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Satisfying the Fetters of Section 37 of the NDPS Act is Candling the Infertile Eggs: High Court of Shimla

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. This honorable judgement was passed by the High Court of Shimla in the case of Surender Kumar Versus State of H.P. [Cr. MP(M) No. 675 of 2021] by The Hon’ble Mr. Justice Anoop Chitkara.

An under-trial prisoner, for possessing commercial quantity of Charas, has come up before this Court under Section 439 of CrPC, seeking bail. The petitioner had filed a petition under Section 439 CrPC before this Court. However, vide order, the same was dismissed. The petition was silent about criminal history. The allegations against the petitioner are that on, the Police officials, had erected a Nakka at a place known as Vindravani on National Highway No.21 and were checking the vehicles. One car came, which was signaled to stop. Five youth were sitting in this Car. When the Police officials asked the driver to show the documents, he failed to produce either the documents of the vehicle or the driving licence. It raised a suspicion that vehicle may be of theft. Its prima facie made the investigator to believe that the vehicle is a stolen property and they are concealing something. Then, with a view to search the vehicle, the investigator associated two local witnesses and also called an automobile mechanic. The cover of the front left door was found to have not been properly fixed. When raised, the police could notice some packet inside. After that they removed the cover of the left door and inside noticed brown coloured packets. On opening the same, it had Charas, which when weighed on electronic scale measured 3 kilogram 285 grams. Thereafter the police conducted other procedural requirements under NDPS Act and Cr.PC and arrested the accused.

The learned council referred the case of Chuni Lal v. State of H.P., Beli Ram v. State of Himachal Pradesh, and Sanjay Kumar v. State of Himachal Pradesh, and Satinder Kumar versus State of H.P., covers the proposition of law involved in this case, wherein this Court has held that, “Satisfying the fetters of S. 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 S. 37 of NDPS Act.”

The petition was dismissed stating that, “The case of the petitioner is on different footings. He was the person having the keys of the vehicle and thus had dominion and control over the same. Other persons may not be aware that what was concealed by the person who had the keys of the vehicle. As such the accused is not entitled to bail. There is no changed circumstances, which would entitled the petitioner to file the present petition after the dismissal of his bail petition.”

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