Himachal Pradesh High Court
Announced On: 11Th April vs State Of Himachal Pradesh on 11 April, 2025
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IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
Cr.MP(M) No. 130 of 2025
Announced on: 11th April, 2025
____________________________________________________________
Missu Ram …….Petitioner
Versus
State of Himachal Pradesh ……Respondent
Coram
Hon’ble Mr. Justice Ranjan Sharma, Judge
1 Whether approved for reporting? No
For the petitioner: Mr. Vijender Katoch, Advocate.
For the respondent: Mr. Pranay Pratap Singh, Additional
Advocate General.
Ranjan Sharma, Judge
Bail petitioner, Missu Ram [being in custody
19.05.2023] has approached this Court, under Section
483 of the Bhartiya Nagarik Suraksha Sanhita, 2023
[hereinafter referred to as BNSS] seeking regular
bail originating from the FIR No. 98 of 2023 dated
19.05.2023, registered with Police Station Baijnath,
District Kangra [H.P.], under Sections 20 and 29 of
the Narcotic Drugs and Psychotropic Substances Act
1
Whether reporters of Local Papers may be allowed to see the judgment?
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(referred to as NDPS Act) and under Section
181 of the Motor Vehicles Act.
FACTUAL MATRIX
2. Case set up by Mr. Vijender Katoch, Learned
Counsel is that prosecution case is that on 18.5.2023
at around 09.45 p.m, while the Police Party headed
by Inspector Gaurav Bhardwaj alongwith other Police
Officials were on patrolling duty near GMS Kyori, a
secret information was received that two persons
were selling Charas near Jagarkot Ajay Pal Devta
Temple. On receiving this information, Inspector Gaurav
Bharadwaj and two Independent witnesses namely
Pradhan Shiv Kumar and Up-Pradhan Rovan Lal
reached village Sail and thereafter, IO Gaurav Bharadwaj
in his private car left for Jagarkot Ajay Pal Devta
Temple and the Independent witness also went to
said temple spot in separate vehicle. On reaching
Jagarkot Ajay Pal Devta Temple, at around 10.20
p.m, police party found one white Eon Car, without
registration, occupied by three persons and one black
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pulsar motorcycle bearing No HP-33-7650 was found
parked. On inquiry, the person sitting on driver seat
disclosed his name Tilak Raj, the person sitting on
co-driver seat revealed his name as Mehar Singh and the
person sitting on rear seat of the vehicle disclosed his
name Missu Ram [bail petitioner]. On checking of Eon
Car, the police found one carry bag printed with green and
red flowers from underneath the driver’s seat and after
untying bag, the police recovered sticks like black
substance i.e. Charas-Cannabis and upon weighing it
came out to be 1.509 Kgs. The allegedly recovered
contraband was kept in same carry bag and was sealed
with eight seals and documents of Car and Motorcycle
were also seized and after completing all the codal
formalities, the rukka was sent leading to registration of
FIR.
2(i). The matter was investigated and the Challan
was presented before the jurisdictional Court. It is averred
that the allegations were totally false and the bail
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petitioner [Missu Ram], was not connected with
the alleged offence. It was stated that the petitioner
was falsely implicated. It is submitted that nothing was
infact recovered from conscious possession of bail
petitioner. It is averred that no fruitful purpose will be
served by keeping him in judicial custody.
2(ii). Apart from this, the bail petitioner has given
certain undertakings that he shall participate in the
investigation and trial thereafter and shall not cause
any inducement, threat or promise to any witness
or person acquainted with the case and shall not
tamper with the evidence in any manner. It is averred
that in case of release, the bail petitioner shall abide
by all other conditions which may be imposed by this
Court.
In above backdrop, the instant petition has
been filed by the bail petitioner, [Missu Ram], with the
prayer for granting bail.
STAND OF STATE AUTHORITIES IN THE STATUS
REPORTS
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3. Upon issuance of notice the State Authorities
have filed the Status Report dated 27.02.2025 on
instructions of SHO Police Station Baijnath, District
Kangra, (HP) and the matter was adjourned by Learned
Counsel for petitioner and the matter was finally heard on
04.04.2025.
3(i). Status Report narrates the prosecution story
that on 18.05.2023, at around 09.40 p.m, the Police Party
headed by Inspector Gaurav Bhardwaj received a secret
information that a white Eon Car being occupied by two
persons and one motorcycle was parked near Jagarkot
Ajay Pal Devta Temple and they were selling Charas. After
completing formalities under Section 42 (2), Inspector
Gaurav Bharadwaj reached village Sail, at 10.10 pm and
two Independent witnesses namely Pradhan Shiv Kumar
and Up-Pradhan Rovan Lal also reached there in pick up
No HP-53-6112. Thereafter, IO Gaurav Bharadwaj left for
Jagarkot Ajay Pal Devta Temple in his private car and the
Independent witness also went to the said temple spot in
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their separate vehicle. On reaching Jagarkot Ajay Pal
Devta Temple, at around 10.20 p.m, the police party
found the white Eon Car with three occupants and one
black pulsar motorcycle bearing No. HP-33A-7650 parked
there. On inquiry, the person sitting on driver seat
disclosed his name Tilak Raj, the person sitting on
co-driver seat revealed his name as Mehar Singh and the
person sitting on rear seat of the vehicle disclosed his
name Missu Ram [bail petitioner]. On checking of Eon Car
the police found one carry bag printed with green and red
flowers from underneath the driver’s seat. On untying the
bag, the police recovered sticks like black substance and
after smelling it appears to be Charas-Cannabis
and on weighing, it came out to be 1.509 Kgs. The
recovered Charas was kept in the same carry bag
and was sealed and after completing codal formalities,
rukka was sent leading to registration of FIR.
3(ii). Pursuant to registration of FIR, petitioner
was arrested on 19.5.2023 and bail petitioner was
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made to undergo medical examination. It is averred that
an inventory was prepared under Section 52-A of
NDPS Act by magistrate after taking out two samples
of 26 gms each and sealed with court seals, which
were sent to SFSL at Junga for analysis. Status report
indicates that statements of witnesses were recorded
under Section 161 Cr.P.C. Status Report further indicates
that Investigation is complete and the Challan-Final
Police Report has been presented before the Learned
ASJ Palampur on 8.8.2023 till date out of 22 PWs, 14 PWs
were examined at the time of filing of bail.
In this background, Status Report, has been
filed by the State Authorities, with the prayer for
dismissing the bail petition.
4. Heard, Mr. Vijender Katoch, Learned Counsel
for the bail-petitioner and Mr. Pranay Pratap Singh,
Learned Additional Advocate General for Respondent-
State.
