2025:HHC:592 IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr. MP(M) No.2584 of 2024 Date of Decision: 03.01.2025 ________________________________________________________________ Hem Raj .....Petitioner Versus State of Himachal Pradesh ..…Respondent ________________________________________________________________ Coram: The Hon’ble Mr. Justice Sandeep Sharma, Judge. Whether approved for reporting?1 ________________________________________________________________ For the Petitioner: Mr. Yashveer Singh Rathore, Advocate. For the Respondent: Mr. Rajan Kahol and Mr. B.C. Verma, Additional Advocates General, with Mr. Ravi Chauhan, Deputy Advocate General along with Sub-Inspector Kuldeep Kumar, I.O., Police Station Sadar Una. ________________________________________________________________ Sandeep Sharma, J. (Oral) Bail petitioner, namely Hem Raj, who is behind the bars since 23.10.2023, has approached this Court in the instant proceedings filed under Section 483 BNSS, 2023, for grant of regular bail in case FIR No.338 of 2023, dated 22.10.2023, under Sections 20, 29-61-85 of NDPS Act and Section 181 of Motor Vehicles Act, registered at Police Station Sadar Una, District Una, Himachal Pradesh. 2. Respondent/State has filed status report and Sub- Inspector Kuldeep Kumar, I.O., Police Station Sadar Una, has come present along with record. Record perused and returned. 3. Close scrutiny of status report/record reveals that on 22.10.2023, Police party present near Railway Station, Una, 1 Whether reporters of the local papers may be allowed to see the judgment? 2025:HHC:592 -2- received secret information that person namely Bala Ram, Hem Raj and Prakash Chand, indulge in illegal trade of narcotics and at present, they are sitting in cars bearing No.HP-49-4053 and HP-87-AA-2933, parked near Enfield Motorcycle Agency, Una. On the basis of aforesaid information, Police reached on the spot and expressed its intention to occupants of the car to search their vehicles. Present bail petitioner was found sitting alone in car bearing No.HP-87-AA-2933, whereas other co-accused Bala Ram and Prakash Chand were found sitting in car bearing No.HP-49- 4053. As per own case of prosecution, nothing was recovered from car bearing No.HP-87-AA-2933, wherein present bail petitioner was found sitting, but during search of his car, afore person allegedly disclosed to the police that Charas is lying in dickey of car bearing No.HP-49-4053, wherein other co-accused Prakash Chand and Bala Ram were sitting. On the basis of aforesaid information shared by bail petitioner, Police recovered 2.516 kilograms of Charas from the bag kept in dickey of car bearing No.HP-49-4053, in the presence of independent witnesses. Since no plausible explanation ever came to be rendered on record qua possession of aforesaid commercial quantity of contraband, Police after having completed necessary codal formalities registered FIR against Bala Ram, Hem Raj and Prakash Chand and since then, they are behind bars. 2025:HHC:592 -3- 4. Since Challan stands filed in the competent Court of law and nothing remains to be recovered from the bail petitioner, he has approached this Court in the instant proceedings for grant of regular bail. 5. Mr. Yashveer Singh Rathore, learned counsel representing the petitioner vehemently argued that no contraband ever came to be recovered from the conscious possession of the bail petitioner, rather, during search conducted by Police of car bearing No.HP-87-AA-2933, wherein present bail petitioner was found sitting, nothing was recovered, moreover, recovery, if any, was made from car bearing No.HP-49-4053, wherein co-accused namely Bala Ram and Prakash Chand were found sitting. Mr. Rathore states that though at no point of time, petitioner herein had any information with regard to transportation of contraband in car bearing No.HP-49-4053, nor he had disclosed to the Police anything with regard to presence of contraband in afore car, but once it is admitted case of the prosecution that no contraband was recovered from the conscious possession of the petitioner, there is no occasion, if any, to let the bail petitioner incarcerate in jail for indefinite period during trial, especially when he has already suffered for more than 14 months. 