Neutral Citation No. ( 2025:HHC:21186 ) IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. MP(M) No. 1261 of 2025 Reserved on: 27.6.2025 Date of Decision: 04.07.2025. Rafi Mohammad ...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. Sudhir Bhatnagar, Advocate. For the Respondent : Mr. Ajit Sharma, Deputy Advocate General. Rakesh Kainthla, Judge The petitioner has filed the present petition for seeking regular bail in FIR No. 231 of 2023, dated 04.08.2023, registered at Police Station Kullu, District Kullu, H.P., for the commission of an offence punishable under Sections 20 and 29 of the Narcotic Drugs and Psychotropic Substances Act (in short ‘NDPS Act’). 2. It has been asserted that the petitioner is innocent and was falsely implicated. As per the prosecution, the police party 1 Whether reporters of Local Papers may be allowed to see the judgment? Yes. 2 Neutral Citation No. ( 2025:HHC:21186 ) intercepted two persons coming from Barsaini to Manikaran on 04.08.2023 at about 5:55 pm. One of the persons took out one packet and threw it towards the right side of the road. Both of them started running away. The police apprehended them and checked the packet in the presence of an independent witness. It was found to contain 1.22 kgs of charas. The weight of the charas was found to be 1.010 kgs before the learned Judicial Magistrate, First Class and its weight was found to be 1.003 kgs before the SFSL. The petitioner has been in custody for almost 21 months. Five witnesses have been examined, and ten witnesses are yet to be examined. The petitioner belongs to a respectable family, and there is no chance of his absconding. The co-accused was granted bail by the Hon’ble Supreme Court. The petitioner is entitled to bail on the principle of parity; hence the petition. 3. The petition is opposed by filing a status report asserting that the police party was on patrolling duty on 4.8.2023. When they reached near the Bramh Ganga Hydro Project, Shangna, at 5.55 PM, two persons came towards the police. One person took out a red polythene carry bag from his jacket and threw it towards the right side of the road. Both persons started running towards 3 Neutral Citation No. ( 2025:HHC:21186 ) Barsheni. The police apprehended both persons. Narinder Singh, an independent person, was brought to the spot. One of the persons revealed his name as Rafi Mohammad, and another person revealed his name as Keshav Ram. The carry bag was checked in the presence of an independent witness, and it was found to contain One Kilo Twenty two grams of cannabis with a carry bag, wrapper and poly zipper. The police seized the charas and arrested the accused. The charas was sent to FSL, and as per the report of analysis, the exhibit was an extract of cannabis and a sample of charas. The challan has been prepared and filed before the Court on 6.10.2023. The prosecution has cited 15 witnesses, out of whom five have been examined and the matter is listed on 05.07.2025 for recording the statements of prosecution witnesses at Serial Nos. 5, 10 and 15. 4. I have heard Mr. Sudhir Bhatnagar, learned counsel for the petitioner and Mr. Ajit Sharma, learned Deputy Advocate General, for the respondent/State. 5. Mr. Sudhir Bhatnagar, learned counsel for the petitioner, submitted that the co-accused Keshav Ram has been released on bail by the Hon’ble Supreme Court. The petitioner is 4 Neutral Citation No. ( 2025:HHC:21186 ) entitled to bail on the principle of parity; hence, he prayed that the present petition be allowed and that the petitioner be released on bail. 6. Mr. Ajit Sharma, learned Deputy Advocate General, for the respondent/State, submitted that the trial is progressing normally. Five witnesses have been examined, and the matter is now listed on 05.07.2025 for recording the statements of the prosecution witnesses; therefore, he prayed that the present petition 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 Manik Madhukar Sarve v. Vitthal Damuji Meher, 2024 SCC OnLine SC 2271, wherein it was observed as under: - “19. Courts, while granting bail, are required to consider relevant factors such as the nature of the accusation, the role ascribed to the accused concerned, possibilities/chances of tampering with the evidence and/or witnesses, antecedents, and flight risk. Speaking through Hima Kohli, J., the present coram in Ajwar v. Waseem, 2024 SCC OnLine SC 974, apropos relevant parameters for granting bail, observed: 5 Neutral Citation No. ( 2025:HHC:21186 ) “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. (2004) 7 SCC 525; Kalyan Chandra Sarkar v. Rajesh Ranjan alias Pappu Yadav (supra) (2004) 7 SCC 528; Masroor v. State of Uttar Pradesh (2009) 14 SCC 286; Prasanta Kumar Sarkar v. Ashis Chatterjee (2010) 14 SCC 496; Neeru Yadav v. State of Uttar Pradesh (2014) 16 SCC 508; Anil Kumar Yadav v. State (NCT of Delhi) (2018) 12 SCC 129; Mahipal v. Rajesh Kumar @ Polia (supra) (2020) 2 SCC 118. 