Himachal Pradesh High Court
Reserved On: 18.06.2025 vs State Of Himachal Pradesh on 24 June, 2025
2025:HHC:19454
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr. MP (M) No. 1269 of 2025
Reserved on: 18.06.2025
Date of Decision: 24.06.2025
Rajesh Kumar …Petitioner
Versus
State of Himachal Pradesh …Respondent
Coram
Hon’ble Mr Justice Rakesh Kainthla, Judge.
Whether approved for reporting?1 No
For the Petitioner : Mr. Umesh Kanwar, Advocate.
For the Respondent/State : Mr. Jitender K. Sharma,
Additional Advocate General
with ASI Mast Ram I.O. P.S.
Nurpur, District Kangra, H.P.
Rakesh Kainthla, Judge
The petitioner has filed the present petition for
seeking regular bail in F.I.R. 270 of 2024, dated 12.12.2024,
registered for the commission of offences punishable under
Sections 20 and 29 of the Narcotic Drugs and Psychotropic
Substances Act, 1985 (in short ‘NDPS Act‘) at Police Station
1
Whether reporters of Local Papers may be allowed to see the judgment? Yes.
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Nurpur, District Kangra, HP. It has been asserted that the police
party intercepted a vehicle bearing registration No. HP53B-9168
(Alto Car Grey Colour) based on a secret informatioin. The
police recovered 4.36 kilograms of charas from the rear door of
the vehicle. Both the occupants of the vehicle ran away from the
spot and could not be apprehended. Subsequently, Raj Kumar
and Sham Lal were arrested. Raj Kumar disclosed that the
charas was supplied by the petitioner and was to be delivered to
Bunty Kumar. The police arrested the petitioner on 08.05.2025.
The statement made by the co-accused is inadmissible in
evidence, and there are reasonable grounds to believe that the
petitioner is not guilty of the commission of an offence
punishable under the NDPS Act. The petitioner would abide by
all the terms and conditions which the Court may impose.
Therefore, it was prayed that the present petition be allowed and
the petitioner be released on bail.
2. The petition is opposed by filing a status report
asserting that the police were on patrolling duty on 12.12.2024
when they received secret information that Charas was being
transported in the vehicle bearing registration
No. HP-53B-9168. The police reduced the information to
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writing and sent it to a supervisory officer. The police signalled
the vehicle bearing registration No. HP-53B-9168 to stop;
however, the driver sped away with the vehicle towards Talwara.
The vehicle was stopped at a lonely place, and the occupants of
the vehicle ran away from the spot. The police searched the
vehicle and recovered 4.36 kilograms of charas. The police
seized the charas and arrested Rajesh Kumar, who revealed on
inquiry that he was told by Shyam Lal to take the vehicle
towards Jawali. Two persons signalled him to stop the vehicle,
but he sped away in the vehicle at the instance of Shyam Lal.
Subsequently, he and Shyam Lal ran away after stopping the
vehicle at a lonely place. Shyam Lal accompanied him who was
to deliver the charas to Bunty Kumar at the instance of the
present petitioner. The police arrested the petitioner, who
admitted that he used to purchase charas from Banty. The police
searched various places to apprehend the petitioner but did not
succeed in arresting him. The petitioner had made WhatsApp
audio and video calls to Bunty Kumar. He had also contacted Raj
Kumar. The petitioner was arrested on 08.05.2025. The police
seized his mobile phone. As per result of the analysis, the
substance was found to be an extract of cannabis and a sample
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of charas. The petitioner had called the co-accused Sham Lal
and Raj Kumar. He sent the photograph of Charas to Bunty. The
petitioner had absconded, and he is likely to commit a similar
offence in case of his release on bail. Hence, the status report.
3. I have heard Mr. Umesh Kanwar, learned counsel for
the petitioner and Mr. Jitender K. Sharma, learned Additional
Advocate General, for the respondent-State.
