IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. MP (M) Nos. 2341 and 2343 of 2025 Reserved on: 24.09.2025 Date of Decision: 08.10.2025 1. Cr.MP(M) No. 2341 of 2025 Vanshika ...Petitioner Versus State of Himachal Pradesh ...Respondent 2. Cr.MP(M) No. 2343 of 2025 Samarth Hatoch ..Petitioner Versus State of Himachal Pradesh ...Respondent Coram Hon’ble Mr Justice Rakesh Kainthla, Judge. Whether approved for reporting?1 No For the Petitioner(s): Ms Kiran Dhiman, Advocate, in both the petitions. For the Respondent/State: Mr Jitender K. Sharma, Additional Advocate General, in both the petitions, along with HC Mohinder Kumar No. 38. Rakesh Kainthla, Judge Since both the bail petitions have arisen out of the same F.I.R., therefore, they are being taken up together for disposal by way of a common judgment. 2. The petitioners have filed the present petitions for seeking their regular bail in FIR No. 190 of 2025, dated 1 Whether reporters of Local Papers may be allowed to see the judgment? Yes. 2 08.09.2025, registered for the commission of offences punishable under Sections 20, 25 and 29 of the Narcotic Drugs and Psychotropic Substances Act (for short ‘NDPS’) at Police Station Sundar Nagar, District Mandi, H.P. 3. It has been asserted that, as per the prosecution, the petitioners were found in possession of a non-commercial quantity of charas. The petitioners are innocent. Their engagement was fixed in September 2025. Their families would suffer a loss of reputation in case the engagement is not held on the date fixed. The petitioners would abide by all the terms and conditions which the Court may impose. Hence, the present petitions. 4. The petitions are opposed by filing a status report asserting that the police intercepted a vehicle bearing registration No. DL7CQ-3551 at Pungh Four lane on 08.09.2025. The petitioners were occupying the vehicle. The police asked them to show documents, but they prevaricated. The police associated Hansraj as an independent witness and enquired about the names of the petitioners. The driver identified himself as Samrath Hatoj, and the passenger identified herself as Vanshika. The police searched the vehicle and recovered one 3 carry bag containing 249 grams of Charas. The police seized the charas and arrested the petitioners. The Charas was sent to SFSL, Junga, and as per result, it was confirmed to be the extract of cannabis and a sample of Charas. No other F.I.R. has been registered against the petitioners. The investigation is continuing. Hence, the status report. 5. I have heard Ms Kiran Dhiman, learned counsel for the petitioner(s) in both the petitions and Mr Jitender K.Sharma, learned Additional Advocate General, for the respondent/State in both the petitions. 6. Ms Kiran Dhiman, learned counsel for the petitioner(s), submitted that the petitioners are innocent and they were falsely implicated. Their engagement ceremony was scheduled to be held in September, 2025. Their family members would suffer loss of reputation in case their engagement is not solemnised on the date fixed. Hence, she prayed that the present petitions be allowed and the petitioners be released on bail. 7. Mr Jitender K. Sharma, learned Additional Advocate General, submitted that the petitioners were found in possession of 249 grams of charas, which is a huge quantity and could not 4 have been meant for self-consumption. Charas is adversely affecting the younger generation, and no leniency should be shown to the petitioners. Hence, he prayed that the present petitions be dismissed. 8. I have given considerable thought to the submissions made at the bar and have gone through the records carefully. 9. The parameters for granting bail were considered by the Hon’ble Supreme Court in Pinki v. State of U.P., (2025) 7 SCC 314: 2025 SCC OnLine SC 781, wherein it was observed at page 380: - (i) Broad principles for the grant of bail 56. In Gudikanti Narasimhulu v. High Court of A.P., (1978) 1 SCC 240: 1978 SCC (Cri) 115, Krishna Iyer, J., while elaborating on the content of Article 21 of the Constitution of India in the context of personal liberty of a person under trial, has laid down the key factors that should be considered while granting bail, which are extracted as under: (SCC p. 244, paras 7-9) “7. It is thus obvious that the nature of the charge is the vital factor, and the nature of the evidence is also pertinent. The punishment to which the party may be liable, if convicted or conviction is confirmed, also bears upon the issue. 8. Another relevant factor is whether the course of justice would be thwarted by him who seeks the benignant jurisdiction of the Court to be freed for the time being. [Patrick Devlin, “The Criminal Prosecution in England” (Oxford University Press, London 1960) p. 75 — Modern Law Review, Vol. 81, Jan. 1968, p. 54.] 