Himachal Pradesh High Court
____________________________________________________________ vs State Of Himachal Pradesh on 13 March, 2025
( 2025:HHC:6128 )
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
Cr.MP(M) No.250 of 2025
Reserved on: 10.03.2025
Announced on: 13.03.2025
____________________________________________________________
Paras Justa ……Petitioner
Versus
State of Himachal Pradesh ……Respondent
For the petitioner: Mr. Ajay Kochhar, Sr. Advocate with Mr.
Anubhav Chopra & Mr. Bhairav Gupta,
Advocate.
For the respondent: Mr.Gobind Korla, Additional Advocate
General.
____________________________________________________________
Coram
Hon’ble Mr. Justice Ranjan Sharma, Judge
1 Whether approved for reporting? No.
Ranjan Sharma, Judge
Bail petitioner [Paras Justa], being in custody
05.04.2024, has come up before this Court, seeking
regular bail, under Section 483 of Bharatiya Nagarik
Suraksha Sanhita [hereinafter referred to as BNSS]
origination from FIR No.21 of 2024, dated 14.2.2024,
under Sections 21 and 29 of the Narcotic Drugs and
Psychotropic Substances Act [in short the NDPS Act]
registered at Police Station Theog, District Shimla,
1
Whether reporters of Local Papers may be allowed to see the judgment?
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( 2025:HHC:6128 )
Himachal Pradesh.
FACTUAL MATRIX
2. Case as set by Mr. Ajay Kochhar, Learned
Senior Counsel is that petitioner has been falsely
implicated and there is no evidence to connect the
petitioner with the accusation and the petitioner is
a young man belonging to a respectable family. It is
averred that bail petitioner has been arrested merely on
the basis of alleged call details and bank transactions
between him and the main accused [Parikshit Dhani].
2(i). It is averred that no recovery of contraband
was made from the petitioner(s) whereas, the alleged
recovery was made from Parikshit Dhani weighing
12.06 grams but after complying with the mandate
of Section 52-A of the NDPS Act, the recovered
contraband came out to be 8.58 grams [as per page 13 of
paper book in instant case], which is an Intermediate
Quantity.
2(ii). Bail petitioner has undertaken that he shall
not cause any inducement, threat or promise to any
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person acquainted with the facts of the case, with the
further undertaking that he shall abide by all the
terms and conditions as may be imposed by this Court.
It is averred that the bail petitioner has filed an
application for bail before this Court i.e. Cr.MP(M)
No.1159 of 2024, which was dismissed by this Court
on 26.07.2024, Annexure P-1. Thereafter, petitioner filed
bail application before Learned Special Judge Rohru,
Camp at Theog, District Shimla, H.P. which was also
dismissed on 21.01.2025, Annexure P-3. It is averred
that nothing is to be recovered from bail petitioner by the
Investigating Agency. It is averred that rigours of Section
37 of the NDPS Act are not attracted and moreover when
four other co-accused from whom no recovery was made
have been enlarged on bail vide orders dated 10.1.2025
by this Court and orders dated 21.01.2025 passed by
Learned Special Judge, [as stated in Para 10 of the bail
petition]. In this background, petitioner has filed the
instant application for bail.
STAND OF STATE AUTHORITIES
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3. Pursuant to issuance of notice on 13.02.2025,
State Authorities have filed Status Report dated
28.02.2025.
3(i). Perusal of the Status Report indicates that
on 14.2.2024, while police party was on patrolling duty
at about 2:30 PM, a vehicle bearing No.HP-63C-5463
reached near Ekant Vatika, on the bye-pass, one person
[Prikshit Dhani] on noticing the police became perplexed
and on seeing the police party, accused [Prikshit Dhani]
took out the polyethene from his pocket and threw it
away, which was taken into custody by police and
the same was found to be containing 28 bundles (pudia),
wrapped in foil paper which on weighing, turned out
to be 12.06 Grams of Chitta/Heroin. Pursuant to this
recovery, main accused [Prikshit Dhani] was arrested
on 14.02.2024.
3(ii). Pursuant to registration of FIR, the police
started investigation and recorded statement under
Section 161 Cr.P.C. Status Report reveals that during
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investigation, the main accused [Prikshit Dhani],
disclosed that his friend Paras Justa and others who
were with him residing in Chandigarh and resorted to
sale and purchase of Chitta/Heroin.
