Himachal Pradesh High Court
Reserved On: 4Th January vs State Of Himachal Pradesh on 15 January, 2025
2025:HHC:3000
IN THE HIGH COURT OF HIMACHAL PRADESH
AT SHIMLA
Cr.MP (M) No. 1606 of 2024
Reserved on: 4th January, 2025
Announced on: 15th January, 2025
____________________________________________________________
Kalu Ram …Petitioner
Versus
State of Himachal Pradesh …Respondent
Coram
Hon’ble Mr. Justice Ranjan Sharma, Judge
1 Whether approved for reporting? Yes
For the petitioner: Mr. Vinay Thakur and Mr. Maan
Singh, Advocates.
For the respondent: Mr. Pratyush Sharma, Additional
Advocate General.
Ranjan Sharma, Judge
Bail petitioner [Kalu Ram], who is in
custody since 14.02.2024 has come up before this
Court, seeking regular bail, under Section 483 of
the Bhartiya Nagrik Suraksha Sahinta, (hereinafter
referred to as BNSS), originating from FIR No.33 of
2024 dated 14.02.2024, registered at Police Station,
Kullu, District Kullu [H.P.], under Sections 21 and 29
of the Narcotic Drugs and Psychotropic Substances
1
Whether reporters of Local Papers may be allowed to see the judgment?
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Act (referred to as the NDPS Act).
FACTUAL MATRIX IN BAIL PETITION:
2. Case set up by Mr. Vinay Thakur and
Mr. Maan Singh, Learned Counsels is that the bail
petitioner has been falsely implicated in FIR No. 33
of 2024 dated 14.02.2024, registered at Police Station,
Kullu, District Kullu [H.P.], under Sections 21 and 29
of the Narcotic Drugs and Psychotropic Substances
Act (referred to as the NDPS Act). It is averred that
bail petitioner has not committed any offence and he
is not connected with alleged recovery of contraband.
Moreover, it is submitted that bail petitioner is an
old man and nothing is recoverable from him and
Investigation is complete and further detention will
not serve any purpose. It is further averred that the
rigors of Section 37 of NDPS Act are not attracted
as police is alleged to have implicated the petitioner,
of 27 gms of Heroin/Chitta, which comes within the
ambit of Intermediate Quantity, which as per the bail
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petitioner does not relate to him.
2(i). It is averred that the bail petitioner has
moved an application for bail before Learned Special
Judge, Kullu, which was dismissed on 19.03.2024,
Annexure P-1 and then, 2nd bail petition before this
Court, which was withdrawn on 13.04.2024, Annexure
P-2, and thereafter, 3rd bail petition was also dismissed
by the Learned Special Judge-II, Kullu, on 13.05.2024,
Annexure P-3.
2(ii). It is further averred that there is no evidence
to connect the bail petitioner with the accusation
and he has been wrongly and falsely implicated with
the alleged contraband. Bail petitioner has furnished
an undertaking that he abide by all the terms and
conditions as will be imposed by this Court. Bail
petitioner has further averred that he shall not cause
any inducement, threat or promise to any person
or persons acquainted with the facts of the case
and shall not flee away from investigation and trial.
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It is averred that personal liberty of the bail petitioner
under Article 21 of the Constitution of India could
neither be curtailed or taken away by way of penalty,
by prolonging the detention just by presuming the
guilt against the bail petitioner. Instant bail petition
has been filed by bail petitioner, through his son, with
the prayer for releasing the petitioner on bail.
STAND OF STATE AUTHORITIES IN STATUS
REPORTS:
3. Pursuant to the issuance of notice on
02.08.2024, the State Authorities have furnished
the Status Report dated 08.08.2024 and thereafter
2nd Status Report dated 24.08.2024 and thereafter
in-order to bring on record the criminal antecedents a
Fresh Status Report dated 23.09.2024 was filed by
State Authorities and the Last Status Report dated
28.11.2024 was filed by State Authorities, in order
to show the stage and status of investigation and
the trial originating from the FIR in instant case.
Perusal of Status Reports reveal that they contain
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pari-materia.
3(i). Perusal of Status Reports, indicates that
on 14.02.2024, while the police party headed by Head
Constable Ram Chand No. 443, was patrolling towards
Babeli, Raison, near JNV School Road at NH-03, at
about 01:40 p.m., the police patrolling party noticed
two persons coming on foot from Bandrol side, who
came to be Sahil Thakur and Ronit Thakur, who on
noticing the police, threw something behind them in
the jungle and as soon as the police went to the
jungle to trace the articles thrown by Sahil Thakur
and Ronit Thakur, the police noticed two other persons
in the jungle and on seeing the police these two
persons namely Kalu Ram {bail petitioner} and co-accused
Chandan, became perplexed and they threw a plastic
envelope, which was seized by the police and the
same came out to be containing contraband i.e. Heroin
/Chitta of 27 Kgs and after completing all codal
formalities, including filling of NCB forms etc., a rukka
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was sent leading to registration of FIR on
14.02.2024.
3(ii). Pursuant to arrest of bail petitioner, police
started the investigation. Both the bail petitioner and
co-accused Chandan, were made to undergo medical
examination at Regional Hospital, Kullu. It is averred
that police remand was granted. Thereafter inventory
under Section 52-A of NDPS Act was got prepared
at the instance of police from the Magistrate on
16.02.2024 and samples were sent to RFSL and
RFSL Report dated 08.03.2024, was received affirming
alleged contraband to be heroin/chitta, weighing 27
gms. Status Reports indicate that in addition to the
present case, bail petitioner has been involved in
three other cases i.e. [i] FIR No. 282 of 2018, dated
11.11.2028, which is fixed for PWs evidence; [ii]
FIR No.130 of 2021, dated 05.08.2021; and [iii] FIR
No.67 of 2023, dated 07.06.2023, in which after the
completing investigation, police reports stand filed
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and the matter is fixed for consideration on charge
before the Learned Special Judge.
In the above backdrop, the Learned State
Counsel has prayed for dismissing the bail petition.
4. Heard Mr. Vinay Thakur and Mr. Maan
Singh, Learned Counsels for the bail petitioner and
Mr. Pratyush Sharma, Learned Additional Advocate
General, for the respondent-State.
STATUTORY PROVISIONS:
5. Before proceeding to analyse the claim
for bail, it is necessary to have a recap of statutory
provisions of Section 21 and 29 of the NDPS Act,
which reads as under :-
“Section 21 of the NDPS Act reads as under:
21. Punishment for contravention in relation
to manufactured drugs and preparations-
Whoever, in contravention of any provision
of this Act or any rule or order made or
condition of licence granted thereunder,
manufactures, possesses, sells, purchases,
transports, imports inter-State, exports
inter -State or uses any manufactured drug or
any preparation containing any manufactured
drug shall be punishable,-
(a) where the contravention involves
small quantity, with rigorous imprisonment
for a term which may extend to one year,
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or with fine which may extend to ten thousand
rupees, or with both;
(b) where the contravention involves
quantity, lesser than commercial quantity
but greater than small quantity, with
rigorous imprisonment for a term which
may extend to ten years and with fine
which may extend to one lakh rupees;
(c) where the contravention involves
commercial quantity, with rigorous
imprisonment for a term which shall not be
less than ten years but which may extend
to twenty years and shall also be liable
to fine which shall not be less than one
lakh rupees but which may extend to
two lakh rupees:
Provided that the court may, for
reasons to be recorded in the judgment,
impose a fine exceeding two lakh rupees.
29. Punishment for abetment and criminal
conspiracy.-
(1) Whoever abets or is a party to a
criminal conspiracy to commit an offence
punishable under this Chapter, shall, whether
such offence be or be not committed
in consequence of such abetment or in
pursuance of such criminal conspiracy,
and notwithstanding anything contained in
section 116 of the Indian Penal Code (45
of 1860), be punishable with the punishment
provided for the offence.
(2) A person abets, or is a party to a
criminal conspiracy to commit, an offence,
within the meaning of this section, who, in
India abets or is a party to the criminal
conspiracy to the commission of any act
in a place without and beyond India
which-
(a) would constitute an offence if
committed within India; or
(b) under the laws of such place, is an
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offence relating to narcotic drugs or
psychotropic substances having all the legal
conditions required to constitute it such
an offence the same as or analogous to the
legal conditions required to constitute it
an offence punishable under this Chapter,
if committed within India.
MANDATE OF LAW ON BAIL:
6. Broad parameters have been mandated by
the Hon’ble Supreme Court, regulating the bail in the
cases of Gurbaksh Singh Sibbia versus State of
Punjab (1980) 2 SCC 565, Ram Govind Upadhyay
versus Sudarshan Singh (2002) 3 SCC 598; Kalyan
Chandra Sarkar versus Rajesh Ranjan, (2004) 7
SCC 528; Prasanta Kumar Sarkar versus Ashish
Chatterjee, (2010) 14 SCC 496; reiterated in P.
