Himachal Pradesh High Court
Reserved On: 9Th January vs State Of Himachal Pradesh on 10 January, 2025
2025:HHC:2991
IN THE HIGH COURT OF HIMACHAL PRADESH
AT SHIMLA
Cr.MP (M) No. 2047 of 2024
Reserved on: 9th January, 2025
Announced on: 10th January, 2025
____________________________________________________________
Om Prakash …Petitioner
Versus
State of Himachal Pradesh …Respondent
Coram
Hon’ble Mr. Justice Ranjan Sharma, Judge
1 Whether approved for reporting? No
For the petitioner: Mr. Rakesh Kumar Chaudhary and
Mr Panku Chaudhary Advocates.
For the respondent: Mr. Hemant K. Verma, Deputy
Advocate General.
Ranjan Sharma, Judge
Bail petitioner [Om Prakash], who is in
custody since 05.05.2023 has come up before this
Court, seeking regular bail, under Section 483 of
the Bhartiya Nagrik Suraksha Sahinta, hereinafter
(hereinafter referred to as BNSS), originating from the
FIR No.57 of 2023 dated 05.05.2023, registered at
Police Station Hatli, District Mandi, [H.P.], under
1
Whether reporters of Local Papers may be allowed to see the judgment?
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Sections 15, 18 and 20 of the Narcotic Drugs and
Psychotropic Substances Act (referred to as the NDPS
Act).
FACTUAL MATRIX IN BAIL PETITION:
2. Case as set up by Mr. Rakesh Kumar
Chaudhary and Mr. Panku Chaudhary, Learned
Counsel (s) is that the petitioner has been falsely
implicated and entire story has been fabricated
and concocted. It is averred that bail petitioner is
in detention, for the last more than one year and
eight months now. It is averred that the Respondent
intends to examine 25 PWs but only 4 witnesses
have been examined on as on day. It is averred
that despite the rigors of Section 37 (1) (b) of NDPS
Act, petitioner cannot be made to undergo prolonged
incarceration, which is violative of Article 21 of the
Constitution of India when the trial is likely to
take considerable time for its conclusion. It is averred
that the bail petitioner has no previous criminal
history. It is averred that the inventory has been
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illegally prepared. It is further averred that the
factum of recovery is un-true, having variations as
mentioned in RFSL Report. It is further averred that
right of speedy trial has been denied to the bail
petitioner. It is averred that bail petitioner is a sole
bread earner in the family and has dependency of
father and mother also. It is averred that due to
prolonged incarceration, the bail petitioner as well
as family members have suffered mental pain and
agony. It is averred that there are no chances of
bail petitioner absconding from the Courts of
justice. Bail petitioner has furnished the undertaking
that he shall not cause any inducement, threat or
promise to any person or persons acquainted with
the facts of the case. It is averred that the petitioner
shall not leave country without permission of this
Court.
In above backdrop, the instant petition
has been filed by the bail petitioner, through his
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wife, Roshani Devi, with the prayer for granting
bail.
STAND OF STATE AUTHORITIES IN STATUS
REPORT:
3. Pursuant to the issuance of notice on
13.09.2024, the State Authorities have furnished
the Status Report dated 26.09.2024, on Instructions
of SHO, Police Station, Hatli, District Mandi [HP].
3(i). Perusal of the Status Report, indicates that
while the police party was on patrolling duty on
05.05.2023 and headed by ASI Jagesh Kumar, they
received an information at about 01:20 p.m. that
accused-bail petitioner has kept the contraband in
his shop, house and cow-shed and in case, the raid
was conducted the contraband may be recovered.
Based on this information, the policy party, after
associating the independent witnesses searched the
shop and thereafter searched his house and then
the cow shed in the presence of witnesses.
3(ii). Status Report indicates that on searching
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the first floor of his house, the police recovered
the contraband kept in red plastic box, which turned
out to be 7.5 gms. of Opium. Likewise, another green
bag was searched by police which came out to be
Cannabis [Charas] weighing 140 gms. Status Report
indicates that the police searched cow shed, wherein,
a brown powder, which was poppy straw [chura-
post-bhukki] was found and a Home Guard personnel,
who was accompanying the police party was sent to
bring a weighing machine, which was brought from
Dhrub Verma, a hardware shopkeeper and the poppy
straw was weighed in presence of witness, which
came out to be 54.760 Kgs. Status Report indicates
that currency notes amounting to Rs. 2,08,600/- were
recovered from a carry bag in bed box in his house.
and after the completing all the codal formalities,
rukka was sent and FIR was registered against the
bail petitioner.