3(iii). Status Report further indicates that CDRs
and bank transactions of petitioner [Paras Justa]
resorted to 307 calls and there were bank transactions
amounting to Rs.3,97,206/- between the bail petitioner
[Paras Justa] and main accused [Prikshit Dhani] from
October, 2023 to February, 2024.
3(iv). Status Report indicates that petitioner has
joined investigation and now the Challan-Final Police
Report has been presented before jurisdictional Court
and 31 witnesses are to be examined, out of which
6 PWs have been examined and the matter is fixed for
Prosecution Evidence on 29.03.2025.
4. Heard Mr. Ajay Kochhar, Learned Senior
Counsel with Mr. Anubhav Chopra, Advocate, and Mr.
Gobind Korla, Learned Additional Advocate General
for the Respondent-State.
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MANDATE OF LAW ON BAIL:
5. Broad parameters have been mandated by
the Hon’ble Supreme Court, regulating the bail in the
cases of Gurbaksh Singh Sibbia versus State of
Punjab (1980) 2 SCC 565, Ram Govind Upadhyay
versus Sudarshan Singh (2002) 3 SCC 598; Kalyan
Chandra Sarkar versus Rajesh Ranjan, (2004) 7
SCC 528; Prasanta Kumar Sarkar versus Ashish
Chatterjee, (2010) 14 SCC 496; reiterated in P.
Chidambaram versus Directorate of Enforcement,
(2019) 9 SCC 24, Sushila Aggarwal versus State-NCT
Delhi, (2020) 5 SCC 01; CBI versus Santosh Karnani
(2023) 6 SCALE 250; which have been reiterated by
the Hon’ble Supreme Court in State of Haryana versus
Dharamraj, 2023 SCC Online SC 1085, that bail
is to be granted where the allegations are frivolous or
groundless and incase neither any prima facie case
nor reasonable grounds exists to believe or point
towards the accusation. However, depending upon the
facts of each case, the bail can be refused, in case,
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the prima facie case or reasonable grounds exits and
if an offence is serious. Severity of punishment
including reasonable apprehension of fleeing away
from investigation and trial and the character, past
antecedents, behavior, means, position and standing
of an accused; likelihood of offence being repeated;
reasonable apprehension of witnesses being influenced
and danger of justice being thwarted by grant of bail
etc. are relevant factors for denying the concession of
bail.
5(i). The Hon’ble Supreme Court in Criminal Appeal
No. 3840 of 2023, Saumya Churasia versus
Directorate of Enforcement, decided on 14.12.2023
held 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
the light of broad-parameters referred to above.
ANALYSIS OF CLAIM FOR BAIL IN INSTANT CASE:
6. Taking into account the entirety of facts
and circumstances and the material on record as
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is borne out from Status Report(s), this Court is of
the considered view, that the bail petitioner [Paras Justa],
is entitled to enlarged on bail, for the following reasons:-
NO PRIMA-FACIE ACCUSATION AGAINST THE BAIL
PETITIONER:
6(i). Status Report indicates that on 14.2.2024,
while police party was on patrolling duty at about 2:30
PM, a vehicle bearing No.HP-63C-5463 reached near
Ekant Vatika, on the bye-pass, one person [Prikshit
Dhani] on noticing the police became perplexed and
on seeing the police party, the accused [Prikshit Dhani]
took out the polyethene from his pocket which was
found to be containing 28 bundles (pudia), wrapped in
foil paper which on weighing, turned out to be 12.06
Grams of Chitta/Heroin. Pursuant to the arrest of
Parikshit Dhani and disclosure statement made by him
the bail petitioner Paras Justa and others were roped-in,
in view of the CDRs and bank transactions of bail
petitioner [Paras Justa] with Prikshit Dhani w.e.f.
October, 2023 to February, 2024. In above backdrop, the
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( 2025:HHC:6128 )accusation under Section 21 of the NDPS Act alleging
sale-purchase or transportation, etc. by the bail
petitioner is a matter to be tested, examined and proved
during the trial.