Chidambaram versus Directorate of Enforcement,
(2019) 9 SCC 24, that bail is to be granted where
the allegation is frivolous or groundless and incase
neither any prima facie case nor reasonable grounds
exists to believe or point towards the accusation.
However, depending upon the facts of each case,
the bail can be refused in case, the prima facie case
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or reasonable grounds exits and the offence is serious,
severity of punishment, reasonable apprehension of
fleeing away from investigation and the trial, and the
Character, including past antecedents, behavior,
means, position and standing of the accused; likelihood
of offence being repeated; reasonable apprehension
of witnesses being influenced and danger of justice
being thwarted by grant of bail etc; and then in
Sushila Aggarwal versus State-NCT Delhi, (2020)
5 SCC 01; CBI versus Santosh Karnani (2023) 6
SCALE 250; have been reiterated by the Honble
Supreme Court in State of Haryana versus Dharamraj,
2023 SCC Online SC 1085, as under:
“(i) Whether there is any prima facie or
reasonable ground to believe that the accused
had committed the offence;
(ii) nature and gravity of the accusation;
(iii) severity of the punishment in the event of
conviction;
(iv) danger of the accused absconding or
fleeing, if released on bail;
(v) Character, behaviour, means, position and
standing of the accused;
(vi) Likelihood of the offence being repeated;
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(vii) Reasonable apprehension of the witnesses
being influenced and
(viii). Danger, of course, of justice being thwarted
by grant of bail.”
6(i). In normal parlance, the principle of law
is that bail is a rule and jail is an exception. However,
this Court is conscious of the fact that the power
to grant or refuse bail is an extraordinary power,
which has to be sparingly exercised subject to the
anvil of the time tested parameters and restrictions
imposed in law. It is trite law that while considering
prayer for bail {pre-arrest bail or regular bail], the
factum of prolonged pre-conviction incarceration and
the right of speedy trial has to be taken into
account, in the background of the fact as to whether
delay in trial was attributable to an accused or not.
Another added factor and not the sole factor of
past criminal antecedents; and the factum as to
whether an accused has misused concession-liberty
granted earlier. While considering the prayer for bail,
the balance has to be carved out between the liberty
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of an accused vis-à-vis the societal interests, including
danger of justice being thwarted in case the bail is
granted.
6(ii). This Court is also conscious of the fact
that as per the mandate of law, in Criminal Appeal
No. 3840 of 2023, titled as Saumya Churasia versus
Directorate of Enforcement, decided on 14.12.2023,
while considering the prayer for bail, the Court is not
required to weigh the evidence collected by the
Investigating Agency meticulously, nonetheless, the
Court should keep in mind the nature of accusation,
the nature of evidence collected in support thereof,
the severity of punishment prescribed for alleged
offences, the character of accused, the circumstances
which are peculiar to accused, reasonable possibility
of securing the presence of accused during trial,
reasonable apprehension of witnesses being tampered
with and the larger public/state interests. It is
in this background, that the claim for bail is to be
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examined by a Court without delving into the evidence
on merits but by forming a prima-facie opinion on
totality of facts in light of broad-parameters referred
to above.
6(iii). Even a suspect or an accused under the
NDPS Act does not have any vested right or an
automatic claim for bail, merely on the ground, that
alleged quantity of contraband is either small or
intermediate. While considering the prayer for bail,
even in offences under the NDPS, relating to small
or intermediate quantity, still the claim is required
to be tested in the backdrop of broad parameters
mandated by the Hon’ble Supreme Court, as referred
to above.
The exception to this principle is that the
enlargement on bail {be it relates to either small or
intermediate quantity of contraband} can be extended
depending on facts of each case, in case, the prima
facie accusation does not points towards involvement
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and no reasonable grounds exit, when, no recovery
was made by the police from the accused or when,
the alleged recovery by police appears to be highly
doubtful without there being any connecting material to
infer prima facie accusation and after taking into
account other parameters mandated by the Hon’ble
Supreme Court as referred to above.
ANALYSIS OF CLAIM FOR BAIL IN INSTANT CASE:
7. Taking into account the entirety of facts
and circumstances and the material on record as
borne out from Status Reports, this Court is of
the considered view, that the bail petitioner [Kalu
Ram], is entitled to enlarged on bail, for the following
reasons:-
NO PRIMA-FACIE ACCUSATION AGAINST THE BAIL
PETITIONER:
7(i). Status Reports and the material on record
do not point out any prima facie case or reasonable
grounds to believe the accusation against the bail
petitioner.
- 15 - 2025:HHC:3000 7(ii). The Prosecution story in Status Reports is
that on 14.02.2024, while the police party headed
by Head Constable Ram Chand No. 443, was patrolling
towards Babeli, Raison, near JNV School Road at
NH-03, at about 01:40 p.m., the police patrolling party
noticed two persons coming on foot from Bandrol
side, who came to be Sahil Thakur and Ronit Thakur,
and after noticing the police, they threw something
behind them in the jungle and as soon as the police
went to the jungle to trace the articles thrown by
Sahil Thakur and Ronit Thakur, then, in the jungle,
the police noticed two other persons, Kalu Ram {bail
petitioner} and the co-accused Chandan, who became
perplexed and threw a plastic envelope, which was
seized by the police and the same came out to be
containing contraband i.e. Heroin / Chitta of 27 Kgs.
The above prosecution story at this stage
appears to be highly doubtful, at this stage, for the
reason, that the State Authorities have not made
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any assertion-averment in the Status Reports that
the substance thrown by two other persons, namely,
Sahil Thakur and Ronit Thakur was traced by the
police, which was different from plastic envelope as
alleged to have been attributed to the bail petitioner
{Kalu Ram} and co accused Chandan. Even the
State Authorities have not placed on record any
material i.e. Statements of two other persons namely
Sahil Thakur and Ronit Thakur, who were in jungle
and before whom, the alleged plastic envelope containing
contraband was recovered-seized by police from the
bail petitioner [Kalu Ram] and co-accused Chandan,
as aforesaid. Moreover, no recovery was made by
police upon personal search from the bail petitioner.
Accordingly, the prosecution story becomes highly
doubtful and not worthy of credence and in these
circumstances, neither any prima facie accusation
is not made out nor any reasonable grounds exist
against the bail petitioner, at this stage.
- 17 - 2025:HHC:3000 7(iii). Status Reports filed by State Authorities,
does not indicate anything to show that the bail
petitioner is involved in offence under Section 21
of the NDPS Act. Even otherwise, the accusation is
a matter to be tested, examined and proved during
the trial. Presumption of guilty at this stage before
conclusion of trial defeats the personal liberty of
the petitioner. In these circumstances, plea of the
bail petitioner for bail has carries weight and the same
is accordingly accepted.
7(iv). Accusation under Section 29 of NDPS Act
alleging abatement or criminal conspiracy is a matter
which is to be tested, examined and proved on
by way of evidence during the trial. The continued
detention alleging abatement or criminal conspiracy
without there being any cogent material on record,
certainly amount to incarcerating the petitioner by
way punishment is impermissible and in these
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circumstances, the prayer for bail has merit and the
same is accordingly accepted.
PROLONGED INCARCERATION AND INFRINGMENT
OF PERSONAL LIBERTY UNDER ARTICLE 21 OF THE
CONSTITUTION OF INDIA:
8. While reiterating the principle that bail is
a rule and jail is an exception and no accused can
be deprived of personal liberty on mere accusation
and an accused is to be treated as innocent in the
eyes of law, the Hon’ble Supreme Court has outlined
the object of bail in Guddan alias Roop Narayan
Versus State of Rajasthan, 2023 SCC OnLine SC
1242, in the following terms:-
“11. In the case of Sanjay Chandra V. Central
Bureau of Investigation, (2012) 1 SCC 40,
while hearing a bail Application in a case
of an alleged economic offence, this court
held that the object of bail is neither
punitive nor preventative. It was observed
as under:
“21. In bail applications, generally, it has
been laid down from the earliest
times that the 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. Deprivation of liberty
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must be considered a punishment,
unless it is required to ensure that
an accused person will stand his trial
when called upon. The courts owe
more than verbal respect to the
principle that punishment begins
after conviction, and that every
man is deemed to be innocent until
duly tried and duly found guilty.
23. Apart from the question of prevention
being the object of refusal of
bail, one must not lose sight of
the fact that any imprisonment
before conviction has a substantial
punitive content and it would be
improper for any court to refuse
bail as a mark of disapproval
of former conduct whether the
accused has been convicted for
it or not or to refuse bail to
an unconvicted person for the
purpose of giving him a taste
of imprisonment as a lesson.
