Himachal Pradesh High Court
Reserved On: 6.6.2025 vs State Of Himachal Pradesh on 19 June, 2025
2025:HHC:18769
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr. MP(M) No. 1026 of 2025
Reserved on: 6.6.2025
Date of Decision: 19.06.2025.
Shabana ...Petitioner
Versus
State of Himachal Pradesh ...Respondent
Coram
Hon’ble Mr Justice Rakesh Kainthla, Judge.
Whether approved for reporting?1 No.
For the Petitioner : Mr. Shakti Bhardwaj, Advocate.
For the Respondent : Mr. Ajit Sharma, Deputy Advocate
General, with HC Sohan Lal, No. 141,
IO, Police Station Kotkhai, District
Shimla, H.P.
Rakesh Kainthla, Judge
The petitioner has filed the present petition for seeking
regular bail in FIR No. 24 of 2025, dated 8.4.2025, registered at
Police Station, Kotkhai, District Shimla, H.P. for the commission
of offences punishable under Sections 21 and 29 of the Narcotic
Drugs and Psychotropic Substances Act (in short ‘the ND&PS
Act‘).
1
Whether reporters of Local Papers may be allowed to see the judgment? Yes.
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2. It has been asserted that the petitioner, Abhishek
Mehra and Robin Singh were arrested on 8.4.2025 for the
commission of offences punishable under Sections 21 and 29 of
the ND&PS Act. The petitioner is in judicial custody, lodged at Sub
Jail, Kaithu. The petitioner was falsely implicated without any
evidence. The investigation is complete, and the petitioner is not
required for the investigation. The quantity of contraband stated
to have been recovered is intermediate, and the rigours of Section
37 of the ND&PS Act do not apply to the present case. The
petitioner is a young lady aged 23 years who is behind bars with
her six-month-old child. There is no apprehension of the
petitioner absconding. She does not have any criminal
antecedents. She would abide by the terms and conditions which
the Court may impose. Hence the petition.
3. The petition is opposed by filing a status report
asserting that the police party was on a patrolling duty on
08.04.2025. They received information at 4 PM that a vehicle
bearing registration No. PB01E-9829 was transporting a huge
quantity of heroin. The information was credible, and the delay in
procuring the warrant would have led to the destruction of the
heroin; hence, the information under Section 42(2) of the NDPS
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Act was sent to the SDPO, Theog. The police associated Devender
Singh as an independent witness and set up a nakka. The police
intercepted a vehicle bearing registration No. PB01E-9829. The
driver revealed his name as Mohammad Mohin. The person sitting
beside the driver revealed his name as Abhishek Mehra. The
person sitting on the rear seat identified himself as Robin Singh,
and the person beside him identified herself as Shabana (the
present petitioner). The police searched the vehicle and recovered
54.420 grams of heroin from the bag kept on the rear seat. The
police seized the heroin and arrested the occupants of the vehicle.
Robin Singh revealed during the investigation that he had
purchased the heroin from Shinu for ₹ 1,00,000/- on credit. He
also made a disclosure statement on 10.04.2025 and identified
Ajay Thakur as the purchaser of the heroin. The substance was
sent to FSL and was confirmed to be Diacetylmorphine (heroin).
The petitioner revealed during the interrogation that she and her
husband, Robin Singh, used to sell heroin; however, they did not
disclose the source or destination of the heroin. As per the
verification from Police Station, Ramraj, District Mujaffarnagar,
U.P., the address was found to be correct, and no criminal case was
registered against her. The petitioner can intimidate the
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witnesses, and she would abscond in case of release on bail. Hence,
the status report.
4. I have heard Mr. Shakti Bhardwaj, learned counsel for
the petitioner and Mr. Ajit Sharma, learned Deputy Advocate
General, for the respondent-State.
5. Mr. Shakti Bhardwaj, learned counsel for the
petitioner, submitted that the petitioner is innocent and she was
falsely implicated. No recovery was effected from her possession.
She would abide by all the terms and conditions which the Court
may impose. Hence, he prayed that the present petition be allowed
and the petitioner be released on bail.
6. Mr. Ajit Sharma, learned Deputy Advocate General, for
the respondent-State, submitted that the petitioner was found in
possession of heroin, which is adversely affecting the young
generation. She is a drug peddler, and no sympathy should be
shown to her. Therefore, he prayed that the present petition be
dismissed.
7. I have given considerable thought to the submissions
made at the bar and have gone through the records carefully.
