2025:HHC:32831 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. MP(M) No. 2292 of 2025 Reserved on: 16.09.2025 Date of Decision: 22.09.2025. Seema ...Petitioner Versus State of Himachal Pradesh ...Respondent Coram Hon’ble Mr Justice Rakesh Kainthla, Judge. Whether approved for reporting?1 No For the Petitioner : M/s. Vinod Thakur and Nandita, Advocates, vice Mr. Vinod Chauhan, Advocate. For the Respondent : Mr Lokender Kutlehria, Additional Advocate General. Rakesh Kainthla, Judge The petitioner has filed the present petition for seeking pre-arrest bail in FIR No. 36/2025, dated 08.03.2025, registered at Police Station Majra, District Sirmaur, H.P., for the commission of offences punishable under Sections 21 & 29 of the Narcotic Drugs & Psychotropic Substances Act (“in short NDPS Act”), 1985. 1 Whether reporters of Local Papers may be allowed to see the judgment? Yes. 2 2025:HHC:32831 2. It has been asserted that the petitioner is innocent and that she has nothing to do with the commission of the crime. She was falsely implicated based on the statement made by the co- accused. The petitioner would join the investigation and abide by the terms and conditions which the Court may impose. Hence, the petition. 3. The petition is opposed by filing a status report asserting that the police party was on patrolling duty on 08.03.2025. They received a secret information at 04:20 PM at Dhaulakuan that Dinesh Kumar and his mother, Santosh, were selling heroin, and a huge quantity of heroin could be recovered from the search of their house. The police reduced the information to writing and associated Ravinder Singh as a witness. The police searched Dinesh's house in the presence of Santosh and recovered 8.9 grams of heroin. The police seized the heroin and arrested Santosh. Santosh revealed during the interrogation that Dinesh had brought the heroin. The police also arrested Dinesh. He revealed during the interrogation that he had purchased the heroin from the present petitioner. The heroin was sent to SFSL Junga, and as per the result of analysis, it was confirmed to be a sample of Diacetylmorphine (heroin). The 3 2025:HHC:32831 police checked the call detail record and found that Dinesh and Seema had talked to each other 81 times, between 09.03.2025 and 01.09.2025. FIR No. 198 of 2017, dated 05.05.2017, registered against the petitioner is pending before the Court. The petitioner absconded after the registration of the FIR. The investigation is continuing, hence the status report. 4. I have heard M/s. Vinod Thakur & Nandita, learned counsel representing the petitioner and Mr Lokender Kutlehria, learned Additional Advocate General, for the respondent-State. 5. Mr Vinod Thakur, learned counsel representing the petitioner, submitted that the petitioner is innocent and she was falsely implicated. There is no material against the petitioner except the statement made by the co-accused, which is insufficient to connect her with the commission of the crime. Therefore, he prayed that the present petition be allowed and the petitioner be released on bail. He relied upon the judgment of Sukh Dass vs. State of HP, Cr.MP(M) No. 34 of 2022, decided on 01.04.2022, in support of his submission. 6. Mr Lokender Kutlehria, learned Additional Advocate General, for the respondent-State, submitted that the 4 2025:HHC:32831 investigation is at the initial stage. The petitioner is to be interrogated regarding the source of the heroin and the names of the persons to whom the heroin was sold. Heroin is adversely affecting the young generation, and it is necessary to trace its source. 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. It was laid down by the Hon’ble Supreme Court in P. Chidambaram v. Directorate of Enforcement, (2019) 9 SCC 24: (2019) 3 SCC (Cri) 509: 2019 SCC OnLine SC 1143 that the power of pre- arrest bail is extraordinary and should be exercised sparingly. It was observed: “69. Ordinarily, an arrest is a part of the procedure of the investigation to secure not only the presence of the accused but also several other purposes. Power under Section 438 Cr.P.C. is an extraordinary power, and the same has to be exercised sparingly. The privilege of pre-arrest bail should be granted only in exceptional cases. The judicial discretion conferred upon the court has to be properly exercised after application of mind as to the nature and gravity of the accusation; the possibility of the applicant fleeing justice and other factors are considered to decide whether it is a fit case for the grant of anticipatory bail. Grant of anticipatory bail to some extent interferes with the sphere of investigation of an offence, and hence, the court must be 5 2025:HHC:32831 circumspect while exercising such power for the grant of anticipatory bail. Anticipatory bail is not to be granted as a matter of rule, and it has to be granted only when the court is convinced that exceptional circumstances exist to resort to that extraordinary remedy.” 