Himachal Pradesh High Court
Date Of Decision: 31.01.2025 vs State Of Himachal Pradesh on 31 January, 2025
2025:HHC:3018
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr. MP (M) No. 190 of 2025
Date of Decision: 31.01.2025.
Gopal Singh ...Petitioner
Versus
State of Himachal Pradesh ...Respondent
Coram
Hon'ble Mr Justice Rakesh Kainthla, Vacation Judge.
Whether approved for reporting?1 No.
For the Petitioner : Mr. Atul Sharma, Advocate.
For the Respondent/State : Mr Manoj Chauhan,
Additional Advocate General,
with ASI Anil Kumar, IO, Police
Station Chopal, District
Shimla, HP.
Rakesh Kainthla, Judge (Oral)
The petitioner has filed the present petition for
seeking pre-arrest bail in FIR No. 08 of 2025, dated 24.01.2025,
for the commission of an offence punishable under Section 20 of
the Narcotic Drugs and Psychotropic Substances Act, (ND&PS
Act), registered at the Police Station, Chopal, District Shimla,
H.P. It has been asserted that the petitioner was falsely
1
Whether reporters of Local Papers may be allowed to see the judgment? Yes.
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implicated. He is not involved in the commission of the offence.
The allegations against the petitioner are false. No recovery was
effected from the petitioner and there is no witness to the
recovery of the charas. The petitioner is a permanent resident of
Gram Panchayat Lingzar. He has deep roots in the society and
there is no possibility of his absconding. The petitioner would
abide by the terms and conditions, which the Court may impose.
Hence, the petition.
2. The petition is opposed by filing a status report
asserting that the police were on patrolling duty on 24.01.2025
when they received secret information at about 4.10 PM at
Nakoda bridge that Gopal Singh (present petitioner) was
involved in the sale and purchase of charas. The police reduced
the information into writing and kept it with themselves due to
insufficient number of police officials. The police proceeded
towards the petitioner’s village. The petitioner was found
coming from the village towards the police party carrying a
micron bag with him. He returned after seeing the police and
started running away. The police followed him. The petitioner
threw the bag and absconded. The police could not catch hold of
him. The police checked the bag in the presence of independent
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witnesses and found charas weighing 443.230 grams. The police
seized the charas and conducted the investigation. The
inventory of the charas was prepared, which was certified by
learned Judicial Magistrate First Class, Chopal. The charas was
sent to the Forensic Science Laboratory, Junga for chemical
examination. The petitioner has absconded and could not be
apprehended despite best efforts. The petitioner is to be
interrogated to know the source of the charas. Hence, the status
report.
3. I have heard Mr. Atul Sharma, learned counsel for the
petitioner and Mr. Manoj Chauhan, learned Additional Advocate
General for the respondent-State.
4. Mr. Atul Sharma, learned counsel for the petitioner
submitted that the petitioner is innocent and he was falsely
implicated. There is no eye witness to the incident. The police
reduced the secret information to writing but chose not to send
it to the superior officer, which is a violation of Section 42 of the
ND&PS Act. The petitioner does not have any criminal
antecedents. He would join the investigation and abide by all the
terms and conditions which the Court may impose. Hence, he
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prayed that the present petition be allowed and the petitioner be
released on pre-arrest bail. He relied upon the judgment of the
Hon’ble Supreme Court in Sahil Firoz Shaikh Vs. State of
Maharashtra, Cr. Appeal No. 4905 of 2024, decided on 29.11.2024
in support of his submissions.
5. Mr Manoj Chauhan, learned Additional Advocate
General for the respondent-State submitted that two
independent witnesses were associated. The petitioner is to be
interrogated by the police to determine the source of the charas.
The custodial interrogation of the petitioner is required.
Therefore, he prayed that the present petition be dismissed.
6. I have given considerable thought to the submissions
made at the bar and have gone through the records carefully.
