Himachal Pradesh High Court
Reserved On: 24.03.2025 vs State Of Himachal Pradesh on 1 April, 2025
2025:HHC:8382
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr. MP(M) No. 25 of 2025
Reserved on: 24.03.2025
Date of Decision: 01.04.2025.
Rohit ...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. Anubhav Chopra, Advocate.
For the Respondent : Mr. Tarun Pathak, Deputy
Advocate General.
Rakesh Kainthla, Judge
The petitioner has filed the present petition to seek
regular bail. It has been asserted that the petitioner was arrested
vide FIR No. 128 of 2023, dated 15.11.2023, for the commission of
offences punishable under Section 21 read with Section 29 of the
Narcotic Drugs and Psychotropic Substances Act (ND&PS Act),
Section 201 of the Indian Penal Code (IPC) and Section 14 of the
Foreigners Act, registered at Police Station Parwanoo, District
Solan, H.P. As per the prosecution, the police recovered 18.16
1
Whether reporters of Local Papers may be allowed to see the judgment? Yes.
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2025:HHC:8382
grams of heroin from a car bearing registration No. HP-93-5274
being driven by Rohit Chauhan. The petitioner was also
travelling in the vehicle. The police arrested the petitioner and
the driver. The police filed a charge sheet before the Court. The
prosecution has cited 24 witnesses and has not examined even a
single witness. Three FIRs have been registered against the
petitioner, which are still pending in the Courts. The petitioner
has roots in society. He would abide by 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
15.11.2023. A vehicle bearing registration No. HP-93-5274 was
stopped at 4.30 AM for checking. The petitioner was occupying
the seat adjacent to the driver. The police recovered two pieces
of aluminium foil, two currency notes of ₹10/- and one white
paper on the dashboard. The police found 18.16 grams of heroin
inside the dashboard. The police seized the heroin and arrested
the petitioner and the driver. The other co-accused was also
arrested at the instance of the petitioner. FIR No. 313 of 2018,
dated 21.10.2018 for the commission of offences punishable
under Sections 21 and 22 of the ND&PS Act, FIR No. 148 of 2019,
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2025:HHC:8382
dated 14.7.2019 for the commission of offences punishable
under Sections 21 and 29 of ND&PS Act and FIR No. 127 of 2022,
dated 20.7.2022 for the commission of an offence punishable
under Section 21 of ND&PS Act are pending in different Courts
against the petitioner. The mobile phone of the petitioner was
sent to FSL, and the supplementary charge sheet will be filed
after the receipt of the report. The matter was listed on 17.2.2025
for the prosecution’s evidence.
3. I have heard Mr. Anubhav Chopra, learned counsel
for the petitioner and Mr. Tarun Pathak, learned Deputy
Advocate General, for the respondent-State.
4. Mr. Anubhav Chopra, learned counsel for the
petitioner, submitted that the petitioner is innocent and he was
falsely implicated. He has been in custody for more than one
year. No witness has been examined by the prosecution. The trial
is not likely to conclude soon, and the right to a speedy trial of
the petitioner is being violated. He relied upon the judgments in
Pradeep Kumar v. State of H.P. 2025:HHC:5121, Ayub Khan v. State
of Rajasthan 2024 SCC OnLine SC 3763, Rahul Thakur Vs. State of
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2025:HHC:8382
H.P. 2025:HHC:5710 and Vijay Kumar Vs. State of H.P.
2025:HHC:5122 in support of his submission.
5. Mr. Tarun Pathak, learned Deputy Advocate General
for the respondent-State, submitted that three FIRs were
registered against the petitioner. The petitioner would indulge
in the commission of a similar offence in case of his release on
bail. Hence, he prayed that the present petition be dismissed.
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 Ramratan v. State of M.P., 2024 SCC
OnLine SC 3068, wherein it was observed as follows: –
“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:
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2025:HHC:8382
“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
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 application for bail 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
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2025:HHC:8382grant 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. The present petition has to be decided as per the
parameters laid down by the Hon’ble Supreme Court.
9. The Central Government has specified 05 grams of
heroin as a small quantity and 250 grams as a commercial
quantity. Therefore, the petitioner was found in possession of
more than a small quantity and less than a commercial quantity
of heroin, and the rigours of Section 37 of the ND&PS Act do not
apply to the present case.
