JATIN SALWAN Vs. STATE OF U.T., CHANDIGARH

JUDGEMENT

(1.) By filing this petition, under Sec. 439 of the Code of Criminal Procedure, the petitioner seeks grant of regular bail in FIR No.83 dated 16.06.2016 registered under Sections 18 and 29 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (for short "the NDPS Act") and Sec. 489-C and 120-B Penal Code at Police Station Maloya, U.T., Chandigarh.

(2.) Learned Amicus Curiae submits that the investigation of the case in hand has been fairly conducted. There is no attempt by the police to frame the petitioner in this case. However, he submits that in law, the only offence which appears to have been made out against the petitioner is under Sec. 58(2) of the NDPS Act. By no stretch of imagination, the offence under Sec. 18 per se or read with Sec. 29 of the NDPS Act, or Sections 107 or Sec. 120-B Penal Code is made out. For invoking the offence under Sec. 489-C IPC, there should be clear and cogent evidence which is missing in this case. It is further contended that the term "possession" used in Sec. 489-C Penal Code has wide connotation. The possession should be conscious. He further refers to Sec. 58(2) of the NDPS Act and states that since the offence is punishable with imprisonment upto two years, so, the petitioner deserves the grant of bail.

(3.) Mr. Ghai, the learned counsel submits that the petitioner has been falsely implicated in the present case. Except the disclosure statement of co-accused Tarsem Rana recorded under Sec. 164 of the Code of Criminal Procedure, there is no legal evidence to connect the petitioner with the alleged commission of crime. The offences under Sections 18 and 29 of the NDPS Act and Sections 489-C and Sec. 120-B IPC are not made out against the petitioner. It is further contended that the challan has already been presented. In the challan except the disclosure statement of the co-accused, there is no evidence indicating the culpability of the petitioner. The petitioner had no knowledge about the planting of narcotic drugs. Co-accused, Tarsem Rana had been a client of the petitioner and on account of their professional relationship, he had spoken to him on telephone. It is further contended that since the offences under which the challan has been presented are not made out against the petitioner so, his detention amounts to illegal custody for which the prosecution should be penalized.