Himachal Pradesh High Court
Birender Kumar vs State Of Himachal Pradesh on 23 June, 2025
Neutral Citation No. ( 2025:HHC:19371 )
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr. MP(M) No. 1104 of 2025
Reserved on: 17.06.2025
Date of Decision: 23.06.2025.
Birender Kumar ...Petitioner
Versus
State of Himachal Pradesh ...Respondent
Coram
Hon’ble Mr Justice Rakesh Kainthla, Judge.
Whether approved for reporting?1 No
For the Petitioner : Mr. Imran Khan, Advocate, vice Ms.
Archana Dutt, Advocate.
For the Respondent : Mr. Jitender Sharma, Additional
Advocate General.
Rakesh Kainthla, Judge
The petitioner has filed the present petition for
seeking regular bail in FIR No. 236 of 2024, dated 19.10.2024,
registered at Police Station Sadar Chamba, District Chamba, H.P.,
for the commission of offences punishable under Section 20 of
the Narcotic Drugs & Psychotropic Substances Act (in short
“NDPS Act“) and Section 39(1) (a) of the Himachal Pradesh
Excise Act, 2011.
1
Whether reporters of Local Papers may be allowed to see the judgment? Yes.
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Neutral Citation No. ( 2025:HHC:19371 )
2. It has been asserted that the petitioner is innocent. He
has nothing to do with the commission of crime. As per the
prosecution, the contraband was recovered from the door of the
cowshed and not from the personal search of the petitioner. The
place from which the recovery was effected does not belong to the
petitioner but is an open place adjacent to the road, and anyone
can approach it. The petitioner was implicated at the instance of
some persons, who are inimical to the petitioner. The petitioner
is the sole earning member of the family. His old mother and
ailing wife are dependent upon him. He would abide by all the
terms and conditions which the Court may impose; hence, the
petition.
3. The petition is opposed by filing a status report
asserting that the police party had obtained a search warrant to
search the house of Birender Kumar-the present petitioner. The
police associated independent witnesses and conducted the
search of the house and cowshed in their presence. The police
recovered 1 plastic box kept near the door of the cowshed. The
police checked the box and found cannabis in it. Police also
recovered two boxes containing charas concealed beneath the
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Neutral Citation No. ( 2025:HHC:19371 )
tree adjacent to the cowshed. The police found a steel box kept in
the bundle of grass on the upper floor of the cowshed. The police
checked it and found ₹ 4,99,500/- in it. The charas was weighed
and its weight was found to be 5.92 kgs. The police checked the
store on the ground floor and recovered a box containing 12
bottles of Imperial Blue. The police arrested the petitioner and
seized the charas, liquor, and currency notes. FIR No. 85/2022
and FIR No. 59/2023 are registered against the petitioner, and FIR
No. 237/2011 was compounded at the instance of the petitioner.
The petitioner has a criminal history. A commercial quantity of
charas was recovered from his possession. The petitioner would
jump over the bail and abscond in case of his release on bail;
therefore, it was prayed that the present petition be dismissed.
4. I have heard Mr. Imran Khan, learned counsel for the
petitioner and Mr. Jitender Sharma, learned Additional Advocate
General, for the respondent/State.
5. Mr. Imran Khan, learned counsel for the petitioner,
submitted that the petitioner is innocent and was falsely
implicated. The recovery was not made from the petitioner’s
house, but from the cowshed, which is accessible to all. Any
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Neutral Citation No. ( 2025:HHC:19371 )
person could have kept the charas near the cowshed; therefore,
he prayed that the present petition be allowed and the petitioner
be released on bail.
6. Mr. Jitender Sharma, learned Additional Advocate
General, for the respondent/State, submitted that the petitioner
was found in possession of a commercial quantity of charas. His
plea that he was not in possession of the charas is not acceptable
because the cowshed is in possession of the petitioner, and he
could exercise control over the cowshed and the articles kept
inside it. The petitioner has not satisfied the rigours of Section 37
of the NDPS Act; therefore, he prayed that the present petition be
dismissed.
7. I have given considerable thought to the submissions
made at the bar and have gone through the records carefully.