25. The provisions of Cr PC confer
discretionary jurisdiction on criminal
courts to grant bail to the accused
pending trial or in appeal against
convictions; since the jurisdiction
is discretionary, it has to be
exercised with great care and
caution by balancing the valuable
right of liberty of an individual
and the interest of the society
in general. In our view, the reasoning
adopted by the learned District
Judge, which is affirmed by the
High Court, in our opinion, is a
denial of the whole basis of our
system of law and normal rule
of bail system. It transcends
respect for the requirement that
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a man shall be considered
innocent until he is found guilty.
If such power is recognised, then
it may lead to chaotic situation
and would jeopardise the personal
liberty of an individual.
27. This Court, time and again, has
stated that bail is the rule and
committal to jail an exception. It
has also observed that refusal
of bail is a restriction on the
personal liberty of the individual
guaranteed under Article 21 of
the Constitution.”
12. Further, in the case of Sandeep Jain v.
National Capital Territory of Delhi, (2000)
2 SCC 66, this Court, while hearing a
bail application held that conditions for
grant of bail cannot become so onerous
that their existence itself is tantamount
to refusal of bail. This Court held as
under:
“We are unable to appreciate even the
first order passed by the Metropolitan
Magistrate imposing the onerous
condition that an accused at the FIR
stage should pay a huge sum of Rs.
2 lakhs to be set at liberty. If he had
paid it is a different matter. But the
fact that he was not able to pay
that amount and in default thereof
he is to languish in jail for more
than 10 months now, is sufficient
indication that he was unable to make
up the amount. Can he be detained
in custody endlessly for his inability
to pay the amount in the range of
Rs.2 lakhs? If the cheques issued by
his surety were dishonoured, the Court
could perhaps have taken it as a
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ground to suggest to the payee of
the cheques to resort to the legal
remedies provided by law.
Similarly if the Court was dissatisfied
with the conduct of the surety as for
his failure to raise funds for honouring
the cheques issued by him, the Court
could have directed the appellant to
substitute him with another surety.
But to keep him in prison for such
a long period, that too in a case
where bail would normally be granted
for the offences alleged, is not only
hard but improper. It must be
remembered that the Court has not
even come to the conclusion that the
allegations made in the FIR are true.
That can be decided only when the
trial concludes, if the case is charge-
sheeted by the police.”
BAIL TO ENSURE AND SAFEGUARD PERSONAL
LIBERTY IN ARTICLE 21:
9. While dealing with the concept of bail and
personal liberty of an accused under Article 21 of
the Constitution of India, the Hon’ble Supreme Court
in Criminal Appeal No.2787 of 2024, titled as Javed
Gulam Nabi Shaikh Versus State of Maharashtra
and Another, has held :-
“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
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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, may be,
the result of value erosion or parental
neglect; may be, because of the stress
of circumstances, or 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.
22 In view of the aforesaid, this appeal succeeds
and is hereby allowed. The impugned
order passed by the High Court is set
aside.”
- 23 - 2025:HHC:3000 9(i). Prolonged incarceration and deprivation of speedy trial amounts to curtailing the sacrosanct
right of personal liberty and in these circumstances,
denial of bail can neither be punitive nor preventative
dehors the principle that bail is rule and jail is
an exception, in view of the mandate of the Honble
Supreme Court, in Manish Sisodia vs Directorate
of Enforcement, SLP (Criminal) No.8781 of 2024,
decided on 09.08.2024, as under :-
“49. We find that, on account of a long
period of incarceration running for around
17 months and the trial even not having
been commenced, the appellant has been
deprived of his right to speedy trial.
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.
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 in Gudikanti Narasimhulu
v. Public Prosecutor, High Court
reported in (1978) 1 SCC 240. We
quote:
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“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””
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 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”.
55. As observed by this Court in the case of
Gudikanti Narasimhulu (supra), the objective
to keep a person in judicial custody
pending trial or disposal of an appeal
is to secure the attendance of the prisoner
at trial.
56. In the present case, the appellant is having
deep roots in the society. There is no
possibility of him fleeing away from the
country and not being available for facing
the trial. In any case, conditions can be
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imposed to address the concern of the
State.
57. Insofar as the apprehension given by the
learned ASG regarding the possibility of
tampering the evidence is concerned, it is
to be noted that the case largely
depends on documentary evidence which
is already seized by the prosecution. As
such, there is no possibility of tampering
with the evidence. Insofar as the concern
with regard to influencing the witnesses
is concerned, the said concern can be
addressed by imposing stringent conditions
upon the appellant.”
9(ii). While adjudicating the claim for bail, even
under Special Enactments, like PMLA [akin to NDPS
Act], the Hon’ble Apex Court in Criminal Appeal
No._____ of 2024 [Arising out of SLP (Criminal) No.
10778 of 2024], titled as Kalvakuntla Kavitha
Versus Directorate of Enforcement and connected
matter has mandated that the fundamental right
of liberty in Article 21 of the Constitution of India
is superior to the statutory restrictions, in following
terms :-
“13. We had also reiterated the well-established
principle that “bail is the rule and refusal
is an exception”. We had further observed
that the fundamental right of liberty
provided under Article 21 of the
Constitution is superior to the statutory
restrictions.”
- 26 - 2025:HHC:3000 9(iii). While dealing with the claim for bail under
Special Enactments and rigors of Section 45 (1) (ii)
of MPLA and proviso to Section 43-D (5) of the
Unlawful Activities [Prevention] Act, 1967 and Section
37 of NDPS Act, the Hon’ble Supreme Court in
Criminal Appeal No.4011 of 2024, in V. Senthil
Balaji Versus The Deputy Director, Directorate
of Enforcement, has mandated that the rigours and
restrictions in Special Enactments, including Section
37 of NDPS Act, will melt down where there is
no likelihood of trial being completed in a reasonable
time and period of incarceration already undergone
may be exposed to vice of being violative of Article
21 of Constitution of India, in the following terms:-
“24. There are a few penal statutes that make a
departure from the provisions of Sections
437, 438, and 439 of the Code of Criminal
Procedure, 1973. A higher threshold is
provided in these statutes for the grant
of bail. By way of illustration, we may
refer to Section 45(1)(ii) of PMLA, proviso
to Section 43D(5) of the Unlawful Activities
(Prevention) Act, 1967 and Section 37
of the Narcotic Drugs and Psychotropic
Substances Act, 1985 (for short, ‘NDPS
– 27 – 2025:HHC:3000
Act’). The provisions regarding bail in
some of such statutes start with a non
obstante clause for overriding the provisions
of Sections 437 to 439 of the CrPC. The
legislature has done so to secure the object
of making the penal provisions in such
enactments. For example, the PMLA provides
for Section 45(1)(ii) as money laundering
poses a serious threat not only to the
country’s financial system but also to its
integrity and sovereignty.
25. Considering the gravity of the offences
in such statutes, expeditious disposal of
trials for the crimes under these statutes
is contemplated. Moreover, such statutes
contain provisions laying down higher
threshold for the grant of bail. The
expeditious disposal of the trial is also
warranted considering the higher threshold
set for the grant of bail. Hence, the
requirement of expeditious disposal of cases
must be read into these statutes. Inordinate
delay in the conclusion of the trial and
the higher threshold for the grant of
bail cannot go together. It is a well
settled principle of our criminal
jurisprudence that “bail is the rule, and
jail is the exception.” These stringent
provisions regarding the grant of bail,
such as Section 45(1)(iii) of the PMLA,
cannot become a tool which can be
used to incarcerate the accused without
trial for an unreasonably long time.
26. There are a series of decisions of this
Court starting from the decision in the
case of K.A. Najeeb, which hold that
such stringent provisions for the grant
of bail do not take away the power of
Constitutional Courts to grant bail on
the grounds of violation of Part III of
the Constitution of India. We have
– 28 – 2025:HHC:3000
already referred to paragraph 17 of
the said decision, which lays down that
the rigours of such provisions will melt
down where there is no likelihood of
trial being completed in a reasonable
time and the period of incarceration
already undergone has exceeded a
substantial part of the prescribed
sentence. One of the reasons is that if,
because of such provisions, incarceration
of an under-trial accused is continued
for an unreasonably long time, the
provisions may be exposed to the vice
of being violative of Article 21 of the
Constitution of India.
27. Under the Statutes like PMLA, the minimum
sentence is three years, and the maximum
is seven years. The minimum sentence is
higher when the scheduled offence is under
the NDPS Act. When the trial of the
complaint under PMLA is likely to prolong
beyond reasonable limits, the Constitutional
Courts will have to consider exercising
their powers to grant bail. The reason is
that Section 45(1)(ii) does not confer power
on the State to detain an accused for an
unreasonably long time, especially when
there is no possibility of trial concluding
within a reasonable time. What a reasonable
time is will depend on the provisions under
which the accused is being tried and other
factors. One of the most relevant factor
is the duration of the minimum and maximum
sentence for the offence. Another important
consideration is the higher threshold or
stringent conditions which a statute provides
for the grant of bail. Even an outer limit
provided by the relevant law for the
completion of the trial, if any, is also a
factor to be considered. The extraordinary
powers, as held in the case of K.A.
