Himachal Pradesh High Court
Date Of Decision: 29.07.2025 vs State Of Himachal Pradesh on 29 July, 2025
Author: Sandeep Sharma
Bench: Sandeep Sharma
2025:HHC:24827 IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr. MP (M) No.1217 of 2025 . Date of Decision: 29.07.2025 ------------------------------------------------------------------------------------------------ Rajesh Kumar ...Petitioner Versus State of Himachal Pradesh ...Respondent ----------------------------------------------------------------------------------------------- Coram: The Hon'ble Mr. Justice Sandeep Sharma, Judge. Whether approved for reporting?1 ----------------------------------------------------------------------------------------------- For the Petitioner: Mr. Yuyutsu Singh Thakur, Advocate. For the Respondent: Mr. Rajan Kahol, Mr. Vishal Panwar & Mr. B.C. Verma, Additional Advocate Generals, with Mr. Ravi Chauhan, r Deputy Advocate General, for respondent-State. ASI Om Prakash, IO PS Parwanoo, District Solan, Himachal Pradesh, present in person. ----------------------------------------------------------------------------------------------- Sandeep Sharma, J. (Oral)
Bail petitioner namely Rajesh Kumar, who is behind
bars since 17.12.2023, has approached this Court in the instant
proceedings filed under Section 483 of Bharatiya Nagrik Suraksha
Sanhita (hereinafter ‘BNSS’) for grant of regular bail in case FIR
No.136 of 2023, dated 17.12.2023, under Sections 21 and 29 of
ND & PS Act, registered at Police Station Parwanoo, District
Solan, H.P.
2. Pursuant to order dated 09.05.2025, respondent-State
has filed the status report and ASI Om Prakash has come present
with record. Record perused and returned.
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Whether reporters of the local papers may be allowed to see the judgment?
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3. Close scrutiny of record/status report reveals that on
17.12.2023, police after having received secret information that
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persons namely Vikas Thakur @ Khaula, Ashutosh Attri, Devender
Batta and present bail-petitioner indulge in illegal trade of narcotics
and they may be carrying huge quantity of contraband in their
Bolero Car bearing registration No. HP-14B-3460, laid down nakka
and intercepted the aforesaid vehicle at a place called Bhojnagar.
Allegedly police recovered 10.24 grams Chitta/heroin from the
console of aforesaid vehicle in the presence of independent
witnesses. Since, no plausible explanation ever came to be
rendered qua possession of aforesaid quantity of contraband,
police after having completed all necessary codal formalities,
lodged FIR, detailed hereinabove and since then, bail-petitioner is
behind bars, whereas other co-accused Vikas Thakur @ Khaula,
Ashutosh Attri, Devender Batta and Ashwani Kumar stand
enlarged on bail. Since occupants of the car allegedly disclosed to
the police that they had purchased contraband from person namely
Ashwani Kumar, R/o Dadumajra, Chandigarh, Police also arrested
the aforesaid person, but he also stands enlarged on bail. Since
challan stands filed in the competent Court of law and nothing
remains to be recovered from the bail-petitioner, coupled with the
fact that charge has not been framed, petitioner has approached
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this Court in the instant proceedings for grant of regular bail on
account of inordinate delay in conclusion of trial.
.
4. Mr. B.C.Verma, learned Additional Advocate General,
while fairly admitting factum with regard to filing of the challan in
the competent court of law, states that though nothing remains to
be recovered from the bail-petitioner, but keeping in view the
gravity of offence alleged to have been committed by him, he does
not deserve any leniency. Mr. Verma, states that there is
overwhelming evidence adduced on record suggestive of the fact
that bail-petitioner is a drug peddler and in the event of his being
enlarged on bail, he may not only flee from justice, but may again
indulge in these activities. He further states that there is every
likelihood of the petitioner indulging in these activities again.
5. Having heard learned counsel for the parties and
perused material available on record, this court finds that though
on the date of alleged incident, 10.24 grams of Chitta/heroin was
recovered from the Bolero car bearing registration No. HP-14B-
3460 being driven by co-accused Vikas Thakur @ Khaulla, but
owned by present bail-petitioner in presence of independent
witnesses, if it is so, this Court is not persuaded to agree with
learned counsel for the petitioner that bail-petitioner has been
falsely implicated. Though status report reveals that in past three
cases stand registered against the petitioner, but that may not be
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sufficient to conclude that bail-petitioner is a drug peddler,
especially when status report reveals that bail-petitioner has
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become a drug addict. Though status report/record reveals that all
the co-accused named in the FIR, after having collected money,
had given sum of Rs. 27,000/- to the person namely Ashwani
Kumar for purchase of contraband, but certainly there is no
evidence adduced on record suggestive of the fact that aforesaid
contraband purchased by the accused named in FIR was to be
sold to a third party, rather as per statement given by accused
named in the FIR, they had purchased contraband for their own
use. Since bail-petitioner has become a drug addict, it may not be
in the interest of justice to let him incarcerate in jail for indefinite
period during trial, rather he is required to be taken to rehabilitation
Centre for his treatment at the earliest. No fruitful purpose would
be served by keeping the bail-petitioner behind the bars for
indefinite period because in that situation there is every likelihood
of petitioner’s becoming a hardcore criminal.