3(iii). Pursuant to registration of FIR, the
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petitioner was arrested on the same day i.e. on
05.05.2023 and bail petitioner was made to undergo
medical examination in Civil Hospital, Baldwara, District
Mandi [HP]. Status Report indicates that an inventory
was prepared under Section 52-A of NDPS Act by
ACJM, Sarkaghat on 06.05.2023 and on 08.05.2023,
the recovered contraband was sent to SFSL Junga,
for analysis, which contained 7.5 gms. of Opium
[Afeem] and 140 gms. of Cannabis [charas] and 54.760
Kgs. of poppy straw [churapost-bhukki]. Status report
indicates that statements of witnesses were recorded
under Section 161 Cr.P.C. It is averred that the SFSL
report analyzed and confirmed samples of opium
[mark-3], cannabis [mark-2] and poppy straw also.
Status report spells out past criminal antecedents
that the petitioner was involved in three criminal
cases, out of which two pending cases relate to
NDPS and in one case the petitioner stands acquitted
by the Court.
-7- 2025:HHC:2991 3(iv). Status Report indicates that Investigation
is complete and out of total 25 PWs, only 4 PWs have
been examined by Learned Trial Court .
In this background, Status Report, has been
filed by the State Authorities, with the prayer for
dismissing the bail petition.
4. Heard Mr. Rakesh Kumar Chaudhary,
Learned Counsel for the bail petitioner and Mr. Hemant
K. Verma, Learned Deputy Advocate General, for
the respondent-State.
STATUTORY PROVISIONS:
5. Before dealing with the claim for bail, it
is necessary to have a recap of statutory provisions
of Sections 15, 18 and 20 of the NDPS Act, which
reads as under:-
“15. Punishment for contravention in relation
to poppy straw.–Whoever, in contravention
of any provisions of this Act or any rule
or order made or condition of a licence
granted thereunder, produces, possesses,
transports, imports inter-State, exports
inter-State, sells, purchases, uses or
omits to warehouse poppy straw or
removes or does any act in respect
of warehoused poppy straw shall be
punishable ,–
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(a) where the contravention involves small
quantity, with rigorous imprisonment for
a term which may extend to 2[one year],
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:
18. Punishment for contravention in relation
to opium poppy and opium.–Whoever,
in contravention of any provision of
this Act or any rule or order made or
condition of licence granted thereunder,
cultivates the opium poppy or produces,
manufactures, possesses, sells, purchases,
transports, imports inter-State, exports
inter-State or uses opium shall be
punishable,–
(a) where the contravention involves
small quantity, with rigorous
imprisonment for a term which may
extend to 2 [one year], or with fine
which may extend to ten thousand
rupees, or with both;
(b) 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 which
may extend to two lakh rupees:
Provided that the court may, for
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reasons to be recorded in the
judgment, impose a fine exceeding
two lakh rupees;
(c) in any other case, with rigorous
imprisonment which may extend to
ten years and with fine which may
extend to one lakh rupees.]
20. Punishment for contravention in relation
to cannabis plant and cannabis-
Whoever, in contravention of any provision
of this Act or any rule or order made
or condition of licence granted thereunder,-
(a) cultivates any cannabis plant; or
(b) produces, manufactures, possesses,
sells, purchases, transports,
imports inter-State, exports inter-
State or uses cannabis, shall be
punishable,–
(i) where such contravention relates to
clause (a) with rigorous imprisonment
for a term which may extend to ten
years, and shall also be liable to fine
which may extend to one lakh rupees;
and
(ii) where such contravention relates to
sub-clause (b),–
(A) and involves small quantity, with
rigorous imprisonment for a term
which may extend to one year, or
with fine which may extend to ten
thousand rupees, or with both;
(B) and 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) and involves commercial quantity,
with rigorous imprisonment for a
term which shall not be less than
ten years but which may extend
– 10 – 2025:HHC:2991
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.”
MANDATE OF LAW:
6. Notably, the claim of the suspect-accused
for regular bail is to be examined/tested in terms
of the parameters prescribed in Code of Criminal
Procedure {now BNSS} and also the broad
para-meters mandated by the Hon’ble Supreme Court
for regulating grant of bail in 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 the case of 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
– 11 – 2025:HHC:2991
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 or reasonable grounds
exits and offence is serious, severity of punishment,
reasonable apprehension of fleeing away from the
investigation and the trial, and 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;
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(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;
(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
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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
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,
– 14 – 2025:HHC:2991
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
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.
