Himachal Pradesh High Court
Hanish Thakur vs State Of Himachal Pradesh on 21 June, 2025
( 2025:HHC:19163 )
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr. MP (M) Nos. 1286 and 1287 of 2025
Reserved on: 16.6.2025
Date of Decision: 21.06.2025.
1. Cr.MP(M) No. 1286 of 2025
Hanish Thakur …Petitioner
Versus
State of Himachal Pradesh …Respondent
2. Cr.MP(M) No. 1287 of 2025
Saurabh …Petitioner
Versus
State of Himachal Pradesh …Respondent
Coram
Hon’ble Mr Justice Rakesh Kainthla, Judge.
Whether approved for reporting?1
For the Petitioner(s) : M/s. Hitender Thakur and
Tamanna Rana, Advocates, for the
Petitioner in both the petitions.
For the Respondent/State :Mr. Jitender Sharma, Additional
Advocate General, in both the
petitions.
Rakesh Kainthla, Judge
Both the petitions have been filed for seeking regular
bail in the same FIR; hence, these are being taken up together for
disposal by way of a common judgment.
1
Whether reporters of Local Papers may be allowed to see the judgment? Yes.
2
( 2025:HHC:19163 )
2. The petitioners have filed the present petitions
seeking regular bail in FIR No. 30 of 2025, dated 04.03.2025, for
the commission of offences punishable under Sections 21, 27A
and 29 of the Narcotic Drugs and Psychotropic Substances Act
(in short “NDPS Act“) and Section 111 of Bhartiya Nyaya Sanhita,
2023 (in short “BNS”), registered at Police Station, Rampur
Bushahr, District Shimla, H.P.
3. It has been asserted that the police apprehended
Sohan Lal and Geeta Sreshta near Kudidhar and recovered 26.68
grams of heroin from their possession. The police checked their
call details record and the account statements and found that the
petitioners had sent ₹ 1,03,050/- to the bank accounts of Sohan
Lal and other co-accused; hence, the police arrested the
petitioners. The petitioners are innocent, and they were falsely
implicated in the present FIR. They have nothing to do with the
recovery of the contraband from the main accused. No prima
facie case is made out against the petitioners, and they have been
implicated based on the UPI transaction and call detail records.
The petitioners have been behind the bars since 29.03.2025. No
fruitful purpose would be served by detaining them in custody.
3
( 2025:HHC:19163 )
The petitioners would abide by the terms and conditions which
the Court may impose. Hence, the petitions.
4. The petitions are opposed by filing status reports
asserting that the police party was on patrolling duty on
03.03.2025. They found a vehicle bearing Registration No. T1124-
HP7712N, parked on the roadside. The police went to the vehicle.
The driver of the vehicle identified himself as Sohan Lal, and the
lady sitting beside him identified herself as Geeta Sreshta. The
police searched the vehicle and recovered a polythene packet
containing 26.68 grams of chitta/heroin. The police seized the
chitta/heroin and arrested the occupants of the vehicle. The call
details of Sohan Lal and Geeta Sreshta were obtained, and their
bank account details were checked. It was found that Sohan Lal
had ₹3,26,639.41/- in his bank account and Geeta Sreshta had
₹1,19,498.52/- in her account. ₹45,61,780/ were credited to the
account of Sohan Lal between 01.01.2023 to 04.03.2025, whereas
₹45,35,780/- were debited from his account maintained in the
Central Bank of India. Further, ₹17,10,260/- were credited to his
bank account maintained in Punjab National Bank, Branch
Manali (Kullu) between 01.01.2023 and 04.03.2025. They revealed
on inquiry that this money was obtained by them through the
4
( 2025:HHC:19163 )
sale of chitta/heroin. The police arrested Adital Rathore, Gagan
Thakur, Raj Kumar Mehta, Rajan Mehta, Sanjeev Sharma, Kushal
Chauhan, Ujjawal Pandit, Mohit Aggrawal & Naveen Chauhan on
21.03.2025 for the commission of an offence punishable under
Section 29 of the NDPS Act. They were in touch with Sohan Lal
and had transferred a huge amount to his account. Sohan Lal was
running an organised crime syndicate. Hence, Section 111 of BNS
was also added. The police arrested Ritik Jistu, Pushpendra,
Pawan Chhetri, Digambar Singh, Dheeraj Sharma, Vipul, Honey
Lal, Raman Kaith, Shashi Kumar, Dharam Sen @Kaku, Hukam
Chand @ Rinku Verma, Tankehswar Dutt @ Nagu Verma, Vimal,
Mahender Kumar, Vijay Kumar, Aashish Kumar, Saurav, Hanish
Thakur and Lalit Kaith based on their bank transactions. Sohan
Lal also revealed that Pooja Atwal @ Pooja Rani and Asrshdeep
Atwal were supplying the chitta/heroin to him. FIR No.116/2022,
dated 05.08.2022, FIR No. 12/2025, dated 07.02.2025, FIR No.
104/2024, dated 08.10.2024 and FIR No.30/25, dated 04.03.2025,
were found to have been registered against Sohan Lal. The police
also arrested Arshdeep and Pooja Atwal. Asha Devi had also
transferred the money to their bank, and she was arrested on
15.04.2025. All the accused were selling/purchasing the
5
( 2025:HHC:19163 )
chitta/heroin, and Section 27A of the NDPS Act was also added.
The police arrested Lakpa Dorge on 21.04.2025, Nikhil Negi and
Jagat Ram on 27.04.2025, and Dushyant Sharma on 07.05.2025.
Petitioner, Saurabh, had transferred ₹30,930/- to the accounts
of Sohan Lal, Hukam Chand alias Rinku Verma, Tankeshwar Dutt
@ Nagu Verma, Hanish Thakur and Jagat Ram alias Jaggu.
Petitioner Hanish Thakur transferred ₹72,120/- to the accounts
of Sohan Lal, Hukam Chand alias Rinku Verma, Tarkeshwar Dutt,
Saurabh Thakur, Vijay Kumar alias Vishi and Jagat Ram alias
Jaggu. No FIRs were registered against the petitioners.