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8. The parameters for granting bail were considered by
the Hon’ble Supreme Court in Ajwar v. Waseem (2024) 10 SCC 768:
2024 SCC OnLine SC 974, wherein it was observed as under page
783: –
“Relevant parameters for granting bail
26. While considering as to whether bail ought to be
granted in a matter involving a serious criminal offence, the
Court must consider relevant factors like the nature of the
accusations made against the accused, the manner in which
the crime is alleged to have been committed, the gravity of
the offence, the role attributed to the accused, the criminal
antecedents of the accused, the probability of tampering of
the witnesses and repeating the offence, if the accused are
released on bail, the likelihood of the accused being
unavailable in the event bail is granted, the possibility of
obstructing the proceedings and evading the courts of
justice and the overall desirability of releasing the accused
on bail. [Refer: Chaman Lal v. State of U.P. [Chaman
Lal v. State of U.P., (2004) 7 SCC 525: 2004 SCC (Cri)
1974]; Kalyan Chandra Sarkar v. Rajesh Ranjan [Kalyan
Chandra Sarkar v. Rajesh Ranjan, (2004) 7 SCC 528: 2004 SCC
(Cri) 1977]; Masroor v. State of U.P. [Masroor v. State of U.P.,
(2009) 14 SCC 286 : (2010) 1 SCC (Cri) 1368]; Prasanta Kumar
Sarkar v. Ashis Chatterjee [Prasanta Kumar Sarkar v. Ashis
Chatterjee, (2010) 14 SCC 496 : (2011) 3 SCC (Cri) 765]; Neeru
Yadav v. State of U.P. [Neeru Yadav v. State of U.P., (2014) 16
SCC 508 : (2015) 3 SCC (Cri) 527]; Anil Kumar Yadav v. State
(NCT of Delhi)[Anil Kumar Yadav v. State (NCT of Delhi),
(2018) 12 SCC 129 : (2018) 3 SCC (Cri) 425]; Mahipal v. Rajesh
Kumar [Mahipal v. Rajesh Kumar, (2020) 2 SCC 118 : (2020) 1
SCC (Cri) 558] .]
9. This position was reiterated in Ramratan v. State of
M.P., 2024 SCC OnLine SC 3068, wherein it was observed as under: –
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“12. The fundamental purpose of bail is to ensure the
accused’s presence during the investigation and trial. Any
conditions imposed must be reasonable and directly related
to this objective. This Court in Parvez Noordin
Lokhandwalla v. State of Maharastra (2020) 10 SCC 77
observed that though the competent court is empowered to
exercise its discretion to impose “any condition” for the
grant of bail under Sections 437(3) and 439(1)(a) CrPC, the
discretion of the court has to be guided by the need to
facilitate the administration of justice, secure the presence
of the accused and ensure that the liberty of the accused is
not misused to impede the investigation, overawe the
witnesses or obstruct the course of justice. The relevant
observations are extracted herein below:
“14. The language of Section 437(3) CrPC, which uses
the expression “any condition … otherwise in the
interest of justice” has been construed in several
decisions of this Court. Though the competent court is
empowered to exercise its discretion to impose “any
condition” for the grant of bail under
Sections 437(3) and 439(1)(a) CrPC, the discretion of the
court has to be guided by the need to facilitate the
administration of justice, secure the presence of the accused
and ensure that the liberty of the accused is not misused to
impede the investigation, overawe the witnesses or obstruct
the course of justice. Several decisions of this Court have
dwelt on the nature of the conditions which can
legitimately be imposed both in the context of bail and
anticipatory bail.” (Emphasis supplied)
13. In Sumit Mehta v. State (NCT of Delhi) (2013) 15 SCC 570,
this Court discussed the scope of the discretion of the Court
to impose “any condition” on the grant of bail and observed
in the following terms: —
“15. The words “any condition” used in the provision
should not be regarded as conferring absolute power on
a court of law to impose any condition that it chooses to
impose. Any condition has to be interpreted as a reasonable
condition acceptable in the facts permissible in the
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circumstance, and effective in the pragmatic sense, and
should not defeat the order of grant of bail. We are of the
view that the present facts and circumstances of the case
do not warrant such an extreme condition to be
imposed.” (Emphasis supplied)
14. This Court, in Dilip Singh v. State of Madhya Pradesh
(2021) 2 SCC 779, laid down the factors to be taken into
consideration while deciding the bail application and
observed:
“4. It is well settled by a plethora of decisions of this
Court that criminal proceedings are not for the
realisation of disputed dues. It is open to a court to grant
or refuse the prayer for anticipatory bail, depending on
the facts and circumstances of the particular case. The
factors to be taken into consideration while considering an
application for bail are the nature of the accusation and the
severity of the punishment in the case of conviction and the
nature of the materials relied upon by the prosecution;
reasonable apprehension of tampering with the witnesses or
apprehension of threat to the complainant or the witnesses;
the reasonable possibility of securing the presence of the
accused at the time of trial or the likelihood of his
abscondence; character, behaviour and standing of the
accused; and the circumstances which are peculiar or the
accused and larger interest of the public or the State and
similar other considerations. A criminal court, exercising
jurisdiction to grant bail/anticipatory bail, is not
expected to act as a recovery agent to realise the dues of
the complainant, and that too, without any trial.”
