( 2025:HHC:23685 ) IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. MP(M) No. 938 of 2025 Reserved on: 10.07.2025 Date of Decision: 22.07.2025. Akash ...Petitioner Versus State of Himachal Pradesh ...Respondent Coram Hon’ble Mr Justice Rakesh Kainthla, Judge. Whether approved for reporting?1 No. For the Petitioner : M/s. Dhiraj Thakur & Priyanka Chandel, Advocates. For the Respondent : Mr. Ajit Sharma, Deputy Advocate General. ASI Paramjit Singh, IO, PS Sinhuta, District Chamba, H.P., present with police record. Rakesh Kainthla, Judge The petitioner has filed the present petition for seeking pre-arrest bail in FIR No. 13/2025, dated 15.02.2025, registered at Police Station Janjheli, District Mandi, H.P., for the commission of offences punishable under Sections 21, 25 & 29 of 1 Whether reporters of Local Papers may be allowed to see the judgment? Yes. 2( 2025:HHC:23685 ) the Narcotic Drugs & Psychotropic Substances Act (“in short NDPS Act”), 1985. 2. It has been asserted that, as per the prosecution, the police apprehended Ruval Thakur and Sandeep Kumar on 15.02.2025, who were travelling in the car bearing registration No. HP 32A-3709. The accused threw the polythene bag after seeing the police. The police inspected the polythene pouch and found 44 grams of heroin/chitta in it. The police arrested the accused and seized the heroin/chitta. They disclosed that heroin/chitta was purchased for ₹68,000/- through Google Pay by making a payment to an account maintained and managed by the co- accused Manjinder Kaur and her son, co-accused Inderjeet @ Vishnu. As per the prosecution, the co-accused were working as members of an organised crime syndicate, and they were supplying heroin/chitta among the young in the area. The petitioner was wrongly implicated. He is a responsible citizen and is not involved in the commission of any offence. He is being implicated based on the disclosure statement made by the co- accused, and there is nothing to connect him with the commission of the crime. He belongs to a respectable family, and 3( 2025:HHC:23685 ) there is no chance of his absconding. He would abide by 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 received a complaint on 15.02.2025 that some persons were consuming heroin/chitta near the Government School, Bhalwad. The police went to the spot and found a vehicle bearing registration No. HP 32A-3709. Rubal Thakur and Sandeep Kumar were found in the vehicle. Rubal Thakur threw a polythene pouch towards the dhank. The police checked the pouch and found 44 grams of heroin/chitta in it. Rubal Thakur threw the pouch while it was being weighed, and 38 grams of heroin/chitta was recovered from the pouch. The police seized the heroin/chitta and arrested Rubal Thakur & Sandeep Kumar. The substance was sent to SFSL, Junga and was confirmed to be diacetylmorphine. Rubal Thakur revealed that he had purchased heroin/chitta from Akash Lohat (present petitioner). The call detail record and transaction details were obtained. Both were found at one place on 13.02.2025. Subsequently, other co- accused were arrested. Bank account statements were checked, and it was found that an amount of ₹1,07,000/- was transferred by Rubal to the petitioner’s account. The petitioner has been 4( 2025:HHC:23685 ) absconding since 13.02.2025. His custodial interrogation is required to know about the persons connected to the petitioner. Hence, the status report. 4. I have heard M/s. Dhiraj Thakur & Priyanka Chandel, learned counsel for the petitioner and Mr. Ajit Shamra, learned Deputy Advocate General, for the respondent-State. 5. Mr. Dhiraj Thakur, learned counsel for the petitioner, submitted that the petitioner is innocent and was falsely implicated. There is no evidence against the petitioner except the statement made by the co-accused, call detail record and financial transactions. These are insufficient to connect the petitioner with the commission of crime. Therefore, he prayed that the present petition be allowed and the petitioner be released on bail. Reliance was placed upon the judgment of this Court in Anshul Rana v. State of H.P. [2025:HHC11014], in support of his submission. 6. Mr. Ajit Sharma, learned Deputy Advocate General, for the respondent-State, submitted that the petitioner was involved in the sale of heroin/chitta. A huge amount of ₹1,07,000/- was transferred to the petitioner’s account by Rubal Thakur. The 5( 2025:HHC:23685 ) petitioner was in touch with Rubal Thakur, and their location was found at one place. All these circumstances are sufficient to further interrogate the petitioner. Hence, he prayed that the present petition be dismissed. 6. I have given considerable thought to the submissions made at the bar and have gone through the records carefully. 