5. I have heard Mr. Hitender Thakur, learned counsel for
the petitioners and Mr. Jitender Sharma, learned Additional
Advocate General, for the respondent/State.
6. Mr. Hitender Thakur, learned counsel for the
petitioners, submitted that the petitioners are innocent and they
were falsely implicated based on financial transactions and the
call detail record. These are not sufficient to connect the
petitioners with the commission of a crime. Hence, he prayed
that the present petitions be allowed and the petitioners be
released on bail.
6
( 2025:HHC:19163 )
7. Mr. Jitender Sharma, learned Additional Advocate
General, for the respondents/State, submitted that the
petitioners are members of an organised crime syndicate which
is involved in the sale/purchase of chitta/heroin. This is evident
from the call detail record and the bank transactions; therefore,
they prayed that the present petitions be dismissed.
8. I have given considerable thought to the submissions
made at the bar and have gone through the records carefully.
9. 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 on page 783: –
“Relevant parameters for granting bail
26. While considering as to whether bail ought to be
granted in a matter involving a serious criminal offence,
the Court must consider relevant factors like the nature of
the accusations made against the accused, the manner in
which the crime is alleged to have been committed, the
gravity of the offence, the role attributed to the accused,
the criminal antecedents of the accused, the probability of
tampering of the witnesses and repeating the offence, if
the accused are released on bail, the likelihood of the
accused being unavailable in the event bail is granted, the
possibility of obstructing the proceedings and evading the
courts of justice and the overall desirability of releasing
the accused on bail. [Refer: Chaman Lal v. State of
U.P. [Chaman Lal v. State of U.P., (2004) 7 SCC 525: 2004
SCC (Cri) 1974]; Kalyan Chandra Sarkar v. Rajesh
Ranjan [Kalyan Chandra Sarkar v. Rajesh Ranjan, (2004) 7
7( 2025:HHC:19163 )
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] .]
10. This position was reiterated in Ramratan v. State of
M.P., 2024 SCC OnLine SC 3068, wherein it was observed: –
“12. The fundamental purpose of bail is to ensure the
accused’s presence during the investigation and trial. Any
conditions imposed must be reasonable and directly
related to this objective. This Court in Parvez Noordin
Lokhandwalla v. State of Maharastra (2020) 10 SCC 77
observed that though the competent court is empowered
to exercise its discretion to impose “any condition” for
the grant of bail under Sections 437(3) and 439(1)(a) CrPC,
the discretion of the court has to be guided by the need to
facilitate the administration of justice, secure the
presence of the accused and ensure that the liberty of the
accused is not misused to impede the investigation,
overawe the witnesses or obstruct the course of justice.
The relevant observations are extracted herein below:
“14. The language of Section 437(3) CrPC, which uses
the expression “any condition … otherwise in the
interest of justice” has been construed in several
decisions of this Court. Though the competent court is
empowered to exercise its discretion to impose “any
condition” for the grant of bail under
Sections 437(3) and 439(1)(a) CrPC, the discretion of the
court has to be guided by the need to facilitate the
administration of justice, secure the presence of the
8( 2025:HHC:19163 )
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:
“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
9( 2025:HHC:19163 )
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)
11. This position was reiterated in Shabeen Ahmed versus
State of U.P., 2025 SCC Online SC 479.
12. The present petitions have to be decided as per the
parameters laid down by the Hon’ble Supreme Court.
13. The petitioner(s) were arrested based on the
statements made by co-accused Sohan Lal & Geeta Shrehtra, the
deposit of money by them in the account of Sohan Lal and other
co-accused and the call detail records. It was laid down by the
Hon’ble Supreme Court in Dipakbhai Jagdishchandra Patel v. State
of Gujarat, (2019) 16 SCC 547: (2020) 2 SCC (Cri) 361: 2019 SCC
OnLine SC 588 that a statement made by co-accused during the
investigation is hit by Section 162 of Cr.P.C. and cannot be used as
a piece of evidence. It was also held that the confession made by
the co-accused is inadmissible under Section 25 of the Indian
Evidence Act. It was observed at page 568: –
10
( 2025:HHC:19163 )
44. Such a person, viz., the person who is named in the
FIR, and therefore, the accused in the eye of the law, can
indeed be questioned, and the statement is taken by the
police officer. A confession that is made to a police officer
would be inadmissible, having regard to Section 25 of the
Evidence Act. A confession, which is vitiated under Section
24 of the Evidence Act, would also be inadmissible. A
confession, unless it fulfils the test laid down in Pakala
Narayana Swami [Pakala Narayana Swami v. King Emperor,
1939 SCC OnLine PC 1 : (1938-39) 66 IA 66: AIR 1939 PC 47]
and as accepted by this Court, may still be used as an
admission under Section 21 of the Evidence Act. This,
however, is subject to the bar of admissibility of a
statement under Section 161 CrPC. Therefore, even if a
statement contains admission, the statement being one
under Section 161, it would immediately attract the bar
under Section 162 CrPC.”
14. Similarly, it was held in Surinder Kumar Khanna vs
Intelligence Officer Directorate of Revenue Intelligence 2018 (8) SCC
271 that a confession made by a co-accused cannot be taken as a
substantive piece of evidence against another co-accused and
can only be utilised to lend assurance to the other evidence. The
Hon’ble Supreme Court subsequently held in Tofan Singh Versus
State of Tamil Nadu 2021 (4) SCC 1 that a confession made to a
police officer during the investigation is hit by Section 25 of the
Indian Evidence Act and is not saved by the provisions of Section
67 of the NDPS Act. Therefore, no advantage can be derived by
the prosecution from the confessional statement made by the
co-accused implicating the petitioners.
11
( 2025:HHC:19163 )
15. A similar situation arose before this Court in Dinesh
Kumar @ Billa Versus State of H.P. 2020 Cri. L.J. 4564, and it was
held that a confession of the co-accused and the phone calls are
not sufficient to deny bail to a person.
