2025:HHC:21514 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Cr.MP (M) No. : 1485 of 2025 Reserved on : 03rd July, 2025 Decided on : 07th July, 2025 Yagya Chand …Applicant Versus State of Himachal Pradesh …Respondent Coram The Hon’ble Mr. Justice Virender Singh, Judge. Whether approved for reporting?1 For the applicant : Mr. Yashveer Singh Rathore, Advocate. For the respondent : Mr. Anup Rattan, Advocate General with Mr. Tejasvi Sharma, Mr. Varun Chandel, Additional Advocates General, Ms. Ranjna Patial and Mr. Rohit Sharma, Deputy Advocates General, assisted by HC Ashok Kumar, No.44, Police Station Banjar, District Kullu, H.P. Virender Singh, Judge Applicant-Yagya Chand, has filed the present application, under Section 483 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (hereinafter referred to as the 'BNSS'), with a prayer to release him on bail, during the pendency of the trial, arising out of FIR No.44 of 2023, 1 Whether Reporters of local papers may be allowed to see the judgment? Yes. 2 2025:HHC:21514 dated 08.04.2023, registered, under Sections 18 and 20 of the Narcotic Drugs & Psychotropic Substances Act (hereinafter referred to as the ‘NDPS Act’), with Police Station Banjar, District Kullu, H.P. 2. According to the applicant, he is innocent person and has falsely been implicated and arrested by the Police, in this case. 3. As per the applicant, he has been arrested, in this case, on 08.04.2023 and is in judicial custody from the date of his arrest. 4. The applicant has termed the case registered against him as baseless, imaginary and absurd. 5. The investigation in the case is stated to have been completed and despite such a long judicial custody of more than two years and three months, the prosecution could not conclude the evidence against him. 6. The applicant has also tried his luck, by moving similar applications, earlier before this Court, however, the said applications, were dismissed as withdrawn, vide orders dated 06.12.2024 and 18.03.2025. 3 2025:HHC:21514 7. On the basis of the above facts, Mr. Yashveer Singh Rathore, Advocate, 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. Along with the application, the applicant has annexed the statements of PW-10 and PW-11, who, as per the learned counsel for the applicant, has been associated by the I.O., as independent witnesses. It has been prayed that from the testimony of the two independent witnesses, nothing could be proved as, both the independent witnesses, when stepped into the witness-box, have turned hostile. 9. On the basis of the above facts, a prayer has been made to allow the application. 10. When put to notice, the police has filed the status report, disclosing therein, that on 08.04.2023, HC Jagdish Kumar No.51, along with other police officials of SIU Kullu, had left their office to collect the information regarding illegal cultivation of the opium, towards Banjar, Pekhari, Lakcha, Naahi, side. 4 2025:HHC:21514 10.1. When, the I.O., along with police officials, was present at Pekhari Bus Stand, then, at about 4.50 p.m., he received a secret information that one Yagya Chand, resident of Orudhar (applicant) had kept concealed large quantity of Charas/Opium, in his house. If the said house is searched, large quantity of Charas/Opium could be recovered. 10.2. The said information was found to be authentic and reliable. Considering the fact that the spot was situated at far away place and due to holiday, it was not possible to obtain search warrants, according to the I.O., in case of delay, the contraband could be removed from there, as such, the compliance of Section 42(2) of the NDPS Act was made by the I.O., and submitted the report to Dy.SP, Kullu. 10.3. Thereafter, the police party had proceeded towards Orudhar, on foot. On the way, two persons met them, who, on inquiry, disclosed their names, as Ghanshyam and Naval Kishore. Both were requested to be the independent witnesses, after apprising them about the 5 2025:HHC:21514 secret information, which, the I.O. had received, upon which, they had agreed to be the independent witnesses. 10.4. Thereafter, at about 7.30 p.m., the I.O., reached at the house of Yagya Chand. The house was cordoned off by the police officials and the occupants of the house was directed to come out, upon which, one person came out on the main door. On inquiry, the said person has disclosed his name as Yagya Chand (applicant). Thereafter, he was apprised about the secret information, which, the I.O. had received, and his consent regarding the search of his house was obtained orally, upon which, he has consented for the search of his house by police. 10.5. Consequently, the I.O., as well as, the raiding party had given their personal search. From their personal search, nothing incriminating was found. Thereafter, the wooden house of Yagya Chand (applicant) was searched. During search, stick shaped black coloured substance, in a transparent polythene envelope, was found. 10.6. Apart from this, the dark brown coloured semi- liquid shaped substance was also found, which, on smelling and checking, was found to be opium. The 6 2025:HHC:21514 charas, on weighment, was found to be 467 grams, whereas, the opium, on weighment, was found to be 3.702 grams. Apart from this, currency notes of Rs.1,50,000/-, were also found. 