Extracted from the PDF above. The PDF is authoritative.
2025:HHC:15446 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.MP(M) No.1065 of 2025 Reserved on : 16.05.2025 Decided on : 23.05.2025 Anita Devi …Applicant Versus State of Himachal Pradesh
…Respondent Coram The Hon’ble Mr. Justice Virender Singh, Judge. Whether approved for reporting?1 For the applicant : Ms. Deepmala Sharma, Advocate. For the respondent : Mr. Mohinder Zharaick, Additional Advocate General assisted by ASI Shesh Raj, Police Station Sadar, Kullu. 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’), applicantAnita Devi has sought her release, on bail, during the pendency of the trial, arising out of FIR No.344 of 2023, dated 03.12.2023, registered under Section 20 of the Narcotic Drugs & Psychotropic Substances Act (hereinafter referred 1Whether Reporters of local papers may be allowed to see the judgment? Yes. 2 2025:HHC:15446
to as the ‘NDPS Act’), with Police Station Kullu, District Kullu, H.P.
2. According to the applicant, she has falsely been implicated, in the present case and has nothing to do with the offence, for which, she has been arrested by the police. 3. As per the applicant, she has no concern whatsoever with the alleged recovery of the contraband i.e. charas, weighing 6.130 kg. 4. It has been averred in the application that investigation, in the present case, is complete and till date, out of 18 prosecution witnesses, only 3 prosecution witnesses could have been examined and now, the case is stated to have been fixed for PWs. 4.1. All these facts have been highlighted to show that on account of undue delay in the conclusion of trial, against the applicant, she is entitled for the relief, as claimed in the application. 5. Apart from this, the applicant has put forth the plea that she is a poor lady and is single mother of two children i.e. 4 years’ boy and 7 years’ girl and the sole breadearner of her family. 3 2025:HHC:15446
6. The applicant has also highlighted the fact that except the present case, no other case has been registered against her, to plead that she is a lawabiding person. 7. Apart from this, Ms.
Deepmala Sharma, 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. 8. According to the applicant, she had earlier tried her luck by moving similar application, before the Court of learned Special JudgeII, Kullu, District Kullu, Himachal Pradesh. However, the same was dismissed vide order dated 27.02.2025. 9. On the basis of the above facts, a prayer has been made to release the applicant on bail, during the pendency of the trial, by allowing the bail application. 10. When, put to notice, the police has filed the status report disclosing therein, that on 03.12.2023, HC Ranjan No.27, along with other police officials, was on traffic checking duty and duty to put picketing. On that day, at about 09:00 am, when, IO was present at Kenchi
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Morh, Dhunkra, he noticed a Nepali woman, walking on foot from Jeri to Dhunkra side. She was having carry bag in her right hand, who, on seeing the police party, got perplexed and turned back and moved towards Jeri side. Due to her said activity, a suspicion developed in the mind of the IO that she might be having some objectionable item in her possession. As such, she was nabbed. 10.1. It is the case of the police that subsequently, enquiry, regarding the said carry bag, was made from the applicant, however, she could not give satisfactory answer about the same and got perplexed. Thereafter, IO associated the driver of taxi No.HP01K8185, namely Balak Ram, who was passing through there, as independent witness. HHC Gama Devi has also been associated in the investigation as independent witness. Thereafter, name and address of the said lady, who was nabbed, were enquired, who, on enquiry, disclosed her name as Anita Devi, W/o Lal Bahadur, R/o Village Aurjal, District Rukma Aanchal, Nepal (applicant).
10.2. Thereafter, the carry bag, which was in applicant’s hand, was checked and on opening, the same
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was found to be containing black coloured substance, which, on weighing, was found to be 6.130 kg of charas and the same was taken into possession. Other codal formalities were completed. 10.3. On the basis of above facts, police registered the FIR in question and applicant was arrested. 10.4. Subsequently, the contraband, so recovered, was sent to SFSL, Junga, after complying with the provisions of Section 52A of the NDPS Act and police has received the positive report. Thereafter, police has prepared the challan and filed the same in the Court of learned Special Judge, Kullu. 10.5. In the status report, it has been mentioned that out of total 18 prosecution witnesses, 3 prosecution witnesses have already been examined and now, the case is stated to be fixed for 19/20.06.2025 for examining PWs 5, 9, 10, 11 and 12. 11. On the basis of above facts, a prayer has been made to dismiss the application. 12. In this case, the police has filed the charge sheet in the competent Court of law, on 22.02.2024,
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whereas, FIR, in this case, has been registered only on
03.12.2023. Keeping in view the said fact, it cannot be said that there is any delay in the trial. 13. Admittedly, the contraband, which has allegedly been recovered, in the present case, falls within the 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. 14. 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 fulfilment 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, she has been arrested, and (ii) that while on bail, she will not commit any offence. 15. 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
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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: (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
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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) Subsection (2) of Section 52A lays down the procedure as contemplated in subsection (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 also the statutory presumption permissible under Section 54 of the NDPS Act.”
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(selfemphasis supplied)
16. 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, she is ordered to be released on bail, she will not commit any offence. 17. 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. 18. Considering all these facts, this Court is of the view that the applicant is not able to make out a case for her release on bail. 19. Consequently, the present bail application is dismissed. 20. 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 May 23, 2025 ( Gaurav Thakur )