2025:HHC:19443 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CrMP(M) No.1305 of 2025 Reserved on : 19.06.2025 Decided on: 24.06.2025 Amar Bahadur …Applicant Versus State of Himachal Pradesh …Respondent Coram The Hon’ble Mr. Justice Virender Singh, Judge. Whether approved for reporting? For the applicant : Mr. Varun Chauhan, Advocate. For the respondent : Mr. Tejasvi Sharma and Mr. H.S. Rawat, Additional Advocates General with Ms. Ranjna Patial, Deputy Advocate General, assisted by ASI Avtar Singh, PS Chirgaon, District Shimla, 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-Amar Bahadur has sought his release, on bail, during the pendency of the trial, arising out of FIR No.62 of 2024, dated 28.08.2024, registered under Section 18 of the 2 2025:HHC:19443 Narcotic Drugs & Psychotropic Substances Act (hereinafter referred to as the ‘NDPS Act’), with Police Station Chirgaon, District Shimla, H.P. 2. According to the applicant, he is innocent person and has falsely been implicated, in this case, at the instance of the police. 3. As per the applicant, he has been arrested on 28.08.2024 by the police, in this case, for allegedly possessing contraband, weighing 2.890 kg of opium. 3. It is the case of the applicant that the investigation, in the present case, is complete and the charge-sheet has been filed in the competent Court of law. All these facts have been pleaded to show that the custodial interrogation of the applicant is no longer required by the police. 4. It has been averred in the application that out of total 21 prosecution witnesses, till date, only 4 prosecution witnesses have been examined by the learned trial Court and the case is now listed on 28.07.2025 for prosecution evidence. 3 2025:HHC:19443 5. The relief of bail has also been sought on the ground that the investigating agency has not provided the grounds of arrest to the applicant and in this regard, the arrest memo, along with its translated copy, has been annexed with the application. 6. According to the applicant, he had earlier tried his luck by moving similar application, before the Court of learned Special Judge, Shimla, District Shimla, Himachal Pradesh. However, the same was dismissed vide order dated 13.01.2025. 6.1. Thereafter, the applicant had approached this Court by moving CrMP(M) No.569 of 2025. However, the same was dismissed vide order dated 28.03.2025. 7. According to the applicant, except the present case, no other case has been registered against him. 8. To buttress his contention, learned counsel for the applicant has relied upon the decision of the Hon’ble Supreme Court in ‘Vihaan Kumar Vs. State of Haryana & Anr’, Neutral Citation No.2025 INSC 162, decided on 07.02.2025. 4 2025:HHC:19443 9. Apart from this, learned counsel 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. On the basis of the above facts, a prayer has been made to allow the application. 11. When, put to notice, police has filed the status report, disclosing therein, that on 28.08.2024, SI/SHO Amit Sharma, Police Station Chirgaon, along with other police officials, had left the Police Station for traffic checking and duty to detect crime relating to excise and narcotics. 11.1. It is the case of the police that when, IO, along with other police officials, at about 02:20 pm, was on patrolling duty from Badiara to Sima side, then, one kilometer away from Sima, he noticed a person, coming from Sima side. The said person was walking towards Badiara. He was having a carry bag, made of golden coloured sack. The said person had also worn a mask, who, on seeing the police vehicle, turned back and tried to 5 2025:HHC:19443 run away towards hill side, upon which, SI/SHO directed the driver to stop the vehicle and with the help of police officials, he has been nabbed. The said person was found to be perplexed. When, IO enquired about the contents of carry bag, which he was carrying in his hand, then, he got more perplexed and could not give any satisfactory answer. 11.2. Thereafter, the name and address of the said person were enquired, who, on enquiry, disclosed his name as Amar Bahadur (applicant). IO developed a suspicion that in the carry bag, some stolen articles could be there. As such, IO thought it necessary to search the carry bag. Before search, he has associated one Surya Dev Sharma and Pradhan of Gram Panchayat Kulgaon Smt. Poonam Jinta as independent witnesses and in the presence of above two independent witnesses, carry bag was searched. On opening the same, two transparent plastic polythene bags were found. In one plastic bag, three transparent plastic envelopes were found, containing brown shaped paste like substance and in the another plastic bag, two black coloured plastic, containing brown shaped paste like substance, was found, which on smelling, experience and 6 2025:HHC:19443 testing the same, was found to be opium. Accused also confirmed the said fact. On weighing, the said opium was found to be 2.890 kg. The same was taken into possession. Other codal formalities were completed. 11.3. After registration of the FIR, accused/applicant was arrested and was produced before the Court. Thereafter, he was interrogated and he disclosed that a Nepali-national met him and the said person disclosed his name as Mann Bahadur, who allured him to sell opium, for which, he will pay the commission of Rs.50,000/-. However, according to the police, said Mann Bahadur could not be nabbed, in this case. 11.4. Thereafter, the contraband, so recovered, was sent to SFSL Junga, for chemical analysis, after complying with the provisions of Section 52A of the NDPS Act and positive report has been received. Subsequently, the police has filed the charge-sheet in the Court of learned Additional Sessions Judge-I, Shimla. 