MANDATE OF LAW ON BAIL:
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5. Broad parameters have been mandated by
the Hon’ble Supreme Court, regulating the bail in the
cases of Gurbaksh Singh Sibbia versus State of
Punjab (1980) 2 SCC 565, Ram Govind Upadhyay versus
Sudarshan Singh (2002) 3 SCC 598; Kalyan Chandra
Sarkar versus Rajesh Ranjan, (2004) 7 SCC 528;
Prasanta Kumar Sarkar versus Ashish Chatterjee,
(2010) 14 SCC 496; reiterated in P. Chidambaram versus
Directorate of Enforcement, (2019) 9 SCC 24, Sushila
Aggarwal versus State-NCT Delhi, (2020) 5 SCC 01; CBI
versus Santosh Karnani (2023) 6 SCALE 250; which have
been reiterated by the Hon’ble Supreme Court in State of
Haryana versus Dharamraj, 2023 SCC Online SC 1085,
that bail is to be granted where the allegations are
frivolous or groundless and incase neither any prima facie
case nor reasonable grounds exists to believe or point
towards the accusation. However, depending upon the
facts of each case, the bail can be refused, in case,
the prima facie case or reasonable grounds exits and
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if an offence is serious. Severity of punishment
including reasonable apprehension of fleeing away
from investigation and trial and the character, past
antecedents, behavior, means, position and standing
of an accused; likelihood of offence being repeated;
reasonable apprehension of witnesses being influenced
and danger of justice being thwarted by grant of bail
etc. are relevant factors for denying the concession of bail.
5(i). The Hon’ble Supreme Court in Criminal Appeal
No. 3840 of 2023, Saumya Churasia versus Directorate
of Enforcement, decided on 14.12.2023 held that the
claim for bail, is to be examined by a Court, without
delving into the evidence on merits but by forming a prima-
facie opinion on totality of facts in the light of broad-
parameters referred to above.
ANALYSIS: CLAIM FOR BAIL IN INSTANT CASE:
6. While examining the claim for bail in the
instant case, this Court is conscious of the fact that,
once petitioner has been implicated with commercial
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quantity of contraband i.e. [Cannabis-Charas] weighing
1.509 Kgs therefore, in normal parlance, the rigors of
Section 37 (1) (b) of NDPS Act are to be satisfied,
before acceding to the claim for bail, in terms of
the mandate of law, laid down by the Hon’ble Supreme
Court in Narcotics Control Bureau vs Mohit Aggarwal
AIR 2022 SC 3444, followed in Union of India vs
Ajay Kumar Singh @ Pappu, SLP (Criminal) No. 2351
of 2023, which stands reiterated by the Hon’ble
Supreme Court, in State by the Inspector of Police
vs B. Ramu, SLP (Criminal) No.8137 of 2022 decided
on 12.02.2024.
7. In the aforesaid background, this Court
proceeds to examine the claim of the bail petitioner
[Missu Ram] for bail, in view of the statutory mandate
of Section 37 (1) (b) of NDPS Act and also, by
taking into account, the exceptions carved out by
the Honble Supreme Court to rigors of Section 37
(1) (b) of NDPS Act, hereinbelow.
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[A]. CLAIM FOR BAIL UNDER SECTION 37(1) (b) OF
NDPS ACT:
8. This Court proceeds to examine the claim for
bail in view of the rigours in Section 37 of the NDPS
Act hereinunder;
8(i). Perusal of Status Report and the material
on record indicates that neither any prima facie case
nor any reasonable grounds exist to believe that the
bail petitioner is guilty of the offence in the instant
case, at this stage.
8(ii). Status Report filed by the State Authorities
does not spell out any material to show that the
bail petitioner has resorted to any activities, so as
to invoke the provisions of Section 20 of NDPS
Act, against the petitioner, at this stage. In these
circumstances, the bail petitioner appears to be not guilty,
in view of inherent discrepancies and grave contradictions
in the statements of PWs, at this stage and therefore, the
bail petitioner deserves to be granted concession of bail.
8(iii). Section 29 of NDPS Act, alleging abatement
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and criminal conspiracy is a matter which is yet
to be tested, examined and proved during trial. The
accusation of abatement or criminal conspiracy cannot
be attributed against the bail petitioner without there
being any cogent and convincing material on record
and thus, this Court is of the considered view, that
the bail petitioner is not guilty of the offence, at this stage.
[B]. NOTHING ADVERSARIAL REGARDING REPITITION OF
OFFENCE AFTER BAIL:
9. Status Reports filed by the State Authorities
have not expressed any apprehension of repetition of
offence after being enlarged on bail hereinafter.
Taking into account the entirety of facts
and circumstances, including the Status Reports, this
Court is of the considered view, that there are no
reasonable grounds to believe that the petitioner
is guilty and that the petitioner is likely to repeat
the offence after being released on bail and therefore,
by applying the twin-tests as mandated in Section
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37(1)(b) of the NDPS Act, the bail petitioner [Missu Ram]
deserves to be enlarged on bail.
[C] CLAIM FOR BAIL ON OTHER EXCEPTIONAL GROUNDS
AND CIRCUMSTANCES:
10. Notwithstanding, the rigours in Section 37
(1) (b) of NDPS Act [supra], yet in view of the
exceptions carved out by the Honble Supreme Court
as detailed hereinunder and other circumstances,
the bail petitioner is entitled to be enlarged on bail
for the following reasons:-
10(i). An FIR in instant case was registered
on 19.5.2023 and the petitioner has been in custody
[since 19.5.2023] i.e. for last more than 1 year and
10 month now. Even the Investigation is complete and
Challan-Final Police Report dated 8.8.2023 has been
presented before the jurisdictional Court and charge
stands framed. The prosecution intends to examine
22 PWs and on date of filing of bail petition, 14 PWs
had been examined and 8 PWs are yet to be examined by
Learned Special Judge-II, Dharamshala.
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10(ii). The Hon’ble Supreme Court in Mukesh
Kumar versus State of Rajasthan and another,
2023 SCC OnLine SC 2025, granted bail to an
accused suffering incarceration for more than 1 year
and 11 months coupled with the fact that there
is no much progress in trial, in the following terms:-
“2. The petitioner is accused of giving one blow
on the head of the deceased with a
danda (Bamboo). It may also be mentioned
that occurrence took place on 08-06-2020
and the deceased succumbed to his injuries
on 12-06-2020.
5. After cancellation of bail by the High Court,
the petitioner has again surrendered on
16-11-2022 and is in custody.
7. It may be seen that there are cross-versions
and both sides suffered injuries. The
question as to who was the aggressor
will depend upon the appreciation of
evidence and will be decided by the Trial
Court at an appropriate stage. It is not
expedient or desirable for this Court to
express any opinion in relation thereto at
this stage.
8. Suffice to say that the petitioner has
been in custody for more than 14
months, the crucial witnesses have since
been examined and there is no likelihood
of tampering with the evidence. Even otherwise
also, the witnesses are close family members
of both sides, hence there is no likelihood
of winning over the witnesses.
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9. Since conclusion of trial will take
considerable time, we deem it appropriate
to release the petitioner on bail.
11. Consequently, without expressing any views
on the merits of the case, the petitioner
is directed to be released on bail,
subject to his furnishing bail bonds to the
satisfaction of the Trial Court.
12. The petitioner and his family members as
well as Respondent No. 2 and his family
members will ensure that no untoward incident
takes place again.”