6. Besides above, this Court finds that all the co-accused
save and except bail petitioner already stand enlarged on bail, if it
is so, petitioner is also entitled to be enlarged on bail. FIR in the
case at hand was registered on 17.12.2023, but till date charge
has not been framed, meaning thereby, considerable time is likely
to be consumed in conclusion of trial. Prosecution in the case at
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hand proposes to examine 21 witnesses, if it is so, this Court can
well presume that at least one year would be consumed in
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conclusion of trial and if, during this period, petitioner is left to
incarcerate in jail during trial that would not only amount to pre-trial
conviction, but would also violate the Article of 21 of the
Constitution of India.
7. By now, it is well settled that speedy trial is
fundamental right of the accused and one cannot be made to
suffer indefinitely for delay in trial and as such, this Court sees no
reason to keep the bail petitioner behind the bars for indefinite
period during trial. Hon’ble Apex Court in case titled Umarmia
Alias Mamumia v. State of Gujarat, (2017) 2 SCC 731, has held
delay in criminal trial to be in violation of right guaranteed to an
accused under Article 21 of the Constitution of India. Relevant para
of the afore judgment reads as under:-
“11. This Court has consistently recognized the right of the
accused for a speedy trial. Delay in criminal trial has been held
to be in violation of the right guaranteed to an accused
under Article 21 of the Constitution of India. (See: Supreme
Court Legal Aid Committee v. Union of India, (1994) 6 SCC
731; Shaheen Welfare Assn. v. Union of India, (1996) 2 SCC
616) Accused, even in cases under TADA, have been released
on bail on the ground that they have been in jail for a long period
of time and there was no likelihood of the completion of the trial
at the earliest. (See: Paramjit Singh v. State (NCT of Delhi),
(1999) 9 SCC 252 and Babba v. State of Maharashtra, (2005) 11
SCC 569).
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8. The Hon’ble Apex Court in case titled Javed Gulam Nabi
Shaikh Vs. State of Maharashtra and Another, passed in Criminal
.
Appeal No.2787 of 2024, decided on 03.07.2024, having taken note of
its various judgments passed in the past, proceeded to conclude that 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. Most
importantly, in the afore judgment, Hon’ble Apex Court has held that
Article 21 of the Constitution applies irrespective of the nature of the
crime. Relevant paras of the afore judgment read as under:
“15. The requirement of law as being envisaged under Section 19
of the National Investigation Agency Act, 2008 (hereinafter being
referred to as “the 2008 Act”) mandates that the trial under the Act ofany offence by a Special Court shall be held on day-to-day basis on all
working days and have precedence over the trial of any other case and
Special Courts are to be designated for such an offence by the Central
Government in consultation with the Chief Justice of the High Court ascontemplated under Section 11 of the 2008.
16. A three-Judge Bench of this Court in Union of India v. K.A.
Najeeb reported in (2021) 3 SCC 713] had an occasion to consider the
long incarceration and at the same time the effect of Section 43-D(5) of
the UAP Act and observed as under : (SCC p. 722, para 17)“17. It is thus clear to us that the presence of statutory restrictions like
Section 43-D(5) of the UAPA per se does not oust the ability of the
constitutional courts to grant bail on grounds of violation of Part III of
the Constitution. Indeed,both the restrictions under a statute as well as
the powers exercisable under constitutional jurisdiction can be well
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7expected to appreciate the legislative policy against grant of bail but
the rigours of such provisions will melt down where there is no
likelihood of trial being completed within a reasonable time and the.
period of incarceration already undergone has exceeded a substantial
part of the prescribed sentence. Such an approach would safe-guard
against the possibility of provisions like Section 43-D(5) of the UAPA
being used as the sole metric for denial of bail or for wholesale breachof constitutional right to speedy trial.”
