2025:HHC:16064 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. MP (M) Nos. 1004 & 1005 of 2025 Reserved on: 14.05.2025 Date of Decision: 27.05.2025. 1. Cr.MP(M) No. 1004 of 2025 Sanjay Kumar ...Petitioner Versus State of Himachal Pradesh ...Respondent 2. Cr.MP(M) No. 1005 of 2025 Asim Kumar ...Petitioner Versus State of Himachal Pradesh ...Respondent Coram Hon’ble Mr Justice Rakesh Kainthla, Judge. Whether approved for reporting?1 No. For the Petitioner(s) : Mr. Vijender Katoch, Advocate, in both the petitions. For the Respondent(s) : Mr. Lokender Kutlehria, Additional Advocate General, in both the petitions. Rakesh Kainthla, Judge The present 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:16064 2. The petitioners have filed the present petitions for seeking regular bail in FIR No. 191 of 2024, dated 14.11.2024, registered for the commission of offences punishable under Sections 21 and 29 of the Narcotic Drugs and Psychotropic Substances (NDPS) Act, at Police Station, Kangra, H.P. As per the prosecution, the police party intercepted a vehicle bearing registration No. HP-40A-8578 and recovered 5.77 grams of heroin. The petitioners were present in the vehicle. The petitioners are innocent, and they were falsely implicated. The investigation is complete, and no recovery was effected from the petitioners. The petitioners would abide by the terms and conditions which the Court may impose. Hence, the petitions. 3. The petitions are opposed by filing a status report asserting that the police party was on patrolling duty on 14.11.2024. They found a vehicle bearing registration No. HP-40A-8578 parked near Smella Railway Station, Link Road, at 6:30 p.m. The police went to the vehicle and found that three people were sitting in it. They could not give any satisfactory reason for parking the vehicle. The police checked the vehicle in the presence of Ajay Kumar and Anil Kumar and found 5.77 grams of heroin inside the dashboard. The driver 3 2025:HHC:16064 revealed his name as Ravinder Kumar. The person sitting beside him revealed his name as Aseem, and the person sitting in the rear seat revealed his name as Sanjay Kumar. The police arrested the occupants of the vehicle and seized the heroin. The heroin was sent to SFSL Junga for chemical analysis and found to contain Diacetylmorphine (heroin). The petitioner would indulge in the commission of similar offences, and he would intimidate the witnesses on his release on bail. Hence, the status report. 4. I have heard Mr. Vijender Katoch, learned counsel for the petitioners and Mr. Lokender Kutlehria, learned Additional Advocate General, for the respondent/State. 5. Mr. Vijender Katoch, learned counsel for the petitioners, submitted that the petitioners are innocent and they were falsely implicated. The quantity of the heroin stated to have been found in the vehicle is slightly more than a small quantity, and the rigours of Section 37 of the ND&PS Act do not apply to the present case. The petitioners have no criminal antecedents, and they should be allowed to reform themselves. Therefore, he prayed that the present petitions be allowed and the petitioners be released on bail. 4 2025:HHC:16064 6. Mr. Lokender Kutlehria, learned Additional Advocate General for the respondent-State, submitted that the petitioners are involved in the commission of the heinous offence and no leniency should be shown to them. Therefore, he prayed that the present petitions be dismissed. 7. I have given considerable thought to the submissions made at the bar and have gone through the records carefully. 8. The parameters for granting bail were considered by the Hon’ble Supreme Court in Ajwar v. Waseem (2024) 10 SCC 768: 2024 SCC OnLine SC 974, wherein it was observed at page 783: - “Relevant parameters for granting bail 26. While considering 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 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 5 2025:HHC:16064 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 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 6 2025:HHC:16064 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 possibility of securing the presence of the accused at the 7 2025:HHC:16064 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 petitioners were found present in the vehicle bearing registration No. HP- 40A-8578 from which 5.77 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 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 8 2025:HHC:16064 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 of 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: 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)] .) 9 2025:HHC:16064 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. The petitioners were travelling in the vehicle from which recovery was effected; hence, the petitioners were prima facie in possession of heroin. 14. The petitioners have specifically asserted that no case was registered against them. This was not stated to be incorrect in the status report. 15. The petitioners were found in possession of 5.77 grams of heroin, which is slightly more than the small quantity and the rigours of Section 37 of NDPS Act do not apply to the present case. 16. The plea of the petitioners that they should be given a chance to reform themselves is to be accepted as correct. In the 10 2025:HHC:16064 absence of any previous history, the petitioners should not be detained in custody, as doing so will expose them to hardened criminals, and their chances of reformation would become bleak. 17. It was submitted that the petitioners are permanent residents of District Kangra, and this was not stated to be incorrect. It means that the petitioners have roots in society, and there is no chance of their absconding. 18. It was submitted that the petitioners would intimidate the witnesses in case of their release on bail, and the bail should not be granted to them. This apprehension is not sufficient to deny bail to the petitioners, and it can be removed by imposing conditions. 19. 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 ₹25,000/- 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. 11 2025:HHC:16064 (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 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. 20. 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. 21. The observations made here-in-above are regarding the disposal of the petitions and will have no bearing, whatsoever, on the case's merits. 22. The petitions stand accordingly disposed of. A copy of this order be sent to the Jail Superintendent of Lala Lajpat Rai 12 2025:HHC:16064 District Air Correctional Home, Dharamshala, District Kangra, H.P. and the learned Trial Court by FASTER. 23. 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 27th May, 2025 (Chander) Digitally signed by KARAN SINGH GULERIA Date: 2025.05.27 11:32:53 IST