7. It was laid down by the Hon’ble Supreme Court in P. Chidambaram v. Directorate of Enforcement, (2019) 9 SCC 24: (2019) 3 SCC (Cri) 509: 2019 SCC OnLine SC 1143 that the power of pre- arrest bail is extraordinary and should be exercised sparingly. It was observed: “69. Ordinarily, arrest is a part of the procedure of the investigation to secure not only the presence of the accused but also several other purposes. Power under Section 438 Cr.P.C. is an extraordinary power, and the same has to be exercised sparingly. The privilege of pre-arrest bail should be granted only in exceptional cases. The judicial discretion conferred upon the court has to be properly exercised after application of mind as to the nature and gravity of the accusation; the possibility of the applicant fleeing justice and other factors are considered to decide whether it is a fit case for the grant of anticipatory bail. Grant of anticipatory bail to some extent interferes in the sphere of investigation of an offence, and hence, the court must be circumspect while exercising such power for the grant of anticipatory bail. Anticipatory bail is not to be granted as a matter of rule, and it has to be granted only when the court is 6( 2025:HHC:23685 ) convinced that exceptional circumstances exist to resort to that extraordinary remedy.” 8. It was held in P Chidambaram (supra) that economic offences are to be treated differently from other offences. It was observed: Economic offences 78. Power under Section 438 CrPC being an extraordinary remedy, has to be exercised sparingly; more so, in cases of economic offences. Economic offences stand as a different class as they affect the economic fabric of society. In Directorate of Enforcement v. Ashok Kumar Jain [Directorate of Enforcement v. Ashok Kumar Jain, (1998) 2 SCC 105: 1998 SCC (Cri) 510], it was held that in economic offences, the accused is not entitled to anticipatory bail. xxxxxx 80. Observing that an economic offence is committed with deliberate design with an eye on personal profit regardless of the consequence to the community, in State of Gujarat v. Mohanlal Jitamalji Porwal [State of Gujarat v. Mohanlal Jitamalji Porwal, (1987) 2 SCC 364: 1987 SCC (Cri) 364], it was held as under: (SCC p. 371, para 5) “5. … The entire community is aggrieved if the economic offenders who ruin the economy of the State are not brought to book. A murder may be committed in the heat of the moment, upon passions being aroused. An economic offence is committed with cool calculation and deliberate design with an eye on personal profit, regardless of the consequences to the community. A disregard for the interest of the community can be manifested only at the cost of forfeiting the trust and faith of the community in the system to administer justice in an even-handed manner without fear of criticism from the quarters which view white-collar crimes with a 7( 2025:HHC:23685 ) permissive eye, unmindful of the damage done to the national economy and national interest.” 81. Observing that economic offences constitute a class apart and need to be visited with a different approach in the matter of bail, in Y.S. Jagan Mohan Reddy v. CBI [Y.S. Jagan Mohan Reddy v. CBI, (2013) 7 SCC 439: (2013) 3 SCC (Cri) 552], the Supreme Court held as under: (SCC p. 449, paras 34-35) “34. Economic offences constitute a class apart and need to be viewed with a different approach in the matter of bail. The economic offences having deep-rooted conspiracies and involving huge loss of public funds need to be viewed seriously and considered as grave offences affecting the economy of the country as a whole and thereby posing a serious threat to the financial health of the country. 35. While granting bail, the court has to keep in mind the nature of accusations, the nature of evidence in support thereof, the severity of the punishment which conviction will entail, the character of the accused, circumstances which are peculiar to the accused, reasonable possibility of securing the presence of the accused at the trial, reasonable apprehension of the witnesses being tampered with, the larger interests of the public/State and other similar considerations.” (emphasis supplied) 82. Referring to Dukhishyam Benupani v. Arun Kumar Bajoria [Dukhishyam Benupani v. Arun Kumar Bajoria, (1998) 1 SCC 52: 1998 SCC (Cri) 261], in Directorate of Enforcement v. Bher Chand Tikaji Bora [Directorate of Enforcement v. Bher Chand Tikaji Bora, (1999) 5 SCC 720: 1999 SCC (Cri) 1045], while hearing an appeal by the Enforcement Directorate against the order [Bherchand Tikaji Bora v. State of Maharashtra, Criminal Application No. 2140 of 1998, decided on 21- 7-1998 (Bom)] of the Single Judge of the Bombay High Court granting anticipatory bail to the 8( 2025:HHC:23685 ) respondent thereon, the Supreme Court set aside the order of the Single Judge granting anticipatory bail. 9. This position was reiterated in Srikant Upadhyay v. State of Bihar, 2024 SCC OnLine SC 282, wherein it was held: “25. We have already held that the power to grant anticipatory bail is extraordinary. Though in many cases it was held that bail is said to be a rule, it cannot, by any stretch of the imagination, be said that anticipatory bail is the rule. It cannot be the rule, and the question of its grant should be left to the cautious and judicious discretion of the Court, depending on the facts and circumstances of each case. While called upon to exercise the said power, the Court concerned has to be very cautious, as the grant of interim protection or protection to the accused in serious cases may lead to a miscarriage of justice and may hamper the investigation to a great extent, as it may sometimes lead to tampering or distraction of the evidence. We shall not be understood to have held that the Court shall not pass interim protection pending consideration of such application as the Section is destined to safeguard the freedom of an individual against unwarranted arrest, and we say that such orders shall be passed in eminently fit cases.” 