16. It was laid down by this Court in Saina Devi vs State of
Himachal Pradesh 2022 Law Suit (HP) 211 that where the police
have no material except the call details record and the disclosure
statement of the co-accused, the petitioner cannot be kept in
custody. It was observed: –
“[16] In the facts of the instant case also the prosecution,
for implicating the petitioner, relies upon firstly the
confessional statement made by accused Dabe Ram and
secondly the CDR details of calls exchanged between the
petitioner and the wife of co-accused Dabe Ram. Taking
into consideration the evidence with respect to the
availability of CDR details involving the phone number of
the petitioner and the mobile phone number of the wife of
coaccused Dabe Ram, this Court had considered the
existence of a prime facie case against the petitioner and
had rejected the bail application as not satisfying the
conditions of Section 37 of NDPS Act.
[17] Since the existence of CDR details of accused
person(s) has not been considered as a circumstance
sufficient to hold a prima facie case against the accused
person(s), in Pallulabid Ahmad’s case (supra), this Court is
of the view that petitioner has made out a case for
maintainability of his successive bail application as also
for grant of bail in his favour.
12
( 2025:HHC:19163 )
[18] Except for the existence of CDRs and the disclosure
statement of the co-accused, no other material appears to
have been collected against the petitioner. The disclosure
made by the co-accused cannot be read against the
petitioner as per the mandate of the Hon’ble Supreme
Court in Tofan Singh Vs State of Tamil Nadu, 2021 4 SCC 1.
Further, on the basis of the aforesaid elucidation, the
petitioner is also entitled to the benefit of bail.
17. A similar view was taken by this Court in Dabe Ram vs.
State of H.P., Cr.MP(M) No. 1894 of 2023, decided on 01.09.2023,
Parvesh Saini vs State of H.P., Cr.MP(M) No. 2355 of 2023, decided
on 06.10.2023 and Relu Ram vs. State of H.P. Cr.MP(M) No. 1061 of
2023, decided on 15.05.2023,
18. Therefore, the petitioners cannot be detained in
custody based on a statement made by the co-accused, as the
same does not constitute a legally admissible piece of evidence.
19. The police have also relied upon the deposit of money
in the accounts of Sohan Lal, Geeta Sreshta and other co-
accused. It was laid down by the Kerala High Court in Amal E vs
State of Kerala 2023:KER:39393 that financial transactions are not
sufficient to connect the accused with the commission of a crime.
It was observed:
“From the perusal of the case records, it can be seen that,
apart from the aforesaid transactions, there is nothing to
show the involvement of the petitioners. It is true that the
13( 2025:HHC:19163 )
documents indicate the monetary transactions between
the petitioners and some of the accused persons, but the
question that arises is whether the said transactions were
in connection with the sale of Narcotic drugs. To establish
the same, apart from the confession statements of the
accused, there is nothing. However, as it is an aspect to be
established during the trial, I do not intend to enter into
any finding at this stage, but the said aspect is sufficient to
record the satisfaction of the conditions contemplated
under section 37 of the NDPS Act, as the lack of such
materials evokes a reasonable doubt as to the involvement
of the petitioner.”
20. It was submitted that the petitioners are involved in
the financing of the drugs; therefore, they are involved in the
commission of an offence punishable under Section 27A of the
ND&PS Act. This submission is not acceptable. Bombay High
Court dealt with Section 27A of the ND&PS Act in Rhea
Chakraborty v. Union of India 2021 Crl. LJ 248 and held that the
sale and purchase of the drugs are separately made punishable
under Sections 20, 21, 22 and 23 of NDPS Act, and the term
financing cannot be interpreted to mean providing money for a
particular transaction but can only mean making that particular
activity operational or sustainable. It was observed: –
“66. Section 27A is much wider if sub-clause (iv) of
Section 2(viiia) is taken into account. This sub-clause (iv)
of Section 2(viiia) takes in its sweep all the remaining
activities which are not mentioned in sub-clauses (i),(ii) &
(iii). This covers just about every activity which can be
14( 2025:HHC:19163 )
described as dealing in narcotic drugs or psychotropic
substances. The interpretation of Section 27A should not
be stretched to the extent of rendering the classification of
sentences depending on the quantities in penal Sections
20, 21, 22 and 23 otiose.
67. Sub-clause (viiia) of Section 2 of the NDPS Act is an
inclusive definition. The inclusive part mentions
financing, abetting or conspiring and harbouring. The
financing and harbouring parts are specifically made
punishable under Section 27A.
68. The activities mentioned in Section 2(viiia)(iii) and
Section 8(c) refer to sale, purchase, export, import, etc. All
these activities involve monetary transactions. For every sale
or purchase, there can be use of money. But that will not
mean that either of the parties has “financed” the
transaction. Such sales and purchases are separately
prohibited and made punishable under Section 8(c), read
with Section 20 and other similar Sections. Therefore,
“financing” is something more than just paying for purchases
and other activities involving contraband as defined under
Section 8(c). Contravention of that Section and indulging in
activities mentioned in Sections 20, 21, 22 and 23 incur
punishment depending on the quantity of the contraband.
69. For interpreting Section 27A harmoniously with the
Scheme of the Act and other Sections, it is necessary to go
to the Statement of Objects and Reasons for incorporating
this Section in the Act w.e.f. 29.5.1989. The Statement of
Objects and Reasons of the 1989 Amendment, which is
reproduced hereinbefore, mentions that India was facing a
problem of transit traffic in illicit drugs. The spillover
from such traffic was causing problems of abuse and
addiction. Therefore, a need was felt to amend the Law to
further strengthen it.
70. Thus, the aim was to control the traffic in illicit drugs
as the spillover from such traffic was causing problems of
abuse and addiction. The Legislature wanted to attack the
basic cause of the illicit traffic of drugs. The prohibitory
15( 2025:HHC:19163 )
Section 8 was already existing at that time. Therefore, a
separate Section 27A was introduced to check these
activities, which were the root cause of illicit traffic.