27. It is equally well settled that bail, once granted, ought not to be cancelled in a mechanical manner. However, an unreasoned or perverse order of bail is always open to interference by the Superior Court. If there are serious allegations against the accused, even if he has not misused the bail granted to him, such an order can be cancelled by the same Court that has granted the bail. Bail can also be revoked by a Superior Court if it transpires that the courts below have ignored the relevant material available on record or not looked into the gravity of the offence or the impact on society, resulting in such an order. In P v. State of Madhya Pradesh (supra) (2022), 15 SCR 211 decided by a three- judge bench of this Court [authored by one of us (Hima Kohli, J)] has spelt out the considerations that must be weighed with the Court for interfering in an order granting bail to an accused under Section 439(1) of the CrPC in the following words: 6 Neutral Citation No. ( 2025:HHC:21186 ) “24. As can be discerned from the above decisions, for cancelling bail once granted, the court must consider whether any supervening circumstances have arisen or the conduct of the accused post grant of bail demonstrates that it is no longer conducive to a fair trial to permit him to retain his freedom by enjoying the concession of bail during trial [Dolat Ram v. State of Haryana, (1995) 1 SCC 349: 1995 SCC (Cri) 237]. To put it differently, in ordinary circumstances, this Court would be loathe to interfere with an order passed by the court below granting bail, but if such an order is found to be illegal or perverse or premised on material that is irrelevant, then such an order is susceptible to scrutiny and interference by the appellate court.” (emphasis supplied) 20. In State of Haryana v. Dharamraj, 2023 SCC OnLine SC 1085, speaking through one of us (Ahsanuddin Amanullah, J.), the Court, while setting aside an order of the Punjab and Haryana High Court granting (anticipatory) bail, discussed and reasoned: “7. A foray, albeit brief, into relevant precedents is warranted. This Court considered the factors to guide the grant of bail in Ram Govind Upadhyay v. Sudarshan Singh (2002) 3 SCC 598 and Kalyan Chandra Sarkar v. Rajesh Ranjan (2004) 7 SCC 528. In Prasanta Kumar Sarkar v. Ashis Chatterjee (2010) 14 SCC 496, the relevant principles were restated thus: ‘9. … It is trite that this Court does not, normally, interfere with an order passed by the High Court granting or rejecting bail to the accused. However, it is equally incumbent upon the High Court to exercise its discretion judiciously, cautiously and strictly in compliance with the basic principles laid down in a plethora of decisions of this Court on the point. It is well settled that, among other circumstances, the factors to be borne in mind while considering an application for bail are: 7 Neutral Citation No. ( 2025:HHC:21186 ) (i) whether there is any prima facie or reasonable ground to believe that the accused had committed the offence; (ii) nature and gravity of the accusation; (iii) severity of the punishment in the event of conviction; (iv) danger of the accused absconding or fleeing if released on bail; (v) character, behaviour, means, position and standing of the accused; (vi) likelihood of the offence being repeated; (vii) reasonable apprehension of the witnesses being influenced; and (viii) danger, of course, of justice being thwarted by the grant of bail.’ 8. In Mahipal v. Rajesh Kumar alias Polia (2020) 2 SCC 118, this Court opined as under: ‘16. The considerations that guide the power of an appellate court in assessing the correctness of an order granting bail stand on a different footing from an assessment of an application for the cancellation of bail. The correctness of an order granting bail is tested on the anvil of whether there was an improper or arbitrary exercise of discretion in the grant of bail. The test is whether the order granting bail is perverse, illegal or unjustified. On the other hand, an application for cancellation of bail is generally examined on the anvil of the existence of supervening circumstances or violations of the conditions of bail by a person to whom bail has been granted. …’ 9. In Bhagwan Singh v. Dilip Kumar @ Deepu @ Depak, 2023 INSC 761, this Court, in view of Dolat Ram v. State of Haryana, (1995) 1 SCC 349; Kashmira Singh v. Duman Singh, (1996) 4 SCC 693 and X v. State of Telangana, (2018) 16 SCC 511, held as follows: 8 Neutral Citation No. ( 2025:HHC:21186 ) ‘13. It is also required to be borne in mind that when a prayer is made for the cancellation of the grant of bail, cogent and overwhelming circumstances must be present, and bail, once granted, cannot be cancelled in a mechanical manner without considering whether any supervening circumstances have rendered it in conducing to allow fair trial. This proposition draws support from the Judgment of this Court in Daulat Ram v. State of Haryana (1995) 1 SCC 349, Kashmira Singh v. Duman Singh (1996) 4 SCC 693 and XXX v. State of Telangana (2018) 16 SCC 511.’ 