each case.”  Acknowledging the fact that the contraband was obtained from the floor of the car the Court said, “There is reasonable apprehension that the petitioner was well aware qua the contraband, its quantity and it being transported in the said car, thus he had active role in the commission of the offence, being accomplice of co-accused.”

While rejecting the bail application, the Court said that there exists a prima facie case against the petitioner and the co-accused and allowing the bail application may have serious implication upon fair trial and justice. The Court found conscious possession of contraband substances, an essential ground for disallowing the same.[Pradeep Kumar v. State of Himachal Pradesh,  2020 SCC OnLine HP 2222, decided on 02-11-2020]


Sakshi Shukla, Editorial Assistant has put this story together

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