1 2025:HHC:15452 IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr. MP(M) No.1089 of 2025 Reserved on : 21.5.2025 Decided on : 23.5.2025 Nitish Kumar …Applicant Versus State of H.P. …Respondent _______________________________________________________ Coram Hon’ble Mr. Justice Virender Singh, Judge Whether approved for reporting? ________________________________________________ For the Applicant : Mr. J.P. Sharma, Advocate. For the Respondent : Mr. Tejasvi Sharma, Mr. H.S. Rawat, Addl. AGs with Ms. Ranjna Patial, Dy. A.G., assisted by ASI Rajender Pal, Police Station, Gagret, District Una, H.P. Virender Singh, Judge Applicant Nitish Kumar has filed the present application, under Section 483 of Bharatiya Nagarik Suraksha Sanhita (hereinafter referred to as ‘the BNSS’) for releasing him, on bail, during the pendency of the trial, arising out of case FIR No. 117 2 2025:HHC:15452 of 2024 dated 5.11.2024, registered under Sections 21 and 29 of the Narcotic Drugs and Psychotropic Substances Act (hereinafter referred to as the ‘ND & PS’ Act), with Police Station, Gagret, District Una, H.P. 2. The applicant has pleaded the fact that he is innocent person and has falsely been implicated, in the present case, as he has no concern whatsoever with the offence, for which, he has been arrested, by the police. 3. According to the applicant, investigation, in the present case, is complete and nothing is to be recovered from his possession. All these facts have been pleaded to show that custodial interrogation of the applicant is no longer required by the Police. 4. According to the applicant, he has earlier moved bail applications, before the learned Special Judge, Una-I, bearing No. 2 of 2025 and 67 of 2025, which were dismissed vide orders dated 1.1.2025 and 28.2.2025, on the ground that he was having 3 2025:HHC:15452 previous criminal antecedents, whereas, according to the applicant, he has not been convicted in any of the cases, by the competent Court of law. 5. According to the applicant, the contraband recovered in the present case, does not fall within the definition of commercial quantity, as such, rigors of Section 37 of the NDPS Act, are not applicable in this case. 6. Lastly, the applicant has sought his release on bail on the ground that he is in custody for the last 6 months and no useful purpose would be served by keeping him in judicial custody, as chances of conclusion of trial, against the applicant, are not so bright. 7. The applicant, through his counsel, has undertaken to abide by the terms and conditions, to be imposed by this Court, in case, he is ordered to be released on bail. 8. On these submissions, a prayer has been made to allow the bail application. 4 2025:HHC:15452 9. When put to notice, the police has filed the status report, disclosing therein, that on 5.11.2024, ASI Naresh Kumar, alongwith other police officials, was on patrolling duty and on duty to detect the crime, relating to Excise and Narcotics, and left the office of SIU, Una, in their private vehicle, towards Gagret side. 9.1 At about 5:30 p.m., when they were on patrolling duty and reached at Gagret, then, a secret information was received that a car bearing No. HP 28B 4878 (Alto), being driven by its driver, was coming from Hoshiarpur to Gagret side. As per the information, two persons were there in the car, who are doing the business of selling/purchasing chitta/heroin, and if the vehicle is intercepted & searched, then, large quantity of heroin could be recovered. The said information was found to be authentic and reliable and according to the I.O., in 5 2025:HHC:15452 case, search warrants are obtained, in that eventuality, said vehicle will pass from there and contraband could be removed from there. As such, the I.O. ASI Naresh Kumar has complied with the provisions of Section 42 (2) of the NDPS Act and submitted the report to the SDPO, Amb, through Const. Rakesh Kumar. 9.2 Thereafter, when, I.O. alongwith the other police officials reached on Hoshiarpur road, near Ichhadhari Nag Temple, then two persons, namely, Gurmail Singh and Yashveer Singh came there to pay obeisance. The I.O. associated them in the investigation of the case, as independent witnesses, after apprising them about the secret information. 9.3 Thereafter, at about 6:30 p.m.,the aforesaid vehicle reached there, which was signaled to stop. Consequently, the driver of the vehicle stopped the vehicle. I.O. Naresh Kumar apprised the driver about the secret information. On inquiry, the driver of the said car disclosed his name as Jiwan Lal, S/o Ram 6 2025:HHC:15452 Dass and the other person, sitting in the car, disclosed his name as Nitish Kumar, S/o Suresh Kumar (applicant). 9.4 Thereafter, the I.O. had given his personal search and search of the police officials and independent witnesses. But, nothing incriminating was found. Thereafter, the I.O. searched the car. During the search of the car, in the pocket, on the back side of the driver seat, a transparent polythene envelope was found, which, on opening, was found containing other transparent zip lock pouch, which, on opening, was found containing granule shaped brown coloured substance. On inquiry, the said substance was confirmed to be heroin/chitta, which, on weighment, was found to be 30.21 grams. 9.5 Other codal formalities were completed. After registration of the FIR, accused were arrested. Thereafter, further investigation of the case was entrusted to ASI Surinder Kumar, the then I.O., Police Station, Gagret, Distt. Una, H.P. 7 2025:HHC:15452 9.6 Thereafter, inventory of the case property was got prepared by producing the same before the Court. The case property was sent to SFSL, Junga, from where, positive report has been received. 