6(ii). Likewise, the accusation under Section 29
of NDPS Act alleging abatement or criminal conspiracy
is a matter which is to be tested, examined and proved
on by way of evidence during the trial. The continued
detention alleging abatement or criminal conspiracy
without there being any cogent material on record,
certainly amounts to incarcerating the petitioner by
way of punishment is impermissible; and in these
circumstances, the prayer for bail has merit.
CASES OF BAIL:INTERMEDIATE QUANTITY WHEN
NO RECOVERY FROM BAIL PETITIONER AS IN
INSTANT CASE:
7. While dealing with the issue relating to
an intermediate quantity of contraband of Heroin/Chitta,
which was not recovered from petitioner, Hon’ble
Supreme Court in Sami Ullaha versus Superintendent,
– 10 –
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Narcotic Central Bureau, (2008) 16 SCC 471 has
held as under:
3. Before, however, we advert to the said question, we
may notice the factual matrix involved in the
matter.
On or about 14.08.2004, the luggage of two
persons, viz., Abdul Munaf and Zahid Hussain
who were traveling in a bus were searched
and allegedly contraband weighing 2 kgs. was
recovered. A purported statement was made by
the said accused persons that the said
contraband (heroin) was meant to be
delivered to the appellant. Nothing was
recovered from him. Apart from the said
statements of the said accused persons, no
other material is available on record to sustain a
charge against him. On the basis of the
said statement, the appellant was arrested on
15.08.2004. Allegedly, a statement was made
by him in terms of Section 67 of the
Narcotic Drugs and Psychotropic Substances
Act, 1985 (for short “the Act”). Appellant contends
that he was tortured and the statement
was obtained forcibly from him on some
blank documents. He later on retracted there
from. Indisputably, the seized articles were sent
for chemical examination to the Government
Opium and Alkaloid Works, Neemuch. A report
was sent to the investigating officer on 23.09.2004
stating that the sample did not contain any
contraband substance. Appellant thereafter filed
an application for discharge. The prosecution
moved the court for sending the substance 2
allegedly recovered from the co-accused persons
for its examination by the Central Revenue
Control Laboratory, New Delhi. It was rejected
by the court opining that there was no provision
in the Act for sending the sample to another
laboratory. The court, however, did not pass
an order of discharge in favour of the appellant
but released him on bail, stating:
“Accordingly, as mentioned above, there is no
ground that by accepting the application of the
complainant and order be passed for sending the
second sample for examination to another
laboratory. If the investigating officer so desires,
then in accordance with the ruling expounded as
above, he is free to send the second sample to any
of the laboratories for its examination at his own
– 11 –
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level. On the basis of the abovementioned
observations, the application of the complainant is
rejected.”
However, even a distinction is made as regards
grant of bail in relation to a commercial quantity
and a small quantity. Commercial quantity has
been defined in Section 2(vii-a) of the Act to mean
“any quantity greater than the quantity specified
by the Central Government by notification in the
Official Gazette”.
12. We will advert to the question of the definition of
“Chemical Examiner” a little later. The question,
however, as to whether the contraband found came
within the purview of the commercial quantity
within the meaning of Section 2(vii-a) or not is one
of the factors which should be taken into
consideration by the courts in the matter of grant
or refusal to grant bail. Even, according to the
Central Revenue Control Laboratory, New Delhi,
only 2.6% of the sample sent was found to be
containing heroin. Small quantity in terms of the
notification issued under Sections 2(vii-a) and
2(xxiii-a) is as under:
___________________________________________________________
Sl. Name of Narcotic drug or Chemical Small Commercial
No. psychotropic substance [International name quantity quantity
Non-proprietary Name (INN)]
______________________________________________________________________
77. Morphine Morphine 5 gm 250 gm
The quantity, thus, alleged to have been
recovered from the co-accused persons could
be said to be intermediate quantity and,
thus, the rigours of the provisions of
Section 37 of the Act relating to grant
of bail may not be justified.
13. In Ouseph alias Thankachan v. State of
Kerala [(2004) 4 SCC 446], this Court held:
“8. The question to be considered by us is
whether the psychotropic substance was in
a small quantity and if so, whether it was
intended for personal consumption. The
words ‘small quantity’ have been specified
by the Central Government by the
notification dated 23-7-1996. Learned
Counsel for the State has brought to our
notice that as per the said notification small
quantity has been specified as 1 gram. If so,
the quantity recovered from the appellant is
far below the limit of small quantity
specified in the notification issued by the
– 12 –
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Central Government. It is admitted that
each ampoule contained only 2 ml and each
ml contains only 3 mg. This means the total
quantity found in the possession of the
appellant was only 66 mg. This is less
than 1/10th of the limit of small
quantity specified under the
notification.
