Himachal Pradesh High Court
Reserved On: 27.03.2025 vs State Of Himachal Pradesh on 3 April, 2025
2025:HHC:8915
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr. MP(M) No. 594 of 2025
Reserved on: 27.03.2025
Date of Decision: 03.04.2025.
Satnam Singh ...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. Prikshit Rathour, Advocate.
For the Respondent : Mr Lokender Kutlehria, Additional
Advocate General, with ASI Duni
Chand, IO, Police Station,
Nalagarh, District Solan, H.P.
Rakesh Kainthla, Judge
The petitioner has filed the present petition for
seeking regular bail. It has been asserted that the petitioner was
arrested vide FIR No. 366 of 2024, dated 9.12.2024, for the
commission of offences punishable under Sections 21 and 29 of
the Narcotic Drugs and Psychotropic Substances Act
(hereinafter to be referred to as ‘the ND&PS Act‘). As per the
prosecution, the police had recovered 44.125 grams of heroin
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Whether reporters of Local Papers may be allowed to see the judgment? Yes.
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from the possession of the petitioner. The police arrested the
petitioner and seized the heroin. The police searched the
petitioner’s house on 11.9.2024 and recovered 60.420 grams of
heroin. The police filed the charge sheet against the petitioner
on 1.2.2025. No fruitful purpose would be served by detaining
the petitioner in custody. As per the prosecution, the petitioner
was to deliver the contraband to some person. However, another
person was not arrested, which falsifies the prosecution’s case.
The petitioner is a young boy and the sole breadwinner of the
family. Hence the petition.
2. The petition is opposed by filing a status report
asserting that the police party was on patrolling duty on
9.12.2024. They received a secret information at about 3:50 PM
that the petitioner, Satnam, was selling heroin outside the exit
gate of New Bus Stand Nalagarh. The police reduced the
information to writing and sent it to the supervisory officer. The
police apprehended the petitioner in the presence of
independent witnesses. The petitioner had a backpack
containing currency notes of ₹10,400/- and a polythene packet
containing 44.150 grams of heroin. The police arrested the
petitioner and seized the articles. The police subsequently
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searched the house of the petitioner and recovered 60.420
grams of heroin. The police sent the sample to FSL, where it was
found to be Diacetylomorphine. The police arrested Sukhpreet
Singh at the instance of the petitioner and found that they were
in touch with each other. Hence, the status report.
3. I have heard Mr. Prikshit Rathour, learned counsel
for the petitioner and Mr. Lokender Kutlehria, learned
Additional Advocate General, for the respondent-State.
4. Mr. Prikshit Rathour, learned counsel for the
petitioner, submitted that the petitioner is innocent and he was
falsely implicated. The quantity of heroin stated to have been
recovered from the possession of the petitioner is less than the
commercial quantity and the rigours of Section 37 of the ND&PS
Act do not apply to the present case. The police had not complied
with the provisions of Sections 52-A and 42 of the ND&PS Act.
The charge sheet has been filed before the Court and no fruitful
purpose would be served by detaining the petitioner in custody.
Hence, he prayed that the present petition be allowed and the
petitioner be released on bail.
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5. Mr Lokender Kutlehria, learned Additional Advocate
General for the respondent-State, submitted that the petitioner
was found in possession of about 100 grams of heroin, which is a
huge quantity. The petitioner is a drug peddler and should not be
released on bail. The violation of Sections 52-A and 42 is not
sufficient to grant bail to the petitioner. 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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“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:8915grant 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. It was submitted that there is a violation of Section
52-A of ND&PS, and the petitioner is entitled to bail. This
submission is not acceptable. It was laid down by the Hon’ble
Supreme Court in Narcotics Control Bureau v. Kashif, 2024 SCC
OnLine SC 3848, that the violation of Section 52-A does not
entitle a person to be released on bail. It was observed:-
“39. The upshot of the above discussion may be summa-
rized as under:
xxxxxx
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(iii) The purpose of insertion of Section 52A laying
down the procedure for disposal of seized Narcotic
Drugs and Psychotropic Substances, was to ensure
the early disposal of the seized contraband drugs
and substances. It was inserted in 1989 as one of
the measures to implement and to give effect to the
International Conventions on the Narcotic Drugs
and psychotropic substances.
(iv) Sub-section (2) of Section 52A lays down the
procedure as contemplated in sub-section (1)
thereof, and any lapse or delayed compliance thereof
would be merely a procedural irregularity which would
neither entitle the accused to be released on bail nor
would vitiate the trial on that ground alone.
(v) Any procedural irregularity or illegality found to
have been committed in conducting the search and
seizure during the course of investigation or there-
after, would by itself not make the entire evidence
collected during the course of investigation, inad-
missible. The Court would have to consider all the
circumstances and find out whether any serious
prejudice has been caused to the accused.
(vi) Any lapse or delay in compliance of Section 52A by
itself would neither vitiate the trial nor would entitle
the accused to be released on bail. The Court will have
to consider other circumstances and the other pri-
mary evidence collected during the course of the
investigation, as also the statutory presumption
permissible under Section 54 of the NDPS Act.”
