( 2025:HHC:16068 ) IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. MPM No. 870 of 2025 Reserved on: 09.05.2025 Date of Decision: 27.05.2025 Mohit Kumar .... Petitioner Versus State of Himachal Pradesh ...Respondent Coram Hon’ble Mr Justice Rakesh Kainthla, Judge. Whether approved for reporting? No. For the Petitioner : Mr. Parikshit Rathore, Advocate. For the Respondent- State : Mr. Prashant Sen, Deputy Advocate General. Rakesh Kainthla, Judge The petitioner has filed the present petition for seeking regular bail. It has been asserted that the petitioner was arrested vide F.I.R. No.05 of 2025, dated 04.01.2025, registered at Police Station Baddi, District Solan, H.P., for the commission of offences punishable under Sections 21 and 29 of Narcotic Drugs and Psychotropic Substances Act (for short ‘NDPS Act’). Whether reporters of the local papers may be allowed to see the judgment? Yes 2 2. As per the prosecution, the police party recovered 6.730 grams of Heroin after intercepting the motorcycle bearing registration No. HP-12Q-1679. The petitioner was travelling as a pillion rider on the motorcycle. The police arrested the petitioner and the driver of the motorcycle and seized the heroin. The investigation in the present case is complete. The police have filed the charge sheet before the Court. The quantity of heroin stated to have been recovered from the motorcycle is less than the commercial quantity, and there is no chance of the petitioner absconding. He would join the investigation as and when directed to do so. No other FIR was registered against the petitioner. Hence, the petition. 3. The petition is opposed by a filing status report asserting that the police were patrolling on 04.01.2025 when they received a secret information that Mohit Sharma S/o Kuldeep Sharma and Mohit Kumar S/o Raj Kishore (the present petitioner), was standing at the brick kiln. The police documented the information and sent it to the Supervisory Officer. They associated independent witnesses and went to the location where the petitioner and the co-accused were found riding a motorcycle bearing registration No. HP-12Q-1679. The driver of the motorcycle identified himself as Mohit Sharma, while the pillion 3 rider identified himself as Mohit Kumar (the present petitioner). The police searched the motorcycle and found a transparent polythene packet near the speedometer. After examining it with the NDD kit, it was confirmed to be Heroin, and upon weighing, its weight was found to be 6.730 grams. The police seized the heroin and arrested the petitioner and the co-accused. The substance was sent to the FSL and confirmed to be diacetylmorphine (Heroin). No FIR has been lodged against the petitioner, but four FIRS have been filed against the co-accused Mohit Sharma. Hence, the status report. 4. I have heard Mr. Parikshit Rathor, learned counsel for the petitioner and Mr. Prashant Sen, learned Deputy Advocate General for the respondent-State. 5. Mr. Parikshit Rathor, learned counsel for the petitioner, submitted that the petitioner is innocent and was falsely implicated. No recovery was effected from him. The quantity of Heroin stated to have been recovered from the possession of the petitioner is intermediate, and the rigours of Section 37 of the NDPS Act do not apply to the present case. The petitioner would abide by all the terms and conditions which the Court may impose. Hence, he prayed that the present petition be allowed and the petitioner be released on bail. 4 6. Mr. Prashant Sen, learned Deputy Advocate General for the respondent/State, submitted that the petitioner was riding the motorcycle owned by the co-accused and he would be deemed to be in possession of the Heroin. The heroin is affecting the younger generation adversely, and no leniency should be shown to the petitioner. 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 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, how 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) 5 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 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 6 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: “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 7 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. Perusal of the status report shows that the petitioner was riding the motorcycle bearing registration No. HP—12-Q-1679, from which 6.730 grams of Heroin was recovered. In Madan Lal versus State of H.P. (2003) 7 SCC 465: 2003 SCC (Cri) 1664: 2003 SCC OnLineSC 874, the contraband was recovered from a vehicle, and it was held that all the occupants of the vehicle would be in conscious possession of the contraband. It was observed: “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 8 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 articles. It is submitted that in order to make the possession illicit, there must be 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 the Supdt. & Remembrancer of Legal Affairs, W.B. v. Anil Kumar Bhunja [(1979) 4 SCC 274: 1979 SCC (Cri) 1038: AIR 1980 SC 52] to work out a completely logical and precise definition of “possession” uniformly 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. 