Neutral Citation No. ( 2025:HHC:20105 ) IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. MP(M) No. 1049 of 2025 Reserved on: 19.06.2025 Date of Decision: 27.06.2025. Kamal 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 : Mr. Sanjeev Kumar Suri, Advocate. For the Respondent : Mr. Jitender Sharma, Deputy Advocate General. Rakesh Kainthla, Judge The petitioner has filed the present petition for seeking regular bail in FIR No. 12/2025 dated 26.01.2025 registered at police station Haroli, District Una, H.P., for the commission of an offence punishable under Section 21 of the Narcotic Drugs and Psychotropic Substances Act (in short ‘NDPS Act’). It has been asserted that, according to the prosecution, the police party intercepted a vehicle bearing registration number PB-10DZ-4606 on 25.01.2025 and recovered 31.60 grams of 1 Whether reporters of Local Papers may be allowed to see the judgment? Yes. 2 Neutral Citation No. ( 2025:HHC:20105 ) heroin from it. Kamal Kumar and Rahul Dhiman were travelling in the vehicle. Police arrested them and seized the heroin. The investigation is complete. The challan has been filed. The petitioner has been in custody since 26.01.2025. No fruitful purpose would be served by detaining the petitioner in custody. He would abide by all the terms and conditions, which the Court may impose. The quantity of heroin stated to have been recovered from the petitioner’s possession is intermediate, and the rigors of Section 37 of the NDPS Act do not apply to the present case; hence, it was prayed that the present petition be allowed and the petitioner be released on bail. 2. The petition is opposed by filing a status report asserting that the police party was on a patrolling duty on 25.01.2025. The police received a secret information that Kamal Kumar and Rahul Dhiman were transporting the heroin in the vehicle bearing registration No. PB-10DZ-4606, and in case of search, a huge quantity of heroin could be recovered. The information was credible. It was reduced to writing and was sent to the Supervising Officer. Sanjeev Kumar and Yashpal Singh were associated, and the vehicle was intercepted in their presence at 3 Neutral Citation No. ( 2025:HHC:20105 ) 9:56 pm. The driver identified himself as Kamal Kumar, and the person sitting beside the driver revealed his name as Rahul. The police checked the vehicle in the presence of the independent witnesses and recovered a lighter and a transparent pouch containing burnt currency of ₹ 10/-. An electronic weighing scale and a polythene bag were found beneath the driver’s seat. The packet was checked, and it was found to contain 31.60 grams of heroin. The heroin was seized, and the occupants of the vehicle were arrested. The heroin was sent to FSL, and as per the result, it was found to be Diacetylmorphine (heroin). The challan was prepared and filed before the Court on 24.03.2025. The matter was listed for consideration of the charge on 24.06.2025. Petitioner-Kamal Kumar was found involved in FIR No. 227/2020 dated 28.10.2020. He would indulge in the commission of a similar offence in case of his release on bail, hence, the status report. 3. I have heard Mr. Sanjeev Kumar Suri, learned counsel for the petitioner, and Mr. Jitender Sharma, learned Additional Advocate General, for the respondent/State. 4 Neutral Citation No. ( 2025:HHC:20105 ) 4. Mr. Sanjeev Kumar Suri, learned counsel for the petitioner, submitted that the petitioner is innocent and was falsely implicated. There is nothing to connect him with the commission of the crime. The recovery was effected from the driver's seat, and the petitioner cannot be connected to the same. The quantity of the heroin stated to have been recovered is intermediate, and the petitioner is entitled to bail as a matter of right; therefore, he prayed that the present petition be allowed and that the petitioner be released on bail. 5. Mr. Jitender Sharma, learned Additional Advocate General, for the respondent/State, submitted that the petitioner has criminal antecedents. He was found in possession of heroin, which is affecting the younger generation adversely. No sympathy should be shown to 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. The parameters for granting bail were considered by the Hon’ble Supreme Court in Ajwar v. Waseem (2024) 10 SCC 768: 5 Neutral Citation No. ( 2025:HHC:20105 ) 2024 SCC OnLine SC 974, wherein it was observed at under page 783: - “Relevant parameters for granting bail 26. While considering 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 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] .] 8. 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 6 Neutral Citation No. ( 2025:HHC:20105 ) 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 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 7 Neutral Citation No. ( 2025:HHC:20105 ) 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 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) 9. This position was reiterated in Shabeen Ahmed versus State of U.P., 2025 SCC Online SC 479. 10. The present petition has to be decided as per the parameters laid down by the Hon’ble Supreme Court. 8 Neutral Citation No. ( 2025:HHC:20105 ) 11. A perusal of the status report shows that the petitioner was found in the vehicle bearing registration No. PB-10DZ-4606 from which 31.60 grams of heroin were 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 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 9 Neutral Citation No. ( 2025:HHC:20105 ) 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)] .) 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.” 10 Neutral Citation No. ( 2025:HHC:20105 ) 12. The petitioner was travelling in the vehicle from which recovery was effected; hence, he was prima facie in possession of heroin. 13. The status report shows that FIR No.227/2020 was registered against the petitioner. Learned counsel for the petitioner submitted that the petitioner was convicted and sentenced to undergo imprisonment already undergone as an undertrial prisoner. He filed a downloaded copy of the judgment in support of this submission. The downloaded copy of the order shows that the petitioner was convicted of the commission of an offence punishable under Section 22(b) of NDPS Act and was sentenced to undergo rigorous imprisonment for one month, pay a fine of ₹ 5,000/- and in default of payment of fine to further undergo rigorous imprisonment for 10 days. Thus, the petitioner was found guilty by the competent court, which shows that the petitioner has criminal antecedents, and the apprehension expressed by the State that he is likely to commit similar offences in case of his release on bail has some basis.This Court exhaustively dealt with the relevance of criminal antecedents in Aminodin vs State of H.P. 2024: HHC: 6091 and held, after referring 11 Neutral Citation No. ( 2025:HHC:20105 ) to various judgments, that a Judge must consider the criminal antecedents of the accused, the nature of such offences, and his general conduct while considering the bail petition. The bail should not be generally granted to an accused having criminal antecedents when there is a likelihood of the commission of the crime. 14. It was held in V. Senthil Balaji v. Enforcement Directorate, 2024 SCC OnLine SC 2626, that where the petitioner can become a threat to society because of his criminal antecedents, he should not be released on bail. It was observed: “27…..An exception will also be in a case where, considering the antecedents of the accused, there is every possibility of the accused becoming a real threat to society if enlarged on bail. The jurisdiction to issue prerogative writs is always discretionary.” 15. Similarly, it was held in Union of India v. Barakathullah, 2024 SCC OnLine SC 1019, that where the persons were involved in the commission of an offence, similar offences, they should not be released on bail. It was observed: - “20. … So far as the respondents in the instant appeals are concerned, they are in custody for hardly one and a half years, apart from the fact that all the respondents are shown to have been involved in previous cases. There are about 8 to 9 previous cases shown in the chargesheet against the respondents, except accused Nos. 1, 4, and 6, who are shown 12 Neutral Citation No. ( 2025:HHC:20105 ) to have been involved in two cases. Considering the nature and gravity of the alleged offences and considering their criminal antecedents, in our opinion High Court should not have taken a lenient view, more particularly when there was sufficient material to show their prima facie involvement in the alleged offences under the UAPA. 16. Keeping in view the criminal antecedents, the possibility of the petitioner committing the crime cannot be ruled out; hence, he is not entitled to the concession of bail. 17. In view of the above, the present petition fails and the same is dismissed. 18. 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 27th June, 2025 (saurav pathania)