9. It was held in P Chidambaram (supra) that economic offences are to be treated differently from other offences. It was observed: Economic offences 78. Power under Section 438 CrPC, being an extraordinary remedy, has to be exercised sparingly; more so, in cases of economic offences. Economic offences stand as a different class as they affect the economic fabric of society. In Directorate of Enforcement v. Ashok Kumar Jain [Directorate of Enforcement v. Ashok Kumar Jain, (1998) 2 SCC 105: 1998 SCC (Cri) 510], it was held that in economic offences, the accused is not entitled to anticipatory bail. xxxxxx 80. Observing that an economic offence is committed with deliberate design with an eye on personal profit regardless of the consequence to the community, in State of Gujarat v. Mohanlal Jitamalji Porwal [State of Gujarat v. Mohanlal Jitamalji Porwal, (1987) 2 SCC 364: 1987 SCC (Cri) 364], it was held as under: (SCC p. 371, para 5) “5. … The entire community is aggrieved if the economic offenders who ruin the economy of the State are not brought to book. A murder may be committed in the heat of the moment, upon passions being aroused. An economic offence is committed with cool calculation and deliberate design with an eye on personal profit, regardless of the consequences to the community. A disregard for the interest of the community can be manifested only at the cost of forfeiting the trust and faith of the 6 2025:HHC:32831 community in the system to administer justice in an even-handed manner without fear of criticism from the quarters which view white-collar crimes with a permissive eye, unmindful of the damage done to the national economy and national interest.” 81. Observing that economic offences constitute a class apart and need to be visited with a different approach in the matter of bail, in Y.S. Jagan Mohan Reddy v. CBI [Y.S. Jagan Mohan Reddy v. CBI, (2013) 7 SCC 439: (2013) 3 SCC (Cri) 552], the Supreme Court held as under: (SCC p. 449, paras 34-35) “34. Economic offences constitute a class apart and need to be viewed with a different approach in the matter of bail. The economic offences having deep-rooted conspiracies and involving huge loss of public funds need to be viewed seriously and considered as grave offences affecting the economy of the country as a whole, and thereby posing a serious threat to the financial health of the country. 35. While granting bail, the court has to keep in mind the nature of accusations, the nature of evidence in support thereof, the severity of the punishment which conviction will entail, the character of the accused, circumstances which are peculiar to the accused, reasonable possibility of securing the presence of the accused at the trial, reasonable apprehension of the witnesses being tampered with, the larger interests of the public/State and other similar considerations.” (emphasis supplied) 82. Referring to Dukhishyam Benupani v. Arun Kumar Bajoria [Dukhishyam Benupani v. Arun Kumar Bajoria, (1998) 1 SCC 52: 1998 SCC (Cri) 261], in Directorate of Enforcement v. Bher Chand Tikaji Bora [Directorate of Enforcement v. Bher Chand Tikaji Bora, (1999) 5 SCC 720: 1999 SCC (Cri) 1045], while hearing an appeal by the Enforcement Directorate against the order [Bherchand Tikaji Bora v. State of Maharashtra, 7 2025:HHC:32831 Criminal Application No. 2140 of 1998, decided on 21- 7-1998 (Bom)] of the Single Judge of the Bombay High Court granting anticipatory bail to the respondent thereon, the Supreme Court set aside the order of the Single Judge granting anticipatory bail. 10. This position was reiterated in Srikant Upadhyay v. State of Bihar, 2024 SCC OnLine SC 282, wherein it was held: “25. We have already held that the power to grant anticipatory bail is extraordinary. Though in many cases it was held that bail is said to be a rule, it cannot, by any stretch of the imagination, be said that anticipatory bail is the rule. It cannot be the rule, and the question of its grant should be left to the cautious and judicious discretion of the Court, depending on the facts and circumstances of each case. While called upon to exercise the said power, the Court concerned has to be very cautious, as the grant of interim protection or protection to the accused in serious cases may lead to a miscarriage of justice and may hamper the investigation to a great extent, as it may sometimes lead to tampering or distraction of the evidence. We shall not be understood to have held that the Court shall not pass interim protection pending consideration of such application as the Section is destined to safeguard the freedom of an individual against unwarranted arrest, and we say that such orders shall be passed in eminently fit cases.” 