(Emphasis supplied)
10. This position was reiterated in Shabeen Ahmed versus
State of U.P., 2025 SCC Online SC 479.
11. The present petition has to be decided as per the
parameters laid down by the Hon’ble Supreme Court.
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12. Perusal of the status report shows that the petitioner
was found present in the vehicle bearing registration No. PB-01E-
9829 from which 54.420 grams of heroin were recovered. In
Madan Lal versus State of H.P. (2003) 7 SCC 465: 2003 SCC (Cri) 1664:
2003 SCC OnLineSC 874, the contraband was recovered from a
vehicle, and it was held that all the occupants of the vehicle would
be in conscious possession of the contraband. It was observed:
“19. Whether there was conscious possession has to be
determined with reference to the factual backdrop. The
facts which can be culled out from the evidence on record
are that all the accused persons were travelling in a vehicle,
and as noted by the trial court, they were known to each
other, and it has not been explained or shown as to how
they travelled together from the same destination in a
vehicle which was not a public vehicle.
20. Section 20(b) makes possession of contraband articles
an offence. Section 20 appears in Chapter IV of the Act,
which relates to offences for possession of such articles. It
is submitted that in order to make the possession illicit,
there must be conscious possession.
21. It is highlighted that unless the possession was coupled
with the requisite mental element, i.e. conscious possession
and not mere custody without awareness of the nature of
such possession, Section 20 is not attracted.
22. The expression “possession” is a polymorphous term
which assumes different colours in different contexts. It
may carry different meanings in contextually different
backgrounds. It is impossible, as was observed in the Supdt.
& Remembrancer of Legal Affairs, W.B. v. Anil Kumar
Bhunja [(1979) 4 SCC 274: 1979 SCC (Cri) 1038: AIR 1980 SC
52] to work out a completely logical and precise definition
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of “possession” uniformly applicable to all situations in the
context of all statutes.
23. The word “conscious” means awareness of a particular
fact. It is a state of mind which is deliberate or intended.
24. As noted in Gunwantlal v. State of M.P. [(1972) 2 SCC 194:
1972 SCC (Cri) 678: AIR 1972 SC 1756], possession in a given
case need not be physical possession but can be
constructive, having power and control over the article in
the case in question, while the person to whom physical
possession is given holds it subject to that power or control.
25. The word “possession” means the legal right to
possession (see Heath v. Drown [(1972) 2 All ER 561: 1973 AC
498: (1972) 2 WLR 1306 (HL)] ). In an interesting case, it was
observed that where a person keeps his firearm in his
mother’s flat, which is safer than his own home, he must be
considered to be in possession of the same.
(See Sullivan v. Earl of Caithness [(1976) 1 All ER 844: 1976 QB
966 : (1976) 2 WLR 361 (QBD)] .)
26. Once possession is established, the person who claims
that it was not a conscious possession has to establish it
because how he came to be in possession is within his
special knowledge. Section 35 of the Act gives a statutory
recognition of this position because of the presumption
available in law. Similar is the position in terms of Section
54, where also presumption is also available to be drawn
from possession of illicit articles.
27. In the factual scenario of the present case, not only
possession but conscious possession has been
established. It has not been shown by the accused-
appellants that the possession was not conscious in the
logical background of Sections 35 and 54 of the Act.”
13. The petitioner was travelling in the vehicle from which
recovery was effected; hence, she was prima facie in possession of
heroin.
