The Himachal Pradesh High Court has held that the certificate issued by the Magistrate under Section 52A of the NDPS Act has to be considered primary evidence of the Narcotics.
The bench of Justice Rakesh Kainthla has observed that there is a variation in the quantity of the charas. The seizure memo shows that 1.175 kgs of charas was recovered. The order of the Magistrate shows that the quantity of charas was found to be 1.142 kilograms, whereas the result of analysis shows the quantity of charas was 1.116 kilograms. Therefore, the integrity of the case property is not established.
The bench stated that the prosecution case cannot be doubted due to the variation in the quantity. It will be open to the prosecution to explain the variation while leading the evidence.
The petitioner has filed the present petition for seeking regular bail. It has been asserted that the petitioner was arrested vide FIR No. 208/2023, dated 28.06.2023, registered for the commission of an offence punishable under Section 29 of the Narcotic Drugs and Psychotropic Substances Act (NDPS Act) at Police Station Kullu, District Kullu.
The petitioner is in judicial custody in District Jail Mandi. The police have filed the charge sheet before the learned Trial Court after the completion of the investigation. As per the prosecution, the recovery of the contraband was effected from the co-accused.
The petitioner did not know that the co-accused had contraband in his bag. The police had not collected the call detail records or the banking transaction to connect the petitioner with the co-accused. The petitioner is the sole breadwinner of the family. He has been in custody for more than 15 months.
The charge sheet has been filed before the Court, and no fruitful purpose would be served by detaining the petitioner in custody. The petitioner would abide by all the terms and conditions, which the Court may impose; hence, the petition.
The petition is opposed by filing a status report asserting that the police party was on patrolling duty on 28.06.2023 at Badogi Footpath. They found two persons sitting on the water tank at about 4:30 pm. One person had kept a carry bag on his lap, and the other person had kept his arm on the former.
HC Ram Chander enquired about the names and addresses of those persons. They questioned the authority of HC Ram Chander to enquire about their names and addresses. HC Ram Chander showed his identification document and revealed that he was a police official. Both persons attempted to run away. The police apprehended both persons. One person revealed his name as Nived (the present petitioner), and the other person revealed his name as Cijo Pee Anjit.
The police checked the carry bag in the presence of Tehal Singh and Constable Ajay Kumar and found 1.175 kgs of charas and 58 grams of ketamine in it. The police seized the charas and the ketamine and arrested the petitioner and the co-accused.
Charas and ketamine were sent to FSL, and as per the result, the charas was confirmed to be an extract of cannabis and a sample of charas, whereas ketamine was found to be a sample of starch, which was not covered under the NDPS Act. The police filed the charge sheet on 31.10.2023. Out of 17 witnesses, Nine witnesses have been examined, and the matter is listed for prosecution evidence on 27.12.2024; hence, the status report.
The court held that the prosecution has collected sufficient material to show the involvement of the petitioner with the commission of the crime, and it cannot be said that there is no reasonable ground to connect him with the commission of crime. Further, there is nothing on record to show that the petitioner is not likely to commit the same offence in case of release on bail. Therefore, he has failed to satisfy the twin conditions laid down under Section 37 of the NDPS Act and is not entitled to bail.
Case Details
Case Title: Nived Lal Versus State of Himachal Pradesh
Case No.: Cr.MP(M) No. 2394 of 2024
Date: 27.12.2024
Counsel For Petitioner: Yuyutsu Singh Thakur
Counsel For Respondent: Lokender Kutlehria
