Himachal Pradesh High Court
Reserved On: 2.4.2025 vs State Of Himachal Pradesh on 9 April, 2025
2025:HHC:9750
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr. MP (M) No. 514 of 2025
Reserved on: 2.4.2025
Date of Decision: 09.04.2025
Kundan Lal …Petitioner
Versus
State of Himachal Pradesh …Respondent
Coram
Hon’ble Mr Justice Rakesh Kainthla, Judge.
Whether approved for reporting?1. No.
For the Petitioner : Ms. Kavita Kajal, Advocate.
For the Respondent : Mr. Lokender Kutlehria, Additional
Advocate General.
HC Davinder Jaswal No.57, I/O
Police Station Mehatpur, District
Una, H.P., present with police
record.
Rakesh Kainthla, Judge
The petitioner has filed the present petition for
seeking regular bail. It has been asserted that the petitioner was
arrested vide F.I.R. No. 24 of 2022, dated 3.9.2022, for the
commission of offences punishable under Sections 21 and 29 of
the Narcotic Drugs and Psychotropic Substances Act (in short
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Whether reporters of Local Papers may be allowed to see the judgment? Yes.
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‘NDPS Act‘) registered at Police Station Mehatpur, District Una,
H.P. Later on, the custody of the petitioner was transferred to
Roopnagar, Punjab and he is lodged in District Jail at Roopnagar,
Punjab. As per the prosecution, the police intercepted a vehicle
bearing registration No. PB-74B-3399 and found 7.53 grams of
heroin in it. The petitioner was sitting with the driver in the
vehicle. 37 FIRS have been registered against the petitioner, out
of which, he was convicted in some, acquitted in some, and
some are pending. The quantity of heroin stated to have been in
the possession of the petitioner is an intermediate quantity. The
police have filed the charge sheet, and the custodial
interrogation of the petitioner is not required. The petitioner is
a permanent resident of District Roopnagar, Punjab, and he has
roots in the society. No fruitful purpose would be served by
detaining the petitioner in custody. The petitioner would abide
by all the terms and conditions which the Court may impose.
Hence, the petition.
2. The petition is opposed by filing a status report
asserting that the police party was on patrolling duty on
2.9.2022. They intercepted a vehicle bearing registration
No. PB-74B-3399. The driver tried to reverse the vehicle after
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seeing the police. The police stopped the car. The driver got
frightened. The person sitting on the left side suddenly threw a
small transparent plastic pouch out of the car. The police
checked the packet in the presence of independent persons and
found 7.53 grams of heroin in it. The person sitting on the left
side identified himself as Kundan Lal (petitioner). The driver
identified himself as Ridhamjot Singh and the person sitting on
the rear seat identified themselves as Shivam and Sunil Kumar.
The police arrested the occupants of the vehicle and seized the
heroin. The heroin was sent to SFSL for chemical analysis and
was found to contain Diacetylmorphine (heroin). 34 cases were
registered against the petitioner. The petitioner was involved in
drug cases earlier. He would indulge in the commission of
similar offences, and intimidate the witnesses in case he is
released on bail. Hence, it was prayed that the present petition
be dismissed.
3. I have heard Ms Kavita Kajal, learned counsel for the
petitioner and Mr Lokender Kutlehria, learned Additional
Advocate General for the respondent-State.
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4. Ms Kavita Kajal, learned counsel of the petitioner,
submitted that the petitioner is innocent and he was falsely
implicated. The quantity of narcotics stated to have been found
in the possession of the petitioner is intermediate. The rigours
of Section 37 of the NDPS Act do not apply to the present case.
Therefore, she prayed that the present petition be allowed. She
relied upon the judgments of Dilpreet Singh @ Golu Vs State of
Punjab 2024:PHHC:123478, Parvej Khan Vs The State Govt. of NCT
Bail Application No.2863 of 2023 decided on 7.6.2024 and Avtar
Singh Vs State of Himachal Pradesh 2024:HHC:3769 in support of
her submission.
5. Mr Lokender Kutlehria, learned Additional Advocate
General, submitted that the petitioner was involved in the
commission of similar offences earlier. He was convicted by the
competent Court of law in some of the offences. This shows that
the petitioner is a habitual offender. He would indulge in the
commission of a similar offence in case of his release on bail.
Therefore, he prayed that the present petition be dismissed.
6. The parameters for granting bail were considered by
the Hon’ble Supreme Court in Ajwar v. Waseem (2024) 10 SCC
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768: 2024 SCC OnLine SC 974, wherein it was observed as under
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)
425]; Mahipal v. Rajesh Kumar [Mahipal v. Rajesh Kumar,
(2020) 2 SCC 118 : (2020) 1 SCC (Cri) 558] .]
7. This position was reiterated in Ramratan v. State of
M.P., 2024 SCC OnLine SC 3068, wherein it was observed as
under:-
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“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)
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
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2025:HHC:9750a 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
complainant, and that too, without any trial.”
(Emphasis supplied)
8. This position was reiterated in Shabeen Ahmed versus
State of U.P, 2025 SCC Online SC 479.
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9. The present petition has to be decided as per the
parameters laid down by the Hon’ble Supreme Court.