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14. The petitioner is a woman. Section 480 of Bhartiya
Nagrik Surkasha Sanhita (BNSS) provides that the Court may
direct a person accused of or suspected of commission of any non-
bailable offence be released on bail if such person is a child or a
woman, or is sick or infirm. This provision applies to a person
brought before the Court other than the High Court or Court of
Session, but the Courts have to keep this special provision in mind
while considering the bail application of the persons falling in the
categories mentioned in Section 480 of BNSS. It was laid down by
the Karnataka High Court in Nethra vs State of Karnataka
(12.05.2022 – KARHC): MANU/KA/2055/2022 that a woman can be
released on bail even in case of murder because of special
provisions under Section 437 of CrPC. It was observed:
“In terms of Section 437 of the Cr.P.C., bail can be granted
in a non-bailable offence in three circumstances as depicted
in the proviso: (i) being a person below 16 years of age, (ii) a
woman, and (iii) sick or infirm. The petitioner is a woman.
She is entitled to consideration under Section 437 of the
Cr.P.C. Before applying the aforesaid provision to the facts
of the case and considering the case of the petitioner for
enlargement on bail, it is germane to notice the application
of the said provision by coordinate Benches of this Court all
in the case of offences punishable under Section 302 of the
IPC and they being women.
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All the afore-quoted judgments rendered by the coordinate
Benches of this Court were considering the purport of
Section 437 of the Cr.P.C. and were cases where the accused
No. 1 therein were women, and all of them were alleged of
an offence punishable under Section 302 of the IPC for the
commission of murder. It is also a matter of record that the
alleged accomplice in the act of murder, Vijay Kumar, was
granted bail on 13-04-2022 by the learned Sessions Judge.
For the aforesaid facts, the statute, i.e., Section 437 of the
Cr.P.C. and its application in the judgments of three
coordinate Benches all would enure to the benefit of the
petitioner to be enlarged on bail notwithstanding the fact
that the offence alleged is under Section 302 of the IPC. It is
not the law that bail should always be denied in a case
where the offence punishable is death or life imprisonment.
In exceptional cases, if the statute permits and the facts are
not being so gory and grave criminal antecedents shrouding
the culprit, the consideration in such cases would be
different.”
15. A perusal of the status report shows that the police had
recovered 55.420 grams of heroin from the vehicle, and the co-
accused Robin Singh disclosed the name of Ajay Thakur as the
purchaser who was also arrested by the police. Ajay Thakur was
also found to be chatting to Robin Singh. Thus, the status report
shows that Robin Singh is the main drug peddler who is supplying
heroin to various persons.
16. The petitioner asserted that she has a six-month-old
child with her. This was not stated to be incorrect. Keeping in view
the young age of the child and the quantity of heroin stated to
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have been recovered from the vehicle in which the petitioner was
travelling, further detention of the petitioner is not justified.
17. Consequently, the present petition is allowed, and the
petitioner is ordered to be released on bail subject to her
furnishing bail bonds in the sum of ₹1,00,000/- with one surety of
the like amount to the satisfaction of the learned Trial Court. While
on bail, the petitioner will abide by the following terms and
conditions: –
(I) The petitioner will not intimidate the witnesses, nor
will she influence any evidence in any manner
whatsoever;
(II) The petitioner shall attend the trial on each and every
hearing and will not seek unnecessary adjournments;
(III) The petitioner will not leave the present address for a
continuous period of seven days without furnishing
the address of the intended visit to the SHO
concerned, the Police Station concerned and the Trial
Court;
(IV) The petitioner will surrender her passport, if any, to
the Court; and
(V) The petitioner will furnish her mobile number and
social media contact to the Police and the Court and
will abide by the summons/notices received from the
Police/Court through SMS/WhatsApp/Social Media
Account. In case of any change in the mobile number
or social media accounts, the same will be intimated
to the Police/Court within five days from the date of
the change.
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18. It is expressly made clear that in case of violation of
any of these conditions, the prosecution will have the right to file a
petition for cancellation of the bail.
19. The petition stands accordingly disposed of. A copy of
this order be sent to the Superintendent of Sub Jail, Kaithu,
District, Shimla, H.P. and the learned Trial Court by FASTER.
20. The observations made hereinabove are regarding the
disposal of this petition and will have no bearing whatsoever on
the case’s merits.
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 the order presented to it, the same may
be ascertained from the official website of this Court.
(Rakesh Kainthla)
Judge
19th June, 2025
(Chander)
Digitally signed by KARAN SINGH GULERIA
Date: 2025.06.19 11:44:22 IST