*** *** ***
11. On account of the aforesaid fact
situation, we are inclined to believe
that the small quantity of
buprenorphine (Tidigesic) wasin
the possession of the appellant
for his personal consumption
and, therefore, the offence
committed by him would fall under
Section 27 of the NDPS Act.”
7(i). In State of West Bengal versus Rakesh
Singh alias Rakesh Kumar Singh 2022 SCC Online
SC 828, the Hon’ble Supreme Court, has observed as
under:
20. After having considered the rival submissions,
the High Court formed the opinion that
the restriction of Section 37 NDPS Act
would not apply to this case and the
respondent, who was in custody since
23.02.2021, qualified for grant of bail
with stringent conditions. Accordingly, the
High Court ordered release of the accused-
respondent on bail with heightened conditions
like: (a) he would furnish a bond in the sum
of rupees one lakh with four sureties of rupees
fifty thousand each, two of whom must be
local persons; (b) he shall report to the Officer-
in Charge of the concerned police station once
in a week; (c) he would not travel outside the
State of West Bengal without prior leave of
the Trial Court; and (d) he would surrender
his passport before the Trial Court immediately.
Having regard to the submissions made in
this case, we may take note of the relevant
part of the discussion and reasoning of the
High Court as under: –
– 13 –
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“4. We have considered the rival contentions
of the parties. We have also perused the material
in the memo of evidence filed on behalf of the
State.
5. Certain things are clear. Firstly, there
was no recovery of contraband items from
the physical possession of the petitioner.
Nothing was recovered from the person of
the petitioner or any place over which
the petitioner had exclusive control. We
are conscious that mere non-recovery of
contraband from a person’s possession may not
per se dilute the rigours of Section 37 of the
NDPS Act.
6. However, even assuming that the
petitioner had dominion or control over
the contraband in question, admittedly
intermediate quantity (76 gms) of cocaine
was seized. It was urged on behalf of the
State that the statements of witnesses would
indicate that the petitioner was a regular
purchaser of contraband items. However, the
fact remains that in the present case only
76 gms of cocaine is involved. As observed
by the Hon’ble Apex Court in the case
of Sami Ullaha (Supra), where intermediate
quantity of narcotics is involved, it may not
be justified to apply the rigours of the
provisions of Section 37 of the NDPS Act
relating to grant of bail.
53. Once the veracity of prosecution case against
the respondent is in serious doubt, further
analysis on the other factors about financing
the drug trafficking and harbouring of offender
need not be undertaken because, when the
story of planting of contraband is removed out
of consideration, all other factors by which
respondent is sought to be connected with
such alleged planting could only be regarded
as false and fanciful, at least at this stage.
54. Hence, suffice it to observe for the present
purpose that in the given set of facts and
circumstances, the High Court has rightly
found that applicability of Section 27A NDPS
Act is seriously questionable in this case.
That being the position; and there being
otherwise no recovery from the respondent
and the quantity in question being also
intermediate quantity, the rigours of Section
37 NDPS Act do not apply to the present
case.”
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7(ii). Likewise, this Court, in case titled Roshan
Lal versus State of Himachal Pradesh in Cr.MP(M)
No.307 of 2024 decided on 04.03.2024, has held as
under:
13(i). Admittedly, in the present case, as per
the Status Report filed by the State Authorities,
the alleged contraband was recovered from Hem
Raj-accused, who had kept it in his bag.
13(ii). No alleged recovery of contraband was
made from the bail petitioner (Roshan Lal)
herein and the bail petitioner was nowhere
involved and had no connection with the
alleged offence.