ANLYSIS: CLAIM FOR BAIL IN INSTANT CASE:
7. While examining the claim for bail in
instant case, this Court is conscious of the fact
that, once the petitioner has been implicated with
commercial quantity of contraband i.e. [poppy straw-
churapost-bhukki] weighing 54.760 Kgs., therefore,
in normal parlance, the rigors of Section 37 (1) (b)
of NDPS Act are to be satisfied, before acceding
to claim for bail, in terms of the mandate of law,
laid down by the Hon’ble Supreme Court in Narcotics
Control Bureau vs Mohit Aggarwal AIR 2022 SC
3444, followed in Union of India vs Ajay Kumar
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Singh @ Pappu, SLP (Criminal) No.2351 of 2023,
has been reiterated by Hon’ble Supreme Court in
State by the Inspector of Police vs B. Ramu, SLP
(Criminal) No.8137 of 2022 decided on 12.02.2024.
8. In the aforesaid background, this Court
proceeds to examine the claim of the bail petitioner
[Om Prakash], for bail, in view of the statutory
mandate of Section 37 (1) (b) of NDPS Act and
on other grounds carved by way of exceptions to
the rigors of Section 37 of NDPS Act, in terms of
the mandate of law of the Hon’ble Supreme Court,
hereinbelow.
[A]. CLAIM FOR BAIL UNDER SECTION 37(1) (b) OF NDPS
ACT:
9. Learned Counsel for bail petitioner, during
the course of arguments, submits that recovery of
[poppy straw-churapost-bhukki] weighing 54.760 Kgs.
from cow-shed cannot form the basis for inferring
the accusation and guilt against the bail petitioner
when, the cow-shed did not belong to the petitioner.
– 16 – 2025:HHC:2991
Moreover, the deposition of PW-5 {HHC Vijay Kumar}
made during trial [{on 2.1.2025} that no official
was associated by police to ascertain the ownership
and possession of the aforesaid cow-shed. material
exists with the police that the cow-shed belongs
to petitioner. PW-5 has further testified that alleged
cow-shed was unlocked when, the police reached
the spot. PW-5 deposed that the aforesaid cow-shed
is located across the road and was accessible to
by public. Even, the evidence available on record,
as on day, at this stage, makes the prosecution
story highly improbable for the reason, that on
one hand PW-5 deposed that Investigating Offer
associated Independent Witnesses, Vyasa Pradhan
and Roop Lal, Ward Member who reached the spot
but on the other hand, PW-6 {C Jagdish} deposed
that Investigating Offer reached the spot at 1.35
and no Independent witness had reached the spot
at that time, which makes the prosecution story
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highly improbable, at this stage and therefore, in
these circumstances, neither any accusation nor any
guilty could be inferred against bail petitioner, at
this stage.
9(i). Status Report filed by State Authorities
do not spell out any material to show that the
bail petitioner has resorted to any activities, so as
to invoke the provisions of Sections 15, 18 and 20
of NDPS Act against the bail petitioner. In these
circumstances, the bail petitioner appears to be not
guilty, at this stage, and therefore, the bail petitioner
deserves to be extended the benefit of bail.
[B]. NOTHING ADVERSARIAL REGARDING REPITITION OF
OFFENCE AFTER BAIL:
10. Status Reports filed by State Authorities
have not placed any cogent and convincing material
on record revealing any apprehension of repetition of
offence after being released on bail. However, still
this Court, safeguards the interests of the State by
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imposing stringent bail conditions in later part of
this bail order.
Taking into account the entirety of the
facts and circumstances, including the Status Report
this Court is of the considered view, that there
are no reasonable grounds to believe that the bail
petitioner is guilty and nothing exists that the
petitioner is likely to repeat the offence after release
on bail and, therefore, even by applying the twin
principles in Section 37(1) (b) of the NDPS Act, the
bail petitioner [Om Prakash] is entitled to be enlarged
on bail.
[C]. BAIL ON OTHER EXCEPTIONAL GROUNDS &
CIRCUMSTANCES:
11. Notwithstanding, the discussion with respect
to claim for bail under Section 37 (1) (b) of NDPS
Act [supra], this Court proceeds to examine the
claim of the petitioner, in view of the exceptional
circumstances as carved out by the mandate of law
enunciated by the Honble Supreme Court as detailed
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hereinunder, entitling the petitioner to be enlarged on
bail, for the following reasons:-
11(i). In the instant case, FIR was registered on
05.05.2023 and the petitioner is in custody for more
than one year and eight months now. After the
completion of Investigation, the Challan-Police Report
dated 30.06.2023 has been filed and charges have
been framed and out of 25 PWs, only 4 PWs have
been examined by Learned Special Judge, Mandi.