Najeeb, can only be exercised by the
– 29 – 2025:HHC:3000
Constitutional Courts. The Judges of
the Constitutional Courts have vast
experience. Based on the facts on record,
if the Judges conclude that there is no
possibility of a trial concluding in a
reasonable time, the power of granting
bail can always be exercised by the
Constitutional Courts on the grounds of
violation of Part III of the Constitution
of India notwithstanding the statutory
provisions. The Constitutional Courts
can always exercise its jurisdiction
under Article 32 or Article 226, as the case
may be. The Constitutional Courts have
to bear in mind while dealing with
the cases under the PMLA that, except
in a few exceptional cases, the maximum
sentence can be of seven years. The
Constitutional Courts cannot allow
provisions like Section 45(1)(ii) to become
instruments in the hands of the ED to
continue incarceration for a long time
when there is no possibility of a trial
of the scheduled offence and the PMLA
offence concluding within a reasonable
time. If the Constitutional Courts do
not exercise their jurisdiction in such
cases, the rights of the undertrials
under Article 21 of the Constitution of
India will be defeated. In a given case,
if an undue delay in the disposal of
the trial of scheduled offences or
disposal of trial under the PMLA can
be substantially attributed to the accused,
the Constitutional Courts can always
decline to exercise jurisdiction to issue
prerogative writs. 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.
– 30 – 2025:HHC:3000
The jurisdiction to issue prerogative writs
is always discretionary.
29. As stated earlier, the appellant has been
incarcerated for 15 months or more
for the offence punishable under the
PMLA. In the facts of the case, the
trial of the scheduled offences and,
consequently, the PMLA offence is not
likely to be completed in three to four
years or even more. If the appellant’s
detention is continued, it will amount
to an infringement of his fundamental
right under Article 21 of the Constitution
of India of speedy trial.
31. Therefore, the appeal is allowed, and
the appellant shall be enlarged on bail
till the final disposal of CC No. 9
of 2023 pending before the Principal
Session Judge, Chennai, on the following
conditions….”
9(iv). Despite the statutory embargoes in Special
Enactments, the bail was granted in case of prolonged
incarceration with no likelihood of completion of
trial, which makes the detention punitive, the Hon’ble
Supreme Court in Criminal Appeal No. 5266 of
2024 (Arising out of SLP (CRL.) No. 13870 of
2024, titled as Partha Chatterjee Versus Directorate
of Enforcement, decided on 13.12.2024, 2024 SCC
Online SC 3729, has reiterated the paramount
– 31 – 2025:HHC:3000
importance of right to life and liberty under Article
21 of the Constitution of India, in the following
terms:-
“13. We have considered the rival submissions
and carefully examined the material on
record. At the outset, it is worth reiterating
that this Court, through a catena of
decisions, has consistently emphasized that
prolonged incarceration of an accused
awaiting trial unjustly deprives them of
their right to personal liberty. Even statutory
embargoes on the grant of bail must
yield when weighed against the
paramount importance of the right to
life and liberty under Article 21 of
the Constitution, particularly in cases
where such incarceration extends over
an unreasonably long period without
conclusion of trial.
17. We, however, cannot be oblivious to the
settled principles that a suspect cannot
be held in custody indefinitely and
that undertrial incarceration should
not amount to punitive detention. The
Court would, nevertheless, ensure that
affluent or influential accused do not
obstruct the ongoing investigation, tamper
with evidence, or influence witnesses, namely,
actions that undermine the fundamental
doctrine of a fair trial.
18. Striking a balance between these
considerations and without expressing
any opinion on the merits of the allegations,
we deem it appropriate to dispose of
this appeal with the following directions:
f. The Petitioner shall thereafter be
released on bail on 01.02.2025, subject
– 32 – 2025:HHC:3000
to his furnishing bail bonds to the
satisfaction of the Trial Court …….”
Keeping in view the factual matrix that
neither any prima facie case nor any reasonable
grounds exist against the bail petitioner coupled with
the fact the bail petitioner has suffered incarceration
for more than 11 months now [since 14.02.2024]
and as per Status Report on date of hearing of
instant case {i.e. 4.1.2024}, out of 20 PWs, no PW
has been examined and the conclusion of trial is
likely to take considerable time and once the
Investigation is complete and the Challan-Final Police
Report stands presented before the jurisdictional
Court and the bail petitioner is not required for
any further interrogation etc. therefore, in these
circumstances, the action of State Authorities in
prolonging the detention certainly amounts to depriving
and curtailing the personal liberty of the petitioner
on mere accusation or conjectures or surmises, which
are yet to be tested, examined and proved during
– 33 – 2025:HHC:3000
the trial. Detention can neither be punitive nor
preventative, so as to make the petitioner to taste
imprisonment as a lesson. Denial of bail certainly
violates the principle that “bail is rule and jail is
an exception”. State Authorities, have failed to ensure
speedy trial which is still to take considerable time
for its conclusion and therefore, on totality of the
facts as referred to above and the mandate of
law in the cases of Guddan alias Roop Narayan,
Javed Gulam Nabi Shaikh, Manish Sisodia,
Kalvakuntla Kavitha, Senthil Balaji and Partha
Chatterjee [supra], the claim of the petitioner for bail
carries weight and therefore, the petitioner deserves
to be released on bail.
PAST CRIMINAL ANTECEDENTS:
10. Learned State Counsel has opposed the
claim for bail on the ground that as per the Status
Reports, the petitioner has criminal antecedents, who
has been involved in three other cases i.e. [i] FIR
– 34 – 2025:HHC:3000
No. 282 of 2018, dated 11.11.2028, which is fixed
for PWs evidence; [ii] FIR No.130 of 2021, dated
5.8.2021; and [iii] FIR No.67 of 2023, dated 07.06.
2023, in which after completion of investigation, the
challan- final police report stand filed and matter
is fixed for consideration on charge before Learned
Special Judge. Based on above criminal antecedents,
the petition is opposed in instant case.
10(i). Before analyzing the contention of the
Learned State Counsel it is necessary to have a
recap of the mandate of law, in broader sense,
as to whether the past criminal antecedents are
relevant and in what circumstances and extent thereof
and in what circumstances and to what extent past
antecedents turn out to be irrelevant or not much
relevant while considering the claim of an accused
for bail, which are detailed here-in-below.
10(ii). While negativating the plea that the past
criminal antecedents {i.e. 36 criminal cases of serious
– 35 – 2025:HHC:3000
nature} cannot solely be the ground for denying bail
or in interfering with the bail order granted by a
Court when, an accused was undergoing incarceration
coupled with the fact that no cogent material was
placed on record revealing that during bail there
is possibility of accused fleeing away from the trial
or an accused is likely to threaten witnesses or is
likely to thwart justice, has been outlined by the
Honble Supreme Court in Maulana Mohammed Amir
Rashidi versus State of Uttar Pradesh, (2012) 2
SCC 382, in the following terms;
4. On the basis of a written complaint in
the Police Station, Phoolpur, FIR No
63 of 2009 under Sections 302 and 307
IPC was registered. The second respondent
was arrested only on 24.08.2009. It
was further stated by the appellant that
the accused is a habitual criminal and
has a criminal background having
more than three dozen cases involving
serious offences against him.
10. It is not in dispute and highlighted
that the second respondent is a sitting
Member of Parliament facing several
criminal cases. It is also not in dispute
that most of the cases ended in
acquittal for want of proper witnesses
or pending trial. As observed by the
– 36 – 2025:HHC:3000
High Court, merely on the basis of
criminal antecedents, the claim of
the second respondent cannot be
rejected. In other words, it is the duty
of the Court to find out the role of the
accused in the case in which he has
been charged and other circumstances
such as possibility of fleeing away from
the jurisdiction of the Court etc.
11. In the case relating to FIR No. 63 of
2009, he was arrested and in jail since
24.08.2009. Another important aspect
is that after filing of charge-sheet on
15.07.2010, prosecution examined two
important witnesses as PWs 1 and 2.
This was the position prevailing on
26.07.2010. Even thereafter, now more
than a year has rolled. Counsel appearing
for the State assured that the trial
will not be prolonged at the instance
of the prosecution and ready to complete
the evidence within a period to be directed
by this Court. The other objection of
the appellant for grant of bail is
that he had received threats from the
second respondent and his supporters
warning him not to pursue the case
against him. It is brought to our notice
that based on the representations of
the appellant, adequate protection had
already been provided to him.