7. It was laid down by the Hon’ble Supreme Court in P.
Chidambaram vs. Directorate of Enforcement 2019 (9) SCC 24 that
the power of pre-arrest is extraordinary and should be exercised
sparingly. It was observed:
“67. Ordinarily, arrest is a part of the procedure of the
investigation to secure not only the presence of the
accused but several other purposes. Power under Section
438 Cr.P.C. is an extraordinary power and the same has to
be exercised sparingly. The privilege of pre-arrest bail
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2025:HHC:3018should be granted only in exceptional cases. The judicial
discretion conferred upon the court has to be properly
exercised after application of mind as to the nature and
gravity of the accusation; the possibility of the applicant
fleeing justice and other factors to decide whether it is a
fit case for grant of anticipatory bail. Grant of
anticipatory bail to some extent interferes in the sphere
of investigation of an offence and hence, the court must
be circumspect while exercising such power for the grant
of anticipatory bail. Anticipatory bail is not to be granted
as a matter of rule and it has to be granted only when the
court is convinced that exceptional circumstances exist to
resort to that extraordinary remedy.”
8. This position was reiterated in Srikant Upadhyay v. State
of Bihar, 2024 SCC OnLine SC 282 wherein it was held:
“25. We have already held that the power to grant
anticipatory bail is extraordinary. Though in many cases
it was held that bail is said to be a rule, it cannot, by any
stretch of the imagination, be said that anticipatory bail
is the rule. It cannot be the rule and the question of its
grant should be left to the cautious and judicious
discretion of the Court depending on the facts and
circumstances of each case. While called upon to exercise
the said power, the Court concerned has to be very
cautious as the grant of interim protection or protection
to the accused in serious cases may lead to a miscarriage
of justice and may hamper the investigation to a great
extent as it may sometimes lead to tampering or
distraction of the evidence. We shall not be understood to
have held that the Court shall not pass interim protection
pending consideration of such application as the Section
is destined to safeguard the freedom of an individual
against unwarranted arrest and we say that such orders
shall be passed in eminently fit cases.”
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9. It was held in Pratibha Manchanda v. State of Haryana,
(2023) 8 SCC 181: 2023 SCC OnLine SC 785 that the Courts should
balance individual rights, public interest and fair investigation
while considering an application for pre-arrest bail. It was
observed:
“21. The relief of anticipatory bail is aimed at
safeguarding individual rights. While it serves as a crucial
tool to prevent the misuse of the power of arrest and
protects innocent individuals from harassment, it also
presents challenges in maintaining a delicate balance
between individual rights and the interests of justice. The
tightrope we must walk lies in striking a balance between
safeguarding individual rights and protecting public
interest. While the right to liberty and presumption of
innocence are vital, the court must also consider the
gravity of the offence, the impact on society, and the need
for a fair and free investigation. The court’s discretion in
weighing these interests in the facts and circumstances of
each case becomes crucial to ensure a just outcome.”
10. The present application has to be decided as per the
parameters laid down by the Hon’ble Supreme Court.
11. The status report clearly shows that the police had
received a secret information that the petitioner was involved in
the sale and purchase of charas. The petitioner was found
carrying a micron bag and ran away from the spot. These
averments prima facie show the involvement of the petitioner.
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12. It was submitted that the police did not associate any
independent witness despite the receipt of the secret
information and this is fatal to the prosecution case. This
submission cannot be accepted. It is trite to say that the
testimonies of the police officials cannot be discarded on the
ground that they happened to be the police officials. Their
credibility shall be tested at the time of trial and is not to be
adjudicated at this stage while deciding the application for grant
of pre-arrest bail. Hence, the fact that no independent witness
was associated despite the receipt of the information by the
police will not help the petitioner at this stage.
13. It was submitted that the police have not complied
with the requirement of Section 42 of the ND&PS Act because it
was specifically mentioned in the status report that the
information was kept by the police officials. This submission
will not help the petitioner. As per the status report, the
petitioner was coming towards the police walking on the road.