11. It was held in Pratibha Manchanda v. State of Haryana, (2023) 8 SCC 181: 2023 SCC OnLine SC 785 that the Courts should balance individual rights, public interest and fair investigation while considering an application for pre-arrest bail. It was observed: 8 2025:HHC:32831 “21. The relief of anticipatory bail is aimed at safeguarding individual rights. While it serves as a crucial tool to prevent the misuse of the power of arrest and protects innocent individuals from harassment, it also presents challenges in maintaining a delicate balance between individual rights and the interests of justice. The tightrope we must walk lies in striking a balance between safeguarding individual rights and protecting public interest. While the right to liberty and presumption of innocence are vital, the court must also consider the gravity of the offence, the impact on society, and the need for a fair and free investigation. The court's discretion in weighing these interests in the facts and circumstances of each case becomes crucial to ensure a just outcome.” 12. It was laid down by the Hon’ble Supreme Court in State of Haryana v. Samarth Kumar, 2022 SCC OnLine SC 2087, that an accused dealing in narcotics should not be released on bail. It was observed: “9. To grant anticipatory bail in a case of this nature is not really warranted. Therefore, we are of the view that the High Court fell into an error in granting anticipatory bail to the respondents.” 13. The present petition is to be decided as per the parameters laid down by the Hon’ble Supreme Court. 14. A perusal of the status report shows that the petitioner was named by Dinesh as a seller of the heroin. The police checked the call detail record and found that the accused Dinesh had talked to the present petitioner 81 times, within six months. The 9 2025:HHC:32831 call detail record and the statement made by the co-accused prima facie show that there exists sufficient material to further interrogate the petitioner. 15. It was submitted that the statement made by the co- accused is not admissible. Reliance was placed upon the judgment of the Hon’ble Supreme Court in Tofan Singh v. State of Tamil Nadu, 2021 4 SCC (1). The Hon’ble Supreme Court considered this judgment in Union of India vs Khaliludeen 2022 Supreme SC 1247 and denied bail to the accused, who was named by the co- accused. It was observed: - “8. The answer to said question could be the statement recorded by Md. Nizam Uddin. The statement of Md. Jakir Hussain, recorded under Section 67 of the act, has also named his owner Abdul Hai. We are conscious of the fact that the validity and scope of such statements under Section 67 have been pronounced upon by this Court in Tofan Singh vs. State of Tamil Nadu, (2021) 4 SCC 1. In State by (NCB) Bengaluru vs. Pallulabid Ahmad Arimutta and Another, 2022 Live Law (SC) 69, the rigour of law laid down by this Court in Tofan Singh was held to be applicable even at the stage of grant of bail. 9. However, going by the circumstances on record, at this stage, on the strength of the statement of Md. Nizam Uddin, though allegedly retracted later, the matter stands on a different footing. In our considered view, in the face of the mandate of Section 37 of the Act, the High Court could not and ought not to have released the accused on bail. We, therefore, allow these appeals, set aside the view taken by 10 2025:HHC:32831 the High Court and direct that both the appellants be taken in custody forthwith”. 16. This position was reiterated in Union of India v. Ajay Kumar Singh, 2023 SCC OnLine SC 346, wherein it was held: “11. The information revealed by the above two accused persons indicated that both of them knew the respondent- accused and that they had connived with him to transport the illicit ganja, and that they were in direct contact with the respondent-accused all through his mobile number. The facts as unfurled from the complaint/FIR and the statements of the above two accused persons recorded under Section 67 of the NDPS Act reveal that the respondent-accused is the kingpin and the organiser of the illicit trade in ganja xxxx 17. The quantity of “ganja” recovered is admittedly of commercial quantity. The High Court has not recorded any finding that the respondent-accused is not prima facie guilty of the offence alleged and that he is not likely to commit the same offence when enlarged on bail; rather, his antecedents are indicative that he is a regular offender. In the absence of a recording of such satisfaction by the court, we are of the opinion that the High Court manifestly erred in enlarging the respondent-accused on bail. 17. It was held by the Hon’ble Supreme Court in State of Haryana v. Samarth Kumar, 2022 SCC OnLine SC 2087, that the accused cannot be released on pre-arrest bail relying upon the judgment in Tofan Singh (supra). It was observed: “4. The High Court decided to grant pre-arrest bail to the respondents on the only ground that no recovery was effected from the respondents and that they had been 11 2025:HHC:32831 implicated only on the basis of the disclosure statement of the main accused, Dinesh Kumar. Therefore, reliance was placed by the High Court in the majority judgment of this Court in Tofan Singh v. State of Tamil Nadu, (2021) 4 SCC 1. xxxxx 8. In cases of this nature, the respondents may be able to take advantage of the decision in Tofan Singh v. State of Tamil Nadu (supra), perhaps at the time of arguing the regular bail application or at the time of final hearing after the conclusion of the trial. 