PROLONGED INCARCERATION AND INFRINGMENT
OF PERSONAL LIBERTY UNDER ARTICLE 21 OF THE
CONSTITUTION OF INDIA:
11. While reiterating the principle that bail is
a rule and jail is an exception and no accused can
be deprived of personal liberty on mere accusation
and an accused is to be treated as innocent in the
eyes of law, the Hon’ble Supreme Court has outlined
the object of bail in Guddan alias Roop Narayan
versus State of Rajasthan, 2023 SCC OnLine SC
1242, in the following terms:-
“11. In the case of Sanjay Chandra V. Central
Bureau of Investigation, (2012) 1 SCC 40, while
hearing a bail Application in a case of an
alleged economic offence, this court held
that the object of bail is neither punitive
nor preventative. It was observed as under:
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“21. In bail applications, generally, it has
been laid down from the earliest
times that the object of bail is to
secure the appearance of the accused
person at his trial by reasonable
amount of bail. The object of
bail is neither punitive nor
preventative. Deprivation of liberty
must be considered a punishment,
unless it is required to ensure that
an accused person will stand his
trial when called upon. The courts
owe more than verbal respect to the
principle that punishment begins
after conviction, and that every
man is deemed to be innocent until
duly tried and duly found guilty.
23. Apart from the question of prevention
being the object of refusal of bail,
one must not lose sight of the
fact that any imprisonment before
conviction has a substantial punitive
content and it would be improper
for any court to refuse bail as a
mark of disapproval of former
conduct whether the accused has
been convicted for it or not or to
refuse bail to an unconvicted person
for the purpose of giving him a
taste of imprisonment as a lesson.
25. The provisions of Cr PC confer
discretionary jurisdiction on criminal
courts to grant bail to the accused
pending trial or in appeal against
convictions; since the jurisdiction is
discretionary, it has to be exercised
with great care and caution by
balancing the valuable right of
liberty of an individual and the
interest of the society in general.
In our view, the reasoning adopted
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by the learned District Judge, which
is affirmed by the High Court, in
our opinion, is a denial of the
whole basis of our system of law
and normal rule of bail system.
It transcends respect for the
requirement that a man shall be
considered innocent until he is
found guilty. If such power is
recognised, then it may lead to
chaotic situation and would
jeopardise the personal liberty of
an individual.
27. This Court, time and again, has
stated that bail is the rule and
committal to jail an exception. It
has also observed that refusal of
bail is a restriction on the personal
liberty of the individual guaranteed
under Article 21 of the Constitution”
12. Further, in the case of Sandeep Jain v.
National Capital Territory of Delhi, (2000)
2 SCC 66, this Court, while hearing a
bail application held that conditions for
grant of bail cannot become so onerous
that their existence itself is tantamount
to refusal of bail. This Court held as
under:
“We are unable to appreciate even the
first order passed by the Metropolitan
Magistrate imposing the onerous condition
that an accused at the FIR stage
should pay a huge sum of Rs.
2 lakhs to be set at liberty. If he had
paid it is a different matter. But the
fact that he was not able to pay
that amount and in default thereof
he is to languish in jail for more
than 10 months now, is sufficient
indication that he was unable to make
up the amount. Can he be detained
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in custody endlessly for his inability
to pay the amount in the range of
Rs.2 lakhs? If the cheques issued by
his surety were dishonoured, the Court
could perhaps have taken it as a
ground to suggest to the payee of
the cheques to resort to the legal
remedies provided by law.
Similarly if the Court was dissatisfied
with the conduct of the surety as for
his failure to raise funds for honouring
the cheques issued by him, the Court
could have directed the appellant to
substitute him with another surety.
But to keep him in prison for such
a long period, that too in a case
where bail would normally be granted for
the offences alleged, is not only hard
but improper. It must be remembered
that the Court has not even come to the
conclusion that the allegations made
in the FIR are true. That can be
decided only when the trial concludes,
if the case is charge-sheeted by the
police.”
REFORMATIVE APPROACH IN BAIL:
12. While dealing with the concept of bail and
personal liberty of an accused under Article 21 of
the Constitution of India, the Hon’ble Supreme Court
in Criminal Appeal No. 2787 of 2024, titled as Javed
Gulam Nabi Shaikh Versus State of Maharashtra
and Another, as under:-
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“18 Criminals are not born out but made.
The human potential in everyone is good
and so, never write off any criminal
as beyond redemption. This humanist
fundamental is often missed when dealing
with delinquents, juvenile and adult. Indeed,
every saint has a past and every sinner
a future. When a crime is committed,
a variety of factors is responsible for
making the offender commit the crime.
Those factors may be social and economic,
may be, the result of value erosion or
parental neglect; may be, because of the
stress of circumstances, or the manifestation
of temptations in a milieu of affluence
contrasted with indigence or other privations.
19. If the State or any prosecuting agency
including the court concerned has no
wherewithal to provide or protect the
fundamental right of an accused to have
a speedy trial as enshrined under Article
21 of the Constitution then the State
or any other prosecuting agency should
not oppose the plea for bail on the
ground that the crime committed is
serious. Article 21 of the Constitution
applies irrespective of the nature of the
crime.
20. We may hasten to add that the petitioner
is still an accused; not a convict. The over-
arching postulate of criminal jurisprudence
that an accused is presumed to be innocent
until proven guilty cannot be brushed
aside lightly, howsoever stringent the
penal law may be.
21 We are convinced that the manner in which
the prosecuting agency as well as the
Court have proceeded, the right of the
accused to have a speedy trial could be
said to have been infringed thereby violating
Article 21 of the Constitution.
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22 In view of the aforesaid, this appeal succeeds
and is hereby allowed. The impugned
order passed by the High Court is set
aside.”
BAIL NOT TO BE WITHHELD BY WAY OF PENALTY:
ARTICLE 21 OF CONSTITUTION OF INDIA:
13. While dealing with a matter relating to
prolonged incarceration and the right to speedy trial
and right of liberty to be sacrosanct right and while
deprecating that the bail is not to be withheld as
punishment so as to operate de hors the principle
that bail is rule and jail is an exception, the Hon’ble
Supreme Court, in Manish Sisodia vs Directorate
of Enforcement, SLP (Criminal) No.8781 of 2024,
decided on 09.08.2024, has held as under :-
“49. We find that, on account of a long
period of incarceration running for around
17 months and the trial even not having
been commenced, the appellant has been
deprived of his right to speedy trial.
50. As observed by this Court, the right to
speedy trial and the right to liberty
are sacrosanct rights. On denial of these
rights, the trial court as well as the
High Court ought to have given due weightage
to this factor.
53. The Court further observed that, over a
period of time, the trial courts and the
High Courts have forgotten a very well-
settled principle of law that bail is not to
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be withheld as a punishment. From our
experience, we can say that it appears that
the trial courts and the High Courts attempt
to play safe in matters of grant of bail.
The principle that bail is a rule and
refusal is an exception is, at times,
followed in breach. On account of non-grant
of bail even in straight forward open and
shut cases, this Court is flooded with huge
number of bail petitions thereby adding
to the huge pendency. It is high time
that the trial courts and the High
Courts should recognize the principle that
“bail is rule and jail is exception”.
55. As observed by this Court in the case of
Gudikanti Narasimhulu (supra), the objective
to keep a person in judicial custody
pending trial or disposal of an appeal
is to secure the attendance of the prisoner
at trial.