4. Mr. Umesh Kanwar, learned counsel for the
petitioner, submitted that the petitioner is innocent and was
falsely implicated. There is nothing to connect the petitioner
with the commission of a crime except the statement made by
the co-accused and the call details record, which are
inadmissible in evidence. Therefore, he prayed that the present
petition be allowed and the petitioner be released on bail.
5. Mr. Jitender K. Sharma, learned Additional Advocate
General for the respondent/State, submitted that the petitioner
sent a photograph of charas to co-accused Bunty Kumar. He was
in touch with the other co-accused. The circumstances, prima
facie, show the involvement of the petitioner in the commission
of a crime. Therefore, he prayed that the present be dismissed.
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6. I have given considerable thought to the submissions
made at the bar and have gone through the records carefully.
7. The parameters for granting bail were considered by
the Hon’ble Supreme Court in Ajwar v. Waseem (2024) 10 SCC
768: 2024 SCC OnLine SC 974, wherein it was observed at page
783: –
“Relevant parameters for granting bail
26. While considering as to whether bail ought to be
granted in a matter involving a serious criminal offence,
the Court must consider relevant factors like the nature of
the accusations made against the accused, the manner in
which the crime is alleged to have been committed, the
gravity of the offence, the role attributed to the accused,
the criminal antecedents of the accused, the probability of
tampering of the witnesses and repeating the offence, if
the accused are released on bail, the likelihood of the
accused being unavailable in the event bail is granted, the
possibility of obstructing the proceedings and evading the
courts of justice and the overall desirability of releasing
the accused on bail. [Refer: Chaman Lal v. State of
U.P. [Chaman Lal v. State of U.P., (2004) 7 SCC 525: 2004
SCC (Cri) 1974]; Kalyan Chandra Sarkar v. Rajesh
Ranjan [Kalyan Chandra Sarkar v. Rajesh Ranjan, (2004) 7
SCC 528: 2004 SCC (Cri) 1977]; Masroor v. State of
U.P. [Masroor v. State of U.P., (2009) 14 SCC 286 : (2010) 1
SCC (Cri) 1368]; Prasanta Kumar Sarkar v. Ashis
Chatterjee [Prasanta Kumar Sarkar v. Ashis Chatterjee,
(2010) 14 SCC 496 : (2011) 3 SCC (Cri) 765]; Neeru
Yadav v. State of U.P. [Neeru Yadav v. State of U.P., (2014) 16
SCC 508 : (2015) 3 SCC (Cri) 527]; Anil Kumar Yadav v. State
(NCT of Delhi)[Anil Kumar Yadav v. State (NCT of Delhi),
(2018) 12 SCC 129 : (2018) 3 SCC (Cri)
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425]; Mahipal v. Rajesh Kumar [Mahipal v. Rajesh Kumar,
(2020) 2 SCC 118 : (2020) 1 SCC (Cri) 558] .]
8. This position was reiterated in Ramratan v. State of
M.P., 2024 SCC OnLine SC 3068, wherein it was observed as
under:-
“12. The fundamental purpose of bail is to ensure the
accused’s presence during the investigation and trial. Any
conditions imposed must be reasonable and directly
related to this objective. This Court in Parvez Noordin
Lokhandwalla v. State of Maharastra (2020) 10 SCC 77
observed that though the competent court is empowered
to exercise its discretion to impose “any condition” for
the grant of bail under Sections 437(3) and 439(1)(a)
CrPC, the discretion of the court has to be guided by the
need to facilitate the administration of justice, secure the
presence of the accused and ensure that the liberty of the
accused is not misused to impede the investigation,
overawe the witnesses or obstruct the course of justice.
