Himachal Pradesh High Court
Reserved On: 27.03.2025 vs State Of Himachal Pradesh on 2 April, 2025
2025:HHC:8677
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr. MP (M) No. 442 of 2025
Reserved on: 27.03.2025
Date of Decision: 442.04.2025
Ravinder Kumar …Petitioner
Versus
State of Himachal Pradesh …Respondent
Coram
Hon’ble Mr Justice Rakesh Kainthla, Judge.
Whether approved for reporting?1. Yes.
For the Petitioner : Mr. Yashveer Singh Rathore,
Advocate.
For the Respondent/State : Mr. Tarun Pathak, Deputy
Advocate General.
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. 191 of 2024, dated 14.11.2024, for the
commission of offences punishable under Sections 21 and 29 of
the Narcotic Drugs and Psychotropic Substances Act (in short
‘NDPS Act‘) registered at Police Station Kangra, H.P. The
prosecution case is based on the absurd, baseless and imaginary
1
Whether reporters of Local Papers may be allowed to see the judgment? Yes.
2
story. No case is made out against the petitioner. Two cases are
pending against him in which he was granted bail. He was
exonerated in another case. The petitioner had no role in the
commission of crime. No recovery was made from him. The
petitioner has a 40% disability in his left leg. 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
14.11.2024. They found a vehicle bearing registration
No. HP-40A-8578 parked near Smella Railway Station, Link
Road, at 6:30 p.m. The police went to the vehicle and found that
three persons were sitting in it. They could not give any
satisfactory reason for parking their vehicle. The police checked
the vehicle in the presence of Ajay Kumar and Anil Kumar and
found 5.77 grams of heroin inside the dashboard. The driver
revealed his name as Ravinder Kumar. The person sitting beside
him revealed his name as Aseem and the other person sitting on
the rear seat revealed his name as Sanjay Kumar. The police
arrested the occupants of the vehicle and seized the heroin. The
heroin was sent to SFSL Junga for chemical analysis and was
3
found to be containing Diacetylmorphine (heroin). Two F.I.R.s
are pending against the petitioner. He was convicted in F.I.R.
No. 156 of 2011 dated 13.11.2011, for the commission of an
offence punishable under Section 20 of the NDPS Act and was
sentenced to undergo simple imprisonment for 15 days, pay a
fine of ₹20,000/-. The petitioner is a drug peddler. He would
indulge in the commission of similar offences, and he would
intimidate the witnesses on his release on bail. Hence, the
status report.
3. I have heard Mr. Yashveer Singh Rathore, learned
counsel for the petitioner and Mr. Tarun Pathak, learned Deputy
Advocate General for the respondent-State.
4. Mr Yashveer Singh Rathore, the learned counsel of
the petitioner, submitted that the petitioner is innocent and he
was falsely implicated. He is suffering from 40% disability. The
quantity of narcotics found in the possession of the petitioner in
earlier cases was intermediate. The rigours of Section 37 of the
NDPS Act do not apply to the present case. Therefore, he prayed
that the present petition be allowed. He relied upon the
4
judgment of this Court in Vijay Kumar vs State of H.P.
2024:HHC:5122 in support of his submission.
5. Mr. Tarun Pathak, learned Deputy Advocate General,
submitted that the petitioner was involved in the commission of
a similar offence earlier. He was convicted by the competent
Court of law for the commission of an offence punishable under
Section 20 of the NDPS Act. This shows that the petitioner is a
habitual offender. He would indulge in the commission of a
similar offence in case of 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
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
5possibility 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:-
“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:
6
“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 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
7grant 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.
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 petitioner
was found to be the driver of the vehicle bearing registration
No.HP40A-8578 from which 5.77 grams of heroin was
recovered. In Madan Lal versus State of H.P. (2003) 7 SCC 465:
2003 SCC (Cri) 1664: 2003 SCC OnLineSC 874, the contraband was
recovered from a vehicle, and it was held that all the occupants
8of the vehicle would be in conscious possession of the
contraband. It was observed:
“19. Whether there was conscious possession has to be
determined with reference to the factual backdrop. The
facts which can be culled out from the evidence on record
are that all the accused persons were travelling in a
vehicle, and as noted by the trial court, they were known
to each other, and it has not been explained or shown as
to how they travelled together from the same destination
in a vehicle which was not a public vehicle.
20. Section 20(b) makes possession of contraband articles
an offence. Section 20 appears in Chapter IV of the Act,
which relates to offences for possession of such articles.