15. Even the status Report does not point out
anything adverse regarding past conductor
blemished criminal history/records of the bail
petitioner. While dealing with a matter, relating to
an intermediate quantity of contraband coupled
with the fact that the antecedents and past
conduct was satisfactory the Coordinate Bench of
this Court enlarged the accused on bail, in Hari
versus State of Himachal Pradesh, 2023 SCC
Online HP 142, decided on 21st February, 2023,
this Court held as under:
8. It can also be noticed from the facts of the
case that there is no allegation of petitioner
involving himself in similar offences
repeatedly. No criminal history has been
attributed to him. Petitioner is a young
man of 25 years. His further pre-trial
incarceration will not serve any fruitful
purpose.
15(i). Likewise, in the case of Rohit Versus State
of Himachal Pradesh, 2023 SCC Online HP 315,
decided on 11.04.2023 while granting the bail, this
Court has held as under:
4. This Court is of the considered view that as
the alleged recovery from the petitioners is
of the intermediate quantity and further
taking into consideration the fact that the
petitioners are stated to be having no
previous criminal history of being
indulged in offences relatable to NDPS
– 15 –
( 2025:HHC:6128 )
Act, it will be in the interest of justice in
case the petitioners are allowed and the
petitioners are ordered to be released on
bail.
INFRINGMENT OF PERSONAL LIBERTY UNDER
ARTICLE 21 OF THE CONSTITUTION OF INDIA:
8. While reiterating the principle that bail is
a rule and jail is an exception and no accused can
be deprived of personal liberty on mere accusation
and an accused is to be treated as innocent in the
eyes of law, the Hon’ble Supreme Court has outlined
the object of bail in Guddan alias Roop Narayan
Versus State of Rajasthan, 2023 SCC OnLine SC
1242, in the following terms:-
“11. In the case of Sanjay Chandra V. Central
Bureau of Investigation, (2012) 1 SCC 40,
while hearing a bail Application in a case
of an alleged economic offence, this court
held that the object of bail is neither
punitive nor preventative. It was observed
as under:
“21. In bail applications, generally, it has
been laid down from the earliest
times that the object of bail is to
secure the appearance of the accused
person at his trial by reasonable
amount of bail. The object of
bail is neither punitive nor
preventative. Deprivation of liberty
must be considered a punishment,
unless it is required to ensure that
– 16 –
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an accused person will stand his trial
when called upon. The courts owe
more than verbal respect to the
principle that punishment begins
after conviction, and that every
man is deemed to be innocent until
duly tried and duly found guilty.
23. Apart from the question of prevention
being the object of refusal of
bail, one must not lose sight of
the fact that any imprisonment
before conviction has a substantial
punitive content and it would be
improper for any court to refuse
bail as a mark of disapproval
of former conduct whether the
accused has been convicted for
it or not or to refuse bail to
an unconvicted person for the
purpose of giving him a taste
of imprisonment as a lesson.
25. The provisions of Cr PC confer
discretionary jurisdiction on criminal
courts to grant bail to the accused
pending trial or in appeal against
convictions; since the jurisdiction
is discretionary, it has to be
exercised with great care and
caution by balancing the valuable
right of liberty of an individual
and the interest of the society
in general. In our view, the reasoning
adopted by the learned District
Judge, which is affirmed by the
High Court, in our opinion, is a
denial of the whole basis of our
system of law and normal rule
of bail system. It transcends
respect for the requirement that
a man shall be considered
innocent until he is found guilty.
If such power is recognised, then
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it may lead to chaotic situation
and would jeopardise the personal
liberty of an individual.
27. This Court, time and again, has
stated that bail is the rule and
committal to jail an exception. It
has also observed that refusal
of bail is a restriction on the
personal liberty of the individual
guaranteed under Article 21 of
the Constitution.”
12. Further, in the case of Sandeep Jain v.
National Capital Territory of Delhi, (2000)
2 SCC 66, this Court, while hearing a
bail application held that conditions for
grant of bail cannot become so onerous
that their existence itself is tantamount
to refusal of bail. This Court held as
under:
“We are unable to appreciate even the
first order passed by the Metropolitan
Magistrate imposing the onerous
condition that an accused at the FIR
stage should pay a huge sum of Rs.
2 lakhs to be set at liberty. If he had
paid it is a different matter. But the
fact that he was not able to pay
that amount and in default thereof
he is to languish in jail for more
than 10 months now, is sufficient
indication that he was unable to make
up the amount. Can he be detained
in custody endlessly for his inability
to pay the amount in the range of
Rs.2 lakhs? If the cheques issued by
his surety were dishonoured, the Court
could perhaps have taken it as a
ground to suggest to the payee of
the cheques to resort to the legal
remedies provided by law.