(Emphasis supplied)
10. This judgment was followed in Bharat Aambale v.
State of Chhattisgarh, 2025 SCC OnLine SC 110 and it was held that
non-compliance of Section 52-A of the ND&PS Act does not
vitiate the trial. It was observed: –
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“50. We summarize our final conclusion as under:–
xxxxxx
(V) Mere non-compliance of the procedure under
Section 52A or the Standing Order(s)/Rules there-
under will not be fatal to the trial unless there are
discrepancies in the physical evidence rendering
the prosecution’s case doubtful, which may not
have been there had such compliance been done.
Courts should take a holistic and cumulative view of
the discrepancies that may exist in the evidence ad-
duced by the prosecution and appreciate the same
more carefully keeping in mind the procedural
lapses.
(VI) If the other material on record adduced by the
prosecution, oral or documentary inspires confi-
dence and satisfies the court as regards the recov-
ery as-well as conscious possession of the contra-
band from the accused persons, then even in such
cases, the courts can without hesitation proceed to
hold the accused guilty notwithstanding any proce-
dural defect in terms of Section 52A of the NDPS
Act.
(VII) Non-compliance or delayed compliance of the
said provision or rules thereunder may lead the
court to drawing an adverse inference against the
prosecution, however, no hard and fast rule can be
laid down as to when such inference may be drawn,
and it would all depend on the peculiar facts and
circumstances of each case.
Xxxxxx”
11. Therefore, the submission that the petitioner is
entitled to bail because of the violation of Section 52-A of the
ND&PS Act cannot be accepted.
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12. It was further submitted that there is a violation of
Section 42-A of the ND&PS Act and the petitioner is entitled to
bail on this ground. This submission is also not acceptable. It
was laid down by Kerala High Court in Jomon v. State of Kerala,
2025 SCC OnLine Ker 1756 that bail cannot be granted because of
violation of Section 42 of ND&PS Act. It was observed:-
“13. Moreover, in the Union of India through Narcotics
Control Bureau, Lucknow v. Md. Nawaz Khan, [2021 KHC
6503], the Apex Court observed like this:
“29. In the complaint that was filed on 16 October
2019, it is alleged that at about 1400 hours on 26
March 2019, information was received that between
1500-1700 hours on the same day, the three ac-
cused persons would be reaching Uttar Pradesh.
The complaint states that the information was im-
mediately reduced to writing. Therefore, the con-
tention that S. 42 of the NDPS Act was not complied
with is prima facie misplaced. The question is one that
should be raised in the course of the trial.” [Emphasis
supplied]
14. Therefore, the question of violation of Section 42 of
the NDPS Act need not be considered by this Court in a
bail application.”
13. Thus, the petitioner is not entitled to bail because of
any violation of Sections 42 and 52-A of the ND&PS Act.
14. It was submitted that the quantity of the heroin
found in the petitioner’s possession is less than the commercial
quantity, and the petitioner is entitled to bail as a matter of
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right. This submission is not acceptable. The status report shows
that the petitioner was found in possession of a backpack
containing 44.150 grams of heroin. The police searched the
house of the petitioner and recovered 60.420 grams of heroin.
Thus, the petitioner was found in possession of 104.57 grams of
heroin, which is a substantial quantity and could not have been
meant for self-consumption.
15. 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 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 besides 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.”
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16. 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 singly taken
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 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.”
17. Similarly, it was held in Bunty Yadav v. State of H.P.,
2022 SCC OnLine HP 4996 that even where the rigours of Section
37 of the NDPS Act are not applicable, the bail cannot be claimed
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as a matter of right. Each case has to be adjudged on its own
facts. It was observed:
“6. The quantity involved in the case is 89.89 grams of
heroin and 3.90 grams of MDMA. Such quantity may not
technically fall under the category of commercial
quantity, nevertheless, such quantity cannot be termed to
be less by any stretch of the imagination. The evident
nature of commercial transactions and dealing with the
contraband aggravates the situation for the petitioner. In
case, where Section 37 of the NDPS Act is not applicable,
the bail cannot be claimed as a matter of right. The fate
depends on the facts of each and every case.
7. The menace of drug addiction, especially in the
adolescents and students has seriously eroded into the
fabric of the society, putting the future generation as well
as the prospects of future nation building into serious
peril.”
18. Karnataka High Court took a similar view in Sri.
Thaha Ummer vs Union of India Criminal Petition No.9450/2022
decided on 09-11-2022 and held that merely because Section 37
of the NDPS Act does not apply, a person involved in the
commission of an offence punishable under the NDPS Act cannot
be released on bail as a matter of right.
19. In the present case, 104.57 grams of heroin is a huge
quantity and keeping in view the adverse impact of heroin upon
the young generation, the same cannot be viewed lightly.
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20. Consequently, the petitioner is not entitled to bail,
hence, the present petition fails and the same is dismissed.
21. 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
3rd April, 2025
(Chander)
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