9.7 After completion of investigation, charge sheet against accused Jiwan Lal and Nitish Kumar was submitted in the Court of learned Special Judge, Una, on 1.1.2025. During investigation, involvement of Rakesh Kumar @ Sonu and Hakikat Singh @ Hunny was also found and they were also arrested. 9.8 It is the further case of the Police that aforesaid Sonu and Hunny have been released on bail by the Court of learned Special Judge-I, Una, on 4.2.2025. 9.9 Against the applicant, following cases are found to have been registered: i) FIR No. 46 of 2022, dated 17..2.2022, registered under Sections 21 and 29 of the NDPS Act, with Police Station, Sadar, Bilaspur, H.P. 8 2025:HHC:15452 ii) FIR No. 21 of 2023, dated 24.1.2023, registered under Sections 21 and 29 of the NDPS Act, with Police Station, Sadar, Bilaspur, H.P. 9. 10 Both the cases are stated to be pending in the Courts. 9.11 Charge sheet against the applicant is already stated to have been filed. 9.12 Lastly, it has been apprehended that in case, the applicant is released on bail, he may again indulge in the same activities and may drag the young generation in the vices of drugs. As such, a prayer has been made to dismiss the application. 9.13 On the basis of above facts, a prayer has been made to dismiss the application. 10 In this case, two cases are stated to have been registered against the applicant and both the cases are under the provisions of NDPS Act. In such situation, the material question, which arises for determination, before this Court is as to whether the fact of registration of two other cases is sufficient to decline the relief, for which the applicant is otherwise 9 2025:HHC:15452 entitled for, as his co-accused Rakesh Kumar @ Sonu and Hakikat Singh @ Hunny have been released on bail. Admittedly, in both the cases, registered against the applicant, he has not been convicted by the competent Court of law, in either of the cases. As such, presumption of innocence, is still available to the applicant. 11. Contraband, allegedly recovered, in the present case does not fall within the definition of ‘commercial quantity’. As such, rigors of Section 37 of the NDPS Act are not applicable to the facts of the present case. 12. Investigation, in the present case, is complete, as, it is the specific case of the Police that after completion of investigation, charge sheet has been filed, in the competent Court of law. Meaning thereby, the applicant is no longer required for interrogation by the Police. 10 2025:HHC:15452 13 The applicant has been arrested on 6.11.2024, in this case. The chances of conclusion of trial, against the applicant, are not so bright, as such, no useful purpose would be served by keeping the applicant in judicial custody. 14. Moreover, status report is totally silent about the fact as to whether efforts have been made by the Police to get the bail, granted by the competent Court of law, in the aforesaid two cases, cancelled, on the basis of the fact that after his release on bail, in the above two cases, the applicant has committed the similar offence again. 15. The status report is also silent about the fact as to whether any proceedings to declare the applicant as habitual offender, have been initiated, by the Police, in this case. When, conviction has not been inflicted upon the applicant, in the aforesaid two cases, then, no justifiable cause has been put 11 2025:HHC:15452 forward by the Police to decline the relief, for which, the applicant is otherwise entitled for. 16. Considering all these facts, this Court is of the view that the bail application is liable to be allowed and is accordingly allowed. 17. Consequently, the applicant is ordered to be released on bail in case FIR No. 117 of 2024, dated 5.11.2024, registered under Sections 21 and 29 of the NDPS Act, with Police Station, Gagret, District Una, on his furnishing personal bond in the sum of Rs. 1,00,000/-, with two sureties in the like amount, to the satisfaction of the learned trial Court. 18. This order, however, shall be subject to the following conditions:- a) Applicant shall regularly attend the trial Court on each and every date of hearing and if prevented by any reason to do so, seek exemption from appearance by filing appropriate application; b) Applicant shall not tamper with the prosecution evidence nor hamper the investigation of the case in any manner whatsoever; c) Applicant shall not make any inducement, threat or promises to any person acquainted with the facts of 12 2025:HHC:15452 the case so as to dissuade them from disclosing such facts to the Court or the Police Officer, and d) Applicant shall not leave the territory of India without the prior permission of the Court. 19. Any of the observations, made herein above, shall not be taken, as an expression of opinion, on the merits of the case, as these observations are confined, only to the disposal of the present bail application. 20. It is made clear that the respondent-State is at liberty to move an appropriate application, in case, any of the bail conditions is found to be violated by the applicant. 21. The Registry is directed to forward a soft copy of the bail order to the Superintendent of District Jail, Una, through e-mail, with a direction to enter the date of grant of bail in the e-prison software. 22. In case, the applicant is not released within a period of seven days from the date of grant of bail, the Superintendent of District Jail, Una is directed to inform this fact to the Secretary, DLSA, Una. The 13 2025:HHC:15452 Superintendent of the District Jail, Una is further directed that if the applicant fails to furnish the bail bonds, as per the order passed by this Court within a period of one month from today, then, the said fact be submitted to this Court. (Virender Singh) Judge May 23, 2025 Kalpana Digitally signed by RAJNI Date: 2025.05.23 12:00:25 IST