11(ii). While dealing with claim for bail, in case
of an accused who suffered incarceration for more
than one year and eight months, coupled with the
fact that there is no much progress in the trial and
such trail was to take considerable time, the Hon’ble
Supreme Court in Mukesh Kumar versus State of
Rajasthan and another, 2023 SCC OnLine SC
2025, granted bail to the accused therein, in the
following terms:-
“2. The petitioner is accused of giving one blow
on the head of the deceased with a
danda (Bamboo). It may also be mentioned
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that occurrence took place on 08-06-2020
and the deceased succumbed to his injuries
on 12-06-2020.
5. After cancellation of bail by the High Court,
the petitioner has again surrendered on
16-11-2022 and is in custody.
7. It may be seen that there are cross-versions
and both sides suffered injuries. The
question as to who was the aggressor
will depend upon the appreciation of
evidence and will be decided by the Trial
Court at an appropriate stage. It is not
expedient or desirable for this Court to
express any opinion in relation thereto at
this stage.
8. Suffice to say that the petitioner has
been in custody for more than 14
months, the crucial witnesses have since
been examined and there is no likelihood
of tampering with the evidence. Even
otherwise also, the witnesses are close
family members of both sides, hence there
is no likelihood of winning over the
witnesses.
9. Since conclusion of trial will take
considerable time, we deem it appropriate
to release the petitioner on bail.
11. Consequently, without expressing any views
on the merits of the case, the petitioner
is directed to be released on bail, subject
to his furnishing bail bonds to the
satisfaction of the Trial Court.
12. The petitioner and his family members as
well as Respondent No. 2 and his family
members will ensure that no untoward
incident takes place again.”
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PROLONGED INCARCERATION AND INFRINGMENT
OF PERSONAL LIBERTY UNDER ARTICLE 21 OF THE
CONSTITUTION OF INDIA:
12. 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
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
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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
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.
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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
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
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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.”
REFORMATIVE APPROACH IN BAIL:
13. 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, as under:-
“18 Criminals are not born out but made. The
human potential in everyone is good and so,
never write off any criminal as beyond
redemption. This humanist fundamental is
often missed when dealing with
delinquents, juvenile and adult. Indeed,
every saint has a past and every sinner a
future. When a crime is committed, a
variety of factors is responsible for making
the offender commit the crime. Those
factors may be social and economic, may be,
the result of value erosion or parental
neglect; may be, because of the stress
of circumstances, or the manifestation of
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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.”
BAIL NOT TO BE WITHHELD BY WAY OF PENALTY:
ARTICLE 21 OF CONSTITUTION OF INDIA:
14. While dealing with a matter relating to
prolonged incarceration and the right to speedy trial
and right of liberty to be sacrosanct right and while
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deprecating that the bail is not to be withheld as
punishment so as to operate de hors the principle
that bail is rule and jail is an exception, the Hon’ble
Supreme Court, in Manish Sisodia vs Directorate
of Enforcement, SLP (Criminal) No.8781 of 2024,
decided on 09.08.2024, has held 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:
“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
– 27 – 2025:HHC:2991
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
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
– 28 – 2025:HHC:2991
addressed by imposing stringent conditions
upon the appellant.”
14(i). 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 fundamental
right of liberty provided under Article 21 of the
Constitution of India is superior to the statutory
restrictions, in the 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.”
RIGOURS IN SPECIAL ENACTMENTS [SECTION 37
OF NDPS] TO GIVE WAY FOR BAIL-PROLONGED
INCARCERATION AND COMPLETION OF TRIAL TO
TAKE CONSIDERABLE TIME:
15. 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
– 29 – 2025:HHC:2991
Activities [Prevention] Act, 1967 and Section 37 of
NDPS Act, the Hon’ble Supreme Court in Criminal
Appeal No.4011 of 2024, in re: V. Senthil
Balaji Versus The Deputy Director, Directorate of
Enforcement, has mandated that rigors in Special
Enactments, including Section 37 of NDPS Act, will
melt down when, there is no likelihood of the trial
being completed in a reasonable time and in view
of prolonged incarceration, so as to prevent deprivation
of curtailment of personal liberty and right to speedy
trial in terms 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
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
– 30 – 2025:HHC:2991
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.