The relevant observations are extracted herein below:
“14. The language of Section 437(3) CrPC, which uses
the expression “any condition … otherwise in the
interest of justice” has been construed in several
decisions of this Court. Though the competent court is
empowered to exercise its discretion to impose “any
condition” for the grant of bail under
Sections 437(3) and 439(1)(a) CrPC, the discretion of the
court has to be guided by the need to facilitate the
administration of justice, secure the presence of the
accused and ensure that the liberty of the accused is not
misused to impede the investigation, overawe the
witnesses or obstruct the course of justice. Several
decisions of this Court have dwelt on the nature of the
conditions which can legitimately be imposed both in
the context of bail and anticipatory bail.” (Emphasis
supplied)
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13. In Sumit Mehta v. State (NCT of Delhi) (2013) 15 SCC
570, this Court discussed the scope of the discretion of the
Court to impose “any condition” on the grant of bail and
observed in the following terms:–
“15. The words “any condition” used in the provision
should not be regarded as conferring absolute power
on a court of law to impose any condition that it
chooses to impose. Any condition has to be interpreted as
a reasonable condition acceptable in the facts permissible
in the circumstance, and effective in the pragmatic sense,
and should not defeat the order of grant of bail. We are of
the view that the present facts and circumstances of
the case do not warrant such an extreme condition to
be imposed.” (Emphasis supplied)
14. This Court, in Dilip Singh v. State of Madhya Pradesh
(2021) 2 SCC 779, laid down the factors to be taken into
consideration while deciding the bail application and
observed:
“4. It is well settled by a plethora of decisions of this
Court that criminal proceedings are not for the
realisation of disputed dues. It is open to a court to
grant or refuse the prayer for anticipatory bail,
depending on the facts and circumstances of the
particular case. The factors to be taken into consideration
while considering an application for bail are the nature of
the accusation and the severity of the punishment in the
case of conviction and the nature of the materials relied
upon by the prosecution; reasonable apprehension of
tampering with the witnesses or apprehension of threat to
the complainant or the witnesses; the reasonable
possibility of securing the presence of the accused at the
time of trial or the likelihood of his abscondence;
character, behaviour and standing of the accused; and the
circumstances which are peculiar or the accused and
larger interest of the public or the State and similar other
considerations. A criminal court, exercising jurisdiction
to grant bail/anticipatory bail, is not expected to act as
a recovery agent to realise the dues of the
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complainant, and that too, without any trial.”
(Emphasis supplied)
9. This position was reiterated in Shabeen Ahmed versus
State of U.P., 2025 SCC Online SC 479.
10. The present petition has to be decided as per the
parameters laid down by the Hon’ble Supreme Court.
11. The police relied upon the statement made by the
accused, the call detail record and the photographs sent by the
petitioner to co-accused Banty Kumar to connect the petitioner
with the commission of the crime.
12. It was laid down by the Hon’ble Supreme Court in
Dipakbhai Jagdishchandra Patel v. State of Gujarat, (2019) 16 SCC
547: (2020) 2 SCC (Cri) 361: 2019 SCC OnLine SC 588 that a
statement made by co-accused during the investigation is hit by
Section 162 of Cr.P.C. and cannot be used as a piece of evidence.
Further, the confession made by the co-accused is inadmissible
because of Section 25 of the Indian Evidence Act. It was observed
at page 568:-
44. Such a person, viz., the person who is named in the
FIR, and therefore, the accused in the eye of the law, can
indeed be questioned, and the statement is taken by the
police officer. A confession that is made to a police officer
would be inadmissible, having regard to Section 25 of the
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Evidence Act. A confession, which is vitiated under
Section 24 of the Evidence Act, would also be
inadmissible. A confession, unless it fulfils the test laid
down in Pakala Narayana Swami [Pakala Narayana
Swami v. King Emperor, 1939 SCC OnLine PC 1 : (1938-39)
66 IA 66: AIR 1939 PC 47] and as accepted by this Court,
may still be used as an admission under Section 21 of the
Evidence Act. This, however, is subject to the bar of
admissibility of a statement under Section 161 CrPC.
Therefore, even if a statement contains admission, the
statement being one under Section 161, it would
immediately attract the bar under Section 162 CrPC.”