10. The petitioner was arrested on 15.11.2023. The status
report shows that the matter is listed for recording the
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statements of prosecution witnesses at Serial Nos. 1 to 3. The
petitioner has filed the photocopies of order sheets, which show
that no witness was examined on the different dates fixed before
the learned Trial Court. Since the certified copies were not filed,
therefore authenticity of these documents is not established, but
the status report shows that the matter was pending for the
statements of prosecution witnesses at Serial Nos 1 to 3 and the
charge sheet was filed before the Court on 9.1.2024. This means
that no witness has been examined within one year of the filing
of the charge sheet. Therefore, there is a force in the submission
of learned counsel for the petitioner that the right of speedy trial
of the petitioner is being violated.
11. It was laid down in Mohd. Muslim v. State (NCT of
Delhi), 2023 SCC OnLine SC 352 that the right to a speedy trial is a
constitutional right of an accused. The right of bail is curtailed
on the premise that the trial would be concluded expeditiously.
It was observed: –
“13. When provisions of law curtail the right of an accused
to secure bail, and correspondingly fetter judicial
discretion (like Section 37 of the NDPS Act, in the present
case), this court has upheld them for conflating two
competing values, i.e., the right of the accused to enjoy
freedom, based on the presumption of innocence, and
8
2025:HHC:8382societal interest – as observed in Vaman Narain Ghiya v.
State of Rajasthan, [2008] 17 SCR 369: (2009) 2 SCC 281
(‘the concept of bail emerges from the conflict between
the police power to restrict liberty of a man who is alleged
to have committed a crime, and presumption of
innocence in favour of the alleged criminal….’). They are,
at the same time, upheld on the condition that the trial is
concluded expeditiously. The Constitution Bench in
Kartar Singh v. State of Punjab, [1994] 2 SCR 375: (1994) 3
SCC 569 made observations to this effect. In Shaheen
Welfare Association v. Union of India, [1996] 2 SCR 1123:
(1996) 2 SCC 616 again, this court expressed the same
sentiment, namely that when stringent provisions are
enacted, curtailing the provisions of bail, and restricting
judicial discretion, it is on the basis that investigation and
trials would be concluded swiftly. The court said that
Parliamentary intervention is based on:
A conscious decision has been taken by the
legislature to sacrifice to some extent, the personal
liberty of an under-trial accused for the sake of
protecting the community and the nation against
terrorist and disruptive activities or other activities
harmful to society, it is all the more necessary that
investigation of such crimes is done efficiently and
an adequate number of Designated Courts are set
up to bring to book persons accused of such serious
crimes. This is the only way in which society can be
protected against harmful activities. This would
also ensure that persons ultimately found innocent
are not unnecessarily kept in jail for long periods.”
12. The Court highlighted the effects of pre-trial
detention and the importance of a speedy trial as under:
“22. Before parting, it would be important to reflect that
laws which impose stringent conditions for the grant of
bail may be necessary in the public interest; yet, if trials
are not concluded in time, the injustice wreaked on the
9
2025:HHC:8382individual is immeasurable. Jails are overcrowded, and
their living conditions, more often than not, are
appalling. According to the Union Home Ministry’s
response to Parliament, the National Crime Records
Bureau had recorded that as of 31st December 2021, over
5,54,034 prisoners were lodged in jails against a total
capacity of 4,25,069 lakhs in the country[National Crime
Records Bureau, Prison Statistics in India https://ncrb. gov.
in/sites/default/files/P SI-202 1/Executive ncrb Summary-
2021.pdf]. Of these 122,852 were convicts; the rest,
4,27,165 were undertrials.
23. The danger of unjust imprisonment is that inmates
are at risk of ‘prisonisation’, a term described by the
Kerala High Court in A Convict Prisoner v. State, 1993 Cri LJ
3242, as a radical transformation whereby the prisoner:
‘loses his identity. He is known by a number. He
loses personal possessions. He has no personal
relationships. Psychological problems result from
loss of freedom, status, possessions, dignity, and
autonomy of personal life. The inmate culture of
prison turns out to be dreadful. The prisoner
becomes hostile by ordinary standards. Self-
perception changes. ‘
24. There is a further danger of the prisoner turning to
crime, ‘as crime not only turns admirable but the more
professional the crime, more honour is paid to the
criminal'[Working Papers – Group on Prisons & Borstals –
1966 U.K.] (also see Donald Clemmer’s ‘The Prison
Community’ published in 1940[Donald Clemmer, The
Prison Community (1968) Holt, Rinehart & Winston, which is
referred to in Tomasz Sobecki, ‘Donald Clemmer’s Concept of
Prisonisation’, available at: https://www.tkp.edu.pl/
wpcontent/uploads/2020/12/Sobecki_sklad.pdf (accessed on
23rd March 2023).]). Incarceration has further deleterious
effects, where the accused belongs to the weakest
economic strata: immediate loss of livelihood, and in
several cases, scattering of families as well as loss of
family bonds and alienation from society. The courts,
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2025:HHC:8382
therefore, have to be sensitive to these aspects (because
in the event of an acquittal, the loss to the accused is
irreparable), and ensure that trials – especially in cases
where special laws enact stringent provisions, are taken
up and concluded speedily.”