“Financing” and “harbouring” such activities were,
therefore, specifically mentioned under Section 27A.
71. “Financing” is not defined under the Act. The Concise
Oxford Dictionary defines the word “finance” as “(1) the
management of (esp. public) money, (2) monetary
support for an enterprise, (3) (in pl.) the money resources
of a state, company, or person, to provide capital for (a
person or enterprise)”.
72. Black’s Law Dictionary gives the meaning of the word
“finance” as “to raise or provide funds”.
73. Thus, “financing” as generally understood, is offering
monetary support or provide funds.
74. Therefore, simply providing money for a particular
transaction or other transactions will not be financing of that
activity. Financing will have to be interpreted to mean to
provide funds for either making that particular activity
operational or for sustaining it. It is the financial support
which directly or indirectly causes the existence of such illicit
traffic. The word “financing” would necessarily refer to some
activities involving illegal trade or business.
75. The allegations against the Applicant of spending
money in procuring drugs for Sushant Singh Rajput will
not, therefore, mean that she had financed illicit traffic.”
(emphasis supplied)
21. I respectfully agree with the judgment of the Bombay
High Court and hold that financing does not involve the
sale/purchase of drugs but something more. Interpreting the
term financing as sale/purchase would make the provisions of
Sections 20, 21, 22 and 23 of the ND&PS Act redundant, and a
16
( 2025:HHC:19163 )
statute cannot be interpreted in a manner to make any part of the
legislation redundant. It was laid down by the Hon’ble Supreme
Court in Nathi Devi v. Radha Devi Gupta, (2005) 2 SCC 271: 2004
SCC OnLine SC 1625 that a statute cannot be interpreted to make
any of its provisions redundant. It was observed on page 285:
“31. Furthermore, it is now well settled that a statute
should be read in a manner which would give effect to all
the words used in the Act and in the event the decision of
this Court in Kanta Goel [(1977) 2 SCC 814] is read in a
manner suggested, the expressions “let out by her or by
her husband” and “such premises” in Section 14-D would
be otiose. Such a construction is not contemplated in law
in view of the well-settled principle that endeavour should
be made to give effect to all the expressions used in a
statute.”
22. Further, the legislature has consciously used the
words sale, purchase and financing in different provisions. These
words are different and cannot mean the same. It was laid down
in The Guardians of the Parish of Brighton vs The Guardians of the
Strand Union [1891] 2 Q.B. 156 that when different words are used
by the legislature, they are presumed to carry different
meanings. It was observed:
“It is a rule of construction that where in the same Act of
Parliament, and relation to the same subject matter,
different words are used, the Court must see whether the
legislature has not made the alteration intentionally, and
with some definite purpose; primâ facie, such an alteration
17( 2025:HHC:19163 )
would be considered intentional. We have to determine,
then, whether “pauper” in s. 36 has a different meaning
from “person” in ss. 34 & 35, and I am clearly of the
opinion, after hearing the arguments and reading the
judgments of the Divisional Court, that “pauper” means
something different from “person.”
23. A similar view was taken in Oriental Insurance Co. Ltd.
v. Hansrajbhai V. Kodala, (2001) 5 SCC 175: 2001 SCC (Cri) 857: 2001
SCC OnLine SC 621, wherein it was observed at page 191:
“19…When the legislature has taken care of using
different phrases in different sections, normally different
meaning is required to be assigned to the language used
by the legislature, unless context otherwise requires.
However, in relation to the same subject matter, if
different words of different import are used in the same
statute, there is a presumption that they are not used in
the same sense (Member, Board of Revenue v. Arthur Paul
Benthall [AIR 1956 SC 35] AIR at p. 38)….”
24. Further, the word sale can be read to mean finance by
straining the meaning of the word sale. Lord Atkin held in his
dissenting judgment of Liversidge v. Sir John Anderson and
another (1942) A.C. 206 that the strained meaning cannot be
given to ordinary words. It was observed:
“I protest, even if I do it alone, against a strained
construction put on words with the effect of giving an
uncontrolled power of imprisonment to the minister. To
recapitulate: The words have only one meaning. They are
used with that meaning in statements of the common law
and statutes. They have never been used in the sense now
18( 2025:HHC:19163 )
imputed to them. They are used in the Defence
Regulations in their natural meaning, and, when it is
intended to express the meaning now imputed to them,
different and apt words are used in the regulations
generally and in this regulation in particular. Even if it
were relevant, which it is not, there is no absurdity or no
such degree of public mischief as would lead to a non-
natural construction.
I know of only one authority which might justify the
suggested method of construction: “‘When I use a word,’
Humpty Dumpty said in rather a scornful tone, ‘it means
just what I choose it to mean, neither more nor less.’ ‘The
question is,’ said Alice, ‘whether you can make words
mean so many different things.’ ‘The question is,’ said
Humpty Dumpty, ‘which is to be master — that’s all.'”
(“Through the Looking Glass,” c. vi.) After all this long
discussion, the question is whether the words “If a man
has” can mean “If a man thinks he has.” I am of the
opinion that they cannot, and that the case should be
decided accordingly.
25. Therefore, it is difficult to agree with the submission
that financing in Section 27A of the NDPS Act is equivalent to
sale/purchase.
26. It was specifically mentioned in the status reports
that the petitioners are involved in the sale/purchase of
chitta/heroin. Therefore, as per the status reports, it was a
simple case of sale and purchase and did not involve the
financing of the drug trade. Hence, prima facie, the applicability
of Section 27A of the ND&PS Act is not made out based on the
allegations contained in the status report.
19
( 2025:HHC:19163 )
27. The police have also added Section 111 of BNS. It reads
as under:
“111. Organised Crime. “(1) Any continuing unlawful
activity including kidnapping, robbery, vehicle theft,
extortion, land grabbing, contract killing, economic
offence, cyber-crimes, trafficking of persons, drugs,
weapons or illicit goods or services, human trafficking for
prostitution or ransom, by any person or a group of
persons acting in concert, singly or jointly, either as a
member of an organized crime syndicate or on behalf of
such syndicate, by use of violence, threat of violence,
intimidation, coercion, or by any other unlawful means to
obtain direct or indirect material benefit including a
financial benefit, shall constitute organized crime.
