2025:HHC:19442 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Cr.MP(M) No.1304 of 2025 Reserved on : 19.06.2025 Decided on: 24.06.2025 Ram Kumar …Applicant Versus State of Himachal Pradesh …Respondent Coram The Hon’ble Mr. Justice Virender Singh, Judge. Whether approved for reporting? For the applicant : Mr. Saurav Rattan, Legal Aid Counsel. For the respondent : Mr. Tejasvi Sharma and Mr. H.S. Rawat, Additional Advocates General with Ms. Ranjana Patial, Deputy Advocate General, assisted by ASI Hans Raj, PS Bhuntar, District Kullu, H.P. 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-Ram Kumar has sought his release, on bail, during the pendency of the trial, arising out of FIR No.9 of 2023, dated 2 2025:HHC:19442 25.01.2023, under Section 20 of the Narcotic Drugs & Psychotropic Substances Act (hereinafter referred to as the ‘NDPS Act’), registered with Police Station, Bhuntar, District Kullu, H.P. 2. According to the applicant, he has falsely been implicated, in the present case. The investigation is stated to be completed and charge-sheet is also stated to be submitted in the competent Court of law. 3. The main ground, upon which, the relief, as claimed, has been sought, is that he has been arrested, in this case, on 25.01.2023 and till date, the prosecution could not conclude the trial against him. 4. It has been averred in the application that the long period of the applicant in the judicial custody amounts to the violation of Article 21 of the Constitution of India. 5. According to the applicant, he had earlier tried his luck by moving similar application, before the Court of learned Special Judge, Kullu, District Kullu, Himachal Pradesh. However, the same was dismissed vide order dated 30.07.2024. 3 2025:HHC:19442 5.1. Thereafter, the applicant had approached this Court by moving CrMP(M) No.2493 of 2024. However, the same was dismissed vide order dated 19.11.2024. 6. On the basis of the above facts, a prayer has been made to allow the application. 7. When put to notice, police has filed the status report, disclosing therein, that on 25.01.2023, Investigating Officer, along with other police officials, was on routine patrolling duty towards Hathithan-Jari Kasol- Manikaran. At about 03:45pm, on that day, police party was present at a place known as Buntar-Manikaran road. During that period, they were checking the regular traffic. At about 04:20pm, the vehicle (bus), bearing registration No.HP34-B-8525 enroute from Manikaran-Manali towards Buntar, was seen coming, upon which, the driver of the bus was signaled to stop for checking. 7.1. Thereafter, IO searched the vehicle and when, reached near the person, who was sitting at Seat No.25, the said person got perplexed. On his search, the contraband, weighing 3.446 kg of charas, was recovered. Other codal formalities were completed on the spot and the accused was arrested. 4 2025:HHC:19442 7.2. Subsequently, the inventory, under Section 52A of NDPS Act, was got prepared and the samples were sent to RFSL, from where, positive report has been received. Thereafter, police has filed the challan (final report) against the applicant, which is stated to be pending, before the competent Court of law. 7.3. It has been mentioned in the status report that on presentation of the challan, the cognizance has been taken by the competent Court of law. Charges have been framed and out of 15 prosecution witnesses, 9 prosecution witnesses have already been examined and now, the case is stated to be listed on 14.08.2025 for prosecution evidence. 8. On the basis of above facts, a prayer has been made to dismiss the application. 9. 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. 5 2025:HHC:19442 10. 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. 11. 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 6 2025:HHC:19442 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 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 7 2025:HHC:19442 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.” (self-emphasis supplied) 12. 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. 13. In the absence of the twin conditions, this Court cannot accept the arguments of learned Legal Aid Counsel, appearing for the applicant, who has sought the release of the applicant on bail, during the pendency of the trial. 14. In view of the above discussion, in the considered opinion of this Court, the applicant is not able to make out a case, in his favour. 8 2025:HHC:19442 15. In the normal circumstances, this Court would not fix any deadline for the learned trial Court to conclude the trial, within the time-bound manner, however, considering the fact that the applicant is in judicial custody from the date of his arrest i.e. 25.01.2023 and out of 15 prosecution witnesses, only 9 prosecution witnesses have been examined so far, it is a fit case, where directions are required to be issued to the learned trial Court to conclude the matter expeditiously. 16. In view of the discussions, made hereinabove, the present bail application is disposed of by directing the learned trial Court to decide the matter as expeditiously as possible and for that purpose, the learned trial Court would be at liberty even to prepone the date. 17. 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)