2025:HHC:19441 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.MP(M) No.1036 of 2025 Reserved on : 19.06.2025 Decided on : 24.06.2025 Samrit Dhiman …Applicant Versus State of Himachal Pradesh …Respondent Coram The Hon’ble Mr. Justice Virender Singh, Judge. Whether approved for reporting?1 For the applicant : Mr. Rajiv Rai, Advocate. For the respondent : Mr. Tejasvi Sharma and Mr. H.S. Rawat, Additional Advocates General with Ms. Ranjna Patial, Deputy Advocate General. Virender Singh, Judge By way of the present application, filed under Section 483 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (hereinafter referred to as ‘BNSS’), applicant-Samrit Dhiman has sought his release, on bail, during the pendency of the trial, arising out of FIR No.81 of 2023, dated 06.08.2023, registered under Sections 20 and 29 of the Narcotic Drugs & Psychotropic Substances Act (hereinafter referred to as the ‘NDPS Act’), with Police Station Swarghat, District Bilaspur, H.P. 1Whether Reporters of local papers may be allowed to see the judgment? Yes. 2 2025:HHC:19441 2. According to the applicant, he is innocent person and has falsely been arrested by the police, in the present case. 3. It has been averred in the application that the applicant is in judicial custody for the last 1 year and 9 months and according to the applicant, the chances of conclusion of trial, against him, are not so bright, as, only 8 prosecution witnesses have been examined so far. 4. Highlighting the statements of PW-1 Anil Kumar, as well as, PW-8 HHG Banta Singh, recorded before the learned trial Court, it has been pleaded that both these witnesses have not supported the case of the prosecution and have turned hostile. 5. On the basis of the evidence of the above two witnesses, it is the case of the applicant that now, it is evident that he has falsely been implicated and arrested, in this case. He has termed the case of the prosecution as highly improbable. 6. Besides this, it has been pleaded that at the relevant time, the applicant was working in United Arab Emirates (UAE) and this fact has been highlighted to show that it is highly improbable for the applicant to involve in 3 2025:HHC:19441 such a heinous offence by giving up his lucrative career in UAE. 7. According to the applicant, he had earlier tried his luck by moving similar application, before the Court of learned Special Judge, Ghumarwin, District Bilaspur, Himachal Pradesh. However, the same was dismissed vide order dated 15.03.2025. 8. The relief of bail has also been sought on the ground that after examining 8 prosecution witnesses, the applicant is able to fulfill the conditions, as enumerated, under Section 37 of the NDPS Act, as, PW-1 and PW-8 have not supported the case of the prosecution. 9. Apart from this, Mr. Rajiv Rai, learned counsel, appearing for the applicant, has given certain undertakings, on behalf of the applicant, for which, the applicant is ready to abide by, in case, ordered to be released, on bail, during the pendency of the trial. 10. Along with the application, statements of all the 8 prosecution witnesses, who have been examined, before the learned trial Court, have also been annexed. 11. Reasserting the claim of the applicant that he has falsely been implicated in this case, a prayer has been 4 2025:HHC:19441 made to release him on bail, during the pendency of the trial, by allowing the bail application. 12. When, put to notice, the police has filed the status report disclosing therein, that on 06.08.2023, HC Samad No.8, I/O ANTF, Kullu, has submitted the ruqqa to Police Station Swarghat, District Bilaspur, H.P., mentioning therein, that on 06.08.2023, IO, along with other police officials, was present at Kenchi Morh, Swarghat for picketing duty. They were checking the vehicles, as well as, the luggage of the persons, travelling in the vehicles. 12.1. It is the case of the police that at about 01:00 am, a Volvo bus came from Swarghat side, which was signaled with the help of torch and asked to stop, upon which, the bus driver stopped the bus on the left side of the road. The registration number of the bus was found to be HR38-AA-9099, colour white. Subsequently, police party entered into the bus from the front door and introduced themselves to the bus conductor, who told them that there were 41 passengers, 1 bus driver and 1 conductor, in the bus and the bus was going from Manali- Raison to Delhi. 5 2025:HHC:19441 12.2. It is the case of the police that when, the IO reached the last seat of the bus, he noticed that a person, sitting on Seat No.37(W) was trying to avoid eye contact and when, his name was enquired, he got perplexed and tried to hide the bag with his hands, which was lying between his legs. His activity raised a suspicion in the mind of the IO that the said bag might be containing some illegal articles. Thereafter, IO requested the passengers, sitting in the bus, to be the independent witnesses, but, all of them had shown their inability to do so. Consequently, the driver and conductor of the bus were apprised about the factual position and they were associated in the team as independent witnesses. 