13. Similarly, it was held in Surinder Kumar Khanna vs
Intelligence Officer Directorate of Revenue Intelligence 2018 (8) SCC
271 that a confession made by a co-accused cannot be taken as a
substantive piece of evidence against another co-accused and
can only be utilised to lend assurance to the other evidence. The
Hon’ble Supreme Court subsequently held in Tofan Singh Versus
State of Tamil Nadu 2021 (4) SCC 1 that a confession made to a
police officer during the investigation is hit by Section 25 of the
Indian Evidence Act and is not saved by the provisions of Section
67 of the NDPS Act. Therefore, no advantage can be derived by
the prosecution from the confessional statement made by the
co-accused implicating the petitioner.
14. The police also relied upon the call detail record. As
per the status report, the report of the FSL shows that call logs,
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chats, contacts, and instant messages related to the case were
found in the Phone Ex-1. Mobile Nos. 931762xxx and
8091460xxxx were saved in the mobile phone. The status report
also shows that the mobile no. 821969xxxx belongs to the
petitioner, whereas mobile No. 9317628xxxx belongs to co-
accused Sham Lal. The Police also found a photograph of the
charas in the mobile phone of the petitioner, which was sent by
him to the mobile of Bunty Kumar. The presence of the
photographs in the mobile phone of the petitioner has not been
explained. The photographs, chats, and call detail records
cumulatively, prima facie, show the involvement of the
petitioner in the commission of a crime.
15. The police had recovered 4.36 kilograms of charas,
which is a commercial quantity. Therefore, the rigours of Section
37 of the NDPS Act apply to the present case. Section 37 of the
NDPS Act provides that in an offence involving commercial
quantity, the Court should be satisfied that the accused is not
guilty of the commission of an offence and is not likely to
commit any offence while on bail. Section 37 of the NDPS Act
reads as under:
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“37. Offences are to be cognizable and non-bailable. – (1)
Notwithstanding anything contained in the Code of
Criminal Procedure, 1973 (2 of 1974)–
(a) every offence punishable under this Act shall be
cognizable;
(b) no person accused of an offence punishable for
offences under section 19, section 24, or section
27A, and also for offences involving commercial
quantity, shall be released on bail or his own bond
unless-
(i) the Public Prosecutor has been given an
opportunity to oppose the application for
such release, and
(ii) where the Public Prosecutor opposes the
application, the court is satisfied that there
are reasonable grounds for believing that he
is not guilty of such an offence and that he is
not likely to commit any offence while on
bail.
(2) The limitations on granting of bail specified in
clause (b) of sub-section (1) are in addition to the
limitations under the Code of Criminal Procedure,
1973 (2 of 1974) or any other law for the time being
in force, on granting of bail.”
16. This Section was interpreted by the Hon’ble Supreme
Court in Union of India Versus Niyazuddin & Another (2018) 13 SCC
738 and it was held that in the absence of the satisfaction that
the accused is not guilty of an offence and he is not likely to
commit an offence while on bail, he cannot be released on bail.
It was observed:
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“7. Section 37 of the NDPS Act contains special provisions
with regard to the grant of bail in respect of certain
offences enumerated under the said Section. They are :
(1) In the case of a person accused of an offence
punishable under Section 19,
(2) Under Section 24,
(3) Under Section 27A and
(4) Of offences involving commercial quantity.
8. The accusation in the present case is with regard to the
fourth factor, namely, commercial quantity. Be that as it
may, once the Public Prosecutor opposes the application
for bail to a person accused of the enumerated offences
under Section 37 of the NDPS Act, in case, the court
proposes to grant bail to such a person, two conditions
are to be mandatorily satisfied in addition to the normal
requirements under the provisions of the Cr.P.C. or any
other enactment.
(1) The court must be satisfied that there are
reasonable grounds for believing that the person is
not guilty of such an offence;
(2) that person is not likely to commit any offence
while on bail.”
17. This position was reiterated in State of Kerala Versus
Rajesh, AIR 2020 SC 721, wherein it was held:
“19. This Court has laid down broad parameters to be
followed while considering the application for bail moved
by the accused involved in offences under the NDPS Act.