8. The parameters for granting bail were considered by
the Hon’ble Supreme Court in Ajwar v. Waseem (2024) 10 SCC 768:
2024 SCC OnLine SC 974, wherein it was observed at page 783: –
“Relevant parameters for granting bail
26. While considering whether bail ought to be granted in a
matter involving a serious criminal offence, the Court must
consider relevant factors like the nature of the accusations
5
Neutral Citation No. ( 2025:HHC:19371 )made against the accused, the manner in which the crime
is alleged to have been committed, the gravity of the
offence, the role attributed to the accused, the criminal
antecedents of the accused, the probability of tampering of
the witnesses and repeating the offence, if the accused are
released on bail, the likelihood of the accused being
unavailable in the event bail is granted, the possibility of
obstructing the proceedings and evading the courts of
justice and the overall desirability of releasing the accused
on bail. [Refer: Chaman Lal v. State of U.P. [Chaman
Lal v. State of U.P., (2004) 7 SCC 525: 2004 SCC (Cri)
1974]; Kalyan Chandra Sarkar v. Rajesh Ranjan [Kalyan
Chandra Sarkar v. Rajesh Ranjan, (2004) 7 SCC 528: 2004 SCC
(Cri) 1977]; Masroor v. State of U.P. [Masroor v. State of U.P.,
(2009) 14 SCC 286 : (2010) 1 SCC (Cri) 1368]; Prasanta Kumar
Sarkar v. Ashis Chatterjee [Prasanta Kumar Sarkar v. Ashis
Chatterjee, (2010) 14 SCC 496 : (2011) 3 SCC (Cri) 765]; Neeru
Yadav v. State of U.P. [Neeru Yadav v. State of U.P., (2014) 16
SCC 508 : (2015) 3 SCC (Cri) 527]; Anil Kumar Yadav v. State
(NCT of Delhi)[Anil Kumar Yadav v. State (NCT of Delhi),
(2018) 12 SCC 129 : (2018) 3 SCC (Cri) 425]; Mahipal v. Rajesh
Kumar [Mahipal v. Rajesh Kumar, (2020) 2 SCC 118 : (2020) 1
SCC (Cri) 558] .]
9. This position was reiterated in Ramratan v. State of
M.P., 2024 SCC OnLine SC 3068, wherein it was observed as under:
“12. The fundamental purpose of bail is to ensure the
accused’s presence during the investigation and trial. Any
conditions imposed must be reasonable and directly
related to this objective. This Court in Parvez Noordin
Lokhandwalla v. State of Maharastra (2020) 10 SCC 77
observed that though the competent court is empowered to
exercise its discretion to impose “any condition” for the
grant of bail under Sections 437(3) and 439(1)(a) CrPC, the
discretion of the court has to be guided by the need to
facilitate the administration of justice, secure the presence
of the accused and ensure that the liberty of the accused is
6
Neutral Citation No. ( 2025:HHC:19371 )not misused to impede the investigation, overawe the
witnesses or obstruct the course of justice. The relevant
observations are extracted herein below:
“14. The language of Section 437(3) CrPC, which uses
the expression “any condition … otherwise in the
interest of justice” has been construed in several
decisions of this Court. Though the competent court is
empowered to exercise its discretion to impose “any
condition” for the grant of bail under
Sections 437(3) and 439(1)(a) CrPC, the discretion of the
court has to be guided by the need to facilitate the
administration of justice, secure the presence of the accused
and ensure that the liberty of the accused is not misused to
impede the investigation, overawe the witnesses or obstruct
the course of justice. Several decisions of this Court have
dwelt on the nature of the conditions which can
legitimately be imposed both in the context of bail and
anticipatory bail.” (Emphasis supplied)
13. In Sumit Mehta v. State (NCT of Delhi) (2013) 15 SCC 570,
this Court discussed the scope of the discretion of the Court
to impose “any condition” on the grant of bail and
observed in the following terms: —
“15. The words “any condition” used in the provision
should not be regarded as conferring absolute power on
a court of law to impose any condition that it chooses to
impose. Any condition has to be interpreted as a
reasonable condition acceptable in the facts permissible in
the circumstance, and effective in the pragmatic sense, and
should not defeat the order of grant of bail. We are of the
view that the present facts and circumstances of the
case do not warrant such an extreme condition to be
imposed.” (Emphasis supplied)
14. This Court, in Dilip Singh v. State of Madhya Pradesh
(2021) 2 SCC 779, laid down the factors to be taken into
consideration while deciding the bail application and
observed:
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Neutral Citation No. ( 2025:HHC:19371 )
“4. It is well settled by a plethora of decisions of this
Court that criminal proceedings are not for the
realisation of disputed dues. It is open to a court to
grant or refuse the prayer for anticipatory bail,
depending on the facts and circumstances of the
particular case. The factors to be taken into consideration
while considering an application for bail are the nature of
the accusation and the severity of the punishment in the
case of conviction and the nature of the materials relied
upon by the prosecution; reasonable apprehension of
tampering with the witnesses or apprehension of threat to
the complainant or the witnesses; the reasonable possibility
of securing the presence of the accused at the time of trial or
the likelihood of his abscondence; character, behaviour and
standing of the accused; and the circumstances which are
peculiar or the accused and larger interest of the public or
the State and similar other considerations. A criminal
court, exercising jurisdiction to grant bail/anticipatory
bail, is not expected to act as a recovery agent to realise
the dues of the complainant, and that too, without any
trial.” (Emphasis supplied)
10. This position was reiterated in Shabeen Ahmed versus
State of U.P., 2025 SCC Online SC 479.