13. Taking note of all these aspects,
particularly, the fact that the second
respondent was in jail since 24.08.2009,
the trial has commenced by examining
the two witnesses on the side of the
prosecution and the assurance by the
State that trial will not be prolonged
and conclude within a reasonable time
– 37 – 2025:HHC:3000
and also of the fact that the High Court
while granting bail has imposed several
conditions for strict adherence during
the period of bail, we are not inclined to
interfere with the order of the High
Court. In fact, in the impugned order
itself, the High Court has made it clear
that in case of breach of any of the
conditions, the trial Court will have
liberty to take steps to send the
applicant to jail again. In addition to
the same, it is further made clear that
if the appellant receives any fresh threat
from the second respondent or from his
supporters, he is free to inform the
trial Court and in such event the trial
Court is free to take appropriate steps
as observed by the High Court. We
also direct the Trial Court to complete
the trial within a period of four months
from the date of the receipt of copy
of this order without unnecessary
adjournments.
14. With the above observation, finding
no merit for interference with the
order of the High Court, the appeal
is dismissed.
10(iii). While granting bail to an accused having
criminal antecedents and was facing incarceration
for 7 months and when, no prima-facie accusation
or reasonable grounds existed, by the Hon’ble Supreme
Court in Prabhakar Tewari Versus State of Uttar
Pradesh and another, (2020) 11 SCC 648, in the
– 38 – 2025:HHC:3000
following terms:-
“4. Learned counsel for the appellant has
submitted that the accused Vikram Singh
is involved in at least five other criminal
cases under the same Police Station,
Jagdishpur. He has also brought to our
notice the witness statement of one Narendra
Dev Upadhyay. This statement was recorded
on 29th March 2019. The part of his
statement to which our attention has been
drawn by learned counsel for the appellant
records that the said witness saw Vikram
Singh standing near National Highway 56
Flyover on the date of occurrence of
the incident in Warisganj with 6 or 7
accomplices and all of them were talking
about plans of killing the victim.
5. We have considered the respective
submissions. The facts highlighted by the
appellant are that the case involves offence
under Section 302 read with Sections 120-B
/ 34, 147, 148 and 149 of the Indian Penal
Code, 1860. The accused has several
criminal cases pending against him and
has been named in the statement forming
the basis of the FIR on the date of
occurrence itself. Two individuals, Rahul
Tiwari and Narendra Dev Upadhyay, whose
statements have been recorded under
Section 161 of the 1973 Code also refer
to involvement of the accused Vikram Singh.
7. On considering the submissions of the
learned counsel for the parties. Having
regard to the circumstances of this case, in
our opinion, there has been no wrong or
improper exercise of discretion on the
part of the High Court in granting bail
to the accused. The factors outlined in
the case of Mahipal (supra) for testing the
legality of an order granting bail are absent
– 39 – 2025:HHC:3000
in the order impugned. The materials available
do not justify arriving at the conclusion
that the order impugned suffers from non-
application of mind or the reason for granting
bail is not borne out from a prima-facie
view of the evidence on record. The offence
alleged no doubt is grave and serious
and there are several criminal cases
pending against the accused. These factors
by themselves cannot be the basis for
refusal of prayer for bail. The High Court
has exercised its discretion in granting
bail to the accused Vikram Singh upon
considering relevant materials. No ex-facie
error in the order has been shown by
the appellant which would establish exercise
of such discretion to be improper. We
accordingly sustain the order of the High
Court granting bail. This appeal is dismissed.
Criminal Appeal No.153 of 2020 [arising
out of SLP (Crl) No.9209 of 2019].
9. The accused is Malkhan Singh in this
appeal. He was named in the FIR by the
appellant Prabhakar Tewari as one of
the five persons who had intercepted the
motorcycle on which the deceased victim
was riding, in front of Warisganj Railway
Station (Halt) on the highway. All the
five accused persons, including Malkhan
Singh, as per the F.I.R. and majority of
the witness statements, had fired several
rounds upon the deceased victim. The
statement of Rahul Tewari recorded on
15th March, 2019, Shubham Tewari recorded
on 12th April, 2019 and Mahipam Mishra
recorded on 20th April 2019 giving
description of the offending incident has
been relied upon by the appellant. It is
also submitted that there are other
criminal cases pending against him.
Learned counsel for the accused- respondent
– 40 – 2025:HHC:3000
no.2 has however pointed out the delay
in recording the witness statements.
The accused has been in custody for about
seven months. In this case also, we find
no error or impropriety in exercise of
discretion by the High Court in granting
bail to the accused Malkhan Singh. The
reason why we come to this conclusion
is broadly the same as in the previous
appeal. This appeal is also dismissed and
the order of the High Court is affirmed.”
10(iv). While extending the concession of bail
despite past criminal antecedents, on principle that
‘bail is rule and jail is an exception’, benefit of bail,
and an accused is presumed to be innocent and
in the guise of pending cases, the presumption of
guilt could not be inferred as has been outlined
by the Hon’ble Supreme Court in Union of India
versus Mrityunjay Kumar Singh, 2024 SCC OnLine
SC 852, in the following terms:-
“9. He would contend that there are other
three (3) cases registered against the
respondent which would suffice to reject
the bail in the instant case relying upon
the letter dated 15.12.2023 written by
the father of the complainant in the
case No.225 of 2023 addressed to the
State Police alleging that the respondent
and his associates are threatening the life
of the complainant and pressurizing him
– 41 – 2025:HHC:3000
to withdraw the case and hence there is
every likelihood of the witnesses in the
instant case also being threatened therefore
he seeks for allowing of the appeal and
setting aside the order of the High Court.
He would further contend that the respondent
is an influential person and would make
all attempts to threaten or influence witnesses
and there is every likelihood that he
may succeed in his attempts if he continues
to have the benefit of the bail. He would
also submit that respondent is an
influential and a person with criminal
history and having close ties with many
gangsters and criminals apart from the
top cadres CPI-Maoist, as such there is
every likelihood for the respondent to
tamper with the evidence and influence
the witnesses. Hence, he prays for the appeal
being allowed and impugned order being
set aside.
10. Shri Siddharth Luthra, learned Senior
Counsel appearing for the respondent, by
supporting the impugned order contends
that the High Court has rightly set aside
the order of the Special Judge by granting
bail to the respondent conditionally way
back on 30.01.2023 and even after lapse
of more than 1 year and 3 months, there
being no allegation on the conditions of
bail having been violated, itself is a
good ground for non-interference with the
order of bail granted by the High Court.
Elaborating his submissions, he would
contend that the prosecution is seeking
for the impugned order being set aside
essentially on the ground that respondent
is involved in three (3) cases apart from
the case registered by NIA. He would
further submit that the case registered
by Chandwa PS in Case No.99 of 2014
has resulted in acquittal and in the case
– 42 – 2025:HHC:3000
No.108 of 2015, the respondent has been
enlarged on bail by the High Court of
Jharkhand. Lastly, in the case No.4 of
2020, the respondent has been granted
anticipatory bail by the High Court of
Jharkhand and as such the purported
criminal antecedent did not sway in the
mind of High Court while considering the
prayer for grant of bail. Even otherwise
the pendency of three (3) other cases
would have no bearing for the continuation
of the order of bail granted in favour of
the respondent. Hence, he has prayed for
rejection of the appeal.
15. As rightly contended by Shri Siddharth
Luthra, learned Senior Counsel appearing
for respondent, in the first case afore-
mentioned the respondent has been
acquitted by judgment dated 07.09.2015
(Annexure R-11). In so far as the cases
at Serial No.2 and 3 (supra), the respondent
has been enlarged on bail vide orders
dated 10.07.2020 (Annexure R-12) and
order dated 10.07.2020. In yet another
case registered by Chandwa PS Case No.
225 of 2023 the respondent has been
enlarged on anticipatory bail in ABP No.
426 of 2023.
16. The afore-stated facts when seen
cumulatively, it would reflect that respondent
having been enlarged on bail conditionally
and the conditions so stipulated having
not been violated and undisputedly the
appellant-state having not sought for
cancellation of the bail till date would
be the prime reason for us not to entertain
this appeal. In fact, the apprehension of
the Union of India that respondent is
likely to pose threat to the witnesses and
there was a threat posed to the complainant,
Mr. Sanjay Kumar Tiwari, would not
– 43 – 2025:HHC:3000
be a ground to set aside the impugned
order enlarging the respondent on bail
in as much in the case referred against
the respondent for the said offence he has
been granted bail. That apart we are of
the considered view that there are no
other overwhelming material on record to
set aside the order granting bail which
out weighs the liberty granted by the High
Court under the impugned order.
17. Hence, we are of the considered view that
interference is not warranted. However, to
allay the apprehension of the prosecution
it would suffice to observe that the
prosecution would be at liberty to seek
for cancellation of the bail in the event
any of the conditions being violated
by the respondent and in the event of such
an application being filed we see no
reason as to why said application would
not be considered on its own merits by
the jurisdictional court independently and
without being influenced by its earlier
observations. We also make it expressly
clear that the observations made under
the impugned order would be restricted
to the consideration of the prayer for
bail and the jurisdictional court without
being influenced by any of the observation
shall proceed to adjudicate the case on
merits after trial. Subject to the above
observations, the appeal stands dismissed.”