56. In the present case, the appellant is having
deep roots in the society. There is no
possibility of him fleeing away from the
country and not being available for facing
the trial. In any case, conditions can be
imposed to address the concern of the
State.
57. Insofar as the apprehension given by the
learned ASG regarding the possibility of
tampering the evidence is concerned, it is
to be noted that the case largely depends
on documentary evidence which is already
seized by the prosecution. As such, there is
no possibility of tampering with the
evidence. Insofar as the concern with
regard to influencing the witnesses is
concerned, the said concern can be
addressed by imposing stringent conditions
upon the appellant.”
13(i). While adjudicating the claim for bail, even
under Special Enactments, like PMLA [akin to NDPS
Act], the Hon’ble Apex Court in Criminal Appeal
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No._____of 2024 [Arising out of SLP (Criminal)
No. 10778 of 2024], titled as Kalvakuntla
Kavitha Versus Directorate of Enforcement and
connected matter has mandated that fundamental
right of liberty provided under Article 21 of the
Constitution of India is superior to the statutory
restrictions, in the following terms:-
“13. We had also reiterated the well-established
principle that “bail is the rule and refusal
is an exception”. We had further observed
that the fundamental right of liberty
provided under Article 21 of the Constitution
is superior to the statutory restrictions.”
RIGOURS IN SPECIAL ENACTMENTS [SECTION 37
OF NDPS] TO GIVE WAY FOR BAIL-PROLONGED
INCARCERATION AND COMPLETION OF TRIAL TO
TAKE CONSIDERABLE TIME:
14. While dealing with the claim for bail under
Special Enactments and rigors of Section 45 (1) (ii) of
MPLA and proviso to Section 43-D (5) of the Unlawful
Activities [Prevention] Act, 1967 and Section 37 of
NDPS Act, the Hon’ble Supreme Court in Criminal
Appeal No.4011 of 2024, in re: V. Senthil
Balaji Versus The Deputy Director, Directorate
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of Enforcement, has mandated that rigors in Special
Enactments, including Section 37 of NDPS Act, will
melt down when, there is no likelihood of the trial
being completed in a reasonable time and in view
of prolonged incarceration, so as to prevent deprivation
of curtailment of personal liberty and right to speedy
trial in terms of Article 21 of Constitution of India,
in the following terms:-
“24. There are a few penal statutes that make a
departure from the provisions of Sections
437, 438, and 439 of the Code of Criminal
Procedure, 1973. A higher threshold is
provided in these statutes for the grant
of bail. By way of illustration, we may
refer to Section 45(1)(ii) of PMLA, proviso
to Section 43D(5) of the Unlawful Activities
(Prevention) Act, 1967 and Section 37
of the Narcotic Drugs and Psychotropic
Substances Act, 1985 (for short, ‘NDPS
Act‘). The provisions regarding bail in some
of such statutes start with a non obstante
clause for overriding the provisions of
Sections 437 to 439 of the CrPC. The
legislature has done so to secure the object
of making the penal provisions in such
enactments. For example, the PMLA provides
for Section 45(1)(ii) as money laundering
poses a serious threat not only to the
country’s financial system but also to
its integrity and sovereignty.
25. Considering the gravity of the offences
in such statutes, expeditious disposal
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of trials for the crimes under these
statutes is contemplated. Moreover, such
statutes contain provisions laying down
higher threshold for the grant of bail.
The expeditious disposal of the trial is
also warranted considering the higher
threshold set for the grant of bail. Hence,
the requirement of expeditious disposal of
cases must be read into these statutes.
Inordinate delay in the conclusion of
the trial and the higher threshold for
the grant of bail cannot go together.
It is a well settled principle of our
criminal jurisprudence that “bail is the
rule, and jail is the exception.” These
stringent provisions regarding the grant
of bail, such as Section 45(1)(iii) of the
PMLA, cannot become a tool which can
be used to incarcerate the accused
without trial for an unreasonably long
time.
25. Considering the gravity of the offences
in such statutes, expeditious disposal
of trials for the crimes under these
statutes is contemplated. Moreover, such
statutes contain provisions laying down
higher threshold for the grant of bail.
The expeditious disposal of the trial is
also warranted considering the higher
threshold set for the grant of bail. Hence,
the requirement of expeditious disposal of
cases must be read into these statutes.
Inordinate delay in the conclusion of
the trial and the higher threshold for
the grant of bail cannot go together.
It is a well settled principle of our
criminal jurisprudence that “bail is the
rule, and jail is the exception.” These
stringent provisions regarding the grant
of bail, such as Section 45(1) (iii) of
the PMLA, cannot become a tool which
can be used to incarcerate the accused
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without trial for an unreasonably long
time.
26. There are a series of decisions of this
Court starting from the decision in the
case of K.A. Najeeb, which hold that
such stringent provisions for the grant
of bail do not take away the power of
Constitutional Courts to grant bail on
the grounds of violation of Part III of
the Constitution of India. We have
already referred to paragraph 17 of
the said decision, which lays down that
the rigours of such provisions will melt
down where there is no likelihood of
trial being completed in a reasonable
time and the period of incarceration
already undergone has exceeded a
substantial part of the prescribed sentence.
One of the reasons is that if, because
of such provisions, incarceration of an
under-trial accused is continued for an
unreasonably long time, the provisions
may be exposed to the vice of being
violative of Article 21 of the Constitution
of India.
27. Under the Statutes like PMLA, the minimum
sentence is three years, and the maximum
is seven years. The minimum sentence is
higher when the scheduled offence is under
the NDPS Act. When the trial of the
complaint under PMLA is likely to prolong
beyond reasonable limits, the Constitutional
Courts will have to consider exercising
their powers to grant bail. The reason is
that Section 45(1)(ii) does not confer power
on the State to detain an accused for an
unreasonably long time, especially when
there is no possibility of trial concluding
within a reasonable time. What a reasonable
time is will depend on the provisions
under which the accused is being tried
2025:HHC:10266
– 26 –
and other factors. One of the most relevant
factor is the duration of the minimum
and maximum sentence for the offence.
Another important consideration is the
higher threshold or stringent conditions
which a statute provides for the grant of
bail. Even an outer limit provided by
the relevant law for the completion of the
trial, if any, is also a factor to be considered.
The extraordinary powers, as held in
the case of K.A. Najeeb, can only be
exercised by the Constitutional Courts.
The Judges of the Constitutional Courts
have vast experience. Based on the
facts on record, if the Judges conclude
that there is no possibility of a trial
concluding in a reasonable time, the
power of granting bail can always be
exercised by the Constitutional Courts
on the grounds of violation of Part III
of the Constitution of India notwithstanding
the statutory provisions. The Constitutional
Courts can always exercise its jurisdiction
under Article 32 or Article 226, as the case
may be. The Constitutional Courts have
to bear in mind while dealing with the
cases under the PMLA that, except in
a few exceptional cases, the maximum
sentence can be of seven years. The
Constitutional Courts cannot allow
provisions like Section 45 (1) (ii) to become
instruments in the hands of the ED to
continue incarceration for a long time
when there is no possibility of a trial
of the scheduled offence and the PMLA
offence concluding within a reasonable
time. If the Constitutional Courts do not
exercise their jurisdiction in such cases,
the rights of the undertrials under
Article 21 of the Constitution of India
will be defeated. In a given case, if
an undue delay in the disposal of the
2025:HHC:10266
– 27 –
trial of scheduled offences or disposal
of trial under the PMLA can be
substantially attributed to the accused,
the Constitutional Courts can always
decline to exercise jurisdiction to issue
prerogative writs. An exception will also
be in a case where, considering the
antecedents of the accused, there is every
possibility of the accused becoming a
real threat to society if enlarged on
bail. The jurisdiction to issue prerogative
writs is always discretionary.