10. Perusal of the status report shows that the police
intercepted the vehicle and the petitioner threw a packet after
seeing the police. The police checked the packet and found 7.53
grams of heroin in it. Therefore, prima facie, there is sufficient
material on record to connect the petitioner with the
commission of a crime punishable under Section 21(b) of the
NDPS Act.
11. The petition mentions that 37 FIRs were registered
against the petitioner. The police have filed a detailed report
showing that the petitioner was convicted in FIR Nos. 4, 46, 40,
26, 67, 144, 86, 75, 73, 72 and 66 out of which FIR Nos. 67, 98
and 144, were registered under Section 22 of the NDPS Act. This
shows that the petitioner has criminal antecedents. This Court
exhaustively dealt with the relevance of criminal antecedents in
Aminodin vs State of H.P. 2024:HHC: 6091 and held, after referring
to various judgments, that a Judge must consider the criminal
antecedents of the accused, the nature of such offences and his
general conduct while considering the bail petition. The bail
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should not be generally granted to an accused having criminal
antecedents when there is a likelihood of the commission of the
crime.
12. It was held in V. Senthil Balaji v. Enforcement
Directorate, 2024 SCC OnLine SC 2626, that where the petitioner
can become a threat to society because of his criminal
antecedents, he should not be released on bail. It was observed:
“27…..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.”
13. Similarly, it was held in Union of India v.
Barakathullah, 2024 SCC OnLine SC 1019, that where the persons
were involved in the commission of an offence, similar offences,
they should not be released on bail. It was observed: –
“20. … So far as the respondents in the instant appeals
are concerned, they are in custody for hardly one and a
half years, apart from the fact that all the respondents
are shown to have been involved in previous cases. There
are about 8 to 9 previous cases shown in the chargesheet
against the respondents, except accused Nos. 1, 4 and 6,
who are shown to have been involved in two cases.
Considering the nature and gravity of the alleged
offences and considering their criminal antecedents, in
our opinion High Court should not have taken a lenient
view, more particularly when there was sufficient
material to show their prima facie involvement in the
alleged offences under the UAPA.
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14. Thus, the criminal antecedent assumes significance
while considering the bail of the accused.
15. In Avtar Singh‘s case (supra) and Parvej Khan‘s case
(supra), the cases were pending against the petitioner, and he
was not convicted. Therefore, these judgments will not assist
the petitioner because in the present case, the cases are not only
pending, but the petitioner has been convicted under the NDPS
Act. In Dilpreet Singh‘s case (supra), the petitioner was released
on bail because of a delay in the progress of the trial, which is
not a circumstance in the present case. Thus, none of the cited
judgments applies to the present case.
16. It was submitted that the police had only recovered
an intermediate quantity of the heroin, the rigours of Section 37
of the NPDS Act do not apply to the present case, and the
petitioner is entitled to bail as a matter of right. This submission
cannot be accepted. It was laid down by this Court in Dilbar Khan
v. State of H.P., 2022 SCC OnLine HP 2441, that a person found in
possession of an intermediate quantity of drugs is not entitled to
bail as a matter of right. It was observed: –
“9. No doubt the quantity of contraband in the case is
intermediate and therefore the rigours of Section 37 of
the NDPS Act will not be applicable. Merely because the
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2025:HHC:9750quantity of contraband recovered is less than the
commercial quantity may not, by itself, be sufficient to
grant bail.
10. The menace of drug abuse is not unknown in society
in modern times. The victims are innocent adolescents,
among others. Drug abuse more often than not leads to
drug addiction, which ruins the lives of a substantial
number of such persons. The question arises as to how
young adolescents, who by and large remain in the
custody of their guardians, are able to procure the
prohibited drug. Definitely, the drug is made available
through a supply chain managed in an organized
manner.”
17. It was laid down by this Court in Khushi Ram Gupta v.
State of H.P., 2022 SCC OnLine HP 3779, that the menace of drug
addiction has seriously eroded into the fabric of society, and the
release of an accused on bail in NDPS Act cases will send a
negative signal to society. It was observed:
“8. The menace of drug addiction, especially in
adolescents and students, has seriously eroded into the
fabric of society, putting the future generation as well as
the prospects of future nation-building into serious peril.
9. It is not a case where the investigating agency is
clueless in respect of evidence against the petitioner.
Though allegations against the petitioner are yet to be
proved in accordance with law, it cannot be taken singly
as a factor to grant bail to the petitioner. Nothing has been
placed on record on behalf of the petitioner to divulge as
to how and in what manner he came in contact with the
persons who were residents of the State of Himachal
Pradesh. Thus, there is sufficient prima facie material to
infer the implication of the petitioner in the crime. In
such circumstances, the release of the petitioner on bail
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2025:HHC:9750will send a negative signal in society, which will definitely
shall be detrimental to its interest.
10. The prima facie involvement of the petitioner in the
dangerous trade of contraband cannot be ignored merely
on account of the fact that he has no past criminal history.
It cannot be guaranteed that there will be re-indulgence
by the petitioner in similar activities, in case he is released
on bail.”
18. In view of the above, the present petition fails and
the same is dismissed.
19. The observation made herein before shall remain
confined to the disposal of the petition and will have no bearing
whatsoever on the merits of the case.
(Rakesh Kainthla)
9 April 2025
th
Judge
(mamta)
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