12.3. It is the case of the police that thereafter, name and address of the person, sitting on Seat No.37(W), were ascertained, who, on enquiry, disclosed his name as Samrit, S/o Manish Dhiman, R/o 623, Green Field, Majitha Road, PS Sadar, District Amritsar, Punjab (applicant). In the presence of the independent witnesses, the bag, which the applicant had kept near his legs, was taken out and on opening, the same was found to be consisting of 14 transparent plastic wrapped packets, 6 2025:HHC:19441 containing black coloured substance. When, one packet was opened, on the basis of the smelling and experience, the same was found to be containing charas/cannabis. Thereafter, on weighment, the 14 pancake-shaped substances were found to be 1.495 kg, which were taken into possession. Other codal formalities were completed. 12.4. On the basis of above facts, police registered the FIR in question and applicant was arrested. 12.5. During the investigation, involvement of Mani Keshar and Prakart Sanan @Preet was also found. But, till date, according to the status report, they have not been arrested. However, against the applicant, charge-sheet has been prepared and submitted in the competent Court of law, in which, the competent Court of law has taken the cognizance and charges have been framed against him. Out of total 20 prosecution witnesses, 8 prosecution witnesses have already been examined and the case is now stated to have been listed for further prosecution evidence. 13. On the basis of above facts, a prayer has been made to dismiss the application. 14. Admittedly, the contraband, which has allegedly been recovered, in the present case, falls within the 7 2025:HHC:19441 definition of ‘commercial quantity’. Once, this fact has been stated by the police in the status report, then, admittedly, rigors of Section 37 of the NDPS Act are applicable in the present case. 15. When, rigors of Section 37 of the NDPS Act are applicable, in that eventuality, before releasing the applicant, on bail, it is incumbent upon this Court to give findings, with regard to fulfillment of twin conditions, as enumerated, under Section 37(b) of the NDPS Act. These conditions are (i) that the applicant has not committed the offence, for which, he has been arrested, and (ii) that while on bail, he will not commit any offence. The existence of the twin conditions, in favour of the applicant, is a sine qua non for releasing a person, involving in commercial quantity of contraband. 16. A futile attempt has been made by the learned counsel for the applicant to record the said finding, on the basis of the evidence of PW-1 and PW-8, as recorded, before the learned trial Court. Copies of the statements of PW-1 and PW-8 have been annexed with the application. 17. In such situation, the material question, which arises for determination, before this Court, is as to whether 8 2025:HHC:19441 the prerogative of the learned trial Court to consider the evidence of the hostile witness can be taken away by this Court while giving the finding, with regard to the existence of the twin conditions in favour of the applicant. The answer to this question is in negative. 18. The evidence of the hostile witness does not efface from the record and it is the sole prerogative of the learned trial Court to consider the evidence and the powers of the learned trial Court to consider the evidence, so adduced by the prosecution, cannot be usurped by this Court, while deciding the question of bail. 19. In other words, the evidence of the hostile witness does not become useless and to the extent, it supports the case of the prosecution, the same can be taken into consideration by the learned trial Court. 20. Even otherwise, at this stage, on the basis of the statements of the above two witnesses i.e. PW-1 and PW-8, it is not possible for this Court to record the positive finding that the applicant has not committed the offence, nor he will commit any offence, in case, he is ordered to be released on bail. 9 2025:HHC:19441 21. The view of this Court is being guided by the decision of the Hon’ble Supreme Court in Criminal Appeal No.5544 of 2024, titled as ‘Narcotics Control Bureau versus Kashif’, Neutral Citation No.2024 INSC 1045, wherein, it has been held that in case of commercial quantity of the contraband, the accused shall generally be not released on bail, until or unless, the conditions, as per Section 37 of the NDPS Act, are held to be existed in favour of the applicant. Relevant paragraphs 8 and 39 of the said judgment are reproduced, as under:- “8. There has been consistent and persistent view of this Court that in the NDPS cases, where the offence is punishable with minimum sentence of ten years, the accused shall generally be not released on bail. Negation of bail is the rule and its grant is an exception. While considering the application for bail, the court has to bear in mind the provisions of Section 37 of the NDPS Act, which are mandatory in nature. The recording