Explanation. –For the purposes of this subsection,–
(i) “organised crime syndicate” means a group of
two or more persons who, acting either singly or
jointly, as a syndicate or gang, indulge in any
continuing unlawful activity;
(ii) “continuing unlawful activity” means an
activity prohibited by law which is a cognizable
offence punishable with imprisonment of three
years or more, undertaken by any person, either
singly or jointly, as a member of an organised crime
syndicate or on behalf of such syndicate in respect
of which more than one charge-sheets have been
filed before a competent Court within the preceding
period of ten years and that Court has taken
cognizance of such offence, and includes economic
offence;
(iii) “economic offence” includes criminal breach of
trust, forgery, counterfeiting of currency notes,
bank notes and Government stamps, hawala
transaction, mass-marketing fraud or running any
scheme to defraud several persons or doing any act
20( 2025:HHC:19163 )
in any manner with a view to defraud any bank or
financial institution or any other institution
organization for obtaining monetary benefits in any
form.
(2) Whoever commits organised crime shall–
(a) If such offence has resulted in the death of any
person, be punished with death or imprisonment for
life, and shall also be liable to a fine which shall not
be less than ten lakh rupees;
(b) In any other case, be punished with
imprisonment for a term which shall not be less
than five years but which may extend to
imprisonment for life, and shall also be liable to a
fine which shall not be less than five lakh rupees.
(3) Whoever abets, attempts, conspires or knowingly
facilitates the commission of an organised crime, or
otherwise engages in any act preparatory to an organised
crime, shall be punished with imprisonment for a term
which shall not be less than five years but which may
extend to imprisonment for life, and shall also be liable to
fine which shall not be less than five lakh rupees.
(4) Any person who is a member of an organised crime
syndicate shall be punished with imprisonment for a term
which shall not be less than five years but which may
extend to imprisonment for life, and shall also be liable to
a fine which shall not be less than five lakh rupees.
(5) Whoever, intentionally, harbours or conceals any
person who has committed the offence of an organised
crime shall be punished with imprisonment for a term
which shall not be less than three years but which may
extend to imprisonment for life, and shall also be liable to
fine which shall not be less than five lakh rupees: Provided
that this sub-Section shall not apply to any case in which
the harbour or concealment is by the spouse of the
offender.
21
( 2025:HHC:19163 )
(6) Whoever possesses any property derived or obtained
from the commission of an organised crime or proceeds of
any organised crime or which has been acquired through
the organised crime, shall be punishable with
imprisonment for a term which shall not be less than
three years but which may extend to imprisonment for life
and shall also be liable to fine which shall not be less than
two lakh rupees.
(7) If any person on behalf of a member of an organized
crime syndicate is, or at any time has been in possession
of movable or immovable property which he cannot
satisfactorily account for, shall be punishable with
imprisonment for a term which shall not be less than
three years but which may extend to imprisonment for ten
years and shall also be liable to fine which shall not be less
than one lakh rupees”.
28. It is apparent from the bare perusal of the Section
that a person should indulge in a specified activity either singly
or jointly as a member of an organised crime syndicate in respect
of which more than one charge sheet has been filed before a
Court within the preceding period of ten years and the Court has
taken cognizance of such offence.
29. It was laid down by the Kerala High Court in Mohd.
Hashim v. State of Kerala, 2024 SCC OnLine Ker 5260 that where no
charge sheet was filed against the accused in the preceding ten
years, he cannot be held liable for the commission of an offence
punishable under Section 111 of the BNS Act. It was observed:
22
( 2025:HHC:19163 )
“10. Section 111 (1) explicitly stipulates that to attract the
offence, there should be a continuing unlawful activity, by
any person or group of persons acting in concert, singly or
jointly, either as a member of an organised crime
syndicate or on behalf of such syndicate. The material
ingredient to attract the above provision, so far as the
present case is concerned, is that there should have been a
continuing unlawful activity committed by a member of
an organised crime syndicate or on behalf of such
syndicate.
11. Explanation (i) and (ii) of sub-section (1) of Section 111
of BNS define an organised crime syndicate and a
continuing unlawful activity, respectively.
12. Continuing unlawful activity under explanation (ii) of
Section 111(1) of the BNS means an activity prohibited by
law, which is a cognizable offence punishable with
imprisonment of three years or more, undertaken by any
person, either singly or jointly, as a member of an
organised crime syndicate or on behalf of such syndicate
in respect of which more than one charge-sheet has to be
filed before a competent Court within the preceding period
of ten years and that Court has taken cognizance of such
an offence. Furthermore, an organised crime syndicate
under Explanation (i) of sub-section (1) of Section 111 of
the BNS means a group of two or more persons who,
acting either singly or jointly as a syndicate or gang,
indulge in any continuing unlawful activity.
13. While interpreting the analogous provisions of
the Maharashtra Control of Organised Crime Act, 1999,
which mandates the existence of at least two charge
sheets in respect of a specified offence in the preceding
ten years, the Honourable Supreme Court in State of
Maharashtra v. Shiva alias Shivaji Ramaji Sonawane [(2015)
14 SCC 272] has unequivocally held as follows:
“9. It was in the above backdrop that the High Court
held that once the respondents had been acquitted for
the offence punishable under the IPC and Arms Act in
23( 2025:HHC:19163 )
Crimes No. 37 and 38 of 2001 and once the Trial Court
had recorded an acquittal even for the offence
punishable under Section 4 read with Section 25 of
the Arms Act in MCOCA Crimes No. 1 and 2 of 2002 all
that remained incriminating was the filing of charge
sheets against the respondents in the past and taking
of cognizance by the competent court over a period of
ten years prior to the enforcement of the MCOCA. The
filing of charge sheets or taking of the cognisance in
the same did not, declared the High Court, by itself
constitute an offence punishable under Section 3 of the
MCOCA. That is because the involvement of
respondents in previous offences was just about one
requirement, but by no means the only requirement,
which the prosecution has to satisfy to secure a
conviction under MCOCA. What was equally, if not more
important, was the commission of an offence by the
respondents that would constitute “continuing unlawful
activity”. So long as that requirement failed, as was the
position in the instant case, there was no question of
convicting the respondents under Section 3 of the MCOCA.