10. It was held in Pratibha Manchanda v. State of Haryana, (2023) 8 SCC 181: 2023 SCC OnLine SC 785 that the Courts should balance individual rights, public interest and fair investigation while considering an application for pre-arrest bail. It was observed: “21. The relief of anticipatory bail is aimed at safeguarding individual rights. While it serves as a crucial tool to prevent the misuse of the power of arrest and protects innocent 9( 2025:HHC:23685 ) individuals from harassment, it also presents challenges in maintaining a delicate balance between individual rights and the interests of justice. The tightrope we must walk lies in striking a balance between safeguarding individual rights and protecting public interest. While the right to liberty and presumption of innocence are vital, the court must also consider the gravity of the offence, the impact on society, and the need for a fair and free investigation. The court's discretion in weighing these interests in the facts and circumstances of each case becomes crucial to ensure a just outcome.” 11. It was laid down by the Hon’ble Supreme Court in State of Haryana v. Samarth Kumar, 2022 SCC OnLine SC 2087, that an accused dealing in narcotics should not be released on bail. It was observed: “9. To grant anticipatory bail in a case of this nature is not really warranted. Therefore, we are of the view that the High Court fell into an error in granting anticipatory bail to the respondents.” 12. The present is to be decided as per the parameters laid down by the Hon’ble Supreme Court. 13. A perusal of the status report shows that the petitioner was named by co-accused Rubal Thakur. His presence was found with Rubal Thakur as per the call detail record. Rubal Thakur had transferred ₹1,07,000/- to his account, and the petitioner & Rubal Thakur were found in touch with each other. All these circumstances, prima facie, show that there is sufficient material 10( 2025:HHC:23685 ) to further interrogate the petitioner for his involvement in the commission of the crime. 14. It was submitted that the statement made by the co- accused is not admissible. Reliance was placed upon the judgment of the Hon’ble Supreme Court in Tofan Singh Vs. State of Tamil Nadu 2021 4 SCC (1). The Hon’ble Supreme Court considered this judgment in Union of India vs Khaliludeen 2022 Supreme SC 1247 and denied bail to the accused, who was named by the co- accused. It was observed: - “8. The answer to said question could be the statement recorded by Md. Nizam Uddin. The statement of Md. Jakir Hussain, recorded under Section 67 of the act, has also named his owner Abdul Hai. We are conscious of the fact that the validity and scope of such statements under Section 67 have been pronounced upon by this Court in Tofan Singh vs. State of Tamil Nadu, (2021) 4 SCC 1. In State by (NCB) Bengaluru vs. Pallulabid Ahmad Arimutta and Another, 2022 Live Law (SC) 69, the rigour of law laid down by this Court in Tofan Singh was held to be applicable even at the stage of grant of bail. 9. However, going by the circumstances on record, at this stage, on the strength of the statement of Md. Nizam Uddin, though allegedly retracted later, the matter stands on a different footing. In our considered view, in the face of the mandate of Section 37 of the Act, the High Court could not and ought not to have released the accused on bail. We, therefore, allow these appeals, set aside the view taken by the High Court and direct that both the appellants be taken in custody forthwith”. 11( 2025:HHC:23685 ) 15. This position was reiterated in Union of India v. Ajay Kumar Singh, 2023 SCC OnLine SC 346, wherein it was held: “11. The information revealed by the above two accused persons indicated that both of them knew the respondent- accused and that they had connived with him to transport the illicit ganja, and that they were in direct contact with the respondent-accused all through his mobile number. The facts as unfurled from the complaint/FIR and the statements of the above two accused persons recorded under Section 67 of the NDPS Act reveal that the respondent-accused is the kingpin and the organiser of the illicit trade in ganja xxxx 17. The quantity of “ganja” recovered is admittedly of commercial quantity. The High Court has not recorded any finding that the respondent-accused is not prima facie guilty of the offence alleged and that he is not likely to commit the same offence when enlarged on bail; rather, his antecedents are indicative that he is a regular offender. In the absence of a recording of such satisfaction by the court, we are of the opinion that the High Court manifestly erred in enlarging the respondent-accused on bail. 16. It was held by the Hon’ble Supreme Court in State of Haryana v. Samarth Kumar, 2022 SCC OnLine SC 2087, that the accused cannot be released on pre-arrest bail relying upon the judgment in Tofan Singh (supra). It was observed: “4. The High Court decided to grant pre-arrest bail to the respondents on the only ground that no recovery was effected from the respondents and that they had been implicated only on the basis of the disclosure statement of the main accused, Dinesh Kumar. Therefore, reliance was 12( 2025:HHC:23685 ) placed by the High Court in the majority judgment of this Court in Tofan Singh v. State of Tamil Nadu, (2021) 4 SCC 1. xxxxx 8. In cases of this nature, the respondents may be able to take advantage of the decision in Tofan Singh v. State of Tamil Nadu (supra), perhaps at the time of arguing the regular bail application or at the time of final hearing after the conclusion of the trial. 