13. It was held in Shaheen Welfare Association. v. Union of
India, (1996) 2 SCC 616: 1996 SCC (Cri) 366 that a person cannot be
kept behind bars when there is no prospect of trial being
concluded expeditiously. It was observed at page 621:
“8. It is in this context that it has become necessary to
grant some relief to those persons who have been
deprived of their personal liberty for a considerable
length of time without any prospect of the trial being
concluded in the near future. Undoubtedly, the safety of
the community and the nation needs to be safeguarded
looking to the nature of the offences these undertrials
have been charged with. But the ultimate justification for
such deprivation of liberty pending trial can only be their
being found guilty of the offences for which they have
been charged. If such a finding is not likely to be arrived
at within a reasonable time, some relief becomes
necessary.”
14. Similarly, it was laid down by the Hon’ble Supreme
Court in Jagjeet Singh v. Ashish Mishra, (2022) 9 SCC 321: (2022) 3
SCC (Cri) 560: 2022 SCC OnLine SC 453 that no accused can be
subjected to unending detention pending trial. It was observed at
page 335:
“40. Having held so, we cannot be oblivious to what has
been urged on behalf of the respondent-accused that
11
2025:HHC:8382cancellation of bail by this Court is likely to be construed
as an indefinite foreclosure of his right to seek bail. It is
not necessary to dwell upon the wealth of case law which,
regardless of the stringent provisions in a penal law or
the gravity of the offence, has time and again recognised
the legitimacy of seeking liberty from incarceration. To
put it differently, no accused can be subjected to
unending detention pending trial, especially when the law
presumes him to be innocent until proven guilty. Even
where statutory provisions expressly bar the grant of bail,
such as in cases under the Unlawful Activities
(Prevention) Act, 1967, this Court has expressly ruled that
after a reasonably long period of incarceration, or for any
other valid reason, such stringent provisions will melt
down, and cannot be measured over and above the right
of liberty guaranteed under Article 21 of the Constitution
(see Union of India v. K.A. Najeeb [Union of India v. K.A.
Najeeb, (2021) 3 SCC 713, paras 15 and 17] ).”
15. It was laid down by the Hon’ble Supreme Court
recently in Javed Gulam Nabi Shaikh v. State of Maharashtra
(2024) 9 SCC 813: 2024 SCC OnLine SC 1693 that the right to
speedy trial of the offenders facing criminal charges is an
important facet of Article 21 of the Constitution of India and
inordinate delay in the conclusion of the trial entitles the
accused to grant of bail, it was observed at page 817: –
“10. Long back, in Hussainara Khatoon (1) v. State of
Bihar [Hussainara Khatoon (1) v. State of Bihar, (1980) 1 SCC
81: 1980 SCC (Cri) 23], this Court had declared that the
right to speedy trial of offenders facing criminal charges
is “implicit in the broad sweep and content of Article 21 as
interpreted by this Court”. Remarking that a valid
procedure under Article 21 is one which contains a
12
2025:HHC:8382procedure that is “reasonable, fair and just”, it was held
that : (SCC p. 89, para 5)
“5. … Now obviously procedure prescribed by law
for depriving a person of liberty cannot be
“reasonable, fair or just” unless that procedure
ensures a speedy trial for determination of the guilt of
such person. No procedure which does not ensure a
reasonably quick trial can be regarded as “reasonable,
fair or just” and it would fall foul of Article 21. There
can, therefore, be no doubt that a speedy trial, and by
speedy trial we mean reasonably expeditious trial, is
an integral and essential part of the fundamental right
to life and liberty enshrined in Article 21. The question
which would, however, arise is as to what would be the
consequence if a person accused of an offence is
denied a speedy trial and is sought to be deprived of
his liberty by imprisonment as a result of a long-
delayed trial in violation of his fundamental right
under Article 21.”