10. In XXX v. Union Territory of Andaman & Nicobar Islands, 2023 INSC 767, this Court noted that the principles in Prasanta Kumar Sarkar (supra) stood reiterated in Jagjeet Singh v. Ashish Mishra (2022) 9 SCC 321. 11. The contours of anticipatory bail have been elaborately dealt with by 5-Judge Benches in Gurbaksh Singh Sibbia v. State of Punjab, (1980) 2 SCC 565 and Sushila Aggarwal v. State (NCT of Delhi), (2020) 5 SCC 1. Siddharam Satlingappa Mhetre v. State of Maharashtra, (2011) 1 SCC 694 is worthy of mention in this context, despite its partial overruling in Sushila Aggarwal (supra). We are cognizant that liberty is not to be interfered with easily. More so when an order of pre-arrest bail already stands granted by the High Court. 12. Yet, much like bail, the grant of anticipatory bail is to be exercised with judicial discretion. The factors illustrated by this Court through its pronouncements are illustrative and not exhaustive. Undoubtedly, the fate of each case turns on its own facts and merits.” (emphasis supplied) 21. In Ajwar (supra), this Court also examined the considerations for setting aside bail orders in terms below: “28. The considerations that weigh with the appellate Court for setting aside the bail order on an application being moved by the aggrieved party include any supervening circumstances that may have occurred after granting relief to the accused, the conduct of the accused while on bail, any 9 Neutral Citation No. ( 2025:HHC:21186 ) attempt on the part of the accused to procrastinate, resulting in delaying the trial, any instance of threats being extended to the witnesses while on bail, any attempt on the part of the accused to tamper with the evidence in any manner. We may add that this list is only illustrative and not exhaustive. However, the court must be cautious that at the stage of granting bail, only a prima facie case needs to be examined, and detailed reasons relating to the merits of the case that may cause prejudice to the accused ought to be avoided. Suffice it to state that the bail order should reveal the factors that have been considered by the Court for granting relief to the accused. 29. In Jagjeet Singh (supra) (2022) 9 SCC 321, a three- judge bench of this Court has observed that the power to grant bail under Section 439 Cr. P.C. is of wide amplitude and the High Court or a Sessions Court, as the case may be, is bestowed with considerable discretion while deciding an application for bail. But this discretion is not unfettered. The order passed must reflect the due application of the judicial mind following well-established principles of law. In the ordinary course, courts would be slow to interfere with the order where bail has been granted by the courts below. But if it is found that such an order is illegal or perverse or based upon utterly irrelevant material, the appellate Court would be well within its power to set aside and cancel the bail. (Also refer: Puran v. Ram Bilas (2001) 6 SCC 338; Narendra K. Amin (Dr.) v. State of Gujarat (2008) 13 SCC 584)” (emphasis supplied) 9. The present petition has to be decided as per the parameters laid down by the Hon’ble Supreme Court. 10. As per the prosecution's case, the petitioner and co- accused were walking together. The petitioner took out a polythene packet and threw it; therefore, prima facie, there is sufficient 10 Neutral Citation No. ( 2025:HHC:21186 ) material on record to connect the petitioner with the commission of an offence punishable under Section 20(b)(i)(C) of the NDPS Act. It is undisputed that the co-accused Keshav Ram was granted bail by the Hon’ble Supreme Court on the ground that he was cooperating with the trial and had been in custody since 12.08.2023. The petitioner was also apprehended with the co- accused Keshav Ram. Therefore, there is force in the submission of Mr. Sudhir Bhatnagar, learned counsel for the petitioner, that the petitioner is entitled to bail on the principle of parity. Both accused were walking together. Both were apprehended on the same day. Both are being tried together; hence, the consideration applicable to Keshav Ram would apply to the present petitioner as well. 11. The Hon’ble Supreme Court released the co-accused on the terms and conditions as may be fixed by the learned Trial Court. Since the bail is being granted to the petitioner on the principle of parity, therefore, the terms and conditions in the present case will have to be fixed by the learned Trial Court. 12. In view of the above, the present petition is allowed and the petitioner is ordered to be released on bail on the terms and conditions which may be imposed by the learned Trial Court. For 11 Neutral Citation No. ( 2025:HHC:21186 ) this purpose, the petitioner be produced before the learned Trial Court forthwith. (Rakesh Kainthla) Judge 4th July, 2025 (Saurav pathania)