17. In the recent decision, Satender Kumar Antil v. Central
Bureau of Investigation reported in (2022) 10 SCC 51, prolonged
incarceration and inordinate delay engaged the attention of the court,
which considered the correct approach towards bail, with respect to
several enactments, including Section 37 NDPS Act. The court
expressed the opinion that Section 436A (which requires inter alia the
accused to be enlarged on bail if the trial is not concluded within
specified periods) of the Criminal Procedure Code, 1973would apply:
“We do not wish to deal with individual enactments as
each special Act has got an objective behind it, followed by the rigourimposed. The general principle governing delay would apply to these
categories also. To make it clear, the provision contained in Section
436-A of the Code would apply to the Special Acts also in the absenceof any specific provision. For example, the rigour as provided under
Section 37 of the NDPS Act would not come in the way in such a caseas we are dealing with the liberty of a person. We do feel that more the
rigour, the quicker the adjudication ought to be. After all, in these types
of cases number of witnesses would be very less and there may not beany justification for prolonging the trial. Perhaps there is a need to
comply with the directions of this Court to expedite the process and
also a stricter compliance of Section 309 of the Code.”
18. Criminals are not born out but made. The human potential in
everyone is good and so, never write off any criminal as beyond
redemption. This humanist fundamental is often missed when dealing
with delinquents,juvenile and adult. Indeed, every saint has a past and
every sinner a future. When a crime is committed, a variety of factors is
responsible for making the offender commit the crime. Those factors
may be social and economic, maybe, the result of value erosion or
parental neglect; may be, because of the stress of circumstances, or
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the manifestation of temptations in a milieu of affluence contrasted with
indigence or other privations.
.
19. 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.
20 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.
21 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.”
9. Hon’ble Apex Court in Manish Sisodia v.
Enforcement Directorate, 2024 SCC OnLine SC 1920 while
placing reliance upon its earlier judgments rendered in number of
cases, especially Javed Gulam Nabi Shaikh (supra), again
reiterated that right to speedy trial is a fundamental right of an
accused and infraction thereof amounts to violation of Arctile 21 of
the Constitution of India. Relevant paras of the judgment passed
in Manish Sisodia case read as under:
“50. As observed by this Court, the right to speedy trial and the
right to liberty are sacrosanct rights. On denial of these rights,
the trial court as well as the High Court ought to have given due
weightage to this factor.
51. Recently, this Court had an occasion to consider an
application for bail in the case of Javed Gulam Nabi Shaikh v.
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9under the provisions of the Unlawful Activities (Prevention) Act,
1967. This Court surveyed the entire law right from the judgment
of this Court in the cases of Gudikanti Narasimhulu v. Public.
Prosecutor, High Court of Andhra Pradesh, Shri Gurbaksh Singh
Sibbia v. State of Punjab, Hussainara Khatoon (I) v. Home
Secretary, State of Bihar, Union of India v. K.A. Najeeb andSatender Kumar Antil v. Central Bureau of Investigation. The
Court observed thus:
“19. If the State or any prosecuting agency including the court
concerned has no wherewithal to provide or protect thefundamental 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 bailon the ground that the crime committed is serious. Article 21 of
the Constitution applies irrespective of the nature of the crime.”
52. The Court also reproduced the observations made in
Gudikanti Narasimhulu (supra), which read thus:
“10. In the aforesaid context, we may remind the trial courts and
the High Courts of what came to be observed by this Court inGudikanti Narasimhulu v. Public Prosecutor, High Court reported
in (1978) 1 SCC 240. We quote:
“What is often forgotten, and therefore warrants reminder, is the
object to keep a person in judicial custody pending trial or
disposal of an appeal. Lord Russel, C.J., said [R v. Rose, (1898)
18 Cox]:
“I observe that in this case bail was refused for the prisoner. It
cannot be too strongly impressed on the, magistracy of the
country that bail is not to be withheld as a punishment, but that
the requirements as to bail are merely to secure the attendance
of the prisoner at trial.”
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53. The Court further observed that, over a period of time, the
trial courts and the High Courts have forgotten a very well-
settled principle of law that bail is not to be withheld as a
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punishment. From our experience, we can say that it appears
that the trial courts and the High Courts attempt to play safe in
matters of grant of bail. The principle that bail is a rule and
refusal is an exception is, at times, followed in breach. On
account of non-grant of bail even in straight forward open and
shut cases, this Court is flooded with huge number of bail
petitions thereby adding to the huge pendency. It is high time
that the trial courts and the High Courts should recognize the
principle that “bail is rule and jail is exception”.