6. Mr. Rajan Kahol, learned Additional Advocate General, while fairly admitting factum with regard to filing of 2025:HHC:592 -4- Challan in the competent Court of law, contends that though nothing remains to be recovered from the bail petitioner, but keeping in view the gravity of the offence alleged to have been committed by him, he does not deserve any leniency and prayer made on his behalf for grant of bail deserves outright rejection. While making this Court peruse evidence adduced on record, Mr. Kahol states that though nothing was recovered from the car bearing No.HP-87-AA-2933, wherein petitioner was found sitting at the time of recovery, but it is duly established on record that petitioner had definite knowledge with regard to transportation of contraband recovered from the car bearing No.HP-49-4053 and recovery from afore vehicle came to be effected on the basis of information elicited by the petitioner. While referring to the call detail report adduced on record. Mr. Kahol further states that petitioner herein was in constant touch with co-accused Prakash Chand and Bala Ram and as such, it cannot be said that he has been falsely implicated. He states that petitioner is accused of heinous crime having adverse impact upon the society, as such, it may not be in the interest of justice to enlarge him on bail because in that event, he may not only flee from justice, but may again indulge in these activities. 7. Having heard learned counsel for the parties and perused the material available on record, this Court finds that contraband never came to be recovered from the conscious 2025:HHC:592 -5- possession of the bail petitioner, rather, at the time of recovery, he was found to be sitting in car bearing No.HP-87-AA-2933, whereas commercial quantity of contraband was recovered from the car bearing No.HP-49-4053. Though as per status report, Police had received information that there may be possibility of recovery of Charas from cars bearing No.HP-87-AA-2933 and HP- 49-4053, parked near Enfiled Motorcycle Agency, Una, but admittedly, at the time of checking, nothing was recovered from the car bearing No.HP-87-AA-2933. It is also not in dispute that while contraband was recovered from car bearing No.HP-49- 4053, petitioner herein was not found sitting in the afore car, rather person namely Bala Ram and Prakash Chand were found sitting therein, who at no point of time, disclosed to the Police that contraband recovered from their vehicle belongs to present bail petitioner or present bail petitioner was with them, at the time of purchase of afore contraband from one Nepali, from place called Jot, District Mandi. 8. No doubt, call detail report, placed on record, suggests that present bail petitioner was in constant touch with other co-accused Bala Ram and Prakash Chand, but that may not be sufficient to conclude the guilt, if any, of the present bail petitioner, especially when there is nothing on record to suggest that bail petitioner was also in touch with Nepali, from whom, allegedly person namely Bala Ram and Prakash Chand had 2025:HHC:592 -6- purchased commercial quantity of contraband. No record has been adduced on record with regard to financial transaction, if any, inter se main source as well as other co-accused i.e. Bala Ram and Prakash Chand. During investigation, no financial transaction has been found in the bank account of the petitioner with other accused for the last five years. No doubt, rigours of Section 37 of the Act are attracted in the present case on account of recovery of commercial quantity of contraband, however, bare perusal of Section 37 of the Act nowhere suggests that Court is estopped from considering the bail in cases involving commercial quantity of contraband, rather in that situation, Court after affording opportunity of being heard to the public prosecutor, if is satisfied that petitioner has been falsely implicated and in the event of his being enlarged on bail, he would not indulge in these activities can grant bail. In the case at hand, no recovery has been effected from the conscious possession of the petitioner, rather, recovery has been effected from car bearing No.HP-49- 4053, wherein two persons namely Bala Ram and Prakash Chand were found sitting. Though, an attempt has been made to carve out a case at the behest of prosecution that recovery has been made at the instance of bail petitioner and as such, he had definite knowledge with regard to transportation of contraband, but such fact, if any, may not be sufficient to conclude guilt of the petitioner, rather, in that regard, cogent and convincing 2025:HHC:592 -7- evidence is required to be produced on record, which in the present case is missing. 9. It is not the case of the prosecution that petitioner herein was escorting the car containing commercial quantity of contraband, rather, own case of the prosecution is that Police had received information that two cars, detailed hereinabove, parked near the Enfiled Motorcycle Agency may be containing contraband, but as has been taken note hereinabove, contraband came to be recovered from the car bearing No.HP-49-4053, wherein petitioner was not found sitting, rather, he was found sitting in car bearing No.HP-87-AA-2933 from where, admittedly no contraband was recovered. Since there is nothing on record, suggestive of the fact that previously, any FIR stands registered against the petitioner under the NDPS Act, this Court finds it difficult to agree with Mr. Rajan Kahol, learned Additional Advocate General that in the event of petitioner being enlarged on bail, he may not only flee from justice, but may again indulge in these activities. 