5 9. Thus, the legal principles and practice validate the Court considering the likelihood of the applicant interfering with witnesses for the prosecution or otherwise polluting the process of justice. It is not only traditional but rational, in this context, to enquire into the antecedents of a man who is applying for bail to find whether he has a bad record, particularly a record which suggests that he is likely to commit serious offences while on bail. In regard to habituals, it is part of criminological history that a thoughtless bail order has enabled the bailee to exploit the opportunity to inflict further crimes on the members of society. Bail discretion, on the basis of evidence about the criminal record of a defendant, is therefore not an exercise in irrelevance.” (emphasis supplied) 57. In Prahlad Singh Bhati v. State (NCT of Delhi), (2001) 4 SCC 280: 2001 SCC (Cri) 674, this Court highlighted various aspects that the courts should keep in mind while dealing with an application seeking bail. The same may be extracted as follows: (SCC pp. 284-85, para 8) “8. The jurisdiction to grant bail has to be exercised on the basis of well-settled principles, having regard to the circumstances of each case and not in an arbitrary manner. While granting the 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, behaviour, means and standing 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 or State and similar other considerations. It has also to be kept in mind that for the purposes of granting the bail the legislature has used the words “reasonable grounds for believing” instead of “the evidence” which means the court dealing with the grant of bail can only satisfy it (sic itself) as to whether there is a genuine case against the accused and that the prosecution will be able to produce prima facie evidence in support of the charge.” (emphasis supplied) 6 58. This Court in Ram Govind Upadhyay v. Sudarshan Singh, (2002) 3 SCC 598: 2002 SCC (Cri) 688, speaking through Banerjee, J., emphasised that a court exercising discretion in matters of bail has to undertake the same judiciously. In highlighting that bail should not be granted as a matter of course, bereft of cogent reasoning, this Court observed as follows: (SCC p. 602, para 3) “3. Grant of bail, though being a discretionary order, but, however, calls for the exercise of such a discretion in a judicious manner and not as a matter of course. An order for bail bereft of any cogent reason cannot be sustained. Needless to record, however, that the grant of bail is dependent upon the contextual facts of the matter being dealt with by the court and facts do always vary from case to case. While placement of the accused in the society, though it may be considered by itself, cannot be a guiding factor in the matter of grant of bail, and the same should always be coupled with other circumstances warranting the grant of bail. The nature of the offence is one of the basic considerations for the grant of bail — the more heinous is the crime, the greater is the chance of rejection of the bail, though, however, dependent on the factual matrix of the matter.” (emphasis supplied) 59. In Kalyan Chandra Sarkar v. Rajesh Ranjan, (2004) 7 SCC 528: 2004 SCC (Cri) 1977, this Court held that although it is established that a court considering a bail application cannot undertake a detailed examination of evidence and an elaborate discussion on the merits of the case, yet the court is required to indicate the prima facie reasons justifying the grant of bail. 60. In Prasanta Kumar Sarkar v. Ashis Chatterjee, (2010) 14 SCC 496: (2011) 3 SCC (Cri) 765, this Court observed that where a High Court has granted bail mechanically, the said order would suffer from the vice of non-application of mind, rendering it illegal. This Court held as under with regard to the circumstances under which an order granting bail may be set aside. In doing so, the factors which ought to have guided the Court's decision to grant bail have also been detailed as under: (SCC p. 499, para 9) 7 “9. … It is trite that this Court does not, normally, interfere with an order passed by the High Court granting or rejecting bail to the accused. However, it is equally incumbent upon the High Court to exercise its discretion judiciously, cautiously and strictly in compliance with the basic principles laid down in a plethora of decisions of this Court on the point. It is well settled that, among other circumstances, the factors to be borne in mind while considering an application for bail are: (i) whether there is any prima facie or reasonable ground to believe that the accused had committed the offence; (ii) nature and gravity of the accusation; (iii) severity of the punishment in the event of conviction; (iv) danger of the accused absconding or fleeing, if released on bail; (v) character, behaviour, means, position and standing of the accused; (vi) likelihood of the offence being repeated; (vii) reasonable apprehension of the witnesses being influenced; and (viii) danger, of course, of justice being thwarted by grant of bail.” (emphasis supplied) xxxxxxx 62. One of the judgments of this Court on the aspect of application of mind and requirement of judicious exercise of discretion in arriving at an order granting bail to the accused is Brijmani Devi v. Pappu Kumar, (2022) 4 SCC 497 : (2022) 2 SCC (Cri) 170, wherein a three-Judge Bench of this Court, while setting aside an unreasoned and casual order (Pappu Kumar v. State of Bihar, 2021 SCC OnLine Pat 2856 and Pappu Singh v. State of Bihar, 2021 SCC OnLine Pat 