In Union of India vs. Ram Samujh and Ors., (1999) 9 SCC
429, it has been elaborated as under:-
“7. It is to be borne in mind that the aforesaid
legislative mandate is required to be adhered to and
followed. It should be borne in mind that in a
murder case, the accused commits the murder of
one or two persons, while those persons who are
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dealing in narcotic drugs are instrumental in
causing death or in inflicting death-blow to a
number of innocent young victims, who are
vulnerable; it causes deleterious effects and a
deadly impact on the society; they are a hazard to
the society; even if they are released temporarily, in
all probability, they would continue their nefarious
activities of trafficking and/or dealing in
intoxicants clandestinely. The reason may be the
large stake and illegal profit involved. This Court,
dealing with the contention with regard to
punishment under the NDPS Act, has succinctly
observed about the adverse effect of such activities
in Durand Didier vs. Chief Secy., Union Territory of
Goa, (1990) 1 SCC 95) as under:
24. With deep concern, we may point out that
the organised activities of the underworld and
the clandestine smuggling of narcotic drugs
and psychotropic substances into this country
and illegal trafficking in such drugs and
substances have led to drug addiction among
a sizeable section of the public, particularly
the adolescents and students of both sexes
and the menace has assumed serious and
alarming proportions in the recent years.
Therefore, in order to effectively control and
eradicate this proliferating and booming
devastating menace, causing deleterious
effects and deadly impact on society as a
whole, Parliament, in its wisdom, has made
effective provisions by introducing Act 81 of
1985 specifying mandatory minimum
imprisonment and fine.
8. To check the menace of dangerous drugs flooding
the market, Parliament has provided that the
person accused of offences under the NDPS Act
should not be released on bail during trial unless
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the mandatory conditions provided in Section 37,
namely,
(i) there are reasonable grounds for
believing that the accused is not guilty of
such offence; and
(ii) that he is not likely to commit any
offence while on bail are satisfied. The High
Court has not given any justifiable reason for
not abiding by the aforesaid mandate while
ordering the release of the respondent
accused on bail. Instead of attempting to
take a holistic view of the harmful socio-
economic consequences and health hazards
which would accompany trafficking illegally
in dangerous drugs, the court should
implement the law in the spirit with which
Parliament, after due deliberation, has
amended.”
20. The scheme of Section 37 reveals that the exercise of
power to grant bail is not only subject to the limitations
contained under Section 439 of the CrPC but is also
subject to the limitation placed by Section 37, which
commences with the non-obstante clause. The operative
part of the said section is in the negative form prescribing
the enlargement of bail to any person accused of the
commission of an offence under the Act unless twin
conditions are satisfied. The first condition is that the
prosecution must be given an opportunity to oppose the
application, and the second is that the Court must be
satisfied that there are reasonable grounds for believing
that he is not guilty of such an offence. If either of these
two conditions is not satisfied, the ban for granting bail
operates.
21. The expression “reasonable grounds” means
something more than prima facie grounds. It
contemplates substantial probable causes for believing
that the accused is not guilty of the alleged offence. The
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reasonable belief contemplated in the provision requires
the existence of such facts and circumstances as are
sufficient in themselves to justify satisfaction that the
accused is not guilty of the alleged offence. In the case on
hand, the High Court seems to have completely
overlooked the underlying object of Section 37 that in
addition to the limitations provided under the CrPC, or
any other law for the time being in force, regulating the
grant of bail, its liberal approach in the matter of bail
under the NDPS Act is indeed uncalled for.”
18. A similar view was taken in Union of India v. Mohd.
Nawaz Khan, (2021) 10 SCC 100: (2021) 3 SCC (Cri) 721: 2021 SCC
OnLine SC 1237 wherein it was observed at page 110:
“21. Under Section 37(1)(b)(ii), the limitations on the
grant of bail for offences punishable under Sections 19, 24
or 27-A and also for offences involving a commercial
quantity are:
(i) The Prosecutor must be given an opportunity to
oppose the application for bail; and
(ii) There must exist “reasonable grounds to
believe” that : (a) the person is not guilty of such an
offence; and (b) he is not likely to commit any
offence while on bail.