11. The present petition has to be decided as per the
parameters laid down by the Hon’ble Supreme Court.
12. The status report shows that the police conducted a
search of the house and cowshed of the petitioner and recovered
the charas kept near the door of the cowshed and beneath the
tree. The police also recovered money from the upper storey of
the cowshed and liquor from the ground floor of the petitioner’s
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Neutral Citation No. ( 2025:HHC:19371 )
house. It was submitted that recovery was made from an open
place, and the petitioner was not in possession of the charas. This
submission is not acceptable. It was laid down by the Hon’ble
Supreme Court in Union of India v. Mohd. Nawaz Khan, (2021) 10
SCC 100: (2021) 3 SCC (Cri) 721: 2021 SCC OnLine SC 1237, that a
person is in possession if he is in a position to exercise control
over the article. It was observed at page 111:
25. We shall deal with each of these circumstances in turn.
The respondent has been accused of an offence under
Section 8 of the NDPS Act, which is punishable under
Sections 21, 27-A, 29, 60(3) of the said Act. Section 8 of the
Act prohibits a person from possessing any narcotic drug
or psychotropic substance. The concept of possession
recurs in Sections 20 to 22, which provide for punishment
for offences under the Act. In Madan Lal v. State of
H.P. [Madan Lal v. State of H.P., (2003) 7 SCC 465: 2003 SCC
(Cri) 1664] this Court held that : (SCC p. 472, paras 19-23 &
26)
“19. Whether there was conscious possession has to be
determined with reference to the factual backdrop. The
facts which can be culled out from the evidence on
record are that all the accused persons were travelling
in a vehicle, and as noted by the trial court, they were
known to each other, and it has not been explained or
shown as to how they travelled together from the same
destination in a vehicle which was not a public vehicle.
20. Section 20(b) makes possession of contraband
articles an offence. Section 20 appears in Chapter IV of
the Act, which relates to offences for possession of such
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Neutral Citation No. ( 2025:HHC:19371 )
articles. It is submitted that in order to make the
possession illicit, there must be a conscious possession.
21. It is highlighted that unless the possession was
coupled with the requisite mental element, i.e.
conscious possession and not mere custody without
awareness of the nature of such possession, Section 20
is not attracted.
22. The expression “possession” is a polymorphous
term which assumes different colours in different
contexts. It may carry different meanings in
contextually different backgrounds. It is impossible, as
was observed in Supt. & Remembrancer of Legal Affairs,
W.B. v. Anil Kumar Bhunja [Supt. & Remembrancer of
Legal Affairs, W.B. v. Anil Kumar Bhunja, (1979) 4 SCC 274:
1979 SCC (Cri) 1038] to work out a completely logical and
precise definition of “possession” uniform[ly]
applicable to all situations in the context of all statutes.
23. The word “conscious” means awareness about a
particular fact. It is a state of mind which is deliberate
or intended.
***
26. Once possession is established, the person who
claims that it was not a conscious possession has to
establish it because how he came to be in possession is
within his special knowledge. Section 35 of the Act gives
a statutory recognition of this position because of the
presumption available in law. Similar is the position in
terms of Section 54, where also a presumption is
available to be drawn from possession of illicit articles.”
26. What amounts to “conscious possession” was also
considered in Dharampal Singh v. State of Punjab
[Dharampal Singh v. State of Punjab, (2010) 9 SCC 608 :
(2010) 3 SCC (Cri) 1431], where it was held that the
knowledge of possession of contraband has to be gleaned
from the facts and circumstances of a case. The standard of
10
Neutral Citation No. ( 2025:HHC:19371 )conscious possession would be different in the case of a
public transport vehicle with several persons as opposed to
a private vehicle with a few persons known to one another.