That reasoning does not, in our opinion, suffer from any
infirmity.
10. The very fact that more than one charge sheet had
been filed against the respondents, alleging offences
punishable with more than three years’ imprisonment,
is not enough. As rightly pointed out by the High Court,
the commission of offences before the enactment of
MCOCA does not constitute an offence under MCOCA.
Registration of cases, filing of charge sheets and taking of
cognisance by the competent court in relation to the
offence alleged to have been committed by the
respondents in the past is but one of the requirements for
invocation of Section 3 of the MCOCA. Continuation of
unlawful activities is the second and equally important
requirement that ought to be satisfied. Only if an
organised crime is committed by the accused after the
promulgation of MCOCA, he may, seen in the light of the
24( 2025:HHC:19163 )
previous charge sheets and the cognisance taken by the
competent court, be said to have committed an offence
under Section 3 of the Act.
11. In the case at hand, the offences which the
respondents are alleged to have committed after the
promulgation of MCOCA were not proved against them.
The acquittal of the respondents in Crimes Nos. 37 and
38 of 2001 signified that they were not involved in the
commission of the offences with which they were
charged. Not only that the respondents were acquitted
of the charge under the Arms Act, even in Crimes Case
Nos. 1 and 2 of 2002. No appeal against that acquittal
had been filed by the State. This implied that the
prosecution had failed to prove the second ingredient
required for the completion of an offence under
MCOCA. The High Court was, therefore, right in holding
that Section 3 of the MCOCA could not be invoked only on
the basis of the previous charge sheets for Section 3 would
come into play only if the respondents were proved to have
committed an offence for gain or any pecuniary benefit or
undue economic or other advantage after the
promulgation of MCOCA. Such being the case, the High
Court was, in our opinion, justified in allowing the
appeal and setting aside the order passed by the Trial
Court”.
14. Subsequently, the Honourable Supreme Court in State
of Gujarat v. Sandip Omprakash Gupta [2022 SCC OnLine SC
1727], while interpreting the analogous provisions of the
Gujarat Control of Terrorism and Organised Crime Act,
2015, clarified the ratio in Shivaji alias Shivaji Ramaji
Sonawane (supra) by observing thus:
“52. It is a sound rule of construction that the
substantive law should be construed strictly so as to
give effect and protection to the substantive rights
unless the statute otherwise intends. Strict
construction is one which limits the application of the
statute by the words used. According to Sutherland,
‘strict construction refuses to extend the import of
25( 2025:HHC:19163 )
words used in a statute so as to embrace cases or acts
which the words do not clearly describe’.
53. The rule as stated by Mahajan C.J. in Tolaram
Relumal v. State of Bombay, (1954) 1 SCC 961: AIR 1954 SC
496, is that “if two possible and reasonable
constructions can be put upon a penal provision, the
court must lean towards that construction which
exempts the subject from penalty rather than the one
which imposes a penalty. It is not competent to the
court to stretch the meaning of an expression used by
the legislature in order to carry out the intention of the
legislature.” In State of Jharkhand v. Ambay
Cements, (2005) 1 SCC 368, this Court held that it is a
settled rule of interpretation that where a statute is
penal in character, it must be strictly construed and
followed. The basic rule of strict construction of a penal
statute is that a person cannot be penalised without a
clear reading of the law. Presumptions or assumptions
have no role in the interpretation of penal statutes.
They are to be construed strictly in accordance with the
provisions of law. Nothing can be implied. In such
cases, the courts are not so much concerned with what
might possibly have been intended. Instead, they are
concerned with what has actually been said.
54. We are of the view and the same would be in tune with
the dictum as laid in Shiva alias Shivaji Ramaji
Sonawane (supra) that there would have to be some act or
omission which amounts to organised crime after the 2015
Act came into force i.e., 01.12.2019 in respect of which, the
accused is sought to be tried for the first time in the special
court.
55. We are in agreement with the view taken by the
High Court of Judicature at Bombay in the case
of Jaisingh (supra) that neither the definition of the
term ‘organised crime’ nor of the term ‘continuing
unlawful activity’ nor any other provision therein
declares any activity performed prior to the enactment
of the MCOCA to be an offence under the 1999 Act nor
26( 2025:HHC:19163 )
the provision relating to punishment relates to any
offence prior to the date of enforcement of the 1999
Act, i.e., 24.02.1999. However, by referring to the
expression ‘preceding period of ten years’ in Section 2(1)
(d), which is a definition clause of the term ‘continuing
unlawful activity’ inference is sought to be drawn that in
fact, it takes into its ambit the acts done prior to the
enforcement of the 1999 Act as being an offence under the
1999 Act. The same analogy will apply to the 2015 Act.
56. There is a vast difference between the act or
activity, which is being termed or called an offence
under a statute and such act or activity being taken into
consideration as one of the requisites for taking action
under the statute. For the purpose of organised crime,
there has to be a continuing unlawful activity. There
cannot be continuing unlawful activity unless at least
two charge sheets are found to have been lodged in
relation to the offence punishable with three years’
imprisonment during the period of ten years.