29. As stated earlier, the appellant has
been incarcerated for 15 months or
more for the offence punishable under
the PMLA. In the facts of the case, the
trial of the scheduled offences and,
consequently, the PMLA offence is not
likely to be completed in three to four
years or even more. If the appellant’s
detention is continued, it will amount
to an infringement of his fundamenttal
right under Article 21 of the Constitution
of India of speedy trial.
31. Therefore, the appeal is allowed, and
the appellant shall be enlarged on bail
till the final disposal of CC No. 9 of
2023 pending before the Principal Session
Judge, Chennai …..”
14(i). While reiterating the grant of bail, despite
statutory embargoes in Special Enactments, Hon’ble
Supreme Court in Criminal Appeal No. 5266 of
2024 (Arising out of SLP (CRL.) No. 13870 of
2024, titled as Partha Chatterjee Versus Directorate
2025:HHC:10266
– 28 –
of Enforcement, decided on 13.12.2024, 2024 SCC
Online SC 3729, has been reiterated, by treating
the right to life and liberty under Article 21 of the
Constitution of India to be of paramount importance
and action of prolonging the incarceration so as to
make such incarceration punitive has been deprecated
by granting bail, in the following terms:-
“13. We have considered the rival submissions and
carefully examined the material on record.
At the outset, it is worth reiterating that
this Court, through a catena of decisions,
has consistently emphasized that prolonged
incarceration of an accused awaiting trial
unjustly deprives them of their right to
personal liberty. Even statutory embargoes
on the grant of bail must yield when
weighed against the paramount importance
of the right to life and liberty under
Article 21 of the Constitution, particularly
in cases where such incarceration extends
over an unreasonably long period without
conclusion of trial.
17. We, however, cannot be oblivious to the
settled principles that a suspect cannot
be held in custody indefinitely and that
undertrial incarceration should not
amount to punitive detention. The Court
would, nevertheless, ensure that affluent or
influential accused do not obstruct the
ongoing investigation, tamper with evidence,
or influence witnesses, namely, actions
that undermine the fundamental doctrine
of a fair trial.
2025:HHC:10266
– 29 –
18. Striking a balance between these considerations
and without expressing any opinion on the
merits of the allegations, we deem it appropriate
to dispose of this appeal with the following
directions:
f. The Petitioner shall thereafter be
released on bail on 01.02.2025, subject to
his furnishing bail bonds to the satisfaction
of the Trial Court; ……”
Keeping in view the factual matrix that
no reasonable grounds exist against the bail petitioner,
as referred to above, coupled with the fact the bail
petitioner has suffered incarceration for more than
one year and ten months [since 19.05.2023] and
even trial is likely to take considerable time for
the reason, that out of total 22 PWs, 14 PWs have been
examined as yet, and therefore, further detention shall
certainly amount to depriving and curtailing the personal
liberty of the petitioner on mere accusation or conjectures
or surmises, which are yet to be tested, examined and
proved during the trial. Detention of the petitioner can
neither be punitive nor preventative, so as to make the
petitioner to taste imprisonment as a lesson. Denial
2025:HHC:10266
– 30 –
of bail shall certainly violates the principle that “bail
is rule and jail is an exception”. Even, the State
Authorities, have failed to ensure speedy trial and
still considerable time is likely to be taken for
conclusion of trial, then, in view of mandate of
law in the cases of Guddan alias Roop Narayan,
Javed Gulam Nabi Shaikh, Manish Sisodia,
Kalvakuntla Kavitha, Senthil Balaji and Partha
Chatterjee [supra], the petitioner deserves to be
released on bail.
MANDATE OF HON’BLE SUPREME COURT IN BAIL IN
COMMERCIAL QUANTITY: PROLONGED INCARCENATION
AND COMPLETION OF TRIAL TO TAKE CONSIDERABLE
TIME:
15. While dealing with similar situation dealing
with involvement of accused in commercial quantity
of contraband, Hon’ble Supreme Court has extended
benefit of bail to the bail petitioner in Petition(s)
for Special Leave to Appeal (Crl.) No(s). 1904 /
2023, titled as Sunil Kumar Versus The State of
Himachal Pradesh, decided on 29.03.2023, in the
2025:HHC:10266
– 31 –
following terms:-
“It is noted that the petitioner has been
in custody for more that one and a
half years and the trial is yet to
conclude. Earlier, the petitioner had been
granted interim bail on two occasions and
has not misused the liberty of interim bail
or violated any of the bail conditions imposed
upon him but has thereafter, surrendered
back.
Therefore, keeping all these aspects in
view, the petitioner is ordered to be released
on bail subject to appropriate conditions being
imposed by the Trial Court including the
condition that the petitioner shall diligently
participate in the trial. Ordered accordingly.”
15(i). In Petition(s) for Special Leave to Appeal
(Crl.) No (s). 4648/2024, titled as Ankur Chaudhary
Versus State of Madhya Pradesh, decided on
28.05.2024, Hon’ble Supreme Court granted bail by
invoking Article 21 of Constitution of India as the
prolonged incarceration defeats precious fundamental
rights and such fundamental rights have to override
the statutory embargo in Section 37 (1) (b) of NDPS
Act in the following terms:-
“Now, on examination, the panch witnesses
have not supported the case of prosecution.
On facts, we are not inclined to consider
2025:HHC:10266
– 32 –
the Investigation Officer as a panch
witness. It is to observe that failure to
conclude the trial within a reasonable
time resulting in prolonged incarceration
militates against the precious fundamental
right guaranteed under Article 21 of the
Constitution of India, and as such,
conditional liberty overriding the statutory
embargo created under Section 37(1) (b) of
the NDPS Act may, in such circumstances,
be considered.
In view of the above, we are inclined to
allow this petition and direct to enlarge the
petitioner on bail on furnishing the suitable
bail bonds and sureties and on such
other terms and conditions as may be
deemed fit by the trial Court.”
15(ii). In Petition(s) for Special Leave to Appeal
(Crl.) No(s). 7115 /2024, titled as Sohrab Khan
versus The State of Madhya Pradesh, decided on
13.08.2024, the Hon’ble Supreme Court has extended
benefit of concession of bail to an accused, who was
facing incarceration of one year and four months in
the following terms:-
“The petitioner is an accused for the alleged
offences punishable under Sections 8/22 and
29 of the Narcotic Drugs and Psychotropic
Substances Act. His bail application was
dismissed by the High Court. He has already
undergone about one year and four
months in jail. The petitioner and com
accused were found in possession of 80
2025:HHC:10266
– 33 –
grams of MD powder each of which commercial
quantity is 50 grams.