10(v). While dealing with validity of bail order
the Honble Supreme Court has mandated that the
criminal antecedents were not much relevant in
case, no prima facie case was made out and the
– 44 – 2025:HHC:3000
period of incarceration was prolonged, in Ayub Khan
versus State of Rajasthan, 2024 SCC OnLine SC
3763, in the following terms:-
“9. The principles to be followed while deciding
on a bail application are well settled. If
Trial Courts commit errors while deciding
bail applications, the same can always be
corrected on the judicial side by the Courts,
which are higher in the judicial hierarchy.
The Constitutional Courts can lay down
the principles governing the grant of
bail or anticipatory bail. However, the
Constitutional Courts cannot interfere with
the discretion of our Trial Courts by laying
down the form in which an order should
be passed while deciding bail applications.
What the High Court has done in paragraph
9 in the decision in the case of Jugal
Kishore is that it has made it mandatory
for the Trial Courts to incorporate a chart
containing details of the antecedents of
the accused who applies for bail.
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,
– 45 – 2025:HHC:3000
depending upon the peculiar facts, the
Court can grant bail notwithstanding
the existence of the antecedents. In
such cases, the question of incorporating
details of antecedents in a tabular form
does not arise. If the directions in the
case of Jugal Kishore are to be strictly
implemented, the Court may have to
adjourn the hearing of the bail applications
to enable the prosecutor to submit the
details in the prescribed tabular format.
11. When the prosecution places on record
material showing antecedents of the
accused, and if the Court concludes that
looking at the facts of the case and
the nature of antecedents, the accused
should be denied bail on the ground of
antecedents, it is not necessary for the
Court to incorporate all the details of the
antecedents as required by paragraph 9
of the decision in the case of Jugal
Kishore. The Court may only refer to the
nature of the offences registered against
the accused by referring to penal provisions
under which the accused has been
charged.”
10(vi). Pendency of other criminal cases cannot
be invoked for denying bail, when, no prima facie
case exists and prolonged incarceration was writ
large, has been mandated by the Hon’ble Supreme
Court in Prem Prakash versus Union of India through
Directorate of Enforcement, 2024 SCC OnLine
SC 2270, in the following terms:-
– 46 – 2025:HHC:3000
“46. The Investigating Agency have also referred
to ECIR No. 4 as a criminal antecedent.
A reference was made to ECIR No. 4 of
2022 pertaining to illegal Stone Mining
and related activities in Saheb Ganj,
Jharkhand, where the petitioner was arrested
on 25.08.2022 and the prosecution complaint
was filed on 16.09.2022. Insofar as the
bail pertaining to ECIR No. 4 of 2022, which
is pending in this Court in SLP (Criminal) No.
691 of 2023, at the after notice stage, the
merits of the bail in that case will be
independently examined. Having examined
the facts of the present case arising out
of ECIR No. 5 of 2023 and in view of
the findings recorded hereinabove, we do not
think that the appellant can be denied
bail based on the pendency of the other
matter. We say so in the facts and
circumstances of the present case as we do
not find any justification for his continued
detention. The appellant has already
been in custody for over one year. The
Trial is yet to commence. There is a
reference to one more ECIR which the
Investigating Agency refers to in their
counter, namely, ECIR /RNZO /18 / 2022
but nothing is available from the record
as to whether any proceedings have been
taken against the appellant.
49. In the result, we pass the following
order:-
(i) The appeal is allowed and impugned
order dated 22.03.2024 is quashed
and set-aside.
(ii) The Trial Court is directed to release
the appellant on bail in connection
with ED case No. ECIR No. 5 of
2023 on furnishing bail bonds for a
sum of Rs.5 lakh with 2 sureties
of the like amount.”
- 47 - 2025:HHC:3000
In facts of instant case, the plea of
Learned State Counsel is examined and the plea
is devoid of any merit, for the reason, that firstly,
neither any prima facie case nor reasonable grounds
exist and prosecution story appears to be highly
doubtful and improbable at this stage as discussed
hereinabove; and secondly, the Status Report reveals
that bail petitioner is in custody since 14.02.2024
and is undergoing incarceration for about 11
months now ; and thirdly, conclusion of trial is
likely to take considerable time ; and fourthly,
delay in trial is not attributable to the petitioner ;
and fifthly, an accused is presumed to be innocent
unless proven guilty ; and sixthly, the continued
detention can neither be punitive nor preventative
and seventhly, the continued detention in guise
of penalizing the petitioner by presuming guilt
cannot be permitted; and eighthly, even the State
Authorities have not placed any material on record
– 48 – 2025:HHC:3000
to revealing that during bail there is possibility
of accused fleeing away from the trial or an
accused is likely to threaten witnesses or is likely
to thwart justice ; and ninthly, the State Authorities
have not placed anything on record to show that
the petitioner has misused the liberty granted
to him earlier; and lastly, once the State Authorities
have adequate safeguards by moving the Courts
for cancellation of bail in-case of violation of
any concession-liberty granted earlier and the
accusation is yet to be tested, examined and proved
during the trial therefore, in these circumstances,
the past criminal antecedents or pendency of
other cases as discussed above cannot be the
sole basis for denying bail, so as to deprive and
curtail the sacrosanct fundamental rights of personal
liberty and right of speedy trial under Article 21
of the Constitution of India and, therefore, the
claim of bail petitioner, carries weight and is granted,
– 49 – 2025:HHC:3000
in peculiar facts of this case.
MANDATE OF HON’BLE SUPREME COURT GRANTING
BAIL DUE TO PROLONGED INCARCENATION AND
WHEN THERE WAS NO LIKELIHOOD OF COMPLETION
OF TRIAL :
11. While dealing the involvement of accused
of commercial quantity of contraband, by the
Hon’ble Supreme Court has extended the benefit of
bail to the petitioner in Petition(s) for Special Leave
to Appeal (Crl.) No(s).1904/2023, titled as Sunil
Kumar Versus The State of Himachal Pradesh,
decided on 29.03.2023, in the following terms:-
“It is noted that the petitioner has been in
custody for more that one and a half years
and the trial is yet to conclude. Earlier, the
petitioner had been granted interim bail on
two occasions and has not misused the liberty
of interim bail or violated any of the bail
conditions imposed upon him but
has thereafter, surrendered back.
Therefore, keeping all these aspects in view,
the petitioner is ordered to be released on bail
subject to appropriate conditions being
imposed by the Trial Court including the
condition that the petitioner shall diligently
participate in the trial. Ordered accordingly.”
11(i). In Petition(s) for Special Leave to Appeal
(Crl.) No(s).4648/2024, titled as Ankur Chaudhary
– 50 – 2025:HHC:3000
Versus State of Madhya Pradesh, decided on
28.05.2024, Hon’ble Supreme Court extended benefit
of bail by invoking Article 21 of Constitution of
India as prolonged incarceration defeats the precious
fundamental rights and such fundamental rights
have to override the statutory embargo in Section
37 (1) (b) of NDPS Act in the following terms:-
“Now, on examination, the panch witnesses
have not supported the case of prosecution.
On facts, we are not inclined to consider the
Investigation Officer as a panch witness. It is
to observe that failure to conclude the
trial within a reasonable time resulting in
prolonged incarceration militates against
the precious fundamental right
guaranteed under Article 21 of the
Constitution of India, and as such,
conditional liberty overriding the
statutory embargo created under Section
37(1)(b) of the NDPS Act may, in such
circumstances, be considered.
In view of the above, we are inclined to allow
this petition and direct to enlarge the
petitioner on bail on furnishing the suitable
bail bonds and sureties and on such other
terms and conditions as may be deemed fit by
the trial Court.”
11(ii). In Petition(s) for Special Leave to Appeal
(Crl.) No(s).7115/2024, titled as Sohrab Khan Versus
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The State of Madhya Pradesh, decided on 13.08.2024,
the Hon’ble Supreme Court has extended the benefit
of concession of bail to an accused, who was facing
incarceration of one year and four months in the
following terms:-
“The petitioner is an accused for the alleged
offences punishable under Sections 8/22 and
29 of the Narcotic Drugs and Psychotropic
Substances Act. His bail application was
dismissed by the High Court. He has already
undergone about one year and four
months in jail. The petitioner and com
accused were found in possession of 80 grams
of MD powder each of which commercial
quantity is 50 grams.
Considering the fact that the petitioner
criminal antecedents and the entire facts
and circumstances has no of this case, we
are of the opinion that a case of bail is made
out for the petitioner and therefore, the
prayer of the petitioner is allowed.
Accordingly, the petitioner is directed to be
released on bail forthwith on the usual terms
and conditions to be decided by the concerned
Court.”