9. To grant anticipatory bail in a case of this nature is not really warranted. Therefore, we are of the view that the High Court fell into an error in granting anticipatory bail to the respondents.” (Emphasis supplied) 18. These judgments were followed by this Court in Rajesh Kumar v. State of H.P., Cr.MP(M) No. 458 of 2025, decided on 25.3.2025, and it was held that the pre-arrest bail can be denied to a person named by the co-accused to enable the police to interrogate the petitioner. An SLP No. 55547 of 2025 titled Rajesh Kumar Vs. State of H.P. against this order was withdrawn on 21.4.2025. It was held by this Court in Jatinder Pal Singh vs. State of HP 2025:HHC:20446 that a person named by the co-accused is not entitled to pre-arrest bail. This order was upheld by the Hon’ble Supreme Court in Jatinder Pal Singh vs. State of HP, Petition for Special Leave to Appeal (Crl.) No. 9629/2025 decided on 10.07.2025. 12 2025:HHC:32831 19. Thus, the submission that the statement made by the co-accused is insufficient to justify the pre-trial detention of the petitioner cannot be accepted. 20. It was submitted that the custodial interrogation of the petitioner is required for ascertaining the names of the persons to whom the heroin has been sold by the petitioner. This submission is to be accepted as correct. It was laid down by the Hon’ble Supreme Court in State Versus Anil Sharma (1997) 7 SCC 187 that where custodial interrogation is required, pre-arrest bail should not be granted. It was observed: - “6. We find force in the submission of the CBI that custodial interrogation is qualitatively more elicitation- oriented than questioning a suspect who is well-ensconced with a favourable order under Section 438 of the Code. In a case like this, effective interrogation of a suspected person is of tremendous advantage in disinterring many useful information and also materials which would have been concealed. Success in such interrogation would elude if the suspected person knows that he is well protected and insulated by a pre-arrest bail order during the time he is interrogated. Very often, interrogation in such a condition would reduce to a mere ritual. The argument that the custodial interrogation is fraught with the danger of the person being subjected to third-degree methods need not be countenanced, for such an argument can be advanced by all accused in all criminal cases. The Court has to presume that responsible Police Officers would conduct themselves in a responsible manner and that those entrusted with the 13 2025:HHC:32831 task of disinterring offences would not conduct themselves as offender” 21. A similar view was taken by the Delhi High Court in Mukesh Khurana v. State (NCT of Delhi), 2022 SCC OnLine Del 1032, wherein it was observed: - “13. One of the significant factors in determining this question would be the need for custodial interrogation. Without a doubt, custodial interrogation is more effective to question a suspect. The cocoon of protection afforded by a bail order insulates the suspect, and he could thwart interrogation, reducing it to futile rituals. But it must also be kept in mind that while interrogation of a suspect is one of the basic and effective methods of crime solving, the liberty of an individual also needs to be balanced out.” 22. It was held in P Chidambaram (supra) that the grant of pre-arrest bail may hamper the investigations. It was observed: “83. Grant of anticipatory bail at the stage of investigation may frustrate the investigating agency in interrogating the accused and in collecting useful information, and also the materials which might have been concealed. Success in such interrogation would elude if the accused knows that he is protected by the order of the court. Grant of anticipatory bail, particularly in economic offences, would definitely hamper the effective investigation. Having regard to the materials said to have been collected by the respondent Enforcement Directorate and considering the stage of the investigation, we are of the view that it is not a fit case to grant anticipatory bail.” 23. The judgment in Sukh Dass (supra) deals with the Drugs and Cosmetics Act, and the pre-arrest bail was granted 14 2025:HHC:32831 because the drugs were not found to be sub-standard or spurious. Hence, the cited judgment does not apply to the present case. 24. In view of the above, the present petitioner is not entitled to a concession to pre-arrest bail; hence, the present petition fails and it is dismissed. 25. The observation made herein before shall remain confined to the disposal of the instant petition and will have no bearing, whatsoever, on the merits of the case. (Rakesh Kainthla) Judge 22nd September, 2025 (Anurag)