10. Hon’ble Apex Court as well as this Court in catena of cases have repeatedly held that one is deemed to be innocent till the time guilt, if any, of his/her is not proved in accordance with law. In the case at hand also, guilt, if any, of the accused is yet to be proved in accordance with law, by leading cogent and convincing material on record, coupled with the fact that he is 2025:HHC:592 -8- behind bars for more than 14 months, as such, his incarceration for indefinite period is clear cut violation of fundamental rights guaranteed under Article 21 of the Constitution of India. Apprehension expressed by the learned Additional Advocate General that in the event of petitioner’s being enlarged on bail, he may flee from justice, can be best met by putting the bail petitioner to stringent conditions as has been fairly stated by the learned counsel for the petitioner. 11. Hon'ble Apex Court in Criminal Appeal No. 227/2018, Dataram Singh vs. State of Uttar Pradesh & Anr decided on 6.2.2018 has held that freedom of an individual cannot be curtailed for indefinite period, especially when his/her guilt is yet to be proved. It has been further held by the Hon'ble Apex Court in the aforesaid judgment that a person is believed to be innocent until found guilty. 12. Hon’ble Apex Court in Sanjay Chandra versus Central Bureau of Investigation (2012)1 Supreme Court Cases 49 has held that gravity alone cannot be a decisive ground to deny bail, rather competing factors are required to be balanced by the court while exercising its discretion. It has been repeatedly held by the Hon’ble Apex Court that object of bail is to secure the appearance of the accused person at his trial by reasonable amount of bail. The object of bail is neither punitive nor preventative. 2025:HHC:592 -9- 13. In Manoranjana Sinh alias Gupta versus CBI, (2017) 5 SCC 218, Hon'ble Apex Court has held that the object of the bail is to secure the attendance of the accused in the trial and the proper test to be applied in the solution of the question whether bail should be granted or refused is whether it is probable that the party will appear to take his trial. Otherwise also, normal rule is of bail and not jail. Apart from above, Court has to keep in mind nature of accusations, nature of evidence in support thereof, severity of the punishment, which conviction will entail, character of the accused, circumstances which are peculiar to the accused involved in that crime. 14. The Apex Court in Prasanta Kumar Sarkar versus Ashis Chatterjee and another (2010) 14 SCC 496, has laid down various principles to be kept in mind, while deciding petition for bail viz. prima facie case, nature and gravity of accusation, punishment involved, apprehension of repetition of offence and witnesses being influenced. 15. In view of the aforesaid discussion as well as law laid down by the Hon’ble Apex Court, petitioner has carved out a case for grant of bail. Accordingly, present petition is allowed and the petitioner is ordered to be enlarged on bail in aforesaid FIR, subject to his furnishing personal bond in the sum of Rs.2,00,000/- with two local sureties in the like amount to the 2025:HHC:592 -10- satisfaction of concerned Chief Judicial Magistrate/trial Court, with following conditions: (a) he shall make himself available for the purpose of interrogation, if so required and regularly attend the trial Court on each and every date of hearing and if prevented by any reason to do so, seek exemption from appearance by filing appropriate application; (b) he shall not tamper with the prosecution evidence nor hamper the investigation of the case in any manner whatsoever; (c) he shall not make any inducement, threat or promises to any person acquainted with the facts of the case so as to dissuade him/her from disclosing such facts to the Court or the Police Officer; and (d) he shall not leave the territory of India without the prior permission of the Court. 16. It is clarified that if the petitioner misuses the liberty or violates any of the conditions imposed upon him, the investigating agency shall be free to move this Court for cancellation of the bail. 17. Any observations made hereinabove shall not be construed to be a reflection on the merits of the case and shall remain confined to the disposal of this application alone. The petition stands accordingly disposed of. 18. The petitioner is permitted to produce copy of the order downloaded from the High Court Website and the trial court shall not insist for certified copy of the order, however, it may verify the order from the High Court website or otherwise. (Sandeep Sharma) Judge 03rd January, 2025 (Rajeev Raturi)