Considering the fact that the petitioner
criminal antecedents and the entire facts
and circumstances has no of this case,
we are of the opinion that a case of bail is
made out for the petitioner and therefore,
the prayer of the petitioner is allowed.
Accordingly, the petitioner is directed to be
released on bail forthwith on the usual
terms and conditions to be decided by the
concerned Court.”
15(iii). In Petition(s) for Special Leave to Appeal
(Crl.) No(s). 9510/2024, titled as Ram Lal Versus
The State of Rajasthan, decided on 17.09.2024,
similar benefit of bail was extended where the
incarceration was prolonged, as in this case, in the
following terms:-
“The petitioner and the other accused persons
are accused for the offences punishable
under Sections 8/21 & 8/29 of the Narcotic
Drugs and Psychotropic Substances Act
and allegation is that 450 gm of smack
has been recovered from them. The bail
application of the petitioner was dismissed
by the High Court. Hence, he approached
this Court. He has already undergone
about 1 year and 6 months in jail.
Heard learned counsel for the petitioner.
As per office report Rated 13.09.2924,
the service is deemed complete on the
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– 34 –
sole respondent-State but no one has appeared
for the state.
Considering the period of incarceration
of the petitioner and the fact that the
petitioner has no criminal antecedents,
we are of the opinion that a case of
bail is made out for the petitioner.
Accordingly, the petitioner is directed to
be released on bail forthwith on the usual
terms and conditions to be decided by the
concerned Court.”
MANDATE OF THIS COURT GRANTING BAIL IN
COMMERCIAL QUANTITY DUE TO PROLONGED
INCARCENATION AND COMPLETION OF TRIAL TO
TAKE CONSIDERABLE TIME:
16. While dealing with the claim for bail in
a case, a Co-ordinate Bench of this Court, in Cr. MP
(M) No. 2618 of 2023, Jasbir Singh versus State
of Himachal Pradesh, decided on 4.11.2023, affirmed
the right to bail in view of prolonged detention of the
accused therein, in the following terms:-
“5(ii). ….. In 2021 (3) SCC, 713, Union of India
Versus K.A. Najeeb, Hon’ble Apex Court
considered various judicial precedents
where Article 21 of the Constitution of
India was invoked in case of gross delay
in disposal of cases of under- trials and
consequential necessity to release them
on bail. The earlier decisions were reiterated
that liberty granted by Part-III of the
Constitution, would cover within its protective
ambit not only due procedure and fairness,
2025:HHC:10266
– 35 –
but also access to justice and speedy trial.
It was held that once it is obvious that a
timely trial would not be possible and
the accused have suffered incarceration
for a significant period of time, the Courts
would ordinarily be obligated to enlarge
them on bail. Some relevant paras from
the judgments are extracted hereinafter:-
“10. It is a fact that the High Court in
the instant case has not determined
the likelihood of the respondent being
guilty or not, or whether rigours of Section
43D(5) of UAPA are alien to him. The High
Court instead appears to have exercised
its power to grant bail owing to the long
period of incarceration and the unlikelihood
of the trial being completed anytime
in the near future. The reasons assigned by
the High Court are apparently traceable
back to Article 21 of our Constitution, of
course without addressing the statutory
embargo created by Section 43D (5) of
UAPA.
11. The High Court’s view draws support
from a batch of decisions of this Court,
including in Shaheen Welfare Assn, laying
down that gross delay in disposal of
such cases would justify the invocation
of Article 21 of the Constitution and
consequential necessity to release the
undertrial on bail. It would be useful to
quote the following observations from the
cited case:
“10. Bearing in mind the nature
of the crime and the need to protect
the society and the nation, TADA has
prescribed in Section 20(8) stringent
provisions for granting bail. Such
stringent provisions can be justified
looking to the nature of the crime, as was
held in Kartar Singh case, on the
2025:HHC:10266
– 36 –
presumption that the trial of the
accused will take place without undue
delay. No one can justify gross delay
in disposal of cases when undertrials
perforce remain in jail, giving rise to
possible situations that may justify
invocation of Article 21.” …
(emphasis supplied)
12. Even in the case of special legislations
like the Terrorist and Disruptive Activities
(Prevention) Act, 1987 or the Narcotic Drugs
and Psychotropic Substances Act, 1985
(” the NDPS Act“) which too have somewhat
rigorous conditions for grant of bail, this
Court in Paramjit Singh v. State (NCT of
Delhi), Babba v. State of Maharashtra
and Umarmia alias Mamumia v. State
of Gujarat enlarged the accused on bail
when they had been in jail for an extended
period of time with little possibility of
early completion of trial. The constitutionality
of harsh conditions for bail in such special
enactments, has thus been primarily justified
on the touchstone of speedy trials to ensure
the protection of innocent civilians.
13. We may also refer to the orders enlarging
similarly situated accused under the UAPA
passed by this Court in Angela Harish
Sontakke v. State of Maharashtra. That
was also a case under Sections 10, 13, 17,
18, 18A, 18B, 20, 21, 38, 39 and 40(2)
of the UAPA. This Court in its earnest
effort to draw balance between the seriousness
of the charges with the period of custody
suffered and the likely period within which
the trial could be expected to be completed
took note of the five years’ incarceration
and over 200 witnesses left to be examined,
and thus granted bail to the accused
notwithstanding Section 43D(5) of UAPA.
Similarly, in Sagar Tatyaram Gorkhe v.
2025:HHC:10266
– 37 –
State of Maharashtra, an accused under
the UAPA was enlarged for he had been
in jail for four years and there were over
147 witnesses still unexamined.
15. This Court has clarified in numerous
judgments that the liberty guaranteed
by Part III of the Constitution would
cover within its protective ambit not only
due procedure and fairness but also access
to justice and a speedy trial. In Supreme
Court Legal Aid Committee (Representing
Under-trial Prisoners) v. Union of India, it
was held that undertrials cannot indefinitely
be detained pending trial. Ideally, no
person ought to suffer adverse consequences
of his acts unless the same is established
before a neutral arbiter. However, owing
to the practicalities of real life where to
secure an effective trial and to ameliorate
the risk to society in case a potential
criminal is left at large pending trial, Courts
are tasked with deciding whether an
individual ought to be released pending
trial or not. Once it is obvious that a timely
trial would not be possible and the accused
has suffered incarceration for a significant
period of time, Courts would ordinarily
be obligated to enlarge them on bail.
17. It is thus clear to us that the presence
of statutory restrictions like Section 43D
(5) of UAPA per se does not oust the
ability of Constitutional Courts to grant
bail on grounds of violation of Part III
of the Constitution. Indeed, both the
restrictions under a Statue as well as
the powers exercisable under Constitutional
Jurisdiction can be well harmonised. Whereas
at commencement of proceedings, Courts
are expected to appreciate the legislative
policy against grant of bail but the rigours
of such provisions will melt down where
2025:HHC:10266
– 38 –
there is no likelihood of trial being
completed within a reasonable time and the
period of incarceration already undergone
has exceeded a substantial part of the
prescribed sentence. Such an approach
would safeguard against the possibility of
provisions like Section 43-D (5) of UAPA
being used as the sole metric for denial
of bail or for wholesale breach of constitutional
right to speedy trial.”