54. In the present case, in the ED matter as well as the CBI
matter, 493 witnesses have been named. The case involves
thousands of pages of documents and over a lakh pages of
digitized documents. It is thus clear that there is not even the
remotest possibility of the trial being concluded in the near
future. In our view, keeping the appellant behind the bars for an
unlimited period of time in the hope of speedy completion of trial
would deprive his fundamental right to liberty under Article 21 of
the Constitution. As observed time and again, the prolonged
incarceration before being pronounced guilty of an offence
should not be permitted to become punishment without trial.”
10. Reliance is also placed upon judgment passed by the
Hon’ble Apex Court in Jalaluddin Khan v. Union of India, 2024 SCC
OnLine SC 1945, wherein Hon’ble Apex Court while dealing with a case
registered under Sections 13, 18, 18A, and 20 of Unlawful Activities
(Prevention) Act, 1967, enlarged the accused on bail on the ground of
inordinate delay in conclusion of trial. Relevant para of the afore
judgment is reproduced herein below:
“21. Before we part with the Judgment, we must mention here
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11material in the charge sheet objectively. Perhaps the focus was
more on the activities of PFI, and therefore, the appellant’s case
could not be properly appreciated. When a case is made out for.
a grant of bail, the Courts should not have any hesitation in
granting bail. The allegations of the prosecution may be very
serious. But, the duty of the Courts is to consider the case forgrant of bail in accordance with the law. “Bail is the rule and jail
is an exception” is a settled law. Even in a case like the present
case where there are stringent conditions for the grant of bail in
the relevant statutes, the same rule holds good with onlymodification that the bail can be granted if the conditions in the
statute are satisfied. The rule also means that once a case is
made out for the grant of bail, the Court cannot decline to grantbail. If the Courts start denying bail in deserving cases, it will be
a violation of the rights guaranteed under Article 21 of our
Constitution.”
11. Reliance is also placed upon latest judgment dated
28.8.2024, passed in Prem Prakash v. Union of India through The
Directorate of Enforcement, (Petition for Special Leave to Appeal (Crl.)
No. 5416 of 2024), wherein having taken note of the inordinate delay in
conclusion of trial, Hon’ble Apex Court proceeded to enlarge the
accused on bail. Relevant para of the aforesaid judgment reads as
under:
“12. Independently and as has been emphatically reiterated in
Manish Sisodia (II) (supra) relying on Ramkripal Meena Vs
Directorate of Enforcement (SLP (Crl.) No. 3205 of 2024 dated
30.07.2024) and Javed Gulam Nabi Shaikh Vs. State of
Maharashtra and Another, 2024 SCC online 1693, where the
accused has already been in custody for a considerable number
of months and there being no likelihood of conclusion of trial
within a short span, the rigours of Section 45 of PMLA can be
suitably relaxed to afford conditional liberty. Further, Manish
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12Sheikh (Supra), that keeping persons behind the bars for
unlimited periods of time in the hope of speedy completion of
trial would deprive the fundamental right of persons under Article.
21 of the Constitution of India and that prolonged incarceration
before being pronounced guilty ought not to be permitted to
become the punishment without trial. In fact, Manish Sisodia (II)(Supra) reiterated the holding in Manish Sisodia (I) Vs.
Directorate of Enforcement (judgment dated 30.10.2023 in
Criminal Appeal No. 3352 of 2023) where it was held as under:-
“28. Detention or jail before being pronounced guilty of an
offence should not become punishment without trial. If the trial
gets protracted despite assurances of the prosecution, and it isclear that case will not be decided within a foreseeable time, the
prayer for bail may be meritorious. While the prosecution may
pertain to an economic offence, yet it may not be proper to
equate these cases with those punishable with death,
imprisonment for life, ten years or more like offences under theNarcotic Drugs and Psychotropic Substances Act, 1985, murder,
cases of rape, dacoity, kidnaping for ransom, mass violence, etc.Neither is this a case where 100/1000s of depositors have been
defrauded. The allegations have to be established and proven.
The right to bail in cases of delay, coupled with incarceration for
a long period, depending on the nature of the allegations, should
be read into Section 439 of the Code and Section 45 of the PMLAct. The reason is that the constitutional mandate is the higher
law, and it is the basic right of the person charged of an offence
and not convicted, that he be ensured and given a speedy trial.
When the trial is not proceeding for reasons not attributable to
the accused, the court, unless there are good reasons, may well
be guided to exercise the power to grant bail. This would be
truer where the trial would take years.”
It is in this background that Section 45 of PMLA needs to be
understood and applied. Article 21 being a higher constitutional
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right, statutory provisions should align themselves to the said
higher constitutional edict.”
.