In Mohan Lal v. State of Rajasthan [Mohan Lal v. State of
Rajasthan, (2015) 6 SCC 222: (2015) 3 SCC (Cri) 881], this
Court also observed that the term “possession” could
mean physical possession with animus; custody over the
prohibited substances with animus; exercise of dominion
and control as a result of concealment; or personal
knowledge as to the existence of the contraband and the
intention based on this knowledge.
13. Therefore, the petitioner cannot claim that he was not
in possession when he was able to exercise control over the
articles in the cowshed. Further, a presumption arises regarding
the possession under Sections 35 and 54 of the NDPS Act, and the
burden is upon the accused to rebut this presumption. Therefore,
prima facie, the prosecution’s version that the petitioner was
found in possession of the charas has to be accepted as correct.
The status report shows that 5.92 kgs of charas was recovered,
which is a commercial quantity; therefore, the rigours of Section
37 of NDPS apply to the present case.
14. Section 37 of the NDPS Act provides that in an offence
involving commercial quantity, the Court should be satisfied that
the accused is not guilty of the commission of an offence and is
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Neutral Citation No. ( 2025:HHC:19371 )
not likely to commit any offence while on bail. Section 37 of the
NDPS Act reads as under:
“37. Offences are to be cognizable and non-bailable. – (1)
Notwithstanding anything contained in the Code of
Criminal Procedure, 1973 (2 of 1974)–
(a) every offence punishable under this Act shall be
cognizable;
(b) no person accused of an offence punishable for
offences under section 19, section 24, or section
27A, and also for offences involving commercial
quantity, shall be released on bail or his own bond
unless-
(i) the Public Prosecutor has been given an
opportunity to oppose the application for such
release, and
(ii) where the Public Prosecutor opposes the
application, the court is satisfied that there
are reasonable grounds for believing that he is
not guilty of such an offence and that he is not
likely to commit any offence while on bail.
(2) The limitations on granting of bail specified in
clause (b) of sub-section (1) are in addition to the
limitations under the Code of Criminal Procedure,
1973 (2 of 1974) or any other law for the time being in
force, on granting of bail.”
15. This Section was interpreted by the Hon’ble Supreme
Court in Union of India Versus Niyazuddin & Another (2018) 13 SCC
738 and it was held that in the absence of the satisfaction that the
accused is not guilty of an offence and he is not likely to commit
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Neutral Citation No. ( 2025:HHC:19371 )
an offence while on bail, he cannot be released on bail. It was
observed:
“7. Section 37 of the NDPS Act contains special provisions
with regard to the grant of bail in respect of certain
offences enumerated under the said Section. They are :
(1) In the case of a person accused of an offence
punishable under Section 19,
(2) Under Section 24,
(3) Under Section 27A and
(4) Of offences involving commercial quantity.
8. The accusation in the present case is with regard to the
fourth factor, namely, commercial quantity. Be that as it
may, once the Public Prosecutor opposes the application
for bail to a person accused of the enumerated offences
under Section 37 of the NDPS Act, in case, the court
proposes to grant bail to such a person, two conditions are
to be mandatorily satisfied in addition to the normal
requirements under the provisions of the Cr.P.C. or any
other enactment.
(1) The court must be satisfied that there are
reasonable grounds for believing that the person is
not guilty of such an offence;
(2) that person is not likely to commit any offence
while on bail.”
16. This position was reiterated in State of Kerala Versus
Rajesh, AIR 2020 SC 721, wherein it was held:
“19. This Court has laid down broad parameters to be
followed while considering the application for bail moved
by the accused involved in offences under the NDPS Act. In
Union of India vs. Ram Samujh and Ors., (1999) 9 SCC 429, it
has been elaborated as under:-
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Neutral Citation No. ( 2025:HHC:19371 )
“7. It is to be borne in mind that the aforesaid
legislative mandate is required to be adhered to and
followed. It should be borne in mind that in a murder
case, the accused commits the murder of one or two
persons, while those persons who are dealing in
narcotic drugs are instrumental in causing death or
in inflicting death-blow to a number of innocent
young victims, who are vulnerable; it causes
deleterious effects and a deadly impact on the
society; they are a hazard to the society; even if they
are released temporarily, in all probability, they
would continue their nefarious activities of
trafficking and/or dealing in intoxicants
clandestinely. The reason may be the large stake and
illegal profit involved. This Court, dealing with the
contention with regard to punishment under the
NDPS Act, has succinctly observed about the adverse
effect of such activities in Durand Didier vs. Chief
Secy., Union Territory of Goa, (1990) 1 SCC 95) as
under:
24. With deep concern, we may point out that
the organised activities of the underworld and
the clandestine smuggling of narcotic drugs
and psychotropic substances into this country
and illegal trafficking in such drugs and
substances have led to drug addiction among a
sizeable section of the public, particularly the
adolescents and students of both sexes and the
menace has assumed serious and alarming
proportions in the recent years. Therefore, in
order to effectively control and eradicate this
proliferating and booming devastating
menace, causing deleterious effects and deadly
impact on society as a whole, Parliament, in its
wisdom, has made effective provisions by
introducing Act 81 of 1985 specifying
mandatory minimum imprisonment and fine.