11. The aforesaid observations have resonated, time
and again, in several judgments, such as Kadra
Pahadiya v. State of Bihar [Kadra Pahadiya v. State of Bihar,
(1981) 3 SCC 671: 1981 SCC (Cri) 791] and Abdul Rehman
Antulay v. R.S. Nayak [Abdul Rehman Antulay v. R.S. Nayak,
(1992) 1 SCC 225: 1992 SCC (Cri) 93]. In the latter, the court
re-emphasised the right to a speedy trial and further held
that an accused, facing prolonged trial, has no option:
(Abdul Rehman Antulay case [Abdul Rehman Antulay v. R.S.
Nayak, (1992) 1 SCC 225: 1992 SCC (Cri) 93], SCC p. 269,
para 84)
“84. … The State or complainant prosecutes him. It
is, thus, the obligation of the State or the complainant,
as the case may be, to proceed with the case with
reasonable promptitude. Particularly, in this country,
where the large majority of accused come from poorer
and weaker sections of the society, not versed in the
ways of law, where they do not often get competent
legal advice, the application of the said rule is wholly
13
2025:HHC:8382inadvisable. Of course, in a given case, if an accused
demands a speedy trial and yet he is not given one, it
may be a relevant factor in his favour. But we cannot
disentitle an accused from complaining of
infringement of his right to a speedy trial on the
ground that he did not ask for or insist upon a speedy
trial.”
16. It was further held that if the State or any
prosecuting agency, including the Court concerned, has no
wherewithal to provide the right of speedy trial to the accused,
then the bail should not be opposed on the ground that the crime
is serious. It was observed at page 820:
17. 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.
18. 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.
19. 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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2025:HHC:8382
17. In the present case, the fact that the prosecution has
not examined even a single witness within one year shows that
the trial is not likely to conclude soon.
18. It was submitted that the petitioner has criminal
antecedents. It was laid down by the Hon’ble Supreme Court in
Ayub Khan v. State of Rajasthan, 2024 SCC OnLine SC 3763: 2024:
INSC:994 that the criminal antecedents may not be a reason to
deny bail to the accused in case of his long incarceration. It was
observed:
“10. The presence of the antecedents of the accused is
only one of the several considerations for deciding the
prayer for bail made by him. In a given case, if the accused
makes out a strong prima facie case, depending upon the
fact situation and period of incarceration, the presence of
antecedents may not be a ground to deny bail. There may
be a case where a Court can grant bail only on the grounds
of long incarceration. The presence of antecedents may
not be relevant in such a case. In a given case, the Court
may grant default bail. Again, the antecedents of the
accused are irrelevant in such a case. Thus, depending
upon the peculiar facts, the Court can grant bail
notwithstanding the existence of the antecedents.”
19. In the present case, the petitioner has undergone
incarceration for more than one year and four months. The trial
has not yet commenced, and there is no likelihood of early
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2025:HHC:8382
conclusion of the trial. Keeping in view the quantity of heroin,
further incarceration of the petitioner is not justified.
20. In view of the above, the present petition is allowed,
and the petitioner is ordered to be released on bail in the sum of
₹50,000/- with one surety of the like amount to the satisfaction
of the learned Trial Court. While on bail, the petitioner will abide
by the following terms and conditions: –
(I) The petitioner will not intimidate the witnesses,
nor will he influence any evidence in any manner
whatsoever;
(II) The petitioner shall attend the trial in case a charge
sheet is presented against him and will not seek
unnecessary adjournments;
(III) The petitioner will not leave the present address for
a continuous period of seven days without
furnishing the address of the intended visit to the
SHO, the Police Station concerned and the Trial
Court;
(IV) The petitioner will surrender his passport, if any, to
the Court; and
(V) The petitioner will furnish his mobile number and
social media contact to the Police and the Court and
will abide by the summons/notices received from
the Police/Court through SMS/ WhatsApp/ Social
Media Account. In case of any change in the mobile
number or social media accounts, the same will be
intimated to the Police/Court within five days from
the date of the change.
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21. It is expressly made clear that in case of violation of
any of these conditions, the prosecution will have the right to
file a petition for cancellation of the bail.
22. The petition stands accordingly disposed of. A copy
of this order be sent to the Jail Superintendent, District Solan,
H.P. and the learned Trial Court by FASTER.
23. 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
1st April, 2025
(Chander)
Digitally signed by KARAN SINGH GULERIA
Date: 2025.04.01 13:08:01 IST
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