It is submitted that in order to make the possession illicit,
there must be conscious possession.
21. It is highlighted that unless the possession was
coupled with the requisite mental element, i.e. conscious
possession and not mere custody without awareness of
the nature of such possession, Section 20 is not attracted.
22. The expression “possession” is a polymorphous term
which assumes different colours in different contexts. It
may carry different meanings in contextually different
backgrounds. It is impossible, as was observed in Supdt. &
Remembrancer of Legal Affairs, W.B. v. Anil Kumar
Bhunja [(1979) 4 SCC 274: 1979 SCC (Cri) 1038: AIR 1980 SC
52] to work out a completely logical and precise definition
of “possession” uniformly applicable to all situations in
the context of all statutes.
23. The word “conscious” means awareness about a
particular fact. It is a state of mind which is deliberate or
intended.
24. As noted in Gunwantlal v. State of M.P. [(1972) 2 SCC
194: 1972 SCC (Cri) 678: AIR 1972 SC 1756], possession in a
given case need not be physical possession but can be
constructive, having power and control over the article in
9the case in question, while the person to whom physical
possession is given holds it subject to that power or
control.
25. The word “possession” means the legal right to
possession (see Heath v. Drown [(1972) 2 All ER 561: 1973
AC 498: (1972) 2 WLR 1306 (HL)] ). In an interesting case,
it was observed that where a person keeps his firearm in
his mother’s flat, which is safer than his own home, he
must be considered to be in possession of the same.
(See Sullivan v. Earl of Caithness [(1976) 1 All ER 844: 1976
QB 966 : (1976) 2 WLR 361 (QBD)] .)
26. Once possession is established, the person who claims
that it was not a conscious possession has to establish it
because how he came to be in possession is within his
special knowledge. Section 35 of the Act gives a statutory
recognition of this position because of the presumption
available in law. Similar is the position in terms of Section
54, where also presumption is available to be drawn from
possession of illicit articles.
27. In the factual scenario of the present case, not
only possession but conscious possession has been
established. It has not been shown by the accused-
appellants that the possession was not conscious in
the logical background of Sections 35 and 54 of the
Act.”
11. The petitioner was driving the vehicle from which
recovery was effected; hence, the petitioner was, prima facie, in
possession of heroin.
12. Perusal of the status report further shows that the
petitioner was convicted in F.I.R. No. 156 of 2011. Two other
cases are pending against him for the commission of an offence
10
punishable under Section 20 of the NDPS Act. It means 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 should not
be generally granted to an accused having criminal antecedents
when there is a likelihood of the commission of the crime
13. 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
antecedent 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.”
14. 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 similar offences, they
should not be released on bail. It was observed: –
11
“20. … So far as the respondents in the instant appeals
are concerned, they are in custody hardly for one and
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 no. 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.
15. Thus, the criminal antecedent assumes significance
while considering the bail of the accused.
16. In the present case, the petitioner has been convicted
in one case, and two other cases are still pending against him.
Hence, the possibility of the petitioner committing a similar
crime if released on bail cannot be ruled out, and he is not
entitled to the concession of bail on this consideration as well.
17. It was submitted that the police had only recovered
an intermediate quantity of 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
12
of an intermediate quantity of drugs is not entitled to bail as a
matter or 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
quantity 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 the
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.”
18. 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 the 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 singly taken
13as 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 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 will
send a negative signal in society, which 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.”
19. It was submitted that the petitioner is having a
disability of 40%. This will not help him as he was found driving
the vehicle. He was involved in the commission of similar
offences earlier, which prima facie shows that he can commit
similar crime. Therefore, physical disability will not entitle the
petitioner to bail.
20. In Vijay Kumar (supra), the Court granted the bail to
the accused because of the delay in the conclusion of the trial.
He was in judicial custody for more than one year, and it was
held that further incarceration of the petitioner was not
justified.
14
21. In the present case, the petitioner was only arrested
on 14.11.2024. The challan has only been filed against the
petitioner, and it is not a case of long incarceration or delay in
the progress of trial justifying the grant of bail to the petitioner,
therefore, the cited judgment will not assist the petitioner.
22. In view of the above, the petitioner is not entitled to
the concession of bail and consequently, the present petition
fails and the same is dismissed.
23. 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)
2 April, 2025
nd
Judge
(ravinder)
[ad_1]
Source link