10.7. After completion of the codal formalities, the FIR was registered and the accused was arrested. Thereafter, the contraband was produced before the Court of learned Chief Judicial Magistrate, Lahaul and Spiti, where, the proceedings, under Section 52-A of the NDPS Act, were got conducted and the contraband was sent to SFSL Junga, for chemical analysis, from where positive report has been received. 11. After completion of the investigation, charge- sheet has been prepared and submitted in the Court of learned Additional Sessions Judge-II, Kullu. Out of total 20 witnesses, 12 have been examined and the case is stated to have been listed on 4th and 5th August, 2025, for recording the statements of witnesses at serial No.3, 16, 17 and 18. 7 2025:HHC:21514 12. As per the status report, except the present case, no other case is found to be registered against the applicant. 13. On the basis of the above facts, a prayer has been made to dismiss the application. 14. As per the police case, the charas weighing 467 grams and the opium weighing 3.702 kgs., along with currency notes of Rs.1,50,000/-, have been recovered from the search of the residential house of the applicant. Meaning thereby, the opium, recovered from the residential house of the applicant, falls within the definition of ‘commercial quantity’. 15. It is no longer res integra that before releasing accused, on bail, involved in the commercial quantity of contraband, it is obligatory upon the Court to satisfy itself with regard to the existence of twin conditions, as enumerated in Section 37(b)(ii) of the NDPS Act, i.e., that the accused is not guilty of such offence and that the accused is not likely to commit any offence while on bail. Recording of findings, as mandated in Section 37 of the 8 2025:HHC:21514 NDPS Act, is sine qua non, for granting bail to the accused involved in the offences under the NDPS Act. 16. Learned counsel for the applicant has heavily relied upon the statements of two witnesses, who were associated, in this case, before conducting the raid, at the residential house of the applicant, from where, the contraband, which falls within the definition of ‘commercial quantity’ was recovered. 17. Perusal of the photocopy of the statements, placed on record by the applicant shows that both the witnesses, when, appeared in the witness-box, have turned hostile, Now, on the basis of the above facts, whether the twin conditions as enumerated in Section 37 of the NDPS Act, exists in favour of the applicant or not, to the considered opinion of this Court, the evidence of the hostile witnesses, does not efface from the record, and even the evidence of the hostile witnesses, is to be considered along with the other evidence on record. 18. Moreover, it is the sole prerogative of the learned trial Court to give findings on the effect of the 9 2025:HHC:21514 evidence of the hostile witnesses. The said prerogative cannot be snatched away by this Court. 19. So far as the delay in trial, as highlighted by the learned counsel for the applicant is concerned, in this case, the period of custody is almost two years and three months. However, out of the 20 witnesses, 12 witnesses have been examined and the case is now listed for 4.8.2025 and 5.8.2025, recording the statements of four witnesses. 20. Considering the pace of the trial, it cannot be said that there is inordinate delay in the trial. 21. Learned counsel for the applicant has placed reliance on the judgment of the Hon’ble Supreme Court in Special Leave to Appeal (Criminal) No.1830/2024, titled as Sirajul Molla versus The State of West Bengal, MANU/SCOR/62245/2024. With due respect to the law laid down by the Hon’ble Supreme Court, the Supreme Court has granted the bail to the applicant, considering the facts and circumstances of that case, whereas, in this case, not only the contraband, falling 10 2025:HHC:21514 within the definition of ‘commercial quantity’ of opium, but, currency notes, amounting to Rs.1,50,000/-, have been recovered, from the residential house of the applicant. 22. So far as the decision of the Hon’ble Supreme Court, relied upon by the learned counsel for the applicant, in Special Leave to Appeal (Criminal) No.2795/2025, titled as Sajahan Sardar versus The State of West Bengal, MANU/SCOR/31375/2025, is concerned, the same is not applicable to the facts and circumstance of the present case. 23. Considering all these facts, there is no ground to pass any order in favour of the applicant, under Section 483 BNSS. Consequently, the bail application of the applicant is dismissed. 24. In the normal circumstances, this Court would not direct the learned trial Court to expedite the trial, as, this Court cannot interfere in the day-to-day working of the learned trial Court, but, keeping in view the facts and circumstances of the present case and considering the 11 2025:HHC:21514 pace of the trial, it is a fit case, where, the learned trial Court is requested to decide the matter pending against the applicant, on or before 31st October, 2025 and in order to achieve the said goal, even to prepone the matter and conduct the trial on day-to-day basis. 25. 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. 26. Registry is directed to communicate this order to the quarter concerned forthwith. ( Virender Singh ) Judge July 07, 2025(ps)