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Similarly if the Court was dissatisfied
with the conduct of the surety as for
his failure to raise funds for honouring
the cheques issued by him, the Court
could have directed the appellant to
substitute him with another surety.
But to keep him in prison for such
a long period, that too in a case
where bail would normally be granted
for the offences alleged, is not only
hard but improper. It must be
remembered that the Court has not
even come to the conclusion that the
allegations made in the FIR are true.
That can be decided only when the
trial concludes, if the case is charge-
sheeted by the police.”
REFORMATIVE APPROACH IN BAIL:
9. While dealing with the concept of bail and
the right of an accused for speedy trial and deprivation
thereof curtails the 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
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variety of factors is responsible for making
the offender commit the crime. Those
factors may be social and economic, may be,
the result of value erosion or parental
neglect; may be, because of the stress
of circumstances, or the manifestation of
temptations in a milieu of affluence contrasted
with indigence or other privations.
19. If the State or any prosecuting agency
including the court concerned has no
wherewithal to provide or protect the
fundamental right of an accused to have
a speedy trial as enshrined under Article
21 of the Constitution then the State
or any other prosecuting agency should
not oppose the plea for bail on the ground
that the crime committed is serious.
Article 21 of the Constitution applies
irrespective of the nature of the crime.
20. We may hasten to add that the petitioner
is still an accused; not a convict. The over-
arching postulate of criminal jurisprudence
that an accused is presumed to be
innocent until proven guilty cannot be
brushed aside lightly, howsoever stringent
the penal law may be.
21 We are convinced that the manner in which
the prosecuting agency as well as the Court
have proceeded, the right of the accused
to have a speedy trial could be said to
have been infringed thereby violating
Article 21 of the Constitution.
22 In view of the aforesaid, this appeal succeeds
and is hereby allowed. The impugned
order passed by the High Court is set
aside.”
BAIL NOT TO BE WITHHELD BY WAY OF PENALTY:
ARTICLE 21 OF CONSTITUTION OF INDIA:
– 20 –
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10. 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
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
– 21 –
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pending trial or disposal of an
appeal. Lord Russel, C.J., said [R
v. Rose, (1898) 18 Cox]:
“I observe that in this case bail
was refused for the prisoner. It
cannot be too strongly impressed
on the, magistracy of the country
that bail is not to be withheld
as a punishment, but that the
requirements as to bail are merely
to secure the attendance of the
prisoner at trial””
53. The Court further observed that, over a
period of time, the trial courts and the
High Courts have forgotten a very well-
settled principle of law that bail is not to
be withheld as a punishment. From our
experience, we can say that it appears that
the trial courts and the High Courts attempt
to play safe in matters of grant of bail.
The principle that bail is a rule and
refusal is an exception is, at times, followed
in breach. On account of non-grant of
bail even in straight forward open and
shut cases, this Court is flooded with huge
number of bail petitions thereby adding
to the huge pendency. It is high time
that the trial courts and the High
Courts should recognize the principle that
“bail is rule and jail is exception”.
55. As observed by this Court in the case of
Gudikanti Narasimhulu (supra), the objective
to keep a person in judicial custody
pending trial or disposal of an appeal
is to secure the attendance of the prisoner
at trial.
56. In the present case, the appellant is having
deep roots in the society. There is no
possibility of him fleeing away from the
country and not being available for facing
the trial. In any case, conditions can be
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
– 22 –
( 2025:HHC:6128 )
depends on documentary evidence which
is already seized by the prosecution. As
such, there is no possibility of tampering
with the evidence. Insofar as the concern
with regard to influencing the witnesses
is concerned, the said concern can be
addressed by imposing stringent conditions
upon the appellant.”
11. 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.”
