Case of Bhawarlal in the high court of Madhya Pradesh is related to the Bail application. In this case, police arrest the petitioner because of police found 250 gms of smack on him. In the trial court appeal of bail was not submitted to the petitioner file the application in the High Court against the state. He asked for bail from the court because he says that the quantity of smack that is on him is a commercial quantity and not for any other use. The second big point put by the petitioner against the state is that the charge sheet is not submitted in the court within 60 days by the police. He says that he was arrested on 28/03/2006 and the charge sheet was filed on 21/06/2006 i.e. after 60 days. These two points are highlighted against the police or state by the petitioner in the High Court of Madhya Pradesh.
|Citation C.No. 4383/2006|
|Court Madhya Pradesh High Court|
|Respondent State of M.P.|
|Bench Sh S.C. Vyas|
|Sections Sec 439 and Sec 167(2)|
In the case of Bhanwarlal vs. State of M.P. Bhanwarlal is the petitioner. He filed a petition in the High Court of M.P. because of rejection of appeal in the trial court. Bhanwarlal is the petitioner and the State of M.P. is the respondent. This case is related to the drugs and it is a criminal case, but the petition filed in the high court is not for the crime but for the bail. Petitioner filed a bail application in the M.P. high court against the State of Madhya Pradesh. The objective of the petitioner is to take bail from the high court.
Petitioner is arrested by the police for the crime of drugs business or drugs are found on the petitioner for the non-commercial purpose. When petitioner file application for bail in the trial court then the appeal is rejected by the court and then he files an application in the high court of Madhya Pradesh. In the application he put two points before the high court, one is that the said that the amount of drugs found on him was less than the amount defined in the NDPS act as the non-commercial amount. Another is that the police do not file the charge sheet within the time period of 60 days in court. To file a charge sheet in a criminal case, time period of 60 days is mandatory for the police. The subject of the application is the bail on the basis of these two points.
Police arrested Mr Bhanwarlal on 28/3/2006 solely on the ground that the quantity of smack found on Bhanwarlal is not the commercial quantity. But the amount of smack found on Mr Bhanwarlal is 250 gms which is not a non-commercial amount according to the NDPS Act. Police arrested the accused but do not file the charge sheet within 60 days. But when Bhanwarlal file application in the trial court for bail but the court dismissed his application. The criminal case is running against Bhanwarlal in trial court, but the bail is rejected. A/c to Cr. P.C.` the time of investigation or to prepare charge sheet is 60 days for police but in this case police file charge sheet after 84 days of the arrest. But when the appeal for bail is rejected in the lower court then petitioner file application in the high court.
- Police arrested Mr Bhanwarlal on the ground that the amount of smack found on him is for non-commercial use on 28/03/2006.
- Amount of smack found on the accused is 250 gms.
- Police filed the charge sheet in the trial court on 21/06/2006 means after 84 days from the date of arrest.
- Bhanwarlal filed an application in the trial court for bail but the appeal was rejected by the trial court.
- After the rejection of appeal petitioner file appeal in the High Court of M.P.
- Weather Bail should be given to the petitioner by the High Court or not to be given.
- On what condition bail should be given.
Sec 439 read with Sec 167(2) of Cr. P.C.
Sec 8 read with Sec 21 of NDPS Act
In the case of Anil Kumar and Anr. v. State of M.P.[i] Both sides listened the Misuse of case diary. This is the first application filed under Section 439 read with Section 167 (2) of CrPC. To grant bail under Section 8 registered under Section 8 with Section 15 of NDPS Act at Police Station, Sitamau, Mandsaur. It is alleged that both the applicants were in possession of 25 kg. Poppy husk on 25-3-06 without any valid authority or license. He was apprehended by the police on that date and the alleged contraband was seized from his possession. Later, a charge sheet was filed against him in the concerned court. Learned counsel for the applicants applied that the applicant was arrested on 25-3-06 and was earlier remanded on 26-3-06 by the court concerned and the applicants filed Section 167 (2) vide Section 439 The application was filed under the Code of Criminal Procedure for grant of bail before the trial court on 26-5-06 and the same was rejected by that court and after that the charge sheet was filed on 29-5-06, which was earlier 63rd day from the date of remand.
In another case of Ratto v. State of Himachal Pradesh[ii] the matter has been referred on the following questions: Whether 01 kg. Cannabis (Charas) will be commercial quantity in the front of Section 2 (vi) of the Act. 1985. as has been held in the aforesaid two decisions of this court. For ready reference, both these decisions are extracted hereinbelow: 1 Cr.M.P. (M) No. 1492 of 2001: 4/1/2002 The quantity of the charas recovered in the present case is one kilogram that is the commercial quantity, therefore, the provisions of Section 37 of N.D.P.S. Act would apply. This case is referred to on the following questions: Whether 01 kg. Cannabis (Charas) will be a commercial quantity in front of Section 2 (vi) of the Act. 1985. As held in the aforesaid two judgments of this court. For ready reference, both these decisions are given here: 1 Cr.M.P. (M) No. 1492 of 2001: 4/1/2002 The quantity of charas recovered in the present case is one kilogram which is the commercial quantity, hence, NDPS. Provision of section 37. The Act will be applicable. We can also see that apart from these, there is another judgment of this court dated 7/11/2002 in State v. Munshi Ram, in which bail was allowed by the Additional Sessions Judge (2). Spying for Munshi Ram from Kangra in Dharamshala.
Court gave its judgement as: –
- This is the first application filed under Sec 439 read with Sec 167 (2) of Cr. P.C. for grant of bail, the accused was arrested only on the ground that the quantity of smack recovered from the accused was not commercial quantity and the charge sheet has not filed by police within 60 days from the date of the first remand.
- The Court said that as per the allegations of the prosecution 250 gms of smack was recovered from the possession of the present applicant. He was arrested on 28/03/2006 and filed an application for bail under Sec 167(2) on 12/06/2006, on the ground that the time period of filing charge sheet ends on 28/05/2006 and the charge sheet was not filed till then.
- The Learned counsel also submitted for the applicant that learned trial court committed an error of law in dismissing the application of the present applicant. He also submitted that charge sheet was also submitted out of time and the quantity of smack is 250 gms which is for commercial use.
- The single bench of high court writes in his verdict that, the commercial quantity as per the provisions of NDPS Act as defined in sec 2 (vii) (a) of the said act should be more than the quantity prescribed by the schedule.
- In the present case, the quantity of alleged seized contraband was 250 gms which is not more than the quantity necessary for non-commercial use as per the NDPS Act. The prosecution was unable to file charge-sheet within 60 days as a/c to sec 167 of Cr. P.C., so the applicant is entitled to be bailed as per the provisions of the considerable Act.
- Therefore, the application is allowed and it is ordered that the applicant be released on bail and he has to submit 50,000/- rupees as subject amount with one surety that whenever trial court call him for prosecution, he will come on all dates for trial fixed by the trial court.
- Application of the petitioner is also directed to abide by the enumerated conditions under sec 437(3) of the Cr. P.C.
- It is also cleared by the court if he is absent on any single day of prosecution then bail will be rejected on that day and he will be again arrested by the police. The bail will be cancelled by the trial court.
It is clear by this case that a misunderstanding of law may cause harm to the petitioner as well as to the respondent. The mistake of law can be happened by the court sometimes and it can be corrected by the higher court. The rules are equal for all if it is a common citizen or prosecution and the wrong will be punished by the law.
[i] M.Cr.C. No. 2822/2006 HC (M.P.)
[ii] C. No. 1101/2002 HC (H.P.)