12. In the aforesaid judgment, Hon’ble Apex Court having
taken note of all judgments passed in recent times, categorically
held that bail is rule and jail is an exception. If all the judgments
taken note herein above are read in conjunction, Hon’ble Apex
Court has categorically held that court while considering prayer for
grant of bail may not be impressed with the arguments advanced
by the prosecution that charge against the person seeking bail is
serious, but in case, court finds that on account of inordinate delay
in conclusion of the trial, fundamental right of speedy trial is being
violated, it should proceed to grant bail. No doubt, in the case at
hand, charge against the petitioner is serious, but there is no
denial to the fact that bail petitioner is languishing in jail for more
than one year without being held guilty.
13. Needless to say, object of the bail is to secure the
attendance of the accused in the trial and the proper test to be
applied in the solution of the question whether bail should be
granted or refused is whether it is probable that the party will
appear to take his trial. Otherwise, bail is not to be withheld as a
punishment. Otherwise also, normal rule is of bail and not jail.
Court has to keep in mind nature of accusations, nature of
evidence in support thereof, severity of the punishment which
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conviction will entail, character of the accused, circumstances
which are peculiar to the accused involved in that crime.
.
14. Hon’ble Apex Court in Criminal Appeal No. 227/2018,
Dataram Singh vs. State of Uttar Pradesh & Anr decided on
6.2.2018 has held that freedom of an individual cannot be curtailed
for indefinite period, especially when his/her guilt is yet to be
proved. It has been further held by the Hon’ble Apex Court in the
aforesaid judgment that a person is believed to be innocent until
found guilty.
15. Hon’ble Apex Court in Sanjay Chandra versus
Central Bureau of Investigation (2012)1 Supreme Court Cases
49 has held that gravity alone cannot be a decisive ground to deny
bail, rather competing factors are required to be balanced by the
court while exercising its discretion. It has been repeatedly held by
the Hon’ble Apex Court that object of bail is to secure the
appearance of the accused person at his trial by reasonable
amount of bail. The object of bail is neither punitive nor
preventative.
16. In Manoranjana Sinh alias Gupta versus CBI,
(2017) 5 SCC 218, Hon’ble Apex Court has held that the object of
the bail is to secure the attendance of the accused in the trial and
the proper test to be applied in the solution of the question whether
bail should be granted or refused is whether it is probable that the
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party will appear to take his trial. Otherwise also, normal rule is of
bail and not jail. Apart from above, Court has to keep in mind
.
nature of accusations, nature of evidence in support thereof,
severity of the punishment, which conviction will entail, character of
the accused, circumstances which are peculiar to the accused
involved in that crime.
17. The Apex Court in Prasanta Kumar Sarkar versus
Ashis Chatterjee and another (2010) 14 SCC 496, has laid down
various principles to be kept in mind, while deciding petition for bail
viz. prima facie case, nature and gravity of accusation, punishment
involved, apprehension of repetition of offence and witnesses
being influenced.
18. In view of the aforesaid discussion as well as law laid
down by the Hon’ble Apex Court, bail-petitioner has carved out a
case for grant of bail, accordingly, the petition is allowed and the
bail-petitioner is ordered to be enlarged on bail in aforesaid FIR,
subject to his furnishing personal bond in the sum of Rs. 1,00,000/-
with two local sureties in the like amount to the satisfaction of
concerned Chief Judicial Magistrate/trial Court, with following
conditions:
(a) He shall make himself available for the purpose of
interrogation, if so required and regularly attend the
trial Court on each and every date of hearing and if
prevented by any reason to do so, seek exemption
from appearance by filing appropriate application;
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(b) He shall not tamper with the prosecution evidence
nor hamper the investigation of the case in any
manner whatsoever;
.
(c) He shall not make any inducement, threat or
promises to any person acquainted with the facts
of the case so as to dissuade him/her from
disclosing such facts to the Court or the Police
Officer; and
(d) He shall not leave the territory of India without the
prior permission of the Court.
(e) He shall surrender his passport, if any, before the
investigating agency.
19. It is clarified that if the petitioner misuses the liberty or
violates any of the conditions imposed upon him, the investigating
agency shall be free to move this Court for cancellation of the bail.
20. Any observations made hereinabove shall not be
construed to be a reflection on the merits of the case and shall
remain confined to the disposal of this application alone. The
petition stands accordingly disposed of.
21. A downloaded copy of this order shall be accepted by
the learned trial Court, while accepting the bail bonds from the
petitioner and in case, said court intends to ascertain the veracity
of the downloaded copy of order presented to it, same may be
ascertained from the official website of this Court.
(Sandeep Sharma)
Judge
July 29, 2025
Manjit
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