5(iv). ……A previous bail petition bearing Cr.MP
(M) No.1458/2022 instituted by the petitioner
was dismissed on merit on 02.09.2022.
While deciding the aforesaid bail petition,
considering the fact that FIR in question
pertained to the year 2020, it was hoped
and expected that the learned Trial
Court would make endeavour to expedite
the trial. We are now at the fag end of
2023. In terms of the status report
filed by the respondent, the prosecution
has examined 16 witnesses thus far.
Statements of 23 prosecution witnesses
still remain to be recorded. The zimni
orders placed on record reflect that the
trial has been deferred time and again
for want of presence of prosecution witnesses.
Considering the fact that at this stage
23 witnesses remain to be recorded,
it is apparent that the trial is not
going to be concluded in near future.
The petitioner, who has already spent
about three years and five months
in custody, in my considered opinion
has made out a case for his enlargement
on regular bail at this stage. There is
no criminal history of the petitioner.
The apprehension expressed by the prosecution
about the likelihood of petitioner’s tampering
with the evidence or winning over remaining
witnesses, can be taken care of by imposing
stringent conditions and also granting
2025:HHC:10266
– 39 –
liberty to the respondent/State to seek
cancellation of the bail in case the
conditions are violated by the petitioner.
In view of all the aforesaid reasons and
without expressing any opinion on the
merits of the case, the present petition
is allowed. Petitioner is ordered to be
released on bail in the aforesaid FIR…”
16(i). While dealing with the claim for bail in
commercial quantity of poppy straw [churapost-bhukki]
of 54.760 Kgs. and taking into account the prolonged
incarceration for about one year and eight months,
the Co-ordinate Bench of this Court, has extended
concession of bail to an accused, in Cr.MP (M) No.
1003 of 2024, titled as Vijay Singh Versus State
of Himachal Pradesh, decided on 24.05.2024, in the
following terms:-
“10. Though, the case at hand is to be decided
by learned trial Court, in the totality of
evidence collected on record by the investigating
agency, but having noticed aforesaid glaring
aspects of the matter, there appears to
be no justification for this Court to let
the bail petitioner incarcerate in jail, for an
indefinite period during trial, especially
when rigours of S.37 of the Act are not
attracted on account of recovery of small
quantity.
11. Learned counsel for the petitioner while
inviting attention of this court to judgments
2025:HHC:10266
– 40 –
dated 4.3.2023 and 15.3.2023 passed in
Cr.MP(M) No. 62 and 570 of 2023, titled
Puran Chand v. State of HP and Prem
chand v. State of HP., submitted that in
similar facts and circumstances, coordinate
Bench of this Court as well as this Court
enlarged the accused on bail on the
ground of inordinate delay. Having perused
aforesaid judgments passed by the coordinate
Bench of this Court, this Court finds that
in both the cases, commercial quantity of
contraband was recovered from the accused,
but yet court having taken note of the
fact that they were behind the bars for
more than three years, proceeded to enlarge
them on bail.
12. Hon’ble Apex Court having taken note of
inordinate delay in conclusion of trial in
similar facts ordered for enlargement of
accused on bail in Nitish Adhikary @
Bapan v. The State of West Bengal,
Special Leave to Appeal (Crl.) No. 5769
of 2022 decided on 1.8.2022 and in Abdul
Majeed Lone v. Union Territory of
Jammu and Kashmir, Special Leave to
Appeal (Crl) No. 3961 of 2022, decided on
1.8.2022, who were also framed under Narcotic
Drugs and Psychotropic Substances Act
and were behind the bars for approximately
two years and there was no likelihood
of conclusion of trial in near future, subject
to certain conditions.
13. Learned Counsel appearing for the petitioner,
to substantiate his plea for enlarging the
petitioner on bail, has referred order dated
12.10.2020 passed by a three judges
Bench of the Supreme Court, in Criminal
Appeal No. 668 of 2020, titled Amrit
Singh Moni v. State of Himachal Pradesh,
whereby petitioner therein, facing trial for
recovery of 3.285 kilograms charas from
2025:HHC:10266
– 41 –
a vehicle, alongwith four other persons,
was enlarged on bail, for having been in
detention for 2 years and 7 months,
as till then out of 14 witnesses, 7 witnesses
were yet to be examined and last witness
was examined in February, 2020 and,
thereafter, there was no further progress in
the trial.
14. Recently, Hon’ble Apex Court in SLP(Crl)
No. 1904 of 2023 titled Sunil Kumar v.
The State of Himachal Pradesh, decided
on 29.3.2023, has ordered enlargement of
petitioner therein, who was behind bars for
one and half years, on the ground of delay
in trial and conduct of the petitioner.
15. Learned Additional Advocate General, referring
to judgment of a three Judges Bench of
Supreme Court, passed on 19.7.2022 in
Narcotics Control Bureau v. Mohit
Aggarwal contends that period of detention
cannot be a ground for enlarging the
petitioner on bail, especially in the cases
where rigors of Section 37 are attracted.
16. In the instant case, bail petitioner is behind
bars for more than 13 months and till
date trial has not been completed and there
are very bleak chances of conclusion of
the same in near future, as such, there
appears to be no justification to keep the
bail petitioner behind the bars for an indefinite
period, during trial.”
16(ii). The Coordinate Bench of this Court in Cr.MP(M)
No. 2656 of 2024, titled as Kamal Singh Versus
State of Himachal Pradesh, decided on 11.12.2024,
has enlarged the accused on bail in case relating to
2025:HHC:10266
– 42 –
commercial quantity of charas, i.e. 1.209 Kgs. who was
facing incarceration for about 12 months, in the following
terms:-
“2. ……..Allegedly, police recovered one
rucksack (pithu bag) from the vehicle
containing huge quantity of contraband.
On weighing, police found that 1.209 Kgs.
of charas / sulfa was being transported
by the occupants in the vehicle, as
detailed hereinabove. Since, no plausible
explanation ever came to be rendered on
record qua possession of aforesaid
commercial quantity of contraband……..”
21. In view of the aforesaid discussion as
well as law laid down by the Hon’ble
Apex Court, petitioner has carved out a
case for grant of bail, accordingly, the
petition is allowed and the petitioner
is ordered to be enlarged on bail in aforesaid
FIR…..”
16(iii) Recently while dealing with claim for bail,
in a case relating to commercial quantity, the accused
was enlarged on bail, as the accusation under Section
37(i) (b) was not satisfied on facts coupled with
the factum of prolonged incarceration, in Cr.MP(M) No.
1737 of 2024, titled Purba Sherpa versus State of
Himachal Pradesh, in Cr.MP(M) No. 2047 of 2024, titled
Om Parkash versus State of Himachal Pradesh, decided
2025:HHC:10266
– 43 –
on 10.01.2025 and Cr.MP(M) No. 1606 of 2024, titled
Kalu Ram versus State of Himachal Pradesh, decided
on 15.01.2025.