of finding as mandated in Section 37 is a sine qua non for granting bail to the accused involved in the offences under the said Act. Apart from the granting opportunity of hearing to the Public Prosecutor, the other two conditions i.e., (i) the satisfaction of the court that there are reasonable grounds for believing that the accused is not guilty of the alleged offence and that (ii) he is not likely to commit any offence while on bail, are the cumulative and not alternative conditions. xxx xxx xxx xxx 39. The upshot of the above discussion may be summarized as under: 10 2025:HHC:19441 (i) The provisions of NDPS Act are required to be interpreted keeping in mind the scheme, object and purpose of the Act; as also the impact on the society as a whole. It has to be interpreted literally and not liberally, which may ultimately frustrate the object, purpose and Preamble of the Act. (ii) While considering the application for bail, the Court must bear in mind the provisions of Section 37 of the NDPS Act which are mandatory in nature. Recording of findings as mandated in Section 37 is sine qua non is known for granting bail to the accused involved in the offences under the NDPS Act. (iii) The purpose of insertion of Section 52A laying down the procedure for disposal of seized Narcotic Drugs and Psychotropic Substances, was to ensure the early disposal of the seized contraband drugs and substances. It was inserted in 1989 as one of the measures to implement and to give effect to the International Conventions on the Narcotic drugs and psychotropic substances. (iv) Sub-section (2) of Section 52A lays down the procedure as contemplated in sub-section (1) thereof, and any lapse or delayed compliance thereof would be merely a procedural irregularity which would neither entitle the accused to be released on bail nor would vitiate the trial on that ground alone. (v) Any procedural irregularity or illegality found to have been committed in conducting the search and seizure during the course of investigation or thereafter, would by itself not make the entire evidence collected during the course of investigation, inadmissible. The Court would have to consider all the circumstances and find out whether any serious prejudice has been caused to the accused. (vi) Any lapse or delay in compliance of Section 52A by itself would neither vitiate the trial nor would entitle the accused to be released on bail. The Court will have to consider other circumstances and the other primary evidence collected during the course of investigation, as 11 2025:HHC:19441 also the statutory presumption permissible under Section 54 of the NDPS Act.” (self-emphasis supplied) 22. In view of the above discussions, at this stage, it cannot be said that the applicant has not committed the offence, nor it can be said that in case, he is ordered to be released on bail, he will not commit any offence. 23. In the absence of the twin conditions, as enumerated, under Section 37(1)(b) of the NDPS Act, this Court cannot accept the arguments of learned counsel, appearing for the applicant, who has sought the release of the applicant, on bail, during the pendency of the trial. 24. Another ground, which has been put forward, is the period of detention of the applicant. The applicant, in this case, was arrested on 06.08.2023 and out of total 20 prosecution witnesses, 8 prosecution witnesses have already been examined. In such situation, the delay cannot be said to be undue delay in the conclusion of trial. 25. Keeping in view the pace of the trial, this Court is little bit hesitant to say that there is undue delay in the trial against the applicant. 26. In view of the decision of the Hon’ble Supreme Court in Kashif’s case (supra), the case law, relied upon by 12 2025:HHC:19441 the applicant i.e. CrMP(M) No.2898 of 2022, titled as ‘Randhir Singh Vs. State of H.P.’, laid down by this Court, in no way, helps the case of the applicant, as, at this stage, it is not possible for this Court to record the finding with regard to the fact that the applicant has not committed any offence, nor the applicant will commit any offence, in case, he is released on bail. As such, no benefit could be derived by the applicant from the said case law. 27. So far as the other case law, which has been relied upon by the learned counsel for the applicant i.e. Special Leave to Appeal (Crl.) No.4173 of 2022, titled as ‘Shariful Islam @Sarif Vs. The State of West Bengal’, is concerned, with due respect to the law, laid down by the Hon’ble Supreme Court, no benefit could be derived by the applicant from the said case law, as, the facts and circumstances of the said case are entirely different. 28. In view of the discussions, made hereinabove, this Court is of the opinion that the applicant is not able to make out a case for his release on bail. 29. Consequently, the present bail application is dismissed. 13 2025:HHC:19441 30. Any of the observations, made hereinabove, 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. ( Virender Singh ) Judge June 24, 2025 ( Gaurav Thakur )