11(iii). In Petition(s) for Special Leave to Appeal
(Crl.) No(s).9510/2024, titled as Ram Lal Versus
The State of Rajasthan, decided on 17.09.2024,
similar benefit of bail was extended where the
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incarceration was prolonged, in the following terms:-
“The petitioner and the other accused persons
are accused for the offences punishable under
Sections 8/21 & 8/29 of the Narcotic Drugs
and Psychotropic Substances Act and
allegation is that 450 gm of smack has been
recovered from them. The bail application of
the petitioner was dismissed by the High
Court. Hence, he approached this Court. He
has already undergone about 1 year and 6
months in jail.
Heard learned counsel for the petitioner. As
per office report Rated 13.09.2924, the service
is deemed complete on the sole respondent-
State but no one has appeared for the state.
Considering the period of incarceration of
the petitioner and the fact that the
petitioner has no criminal antecedents, we
are of the opinion that a case of bail is
made out for the petitioner.
Accordingly, the petitioner is directed to
be released on bail forthwith on the usual
terms and conditions to be decided by the
concerned Court.”
MANDATE OF THIS COURT GRANTING BAIL IN
CASES WHERE INCARCENATION PROLONGED
AND NO LIKELIHOOD OF COMPLETION OF TRIAL:
12. While dealing with the claim for bail in
a case, dealing with commercial quantity, a
Coordinate Bench of this Court, in Cr.MP (M) No.2618
of 2023, Jasbir Singh versus State of Himachal
Pradesh, decided on 4.11.2023 has affirmed the
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right to bail in view of the prolonged detention of
the accused therein, in the following terms:-
“5(ii). ….. In 2021 (3) SCC, 713, Union of India
Versus K.A. Najeeb, Hon’ble Apex Court
considered various judicial precedents where
Article 21 of the Constitution of India was
invoked in case of gross delay in disposal
of cases of under- trials and consequential
necessity to release them on bail. The
earlier decisions were reiterated that liberty
granted by Part-III of the Constitution, would
cover within its protective ambit not only due
procedure and fairness, but also access to
justice and speedy trial. It was held that once
it is obvious that a timely trial would not
be possible and the accused have
suffered incarceration for a significant
period of time, the Courts would ordinarily
be obligated to enlarge them on bail. Some
relevant paras from the judgments are
extracted hereinafter:-
“10. It is a fact that the High Court in
the instant case has not determined
the likelihood of the respondent being
guilty or not, or whether rigours of Section
43D(5) of UAPA are alien to him. The
High Court instead appears to have exercised
its power to grant bail owing to the
long period of incarceration and the
unlikelihood of the trial being completed
anytime in the near future. The reasons
assigned by the High Court are apparently
traceable back to Article 21 of our
Constitution, of course without addressing
the statutory embargo created by Section
43D (5) of UAPA.
11. The High Court’s view draws support
from a batch of decisions of this Court,
including in Shaheen Welfare Assn, laying
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down that gross delay in disposal of
such cases would justify the invocation of
Article 21 of the Constitution and
consequential necessity to release the
undertrial on bail. It would be useful
to quote the following observations from
the cited case:
“10. Bearing in mind the nature
of the crime and the need to protect the
society and the nation, TADA has
prescribed in Section 20(8) stringent
provisions for granting bail. Such
stringent provisions can be justified
looking to the nature of the crime, as
was held in Kartar Singh case, on the
presumption that the trial of the
accused will take place without undue
delay. No one can justify gross delay in
disposal of cases when undertrials
perforce remain in jail, giving rise to
possible situations that may justify
invocation of Article 21.” …
(emphasis supplied)
12. Even in the case of special legislations
like the Terrorist and Disruptive
Activities (Prevention) Act, 1987 or the
Narcotic Drugs and Psychotropic Substances
Act, 1985 (” the NDPS Act“) which too
have somewhat rigorous conditions for
grant of bail, this Court in Paramjit
Singh v. State (NCT of Delhi), Babba
v. State of Maharashtra and Umarmia
alias Mamumia v. State of Gujarat enlarged
the accused on bail when they had
been in jail for an extended period of time
with little possibility of early completion
of trial. The constitutionality of harsh
conditions for bail in such special
enactments, has thus been primarily justified
on the touchstone of speedy trials to
ensure the protection of innocent civilians.
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13. We may also refer to the orders enlarging
similarly situated accused under the UAPA
passed by this Court in Angela Harish
Sontakke v. State of Maharashtra. That
was also a case under Sections 10, 13, 17,
18, 18A, 18B, 20, 21, 38, 39 and 40(2)
of the UAPA. This Court in its earnest
effort to draw balance between the
seriousness of the charges with the period
of custody suffered and the likely
period within which the trial could be
expected to be completed took note
of the five years’ incarceration and
over 200 witnesses left to be examined, and
thus granted bail to the accused
notwithstanding Section 43D(5) of UAPA.
Similarly, in Sagar Tatyaram Gorkhe v. State
of Maharashtra, an accused under the
UAPA was enlarged for he had been in
jail for four years and there were over
147 witnesses still unexamined.
15. This Court has clarified in numerous
judgments that the liberty guaranteed
by Part III of the Constitution would
cover within its protective ambit not
only due procedure and fairness but
also access to justice and a speedy
trial. In Supreme Court Legal Aid Committee
(Representing Under-trial Prisoners) v. Union
of India, it was held that undertrials
cannot indefinitely be detained pending trial.
Ideally, no person ought to suffer adverse
consequences of his acts unless the same
is established before a neutral arbiter.
However, owing to the practicalities of
real life where to secure an effective trial
and to ameliorate the risk to society in
case a potential criminal is left at large
pending trial, Courts are tasked with
deciding whether an individual ought to
be released pending trial or not. Once
– 56 – 2025:HHC:3000
it is obvious that a timely trial would
not be possible and the accused has
suffered incarceration for a significant
period of time, Courts would ordinarily
be obligated to enlarge them on bail.
17. It is thus clear to us that the presence
of statutory restrictions like Section 43D
(5) of UAPA per se does not oust the
ability of Constitutional Courts to grant bail
on grounds of violation of Part III of the
Constitution. Indeed, both the restrictions
under a Statue as well as the powers
exercisable under Constitutional Jurisdiction
can be well harmonised. Whereas at
commencement of proceedings, Courts are
expected 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 safeguard
against the possibility of provisions like
Section 43-D (5) of UAPA being used as
the sole metric for denial of bail or for
wholesale breach of constitutional right
to speedy trial.”
5(iv). ……A previous bail petition bearing
Cr.MP (M) No.1458/2022 instituted by the
petitioner was dismissed on merit on
02.09.2022. While deciding the aforesaid
bail petition, considering the fact that
FIR in question pertained to the year 2020,
it was hoped and expected that the learned
Trial Court would make endeavour to
expedite the trial. We are now at the fag
end of 2023. In terms of the status report
filed by the respondent, the prosecution
has examined 16 witnesses thus far.
Statements of 23 prosecution witnesses
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still remain to be recorded. The zimni
orders placed on record reflect that the
trial has been deferred time and again
for want of presence of prosecution witnesses.
Considering the fact that at this stage
23 witnesses remain to be recorded,
it is apparent that the trial is not
going to be concluded in near future.
The petitioner, who has already spent
about three years and five months in
custody, in my considered opinion has
made out a case for his enlargement
on regular bail at this stage. There is
no criminal history of the petitioner. The
apprehension expressed by the prosecution
about the likelihood of petitioner’s tampering
with the evidence or winning over remaining
witnesses, can be taken care of by imposing
stringent conditions and also granting
liberty to the respondent/State to seek
cancellation of the bail in case the
conditions are violated by the petitioner. In
view of all the aforesaid reasons and
without expressing any opinion on the
merits of the case, the present petition
is allowed. Petitioner is ordered to be
released on bail in the aforesaid
FIR…..”
12(i). While dealing with claim for bail in a case
commercial quantity of 1.004 Kgs. charas and taking
into account the prolonged incarceration for about
13 months, the Co-ordinate Bench of this Court,
has extended the concession of bail to the accused,
in Cr.MP(M) No.1003 of 2024, titled as Vijay Singh
– 58 – 2025:HHC:3000
Versus State of Himachal Pradesh, decided on
24.05.2024, in the following terms:-
“10. Though, the case at hand is to be decided
by learned trial Court, in the totality of
evidence collected on record by the
investigating agency, but having noticed
aforesaid glaring aspects of the matter,
there appears to be no justification for
this Court to let the bail petitioner
incarcerate in jail, for an indefinite
period during trial, especially when rigours
of S.37 of the Act are not attracted on
account of recovery of small quantity.