Indisputably, the period of ten years may relate to the
period prior to 01.12.2019 or thereafter. In other words,
it provides that the activities, which were offences
under the law in force at the relevant time and in
respect of which two chargesheets have been filed and
the Court has taken cognizance thereof, during the
period of preceding ten years, then it will be considered
as continuing unlawful activity on 01.12.2019 or
thereafter. It nowhere by itself declares any activity to
be an offence under the said 2015 Act prior to
01.12.2019. It also does not convert any activity done
prior to 01.12.2019 to be an offence under the said 2015
Act. It merely considers two chargesheets in relation to
the acts which were already declared as offences under
the law in force to be one of the requisites for the
purpose of identifying continuing unlawful activity
and/or for the purpose of an action under the said 2015
Act.
27
( 2025:HHC:19163 )
57. If the decision of the coordinate Bench of this Court
in the case of Shiva alias Shivaji Ramaji
Sonawane (supra) is looked into closely along with
other provisions of the Act, the same would indicate
that the offence of ‘organised crime’ could be said to
have been constituted by at least one instance of
continuation, apart from continuing unlawful activity
evidenced by more than one chargesheets in the
preceding ten years. We say so, keeping in mind the
following:
(a) If ‘organised crime’ was synonymous with
‘continuing unlawful activity’, two separate
definitions were not necessary.
(b) The definitions themselves indicate that the
ingredients of the use of violence in such activity
with the objective of gaining pecuniary benefit
are not included in the definition of ‘continuing
unlawful activity’, but find place only in the
definition of ‘organised crime’.
(c) What is made punishable under Section 3 is
‘organised crime’ and not ‘continuing unlawful
activity’.
(d) If ‘organised crime’ were to refer to only
more than one chargesheets filed, the
classification of crime in Section 3(1)(i) and 3(1)
(ii) reply on the basis of the consequence of the
resulting in death or otherwise would have been
phrased differently, namely, by providing that ‘if
any one of such offence has resulted in the death’
since continuing unlawful activity requires more
than one offence. Reference to ‘such offence’ in
Section 3(1) implies a specific act or omission.
(e) As held by this Court in State of
Maharashtra v. Bharat Shanti Lal Shah (supra)
continuing unlawful activity evidenced by more
than one chargesheet is one of the ingredients of
the offence of organised crime and the purpose
28( 2025:HHC:19163 )
thereof is to see the antecedents and not to
convict, without proof of other facts which
constitute the ingredients of Section 2(1)(e) and
Section 3, which respectively define commission
of the offence of organised crime and prescribe
punishment.
(f) There would have to be some act or omission
which amounts to organised crime after the Act
came into force, in respect of which the accused
is sought to be tried for the first time, in the
Special Court (i.e. has not been or is not being
tried elsewhere).
(g) However, we need to clarify something
important. Shiva alias Shivaji Ramaji
Sonawane (supra) dealt with the situation where a
person commits no unlawful activity after the
invocation of the MCOCA. In such circumstances, the
person cannot be arrested under the said Act on
account of the offences committed by him before the
coming into force of the said Act, even if he is found
guilty of the same. However, if the person continues
with the unlawful activities and is arrested, after the
promulgation of the said Act, then such a person can
be tried for the offence under the said Act. If a
person ceases to indulge in any unlawful act after
the said Act, then he is absolved of the prosecution
under the said Act. But, if he continues with the
unlawful activity, it cannot be said that the State has
to wait till he commits two acts of which cognisance
is taken by the Court after coming into force. The
same principle would apply, even in the case of the
2015 Act, with which we are concerned.
58. In the overall view of the matter, we are convinced
that the dictum as laid by this Court in Shiva alias
Shivaji Ramaji Sonawane(supra) does not require any
relook. The dictum in Shiva alias Shivaji Ramaji
Sonawane (supra) is the correct exposition of law”.
29
( 2025:HHC:19163 )
16. Section 111 (1) of the BNS in respect of organised crime
is, in essence, analogous to the provisions of the
Maharashtra Control of Organised Control Act and the
Gujarat Control of Terrorism and Organised Crime Act.
The legal principles laid down by the Honourable Supreme
Court in its interpretation of organised crime as defined by
the above two state legislations are applicable on all fours
to Section 111 (1) of the BNS. Thus, it is not necessary to
have a further interpretation of the above analogous
provision.
17. In view of the above discussion, to attract an offence
under Section 111 (1) of the BNS it is imperative that a
group of two or more persons indulge in any continuing
unlawful activity prohibited by law, which is a cognizable
offence punishable with imprisonment of three years or
more, undertaken by any person, either singly or jointly,
as a member of an organised crime syndicate or on behalf
of such syndicate in respect of which more than one
charge-sheet has to be filed before a competent Court
within the preceding period of ten years and that Court
has taken cognizance of such an offence.
18. In the present case, it is undisputed that no charge
sheet has been filed against the petitioner in any court in
the last ten years. Therefore, prima facie, the offence
under Section 111(1) is not attracted. Nevertheless, these
are matters to be investigated and ultimately decided after
trial. Additionally, the petitioner has been in judicial
custody for the last 57 days, and recovery has been
effected.
30. This position was reiterated in Om Prakash vs. State of
Karnataka (07.02.2025 – KARHC): MANU/KA/0356/2025 wherein it
was observed:
“12. So far as the offence under Section 111 of the BNS is
concerned, the learned Senior Counsel for the petitioners
relied on a judgment of the Kerala High Court in the case
30( 2025:HHC:19163 )
of Mohammed Rashid Vs. State of Kerala in Bail
Application No.5927/2024 dated 13.08.2024. The
provisions of Section 111 of the BNS are borrowed from
MaCOCA and similar enactments, including the KaCOC
Act. It is trite law that to conclude that there is an
organized crime, and the accused are members of the
organized crime Syndicate, it is essential that any one of
the members of the Syndicate should be facing at least
three charge sheets initiated within a period of ten years
prior to the crime and which are pending. The perusal of
the charge sheet nowhere indicates that any of the nine
accused are facing such charge sheets within the period of
ten years preceding the crime. Therefore, the invoking of
the provision under Section 111 of BNS is also prima facie
impermissible.”