22. The standard prescribed for the grant of bail is
“reasonable ground to believe” that the person
is not guilty of the offence. Interpreting the standard of
“reasonable grounds to believe”, a two-judge Bench of
this Court in Shiv Shanker Kesari [Union of India v. Shiv
Shanker Kesari, (2007) 7 SCC 798 : (2007) 3 SCC (Cri) 505],
held that : (SCC pp. 801-02, paras 7-8 & 10-11)
“7. The expression used in Section 37(1)(b)(ii) is
“reasonable grounds”. The expression means
something more than prima facie grounds. It connotes
substantial probable causes for believing that the
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accused is not guilty of the offence charged, and this
reasonable belief contemplated in turn points to the
existence of such facts and circumstances as are
sufficient in themselves to justify the recording of
satisfaction that the accused is not guilty of the offence
charged.
8. The word “reasonable” has in law the prima facie
meaning of reasonable in regard to those
circumstances of which the actor, called on to act
reasonably, knows or ought to know. It is difficult
to give an exact definition of the word
“reasonable”.
‘7. … Stroud’s Judicial Dictionary, 4th Edn., p. 2258
states that it would be unreasonable to expect an
exact definition of the word “reasonable”. Reason
varies in its conclusions according to the
idiosyncrasy of the individual, and the times and
circumstances in which he thinks. The reasoning
which built up the old scholastic logic sounds now
like the jingling of a child’s toy.’
[See MCD v. Jagan Nath Ashok Kumar [MCD v. Jagan
Nath Ashok Kumar, (1987) 4 SCC 497], SCC p. 504,
para 7 and Gujarat Water Supply & Sewerage
Board v. Unique Erectors (Gujarat) (P) Ltd. [Gujarat
Water Supply & Sewerage Board v. Unique Erectors
(Gujarat) (P) Ltd., (1989) 1 SCC 532] ]
***
10. The word “reasonable” signifies “in accordance
with reason”. In the ultimate analysis, it is a
question of fact whether a particular act is
reasonable or not, depends on the circumstances in
a given situation. (See Municipal Corpn. of Greater
Mumbai v. Kamla Mills Ltd. [Municipal Corpn. of
Greater Mumbai v. Kamla Mills Ltd. (2003) 6 SCC 315]
11. The court, while considering the application for
bail with reference to Section 37 of the Act, is not
called upon to record a finding of not guilty. It is for
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the limited purpose, essentially confined to the
question of releasing the accused on bail, that the
court is called upon to see if there are reasonable
grounds for believing that the accused is not guilty
and records its satisfaction about the existence of
such grounds. But the court has not to consider the
matter as if it is pronouncing a judgment of
acquittal and recording a finding of not
guilty.”(emphasis supplied)
23. Based on the above precedent, the test which the High
Court and this Court are required to apply while granting
bail is whether there are reasonable grounds to believe
that the accused has not committed an offence and
whether he is likely to commit any offence while on bail.
Given the seriousness of offences punishable under the
NDPS Act and in order to curb the menace of drug
trafficking in the country, stringent parameters for the
grant of bail under the NDPS Act have been prescribed.
19. In the present case, there is nothing to show that the
petitioner is not guilty of committing the offence. Further, there
is nothing to show that the petitioner would not indulge in the
commission of a similar offence in case of his release on bail.
Therefore, the petitioner has failed to satisfy the twin conditions
laid down under Section 37 of the NDPS Act, and he is not
entitled to bail.
20. No other point was urged.
21. In view of the above, the present petition fails, and
the same is dismissed.
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22. The observation made herein before shall remain
confined to the disposal of the instant petition and will have no
bearing, whatsoever, on the merits of the case.
(Rakesh Kainthla)
Judge
24th June, 2025
(ravinder)