24. As noted in Gunwantlal v. State of M.P. [(1972) 2 SCC 194: 1972 SCC (Cri) 678: AIR 1972 SC 1756], possession in a given case need not be physical possession but can be constructive, having power and control over the article in the case in question, while the person to whom physical possession is given holds it subject to that power or control. 25. The word “possession” means the legal right to possession (see Heath v. Drown [(1972) 2 All ER 561: 9 1973 AC 498: (1972) 2 WLR 1306 (HL)] ). In an interesting case, it was observed that where a person keeps his firearm in his mother's flat, which is safer than his own home, he must be considered to be in possession of the same. (See Sullivan v. Earl of Caithness [(1976) 1 All ER 844: 1976 QB 966 : (1976) 2 WLR 361 (QBD)] .) 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 presumption is also available to be drawn from possession of illicit articles. 27. In the factual scenario of the present case, not only possession but conscious possession has been established. It has not been shown by the accused-appellants that the possession was not conscious in the logical background of Sections 35 and 54 of the Act.” 13. Therefore, in view of the binding precedent of the Hon’ble Supreme Court, the petitioner has to be treated to be in possession of the Heroin. 14. The petitioner asserted that he is the first offender and that he does not have any previous record. It was specifically asserted in the status report that no Criminal case was registered against the petitioner. The petitioner was found in possession of 6.730 grams of Heroin, which is slightly more than the small quantity. The 10 petitioner deserves a chance to reform himself. In case of his continuous detention, he will come in contact with hardened criminals, and the chances of his reformation will become bleak. It was submitted that the petitioner would indulge in the commission of a similar offence in case of his release on bail. This apprehension can be removed by imposing conditions, and it is not sufficient to deny bail to the petitioner. 15. In view of the above, the present petition is allowed, and the petitioner is ordered to be released on bail subject to his furnishing bail bonds in the sum of ₹1,00,000/- with one surety in the like amount, to the satisfaction of the learned Trial Court. While on bail, the petitioner will abide by the following conditions: (i) The petitioner will not intimidate the witnesses, nor will he influence any evidence in any manner whatsoever. (ii) The petitioner shall attend the Court on every date of hearing and will not seek unnecessary adjournments. (iii) The petitioner will not leave his present addresses for a continuous period of seven days without furnishing the address of the intended visit to the concerned Police Station and the Court. 11 (iv) The petitioner will furnish his 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. 16. It is clarified that if the petitioner misuses the liberty or violates any of the conditions imposed upon him, the investigating agency shall be free to move the Court for cancellation of the bail. 17. The observations made hereinabove are regarding the disposal of this petition and will have no bearing, whatsoever, on the case's merits. 18. The petition stands accordingly disposed of. A copy of this order will be sent to the Jail Superintendent, Sub Jail Kishanpura at Nalagarh, District Solan (H.P), and the learned Trial Court by FASTER. 19. A downloaded copy of this order shall be accepted by the learned Trial Court while accepting the bail bonds from the petitioner, and in case said Court intends to ascertain the veracity of the downloaded copy of the order 12 presented to it, the same may be ascertained from the official website of this Court (Rakesh Kainthla) Judge 27th May, 2025 (Shamsh Tabrez) Digitally signed by KARAN SINGH GULERIA DN: C=IN, O=HIGH COURT OF HIMACHAL PRADESH, OU=HIGH COURT OF HIMACHAL PRADESH SHIMLA, Phone=e5d61f6599be410af7c5f0b57379e2 25878f23c9ea27b281046985b3b1fe0b75, PostalCode=171001, S=Himachal Pradesh, SERIALNUMBER=f72cf9165791d55ec939 375291962d0d90d094876bd59591426c0b 1ce651f01f, CN=KARAN SINGH GULERIA Reason: I am the author of this document Location: Date: 2025-05-27 12:15:26 KARAN SINGH GULERIA