31. This judgment was followed in Pesala Sivashankar
Reddy v. State of A.P., 2024 SCC OnLine AP 5422, wherein it was
held:
“8. The Hon’ble Supreme Court in the matter of State of
Maharashtra v. Shiva Alias Shivaji Ramaji Sonawane 2015
SCC OnLine SC 648 was dealing with the Maharashtra
Control of Organised Crime Act, 1999 (MCOC) Act and the
offence of organised crime under the said act. The Hon’ble
Supreme Court has held that only if an organised crime is
committed by the accused after the promulgation of the
MCOCA Act, that he may be seen in the light of the
previous charge sheet, which is taken cognisance by the
competent court, would have committed an offence under
Section 3 of the Act.
9. The Hon’ble Supreme Court, in the matter of Mohamad
Iliyas Mohamad Bilal Kapadiya v. State of Gujarat 2022 Live
Law (SC) 538, held that to invoke the provisions of Gujarat
control of terrorism and organised act crime, 2015, in
respect of an act of organised crime more than one charge
sheet should be filed in the preceding ten years. Section 111
31( 2025:HHC:19163 )
of B.N.S. is analogous to the organised crime acts of
various states, which were dealt with by the Hon’ble
Supreme Court.
10. The Hon’ble High Court of Kerala in the matter
of Mohammed Hashim v. State of Kerala 2024 SCC OnLine
Ker 5260. The learned Judge of the Kerala High Court has
emphasised that Section 111 can be invoked only if more
than one charge sheet has been filed for such offences in
the preceding ten years before a competent court, and
such charge sheets are taken cognisance of by the court.
11. This Court agrees with the observations of the Kerala
High Court, and admittedly, no charge sheet has been filed
against the petitioner for similar offences in any court of
law in the preceding ten years as such, cause for
invocation of Section 111 of B.N.S. has to be dealt
appropriately by the investigating officer during the
course of investigation of the crime.”
32. It was held in Suraj Singh vs. State of Punjab
(25.09.2024 – PHHC): MANU/PH/4288/2024 that the police must
gather legally admissible evidence to connect the accused with
the commission of a crime punishable under Section 111 of the
BNS Act. It was observed:
“15. To bring an offence into the four corners of an
organised crime, the offence must fall under a category
described in S. 111 of BNS, 2023. The prima facie evidence
must be legally admissible to constitute any continuing
unlawful activity to constitute an organised crime as
defined in S. 111 BNS. Without legally admissible prima
facie evidence, the State cannot make any suspect undergo
custodial interrogation to hunt for such evidence against
the suspect or others. The evidence must be gathered first
to make out a prima facie case within the scope of S. 111 of
BNS, and such evidence alone would justify custodial
32( 2025:HHC:19163 )
interrogation to carry out further investigation. Without
legally admissible accusations, allegations, or evidence,
the State cannot arrest a suspect to fish evidence against
them or use such a suspect as custodial bait by any hook,
line, and sinker to bring the case into the fold of S. 111 of
BNS. Prima facie evidence must be admissible, and if such
evidence is deemed inadmissible, the entire foundation
will collapse.”
33. The prosecution is relying upon the statement made
by Sohan Lal and Geeta Sreshta during the interrogation to
connect the petitioners with the commission of a crime and
thereby attract the provisions of Section 111 of BNS, 2023. The
statement made by the co-accused is inadmissible in evidence,
and the financial transactions do not show that the money was
deposited in connection with the narcotics, therefore, these
cannot be used against the petitioners to connect them with the
commission of an offence punishable under Section 111 of BNS,
2023.
34. It was submitted that the petitioners have not
explained the reason why they were in touch with the co-accused
and the deposit of the amount. This submission will not help the
State. The accused have a right to silence, and it is for the
prosecution to prove that the calls between the petitioners and
the co-accused and the deposit of money in the account of the
33
( 2025:HHC:19163 )
co-accused were made because the petitioners were members of
an organised crime syndicate. When the State has failed to
produce any legal evidence in support of its assertions, it cannot
rely upon the silence of the accused to prove its case.
35. Therefore, prima facie, there is insufficient material to
connect the petitioners with the commission of offences
punishable under Sections 21, 27A, and 29 of the ND&PS Act and
Section 111(3) of BNS, and their further detention is not justified.
36. In view of the above, the present petitions are
allowed, and the petitioners are ordered to be released on bail
subject to their furnishing bail bonds in the sum of ₹1,00,000/-
each with one surety each in the like amount to the satisfaction
of the learned Trial Court. While on bail, the petitioners will
abide by the following conditions:
(i) The petitioners will not intimidate the witnesses,
nor will they influence any evidence in any manner
whatsoever.
(ii) The petitioners shall attend the trial and will not
seek unnecessary adjournments.
(iii) The petitioners will not leave the present address
for a continuous period of seven days without
34( 2025:HHC:19163 )
furnishing the address of the intended visit to the
concerned Police Station and the Court.
(iv) The petitioners will surrender their passports, if
any, to the Court and;
(v) The petitioners will furnish their mobile number
and social media contact to the Police and the Court
and will abide by the summons/notices received
from the Police/Court through SMS/WhatsApp/
Social Media Account. In case of any change in the
mobile number or social media accounts, the same
will be intimated to the Police/Court within five
days from the date of the change.
37. It is clarified that if the petitioners misuse their
liberty or violate any of the conditions imposed upon them, the
investigating agency shall be free to move the Court for
cancellation of the bail.
38. The observations made here-in-above are regarding
the disposal of the petitions and will have no bearing whatsoever
on the case’s merits.
39. The petitions stand accordingly disposed of. A copy of
this order be sent to the Jail Superintendent, District Jail Kaithu,
District Shimla, H.P. and the learned Trial Court by FASTER.
35
( 2025:HHC:19163 )
40. A downloaded copy of this order shall be accepted by
the learned Trial Court while accepting the bail bonds from the
petitioners, and in case said Court intends to ascertain the
veracity of the downloaded copy of the order presented to it, the
same may be ascertained from the official website of this Court.
(Rakesh Kainthla)
Judge
21st June, 2025
(rupsi)