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
– 31 – 2025:HHC:2991
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 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
– 32 – 2025:HHC:2991
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 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
– 33 – 2025:HHC:2991
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. 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 …..”
15(i). While reiterating the grant of bail, despite
statutory embargoes in Special Enactments, Hon’ble
Supreme Court in Criminal Appeal No.5266 of 2024
– 34 – 2025:HHC:2991
(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 been reiterated, by treating
the right to life and liberty under Article 21 of the
Constitution of India to be of paramount importance
and action of prolonging the incarceration so as to
make such incarceration punitive has been deprecated
by granting bail, 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
– 35 – 2025:HHC:2991
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
to his furnishing bail bonds to the
satisfaction of the Trial Court; ……”
Keeping in view the factual matrix that
no reasonable grounds exist against the bail petitioner,
as referred to above, coupled with the fact the bail
petitioner has suffered incarceration for more than
one year and eight months [since 05.05.2023] and
even trial is likely to take considerable time for
the reason, that out of total 25 PWs, only 4 PWs
have been examined as yet, and therefore, further
detention shall certainly amount 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
– 36 – 2025:HHC:2991
the trial. Detention of the petitioner can neither
be punitive nor preventative, so as to make the
petitioner to taste imprisonment as a lesson. Denial
of bail shall certainly violates the principle that “bail
is rule and jail is an exception”. Even, the State
Authorities, have failed to ensure speedy trial and
still considerable time is likely to be taken for
conclusion of trial, then, in view of 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 petitioner deserves to be
released on bail.
PAST CRIMINAL ANTECEDENTS:
16. 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
No. 123/2011 dated 3.6.2011 u/s 341, 323, 504 &
34 IPC which is pending before the Gram Panchayat
– 37 – 2025:HHC:2991
Baldwara [ii] FIR No.140 of 2014 dated 12.5.2014
under Section 15 NDPS, in which petitioner stands
acquitted by Learned Sessions Judge, Mandi and
[iii] FIR No 196 of 2023, dated 03.7.2018, regd u/s
15 & 18 NDPS in PS Nalagarh, which is under
Investigation. Based on above criminal antecedents,
the petition is opposed in instant case.
16(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.
16(ii). While negativating the plea that the past
criminal antecedents {i.e. 36 criminal cases of serious
nature} cannot solely be the ground for denying bail
– 38 – 2025:HHC:2991
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
High Court, merely on the basis of
criminal antecedents, the claim of
– 39 – 2025:HHC:2991
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
and also of the fact that the High Court
while granting bail has imposed several
– 40 – 2025:HHC:2991
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.
16(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
following terms:-
– 41 – 2025:HHC:2991
“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 in the order impugned. The materials
– 42 – 2025:HHC:2991
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
– 43 – 2025:HHC:2991
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.”
16(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
– 44 – 2025:HHC:2991
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
– 45 – 2025:HHC:2991
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
– 46 – 2025:HHC:2991
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.”
16(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
– 47 – 2025:HHC:2991
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,
– 48 – 2025:HHC:2991
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.”
16(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:-
– 49 – 2025:HHC:2991
“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.”
- 50 - 2025:HHC:2991
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 5.5.2023
and is undergoing incarceration for about one
year and eight months 1 year and 8 months ;
and thirdly, conclusion of trial is likely to take
considerable time when out of total 25 PWs
only 4 PWs have been examined as yet ; 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
– 51 – 2025:HHC:2991
guilt cannot be permitted; and eighthly, even the
State Authorities have not placed any cogent and
convincing material that after release on 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, even the
State Authorities have not placed anything on record
to show that the petitioner has misused the liberty
granted to him earlier; and lastly, the State Authorities
have adequate safeguards by moving the Courts
for cancellation of bail in case there was any
violation of or misuse of the concession-liberty
and once 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
– 52 – 2025:HHC:2991
Article 21 of the Constitution of India and,
therefore, on totality of circumstances, the claim of
petitioner for bail carries weight and is granted, in
peculiar facts of this case.
MANDATE OF HON’BLE SUPREME COURT IN
BAIL IN COMMERCIAL QUANTITY: PROLONGED
INCARCENATION AND COMPLETION OF TRIAL
TO TAKE CONSIDERABLE TIME:
17. While dealing with similar situation dealing
with involvement of accused in commercial quantity
of contraband, Hon’ble Supreme Court has extended
the benefit of bail to the bail 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
– 53 – 2025:HHC:2991
subject to appropriate conditions being
imposed by the Trial Court including the
condition that the petitioner shall diligently
participate in the trial. Ordered accordingly.”