PROLONGED INCARCERATION AND INFRINGMENT
OF PERSONAL LIBERTY UNDER ARTICLE 21 OF THE
CONSTITUTION OF INDIA
12. While reiterating the grant of bail, despite
– 23 –
( 2025:HHC:6128 )
statutory embargoes in Special Enactments, Hon’ble
Supreme Court in Criminal Appeal No.5266 of 2024
(Arising out of SLP (CRL.) No. 13870 of 2024, titled
as Partha Chatterjee Versus Directorate of
Enforcement, decided on 13.12.2024, 2024 SCC
Online SC 3729, has 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
– 24 –
( 2025:HHC:6128 )
held in custody indefinitely and that
undertrial incarceration should not
amount to punitive detention. The Court
would, nevertheless, ensure that affluent or
influential accused do not obstruct the
ongoing investigation, tamper with evidence,
or influence witnesses, namely, actions that
undermine the fundamental doctrine of
a fair trial.
18. Striking a balance between these
considerations and without expressing any
opinion on the merits of the allegations,
we deem it appropriate to dispose of this
appeal with the following directions:
f. The Petitioner shall thereafter be
released on bail on 01.02.2025, subject
to his furnishing bail bonds to the
satisfaction of the Trial Court; ……”
Prolonged detention of petitioner, in facts
of this case, 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 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 violate the principle that “bail
is rule and jail is an exception”. Even, the State
Authorities, have failed to ensure speedy trial and
– 25 –
( 2025:HHC:6128 )
still considerable time is likely to be taken for
conclusion of trial. Therefore, in view of the mandate
of law the claim of the petitioner for bail carries weight.
CDR’S AND BTRS CANNOT FORM BASIS
FOR PROLONGING INCARCERATION WHEN
INVESTIGATION COMPLETE AND CHALLAN FILED
AND RECORDING OF PROSECUTION EVIDENCE
COMMENCED:
13 CDRs and Bank Transactions though can be of
some relevance for the purpose of investigation but once
investigation is complete and Challan has been filed,
then, in such an eventuality prolongation of detention
shall certainly amount to violating the personal liberty of
bail petitioner as mandated in Article 21 of the
Constitution of India and therefore, in facts of instant
case, further detention/prolongation cannot be permitted
and moreover when the material in CDRs and BTR’s
(Bank Transaction Records] are to be tested, examined
and proved during trial. In these circumstances, the
claim for bail, needs to be accepted and is ordered
accordingly.
CLAIM FOR ENLARGEMENT ON BAIL ON
PRINCIPLE OF PARITY:
- 26 -
( 2025:HHC:6128 )
14. Learned Senior Counsel for the petitioner
asserts that four other co-accused, namely, Vikram,
Rakshit Chauhan were enlarged on bail vide orders dated
10.01.2025 passed by this Court and two other
co-accused, namely, Abhay Chauhan and Aditya
Chauhan were enlarged on bail by Learned Special Judge
on 21.01.2025.
Learned State Counsel has not been able to
show as to how the role of petitioner Paras Justa
is different from other four co-accused, as no recovery
has been effected from any of them including bail
petitioner. Thus, once the role of petitioner is akin to
other co-accused, who have been enlarged on bail,
therefore, in these circumstances the claim for bail
carries weight and is accepted.
PAST CRIMINAL ANTECEDENTS:
15. Learned State Counsel has opposed the
claim for bail on the ground that the petitioner has
criminal antecedents, who has been involved in another
– 27 –
( 2025:HHC:6128 )
case i.e. FIR No. 65 of 2021, dated 15.09.2021,
under Section 21, 27 and 29 of the NDPS, then the
past criminal antecedents cannot be the sole ground
for denying bail has been outlined by the
Honble Supreme Court in Maulana Mohammed Amir
Rashidi versus State of Uttar Pradesh, (2012)
2 SCC 382, [Paras 4 to 13], which was further reiterated
by the Hon’ble Supreme Court in Prabhakar Tewari
Versus State of Uttar Pradesh and another, (2020)
11 SCC 648, [Paras 4 to 9]. The petitioner was
undergoing incarceration and no cogent material has
been placed on record revealing any possibility of
accused fleeing away from trial or an accused is likely to
threaten witnesses or is likely to thwart justice.
15(i). 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
– 28 –
( 2025:HHC:6128 )
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
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
– 29 –
( 2025:HHC:6128 )
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
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.
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
– 30 –
( 2025:HHC:6128 )
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.”