11. Learned counsel for the petitioner while
inviting attention of this court to judgments
dated 4.3.2023 and 15.3.2023 passed in
Cr.MP(M) No. 62 and 570 of 2023, titled
Puran Chand v. State of HP and Prem
chand v. State of HP., submitted that in
similar facts and circumstances, coordinate
Bench of this Court as well as this Court
enlarged the accused on bail on the
ground of inordinate delay. Having perused
aforesaid judgments passed by the coordinate
Bench of this Court, this Court finds
that in both the cases, commercial quantity
of contraband was recovered from the
accused, but yet court having taken note
of the fact that they were behind the bars
for more than three years, proceeded
to enlarge them on bail.
12. Hon’ble Apex Court having taken note
of inordinate delay in conclusion of trial
in similar facts ordered for enlargement
of accused on bail in Nitish Adhikary
@ Bapan v. The State of West Bengal,
Special Leave to Appeal (Crl.) No. 5769 of
2022 decided on 1.8.2022 and in Abdul
Majeed Lone v. Union Territory of Jammu
– 59 – 2025:HHC:3000
and Kashmir, Special Leave to Appeal
(Crl) No. 3961 of 2022, decided on 1.8.2022,
who were also framed under Narcotic Drugs
and Psychotropic Substances Act and
were behind the bars for approximately
two years and there was no likelihood
of conclusion of trial in near future,
subject to certain conditions.
13. Learned Counsel appearing for the petitioner,
to substantiate his plea for enlarging the
petitioner on bail, has referred order dated
12.10.2020 passed by a three judges Bench
of the Supreme Court, in Criminal Appeal
No. 668 of 2020, titled Amrit Singh Moni
v. State of Himachal Pradesh, whereby
petitioner therein, facing trial for recovery
of 3.285 kilograms charas from a vehicle,
alongwith four other persons, was enlarged
on bail, for having been in detention for
2 years and 7 months, as till then out
of 14 witnesses, 7 witnesses were yet to
be examined and last witness was examined
in February, 2020 and, thereafter, there
was no further progress in the trial.
14. Recently, Hon’ble Apex Court in SLP(Crl)
No. 1904 of 2023 titled Sunil Kumar v.
The State of Himachal Pradesh, decided
on 29.3.2023, has ordered enlargement of
petitioner therein, who was behind bars
for one and half years, on the ground of
delay in trial and conduct of the petitioner.
15. Learned Additional Advocate General,
referring to judgment of a three Judges
Bench of Supreme Court, passed on
19.7.2022 in Narcotics Control Bureau
v. Mohit Aggarwal contends that period
of detention cannot be a ground for
enlarging the petitioner on bail, especially
in the cases where rigors of Section 37 are
attracted.
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16. In the instant case, bail petitioner is behind
bars for more than 13 months and till
date trial has not been completed and
there are very bleak chances of conclusion
of the same in near future, as such,
there appears to be no justification to keep
the bail petitioner behind the bars
for an indefinite period, during trial.”
12(ii). Recently, the Co-ordinate Bench of this
Court in Cr.MP(M) No. 2656 of 2024, titled as Kamal
Singh Versus State of Himachal Pradesh, decided
on 11.12.2024, has enlarged the accused on bail in
case relating to commercial quantity of charas, i.e.
1.209 Kgs. where the accused was facing incarceration
for about 12 months, in the following terms:-
“2. …….Allegedly, police recovered one
rucksack (pithu bag) from the vehicle
containing huge quantity of contraband.
On weighing, police found that 1.209
Kgs. of charas / sulfa was being
transported by the occupants in the
vehicle, as detailed hereinabove. Since, no
plausible explanation ever came to be
rendered on record qua possession of
aforesaid commercial quantity of
contraband……….”
21. In view of the aforesaid discussion as well
as law laid down by the Hon’ble Apex
Court, petitioner has carved out a case
for grant of bail, accordingly, the petition
is allowed and the petitioner is ordered to
be enlarged on bail in aforesaid FIR…….”
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ABOVE BROADER PRINCIPLES OF BAIL APPLIED
IN GRAVER OFFENCES APPLIED TO LESSER
GRAVER ACCUSATION:
13. In backdrop of the mandate of law supra,
once the concession of bail has been granted by
taking into account the prolonged incarceration and
the fact that conclusion of the trial was likely to
take considerable time in cases of commercial quantity
under NDPS Act then, on the same anology and
by applying the same broader principles, to the
facts of instant case, where the accusation against
the petitioner relates to lesser graver accusation of
Intermediate Quantity which of course, is yet to
be tested, examined and proved during the trial and
therefore, this Court accedes to the prayer for bail,
to the petitioner in facts of instant case.
NOTHING ADVERSARIAL REGARDING TAMPERING
WITH EVIDENCE OR WITNESSES ETC:
14. Status Reports filed by State Authorities
have neither pointed out any adversarial circumstances
nor placed any material on record, at this stage, to
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infer that after release on bail, the petitioner is likely
to tamper with the evidence or may cause any
inducement threat or promise to any person or persons
acquainted with the facts of the case. However, the
apprehension if any, of the State Authorities can
be safeguarded, at this stage by imposing stringent
conditions in this bail order.
NOTHING ADVERSARIAL REGARDING OBSTRUCTING
OR ATTEMPTING TO THWARTING JUSTICE:
15. Status Reports filed by State Authorities
have neither pointed out any adversarial circumstances
nor placed any cogent and convincing material on
record, at this stage, to infer that after release on
bail, the petitioner may obstruct or thwart the cause
of justice in any manner. In absence of any material,
the plea for bail deserves to be granted to the
petitioner, in instant case.
NOTHING ADVERSARIAL LIKELIHOOD OF FLEEING
AWAY FROM TRIAL OR JURISDICTION OF COURT:
16. In order to safeguard the rights of bail
petitioner and to take care of apprehensions of State
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that bail petitioner may flee away [notwithstanding
the fact that no such apprehension has been pointed
out in Status Report] yet, in peculiar facts of this
case, this Court stringent conditions in the bail
orders, in later part of this order.
CONCLUSION AND DIRECTIONS :
17. Taking into account the entirety of the
facts, the material on record and the mandate of
law and in view of the discussion made and the
reasons recorded hereinabove and in the peculiar
facts of case, the instant petition is allowed, and
the State Authorities are directed to release the
petitioner [Kalu Ram] on bail, subject to observance of
the following conditions:-
(i) Respondent-State Authorities shall release
bail petitioner [Kalu Ram] on furnishing
personal bond of Rs.75,000/- {Rs Seventy
Five Thousand} with two sureties on
furnishing similar bond amount each, to
the satisfaction of the Learned Trial Court
concerned;
(ii) Petitioner shall undertake and shall also
appear on every date of trial hereinafter;
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(iii) Petitioner shall abide by all or any other
condition(s), which may be imposed by
the Learned Trial Court, in view of this
order;
(iv) Petitioner shall neither involve himself nor
shall abet the commission of any offence
hereinafter. Involvement in any offence
whatsoever or abetting thereof shall entail
automatic cancellation of bail granted in
terms of this order ;
(v) Petitioner shall disclose his functional
E-Mail IDs/ WhatsApp number and that of
his surety to the Learned Trial Court;
(vi) Petitioner after release, shall report to the
Investigating Officer or SHO of Police Station
concerned, nearest to his native place,
i.e. Dobhi, Tehsil and District Kullu [HP],
on 2nd Sunday of every month at 11.00
a.m., only for having an update on good
conduct and behaviour;
(vii) Petitioner shall not jump over the bail and
also shall not leave the country without
the prior information of the Court;
(viii) Petitioner shall not tamper with the evidence
in any manner;
(ix) Petitioner shall not cause any inducement,
threat or promise {directly or indirectly} to
witnesses of any other person acquainted with
the case;
(x) Petitioner is free to seek modification of
any condition contained hereinabove, if
need arises;
(xi) State Authorities are free to move this
Court for seeking alteration/modification of
any of the condition contained in this
– 65 – 2025:HHC:3000
order or any condition imposed by the
Learned Trial Court as a sequel to this
order, in fact situation of instant case
or circumstances so necessitate, at any
time herein-after;
(xii) State Authorities are free to move this
Court for seeking cancellation of the
concession of bail, in case, the petitioner
violates any of the conditions contained
in this order.;
18. Observations made in this judgment shall
not be construed in any manner as an indictive of
findings, for or against the parties herein, either for
the purpose of investigation or for trial, which shall
proceed in-accordance with law, irrespective of any of
the observations contained hereinabove.
19. Petitioner is permitted to produce/use copy
of this order, downloaded from the web-page of the
High Court of Himachal Pradesh, before the authorities
concerned, and the said authorities shall not insist for
production of a certified copy, but if required, may
verify about the passing of this order from the Website
of this Court.
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20. Registry is directed to forward a copy of
this order to Superintendent of Police, Kullu, District
Kullu, Himachal Pradesh, for information and necessary
action in terms of this order.
Pending miscellaneous application(s), if any,
shall also stand disposed of.
(Ranjan Sharma)
Judge
January 15, 2025
[Bhardwaj]