14
Neutral Citation No. ( 2025:HHC:19371 )
8. To check the menace of dangerous drugs flooding
the market, Parliament has provided that the person
accused of offences under the NDPS Act should not be
released on bail during trial unless the mandatory
conditions provided in Section 37, namely,
(i) there are reasonable grounds for believing
that the accused is not guilty of such offence;
and
(ii) that he is not likely to commit any offence
while on bail are satisfied. The High Court has
not given any justifiable reason for not
abiding by the aforesaid mandate while
ordering the release of the respondent
accused on bail. Instead of attempting to take
a holistic view of the harmful socio-economic
consequences and health hazards which
would accompany trafficking illegally in
dangerous drugs, the court should implement
the law in the spirit with which Parliament,
after due deliberation, has amended.”
20. The scheme of Section 37 reveals that the exercise of
power to grant bail is not only subject to the limitations
contained under Section 439 of the CrPC but is also subject
to the limitation placed by Section 37, which commences
with the non-obstante clause. The operative part of the
said section is in the negative form prescribing the
enlargement of bail to any person accused of the
commission of an offence under the Act unless twin
conditions are satisfied. The first condition is that the
prosecution must be given an opportunity to oppose the
application, and the second is that the Court must be
satisfied that there are reasonable grounds for believing
that he is not guilty of such an offence. If either of these
two conditions is not satisfied, the ban for granting bail
operates.
21. The expression “reasonable grounds” means something
more than prima facie grounds. It contemplates substantial
15
Neutral Citation No. ( 2025:HHC:19371 )
probable causes for believing that the accused is not guilty
of the alleged offence. The reasonable belief contemplated
in the provision requires the existence of such facts and
circumstances as are sufficient in themselves to justify
satisfaction that the accused is not guilty of the alleged
offence. In the case on hand, the High Court seems to have
completely overlooked the underlying object of Section 37
that in addition to the limitations provided under the CrPC,
or any other law for the time being in force, regulating the
grant of bail, its liberal approach in the matter of bail under
the NDPS Act is indeed uncalled for.”
17. A similar view was taken in Union of India v. Mohd.
Nawaz Khan, (2021) 10 SCC 100: (2021) 3 SCC (Cri) 721: 2021 SCC
OnLine SC 1237 wherein it was observed at page 110:
“21. Under Section 37(1)(b)(ii), the limitations on the grant
of bail for offences punishable under Sections 19, 24 or 27-
A and also for offences involving a commercial quantity
are:
(i) The Prosecutor must be given an opportunity to
oppose the application for bail; and
(ii) There must exist “reasonable grounds to
believe” that : (a) the person is not guilty of such an
offence; and (b) he is not likely to commit any
offence while on bail.
22. The standard prescribed for the grant of bail is
“reasonable ground to believe” that the person is not guilty
of the offence. Interpreting the standard of “reasonable
grounds to believe”, a two-judge Bench of this Court
in Shiv Shanker Kesari [Union of India v. Shiv Shanker Kesari,
(2007) 7 SCC 798 : (2007) 3 SCC (Cri) 505], held that : (SCC
pp. 801-02, paras 7-8 & 10-11)
“7. The expression used in Section 37(1)(b)(ii) is
“reasonable grounds”. The expression means something
more than prima facie grounds. It connotes substantial
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Neutral Citation No. ( 2025:HHC:19371 )
probable causes for believing that the accused is not
guilty of the offence charged, and this reasonable belief
contemplated in turn points to the existence of such facts
and circumstances as are sufficient in themselves to
justify the recording of satisfaction that the accused is
not guilty of the offence charged.