17(i). In Petition(s) for Special Leave to Appeal
(Crl.) No(s).4648/2024, titled as Ankur Chaudhary
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
– 54 – 2025:HHC:2991
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.”
17(ii). In Petition(s) for Special Leave to Appeal
(Crl.) No(s). 7115 /2024, titled as Sohrab Khan
versus The State of Madhya Pradesh, decided on
13.08.2024, the Hon’ble Supreme Court has extended
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.”
- 55 - 2025:HHC:2991 17(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
incarceration was prolonged, as in this case, 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
COMMERCIAL QUANTITY DUE TO PROLONGED
INCARCENATION AND COMPLETION OF TRIAL
TO TAKE CONSIDERABLE TIME:
– 56 – 2025:HHC:2991
18. While dealing with the claim for bail in
a case, a Co-ordinate 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 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
– 57 – 2025:HHC:2991
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 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
– 58 – 2025:HHC:2991
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.
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.
– 59 – 2025:HHC:2991
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 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
– 60 – 2025:HHC:2991
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
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…..”
18(i). While dealing with the claim for bail in
commercial quantity of poppy straw [churapost-bhukki]
of 54.760 Kgs. and taking into account the prolonged
incarceration for about one year and eight months,
– 61 – 2025:HHC:2991
the Co-ordinate Bench of this Court, has extended
concession of bail to an accused, in Cr.MP (M) No.
1003 of 2024, titled as Vijay Singh 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.
– 62 – 2025:HHC:2991
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
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.
- 63 - 2025:HHC:2991
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.
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.”
18(ii). Recently, the Coordinate 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. who 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
– 64 – 2025:HHC:2991
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…..”
BROADER PRINCIPLES APPLIED IN GRAVER OFFENCES
{COMMERCIAL QTY} APPLICABLE IN LESSER GRAVER
OFFENCES {INTERMEDIATE QTY} :
19. 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 commercial quantity and
Intermediate quantity i.e. lesser graver accusation of
Intermediate Quantity which of course, is yet to be
tested, examined and proved during the trial and
– 65 – 2025:HHC:2991
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:
20. Status Reports filed by State Authorities
have neither pointed out cogent and convincing
material revealing adversarial circumstances that
after release on bail, the petitioner is likely to tamper
with evidence or may cause 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 are being safeguarded,
by imposing stringent conditions in this bail order.
NOTHING ADVERSARIAL REGARDING OBSTRUCTING
OR ATTEMPTING TO THWARTLING JUSTICE :
21. Status Reports filed by State Authorities
have neither pointed out any adversarial circumstances
nor placed on record any cogent and convincing
material on record 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,
– 66 – 2025:HHC:2991
the plea for bail deserves to be granted to the
petitioner in the instant case.
NOTHING ADVERSARIAL LIKELIHOOD OF FLEEING
AWAY FROM TRIAL OR JURISDICTION OF COURT:
22. In order to safeguard the rights of bail
petitioner and to take care of apprehensions of State
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 :
23. 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 [Om Parkash] on bail, subject to observance
of the following conditions:-
- 67 - 2025:HHC:2991 (i). Respondent-State Authorities shall release
bail petitioner [Om Prakash] 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;
(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. Narola, Tehsil Baldwara, District Mandi
[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;
- 68 - 2025:HHC:2991
(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
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.
24. 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.
25. 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
– 69 – 2025:HHC:2991
verify about the passing of this order from the Website
of this Court.
26. The Registry is directed to forward a copy
of this order to Superintendent of Police, Mandi, District
Mandi, 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 10, 2025
[Bhardwaj]
Digitally signed by TARUN MAHAJAN
TARUN
DN: C=IN, O=HIGH COURT OF HIMACHAL PRADESH, OU=HIGH
COURT OF HIMACHAL PRADESH SHIMLA, Phone=
887aba774dfe8f4f3e95a41c7aa2abacb4ecee8f82efd8f56ec39f8e6b
442b68, PostalCode=171001, S=Himachal Pradesh,
SERIALNUMBER=
3ff6ebe501e8d7c8d73d0e5a5294bacca3f198d7d66b105bbf507179
MAHAJAN
673109f5, CN=TARUN MAHAJAN
Reason: I am the author of this document
Location: 12345678
Date: 2025.01.13 17:42:42+05’30’
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