NOTHING ADVERSARIAL REGARDING TAMPERING
WITH EVIDENCE OR WITNESSES ETC:
17. Status Reports filed by the State Authorities
have neither pointed out cogent and convincing material
revealing adversarial circumstances that after release
on bail, the petitioner is likely to tamper with evidence
or may cause inducement, threat or promise to any
person or persons acquainted with the facts of
the case. However, the apprehension, if any, of State
Authorities are being safeguarded, by imposing stringent
conditions in this bail order.
NOTHING ADVERSARIAL REGARDING OBSTRUCTING
OR ATTEMPTING TO THWARTLING JUSTICE :
18. Status Reports filed by State Authorities
have neither pointed out any adversarial circumstances
nor placed on record any cogent and convincing
material on record to infer that after release on bail,
the petitioner may obstruct or thwart the cause of
2025:HHC:10266
– 44 –
justice in any manner. In absence of any material,
the plea for bail deserves to be granted to the petitioner
in the instant case.
NOTHING ADVERSARIAL LIKELIHOOD OF FLEEING
AWAY FROM TRIAL OR JURISDICTION OF COURT:
19. In order to safeguard the rights of the
bail petitioner and to take care of the apprehensions
of the State, if any, that the bail petitioner may flee
away [notwithstanding that no such apprehension
has been pointed out in Status Report] yet, in the
peculiar facts of this case, this Court imposes stringent
conditions in later part of this order.
CLAIM FOR ENLARGEMENT ON BAIL ON PRINCIPLE
OF PARITY:
20. Learned Counsel for the petitioner asserts that
two other co-accused, namely, Tilak Raj [Cr.MP(M)
No.1462 of 2024] and Mehar Singh [Cr.MP(M) No.443 of
2025] have been enlarged on bail by this Court vide orders
dated 10.01.2025 and 28.03.2025.
The above contention has force when, no
recovery has been effected from the bail petitioner,
2025:HHC:10266
– 45 –
coupled with the fact that main accused, has been
enlarged on bail, therefore, in these circumstances
the claim for bail carries weight and is accepted.
CONCLUSION AND DIRECTIONS:
21. In the facts of instant case, the plea of
petitioner for bail carries weight, for the reason, that
firstly, prima facie prosecution story appears to be
highly doubtful and improbable which is yet to be tested,
examined and proved during the trial; and secondly, the
Status Report reveals that the bail petitioner is in custody
since 19.05.2023 and is undergoing incarceration for
about one year and ten months; and thirdly, conclusion
of trial is likely to take considerable time when,
Learned Counsel for petitioner, informs that out of total
22 PWs 14 PWs have been examined as on day; and
fourthly, the delay in trial is not attributable to the
petitioner; and fifthly, an accused is presumed to be
innocent unless proven guilty; and sixthly, the
continued detention can neither be punitive nor
2025:HHC:10266
– 46 –
preventative and seventhly, the continued detention in
guise of penalizing the petitioner by presuming guilt
cannot be permitted; and eighthly, even the State
Authorities have not placed any cogent and convincing
material that after release on bail there is possibility
of accused fleeing away from the trial or an accused is
likely to threaten witnesses or is likely to thwart justice;
and ninthly, even the State Authorities have not placed
anything on record to show that the petitioner has
misused liberty granted to him earlier; and tenthly, the
petitioner has not past criminal antecedents and other
co-accused have been enlarged on bail [as in Para 20] of
this order; and lastly, in order to safeguard the interest of
the State vis-à-vis the right of petitioner, this Court
imposes stringent condition in this order and in case of
any violation of or misuse of the concession-liberty, the
State Authorities can seek cancellation of the concession
extended to the petitioner. Denial of bail shall deprive and
curtail the sacrosanct fundamental rights of personal
2025:HHC:10266
– 47 –
liberty and right of speedy trial under Article 21
of the Constitution of India of the petitioner at this stage.
On totality of facts and circumstances and the mandate of
law, referred to above, the claim of the petitioner
[Missu Ram] for enlargement on bail carries weight, in the
peculiar facts-situation of this case, as discussed above.
DIRECTIONS:
22. Taking into account the entirety of the
facts, the material on record and the mandate of
law and in view of the discussion made and the
reasons recorded hereinabove and in the peculiar
facts of case, the instant petition is allowed, and
the State Authorities are directed to release the
petitioner [Missu Ram] on bail, subject to observance
of the following conditions:-
(i). Respondent-State Authorities shall release
bail petitioner [Missu Ram] on furnishing a
personal bond of Rs 75,000/- {Rs Seventy Five
Thousand} with two sureties on furnishing
similar bond amount each, to the satisfaction
of Learned Trial Court concerned;
(ii). Petitioner shall undertake and shall also appear
on every date of trial hereinafter. Failure to
appear in trial, except when exempted, shall
2025:HHC:10266
– 48 –
result in cancellation of the concession of bail
as granted by this Court.
(iii). Petitioner shall abide by all or any other
condition(s), which may be imposed by the
Learned Trial Court, in view of this order;
(iv). Petitioner shall neither involve himself nor
shall abet the commission of any offence
hereinafter. Involvement in any offence
whatsoever or abetting thereof shall entail
automatic cancellation of bail granted in
terms of this order ;
(v). Petitioner shall disclose his functional
E-Mail IDs/ WhatsApp number and that of
his surety to the Learned Trial Court;
(vi). Petitioner after release, shall report to the
Investigating Officer or SHO of Police Station
concerned, nearest to his native place,
i.e. Patan, Tehsil Padhar, District Mandi
[HP] on 2nd Sunday of every month at
11.00 a.m., only for having an update on
good conduct and behaviour ;
(vii). Petitioner shall not jump over the bail and
also shall not leave the country without
the prior information of the Court;
(viii). Petitioner shall not tamper with the evidence
in any manner;
(ix). Petitioner shall not cause any inducement,
threat or promise {directly or indirectly}
to witnesses of any other person acquainted
with the case;
(x). Petitioner is free to seek modification of
any condition contained hereinabove, if
need arises;
(xi) State Authorities are free to move this
Court for seeking alteration /modification of
any of the condition contained in this order
or any condition imposed by Learned Trial
2025:HHC:10266
– 49 –
Court as a sequel to this order, in fact
situation of instant case or circumstances
so necessitate, at any time herein-after;
(xii). State Authorities are free to move this
Court for seeking cancellation of the concession
of bail, in case, the petitioner violates any
of the conditions contained in this order.
23. Observations made in this judgment shall
not be construed in any manner as an indictive of
findings, for or against the parties herein, either for
the purpose of investigation or for trial, which shall
proceed in-accordance with law, irrespective of any of
the observations contained hereinabove.
24. Petitioner is permitted to produce/use copy
of this order, downloaded from the web-page of the
High Court of Himachal Pradesh, before the authorities
concerned, and the said authorities shall not insist
for production of a certified copy, but if required, may
verify about the passing of this order from the Website
of this Court.
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– 50 –
Pending miscellaneous application(s), if any,
shall also stand disposed of.
(Ranjan Sharma)
Judge
April 11, 2025.
(himani)