He threw the bag when the police followed him. There was no
search inside the building, conveyance or enclosed place
mentioned in Section 42 of the ND&PS Act. It was laid down by
the Hon’ble Supreme Court in SK Raju @ Abdul Haque @ Jagga vs
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State of West Bengal (2018) 9 SCC 708 that Section 42 of the
ND&PS Act does not apply to the search made of a person
walking on the road or in an open place. Therefore, even if there
is a violation of Section 42 of the ND&PS Act, the same will not
affect the prosecution case. Further, as per Section 42 (2) of the
ND&PS Act, the information is not required to be sent
immediately but within 72 hours to the immediate official
superior. Thus, even if the information was not sent
immediately, the same is protected under Section 42(2) of the
ND&PS Act and the petitioner cannot take any advantage of this
fact at this stage.
14. The petitioner was found to be in possession of
443.230 grams of charas which is a huge quantity. The narcotics
are adversely affecting the younger generation and the cases of
narcotics cannot be dealt with lightly. Therefore, it will not be
proper for this Court to grant pre-arrest bail in a case involving
such a huge quantity of charas.
15. The judgment in Sahil Firoz Shaikh (supra), does not
show the amount of the narcotics. Further, it appears from the
judgment that one accused was aged only 18 years and another
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accused was a woman. They are entitled to special consideration
as per Section 480 of Bharatiya Nagrik Suraksha Sanhita and the
case of the petitioner cannot be equated to them. Hence, the
cited judgment does not apply to the present case.
16. It was stated in the status report that the custodial
interrogation of the petitioner is required to determine the
source and destination of the charas. Keeping in view the
quantity of charas, the plea of the police appears to be justified.
It was laid down by the Hon’ble Supreme Court in State Versus
Anil Sharma (1997) 7 SCC 187 that where custodial interrogation
is required, pre-arrest bail should not be granted. It was
observed:-
“6. We find force in the submission of the CBI that
custodial interrogation is qualitatively more elicitation-
orientated than questioning a suspect who is well-
ensconced with a favourable order under Section 438 of
the Code. In a case like this effective interrogation of a
suspected person is of tremendous advantage in
disinterring many useful information and also materials
which would have been concealed. Success in such
interrogation would elude if the suspected person knows
that he is well protected and insulated by a pre-arrest bail
order during the time he is interrogated. Very often
interrogation in such a condition would reduce to a mere
ritual. The argument that the custodial interrogation is
fraught with the danger of the person being subjected to
third-degree methods need not be countenanced, for,
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2025:HHC:3018such an argument can be advanced by all accused in all
criminal cases. The Court has to presume that responsible
Police Officers would conduct themselves in a responsible
manner and that those entrusted with the task of
disinterring offences would not conduct themselves as
offender”
17. A similar view was taken by the Delhi High Court in
Mukesh Khurana v. State (NCT of Delhi), 2022 SCC OnLine Del 1032
wherein it was observed: –
“13. One of the significant factors in determining this
question would be the need for custodial interrogation.
Without a doubt, custodial interrogation is more effective
to question a suspect. The cocoon of protection, afforded
by a bail order insulates the suspect and he could thwart
interrogation reducing it to futile rituals. But it must be
also kept in mind, that while interrogation of a suspect is
one of the basic and effective methods of crime solving,
the liberty of an individual also needs to be balanced out.”
18. It was held in P Chidambaram (supra) that the grant
of pre-arrest bail may hamper the investigations. It was
observed:
“83. Grant of anticipatory bail at the stage of
investigation may frustrate the investigating agency in
interrogating the accused and in collecting useful
information and also the materials which might have
been concealed. Success in such interrogation would
elude if the accused knew that he is protected by the order
of the court. Grant of anticipatory bail, particularly in
economic offences would definitely hamper the effective
investigation. Having regard to the materials said to have
been collected by the respondent Enforcement
Directorate and considering the stage of the
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grant anticipatory bail.”
19. In view of the above, the petitioner does not deserve
the concession of pre-arrest bail; hence, the present petition
fails and the same is dismissed.
20. The observation made hereinabove shall remain
confined to the disposal of the petition and will have no bearing,
whatsoever, on the merits of the case.
(Rakesh Kainthla)
Vacation Judge
31st January, 2025
(Chander)
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