9. To grant anticipatory bail in a case of this nature is not really warranted. Therefore, we are of the view that the High Court fell into an error in granting anticipatory bail to the respondents.” (Emphasis supplied) 17. These judgments were followed by this Court in Rajesh Kumar v. State of H.P., Cr.MP(M) No. 458 of 2025, decided on 25.3.2025, and it was held that the pre-arrest bail can be denied to a person named by the co-accused to enable the police to interrogate the petitioner. An SLP No. 55547 of 2025 titled Rajesh Kumar Vs. State of H.P. against this order was withdrawn on 21.4.2025. It was held by this Court in Jatinder Pal Singh vs. State of HP 2025:HHC:20446 that a person named by the co-accused is not entitled to pre-arrest bail. This order was upheld by the Hon’ble Supreme Court in Jatinder Pal Singh vs. State of HP Petition for Special Leave to Appeal (Crl.) No. 9629/2025 decided on 10.07.2025. 13( 2025:HHC:23685 ) 18. Thus, the submission that the statement made by the co-accused is insufficient to justify the pre-trial detention of the petitioner cannot be accepted. 19. It was submitted that the custodial interrogation of the petitioner is required for ascertaining the names of the persons to whom the heroin has been sold by the petitioner. This submission is to be accepted as correct. It was laid down by the Hon’ble Supreme Court in State Versus Anil Sharma (1997) 7 SCC 187 that where custodial interrogation is required, pre-arrest bail should not be granted. It was observed: - “6. We find force in the submission of the CBI that custodial interrogation is qualitatively more elicitation- oriented than questioning a suspect who is well-ensconced with a favourable order under Section 438 of the Code. In a case like this, effective interrogation of a suspected person is of tremendous advantage in disinterring many useful information and also materials which would have been concealed. Success in such interrogation would elude if the suspected person knows that he is well protected and insulated by a pre-arrest bail order during the time he is interrogated. Very often, interrogation in such a condition would reduce to a mere ritual. The argument that the custodial interrogation is fraught with the danger of the person being subjected to third-degree methods need not be countenanced, for such an argument can be advanced by all accused in all criminal cases. The Court has to presume that responsible Police Officers would conduct themselves in a responsible manner and that those entrusted with the 14( 2025:HHC:23685 ) task of disinterring offences would not conduct themselves as offender” 20. A similar view was taken by the Delhi High Court in Mukesh Khurana v. State (NCT of Delhi), 2022 SCC OnLine Del 1032, wherein it was observed: - “13. One of the significant factors in determining this question would be the need for custodial interrogation. Without a doubt, custodial interrogation is more effective to question a suspect. The cocoon of protection afforded by a bail order insulates the suspect, and he could thwart interrogation, reducing it to futile rituals. But it must also be kept in mind that while interrogation of a suspect is one of the basic and effective methods of crime solving, the liberty of an individual also needs to be balanced out.” 21. It was held in P Chidambaram (supra) that the grant of pre-arrest bail may hamper the investigations. It was observed: “83. Grant of anticipatory bail at the stage of investigation may frustrate the investigating agency in interrogating the accused and in collecting useful information, and also the materials which might have been concealed. Success in such interrogation would elude if the accused knows that he is protected by the order of the court. Grant of anticipatory bail, particularly in economic offences, would definitely hamper the effective investigation. Having regard to the materials said to have been collected by the respondent Enforcement Directorate and considering the stage of the investigation, we are of the view that it is not a fit case to grant anticipatory bail.” 18. It was held by the Hon’ble Supreme Court in State of Haryana v. Samarth Kumar, 2022 SCC OnLine SC 2087, that the 15( 2025:HHC:23685 ) Courts should not grant bail in cases under the NDPS Act. It was observed: “9. To grant anticipatory bail in a case of this nature is not really warranted. Therefore, we are of the view that the High Court fell into an error in granting anticipatory bail to the respondents.” 22. In view of the above, the present petitioner is not entitled to the concession to pre-arrest bail; hence, the present petition fails and the same is dismissed. 23. The observation made herein before shall remain confined to the disposal of the instant petition and will have no bearing, whatsoever, on the merits of the case. (Rakesh Kainthla) Judge 22nd July, 2025 (Shamsh Tabrez)