11.5. It has been mentioned in the status report that after completion of the investigation, challan has been prepared and presented in the competent Court of law. Out 7 2025:HHC:19443 of total 21 prosecution witnesses, 4 prosecution witnesses have already been examined and now, the case is stated to be fixed for 28.07.2025 for prosecution evidence. 11.6. Lastly, it has been apprehended that in case, the applicant is ordered to be released on bail, he may again indulge in the same activity and may also coerce the witnesses. 12. On the basis of the above facts, a prayer has been made that the bail application may be dismissed. 13. In this case, the police has filed the charge- sheet in the competent Court of law, on 25.11.2024, whereas, FIR, in this case, has been registered only on 28.08.2024. Keeping in view the said fact, it cannot be said that there is any delay in the trial. 14. 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. 8 2025:HHC:19443 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 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 he has been arrested, and (ii) that while on bail, he will not commit any offence. 16. 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 9 2025:HHC:19443 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 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 10 2025:HHC:19443 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.” (self-emphasis supplied) 17. 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. 18. 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. 19. So far as the ground, with regard to the non- supply of the grounds of arrest, is concerned, learned 11 2025:HHC:19443 counsel for the applicant has relied upon the decision of the Hon’ble Supreme Court in Vihaan Kumar’s case (supra). Relevant paragraph 21 of the said judgment is reproduced, as under:- “21. Therefore, we conclude: a) The requirement of informing a person arrested of grounds of arrest is a mandatory requirement of Article 22(1); b) The information of the grounds of arrest must be provided to the arrested person in such a manner that sufficient knowledge of the basic facts constituting the grounds is imparted and communicated to the arrested person effectively in the language which he understands. The mode and method of communication must be such that the object of the constitutional safeguard is achieved; c) When arrested accused alleges non- compliance with the requirements of Article 22(1), the burden will always be on the Investigating Officer/Agency to prove compliance with the requirements of Article 22(1); d) Non-compliance with Article 22(1) will be a violation of the fundamental rights of the accused guaranteed by the said Article. Moreover, it will amount to a violation of the right to personal liberty guaranteed by Article 21 of the Constitution. Therefore, non-compliance with the requirements of Article 22(1) vitiates the arrest of the accused. Hence, further orders passed by a criminal court of remand are also vitiated. Needless to add that it will not vitiate the investigation, charge sheet and trial. But, at the same time, filing of chargesheet will not validate a breach of constitutional mandate under Article 22(1); e) When an arrested person is produced before a Judicial Magistrate for remand, it is the duty of the Magistrate to ascertain whether compliance 12 2025:HHC:19443 with Article 22(1) and other mandatory safeguards has been made; and f) When a violation of Article 22(1) is established, it is the duty of the court to forthwith order the release of the accused. That will be a ground to grant bail even if statutory restrictions on the grant of bail exist. The statutory restrictions do not affect the power of the court to grant bail when the violation of Articles 21 and 22 of the Constitution is established.” 20. Judging the facts and circumstances of the present case, in the light of the decision of the Hon’ble Supreme Court in Vihaan Kumar’s case (supra), perusal of information of arrest (Annexure P-2) shows that the information of the grounds of arrest has been provided to the applicant and thereafter, in token of acceptance of said information, the applicant has signed the same and provided the mobile number of his wife to be the person, to whom, the information of his arrest is to be given. Definitely, the mobile number was in the exclusive knowledge of the applicant, who had provided the same. Consequently, the police had informed applicant’s wife on the mobile number, provided by him. As such, the information of arrest (Annexure P-2) contains all the material facts. Hence, the mandate of Section 50(1) of CrPC is fully complied with and thus, it cannot be said, at this 13 2025:HHC:19443 stage, that the police has violated the provisions of Section 50(1) of CrPC. 21. In view of the discussions, made hereinabove, this Court is of the view that the applicant is not able to make out a case for his release on bail. 22. Consequently, the present bail application is dismissed. 23. 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)