8. The word “reasonable” has in law the prima facie
meaning of reasonable in regard to those
circumstances of which the actor, called on to act
reasonably, knows or ought to know. It is difficult to
give an exact definition of the word “reasonable”.
‘7. … Stroud’s Judicial Dictionary, 4th Edn., p. 2258
states that it would be unreasonable to expect an
exact definition of the word “reasonable”. Reason
varies in its conclusions according to the
idiosyncrasy of the individual, and the times and
circumstances in which he thinks. The reasoning
which built up the old scholastic logic sounds now
like the jingling of a child’s toy.’
[See MCD v. Jagan Nath Ashok Kumar [MCD v. Jagan
Nath Ashok Kumar, (1987) 4 SCC 497], SCC p. 504, para
7 and Gujarat Water Supply & Sewerage
Board v. Unique Erectors (Gujarat) (P) Ltd. [Gujarat
Water Supply & Sewerage Board v. Unique Erectors
(Gujarat) (P) Ltd., (1989) 1 SCC 532] ]
***
10. The word “reasonable” signifies “in accordance
with reason”. In the ultimate analysis, it is a
question of fact whether a particular act is
reasonable or not, depends on the circumstances in a
given situation. (See Municipal Corpn. of Greater
Mumbai v. Kamla Mills Ltd. [Municipal Corpn. of
Greater Mumbai v. Kamla Mills Ltd. (2003) 6 SCC 315]
11. The court, while considering the application for
bail with reference to Section 37 of the Act, is not
called upon to record a finding of not guilty. It is for
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Neutral Citation No. ( 2025:HHC:19371 )
the limited purpose, essentially confined to the
question of releasing the accused on bail, that the
court is called upon to see if there are reasonable
grounds for believing that the accused is not guilty
and records its satisfaction about the existence of
such grounds. But the court has not to consider the
matter as if it is pronouncing a judgment of acquittal
and recording a finding of not guilty.” (emphasis
supplied)
23. Based on the above precedent, the test which the High
Court and this Court are required to apply while granting
bail is whether there are reasonable grounds to believe that
the accused has not committed an offence and whether he
is likely to commit any offence while on bail. Given the
seriousness of offences punishable under the NDPS Act and
in order to curb the menace of drug trafficking in the
country, stringent parameters for the grant of bail under
the NDPS Act have been prescribed.
18. In the present case, there is nothing on record to show
that the petitioner is involved in the commission of an offence
involving the commercial quantity and that he is not likely to
commit similar offences in case of his release on bail; therefore,
the petitioner cannot be enlarged on bail.
19. The status report shows that the petitioner has
criminal antecedents, and two FIRs were registered against him,
which are pending before the Court. This Court exhaustively dealt
with the relevance of criminal antecedents in Aminodin vs State of
H.P. 2024: HHC: 6091 and held, after referring to various
18
Neutral Citation No. ( 2025:HHC:19371 )
judgments, that a Judge must consider the criminal antecedents
of the accused, the nature of such offences and his general
conduct while considering the bail petition. The bail should not be
generally granted to an accused having criminal antecedents
when there is a likelihood of the commission of the crime.
20. It was held in V. Senthil Balaji v. Enforcement
Directorate, 2024 SCC OnLine SC 2626, that where the petitioner
can become a threat to society because of his criminal
antecedents, he should not be released on bail. It was observed:
“27…..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.”
21. Similarly, it was held in Union of India v. Barakathullah,
2024 SCC OnLine SC 1019, that where the persons were involved in
the commission of an offence, similar offences, they should not
be released on bail. It was observed: –
“20. … So far as the respondents in the instant appeals are
concerned, they are in custody for hardly one and a half
years, apart from the fact that all the respondents are shown
to have been involved in previous cases. There are about 8 to
9 previous cases shown in the chargesheet against the
respondents, except accused Nos. 1, 4 and 6, who are shown
to have been involved in two cases. Considering the nature
and gravity of the alleged offences and considering
19
Neutral Citation No. ( 2025:HHC:19371 )their criminal antecedents, in our opinion High Court should
not have taken a lenient view, more particularly when there
was sufficient material to show their prima facie involvement
in the alleged offences under the UAPA.
22. Therefore, the petitioner is not entitled to bail because
of his criminal antecedents.
23. No other point was urged.
24. In view of the above, the present petition fails, and the
same is dismissed.
25. The observations made heretofore shall remain
confined to the disposal of the petition and will have no bearing,
whatsoever, on the merits of the case.
(Rakesh Kainthla)
Judge
23rd June, 2025
(saurav pathania)