15(ii). While dealing with validity of bail order
the Hon’ble Supreme Court has mandated that the
criminal antecedents were not much relevant in
case, no prima facie case was made out and the
period of incarceration was prolonged, in Ayub Khan
– 31 –
( 2025:HHC:6128 )
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,
depending upon the peculiar facts, the
Court can grant bail notwithstanding
the existence of the antecedents. In
– 32 –
( 2025:HHC:6128 )
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.
15(iii). Pendency of other criminal cases cannot
be invoked for denying bail, when prolonged
incarceration was writ large, has been mandated by
the Hon’ble Supreme Court in Prem Prakash versus
Union of India through Directorate of Enforcement,
2024 SCC OnLine SC 2270, in the following terms:-
“46. 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
– 33 –
( 2025:HHC:6128 )
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.”
NOTHING ADVERSARIAL REGARDING TAMPERING
WITH EVIDENCE OR WITNESSES ETC:
16. 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
– 34 –
( 2025:HHC:6128 )
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 :
17. 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,
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:
18. 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.
– 35 –
( 2025:HHC:6128 )
CONCLUSION:
19. In the facts of instant case, the plea of
petitioner for bail carries weight, for the reason, that
firstly, prima facie 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 05.04.2024 and is undergoing incarceration
for about 11 months; and thirdly, conclusion of
trial is likely to take considerable time when out
of total 31 PWs only 6 PWs have been examined
as yet; and fourthly, the delay in trial is not
attributable to the petitioner; and fifthly, an accused
is presumed to be innocent unless proven guilty;
and sixthly, the continued detention can neither be
punitive nor preventative and seventhly, the continued
detention in guise of penalizing the petitioner by
presuming guilt cannot be permitted; and eighthly,
even the State Authorities have not placed any cogent
and convincing material that after release on bail there
– 36 –
( 2025:HHC:6128 )
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 petitioner has misused liberty granted
to him earlier; and tenthly, even the past criminal
antecedents [one FIR for which trial is commenced]
cannot be the sole basis for prolonging detention when,
the accusation is yet to be tested, examined and proved
during trial; lastly, in order to safeguard the interests
of the State vis-à-vis the right of petitioner, this Court
imposes stringent condition(s) in this order and in
case of any violation of or misuse of the concession-
liberty, the State Authority can seek cancellation of the
concession extended to the petitioner. Denial of bail
shall deprive and curtail the sacrosanct fundamental
rights of personal liberty and right of speedy trial under
Article 21 of the Constitution of India of the petitioner
at this stage. On totality of facts and circumstances
and the mandate of law as referred to above, the claim
– 37 –
( 2025:HHC:6128 )
of the petitioner for enlargement on bail carries weight,
in the peculiar facts-situation of this case, as discussed
above.
DIRECTIONS:
20. Taking into account the entirety of the facts
and the material on record and the mandate of law,
as referred to above and in the peculiar facts of
the instant matters, the instant petition is allowed,
and the State Authorities are directed to release the
petitioner [Paras Justa] on bail, subject to the observance
of the following conditions:-
(i) Respondent-State Authorities shall release
bail petitioner [Paras Justa] 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 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 ;
– 38 –
( 2025:HHC:6128 )
(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, on 2nd Sunday of every month at 08.00
a.m., only for having an update on good conduct
and behaviour;
(vii) Petitioner shall not jump over the bail and
also shall not leave the country without the
prior information of the Court;
(viii) Petitioner shall not tamper with the evidence
in any manner;
(ix) Petitioner shall not cause any inducement,
threat or promise {directly or indirectly} to
witnesses of any other person acquainted with
the case;
(x) Petitioner is free to seek modification of
any condition contained hereinabove, if need
arises;
(xi) State Authorities are free to move this Court
for seeking alteration/modification of any of
the condition contained in this 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.;
21. 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
– 39 –
( 2025:HHC:6128 )
the purpose of investigation or for trial, which shall
proceed in-accordance with law, irrespective of any of
the observations contained hereinabove.
22. Petitioner is permitted to produce/use copy
of this order, downloaded from the web-page of the
High Court of Himachal Pradesh, before the authorities
concerned, and the said authorities shall not insist
for production of a certified copy, but if required, may
verify about the passing of this order from the Website
of this Court.
Pending miscellaneous application(s), if any,
shall also stand disposed of.
(Ranjan Sharma)
Judge
13th March, 2025
(tm)