2857) of the High Court granting bail to the accused, observed as follows: (Brijmani Devi v. Pappu Kumar, (2022) 4 SCC 497 : (2022) 2 SCC (Cri) 170]), SCC p. 511, para 35) “35. While we are conscious of the fact that liberty of an individual is an invaluable right, at the same time while 8 considering an application for bail courts cannot lose sight of the serious nature of the accusations against an accused and the facts that have a bearing in the case, particularly, when the accusations may not be false, frivolous or vexatious in nature but are supported by adequate material brought on record so as to enable a court to arrive at a prima facie conclusion. While considering an application for the grant of bail, a prima facie conclusion must be supported by reasons and must be arrived at after having regard to the vital facts of the case brought on record. Due consideration must be given to facts suggestive of the nature of crime, the criminal antecedents of the accused, if any, and the nature of punishment that would follow a conviction vis-à-vis the offence(s) alleged against an accused.” (emphasis supplied) 10. The present petitions have to be decided as per the parameters laid down by the Hon’ble Supreme Court. 11. The status report shows that the police intercepted a vehicle bearing registration No. DL7CQ-3551. The petitioners were found present in it. They are known to each other, as is apparent from the fact that they are going through the engagement ceremony. In Madan Lal versus State of H.P. (2003) 7 SCC 465: 2003 SCC (Cri) 1664: 2003 SCC OnLineSC 874, the contraband was recovered from a vehicle, and it was held that all the occupants of the vehicle would be in conscious possession of the contraband. It was observed: “19. Whether there was conscious possession has to be determined with reference to the factual backdrop. The facts which can be culled out from the evidence on record 9 are that all the accused persons were travelling in a vehicle, and as noted by the trial court, they were known to each other, and it has not been explained or shown as to how they travelled together from the same destination in a vehicle which was not a public vehicle. 20. Section 20(b) makes possession of contraband articles an offence. Section 20 appears in Chapter IV of the Act, which relates to offences for possession of such articles. It is submitted that to make the possession illicit, there must be conscious possession. 21. It is highlighted that unless the possession was coupled with the requisite mental element, i.e., conscious possession and not mere custody without awareness of the nature of such possession, Section 20 is not attracted. 22. The expression “possession” is a polymorphous term which assumes different colours in different contexts. It may carry different meanings in contextually different backgrounds. It is impossible, as was observed in the Supdt. & Remembrancer of Legal Affairs, W.B. v. Anil Kumar Bhunja [(1979) 4 SCC 274: 1979 SCC (Cri) 1038: AIR 1980 SC 52] to work out a completely logical and precise definition of “possession” uniformly applicable to all situations in the context of all statutes. 23. The word “conscious” means awareness of a particular fact. It is a state of mind which is deliberate or intended. 24. As noted in Gunwantlal v. State of M.P. [(1972) 2 SCC 194: 1972 SCC (Cri) 678: AIR 1972 SC 1756], possession in a given case need not be physical possession but can be constructive, having power and control over the article in the case in question, while the person to whom physical possession is given holds it subject to that power or control. 25. The word “possession” means the legal right to possession (see Heath v. Drown [(1972) 2 All ER 561: 1973 AC 498: (1972) 2 WLR 1306 (HL)] ). In an interesting case, it was observed that where a person keeps his firearm in his mother's flat, which is safer than his own home, he 10 must be considered to be in possession of the same. (See Sullivan v. Earl of Caithness [(1976) 1 All ER 844: 1976 QB 966: (1976) 2 WLR 361 (QBD)].) 26. Once possession is established, the person who claims that it was not a conscious possession has to establish it because how he came to be in possession is within his special knowledge. Section 35 of the Act gives a statutory recognition of this position because of the presumption available in law. Similar is the position in terms of Section 54, where a presumption is also available to be drawn from possession of illicit articles. 27. In the factual scenario of the present case, not only possession but conscious possession has been established. It has not been shown by the accused- appellants that the possession was not conscious in the logical background of Sections 35 and 54 of the Act.” 12. Therefore, prima facie, the petitioners are to be treated in possession of the charas, and the burden is upon them under Sections 35 and 54 of the NDPS Act to prove that their possession was not conscious. There is nothing on record to establish this fact. Therefore, the submission that the petitioners are innocent is not acceptable. 13. The status report shows that petitioners were found in possession of 249 grams of charas. It is an intermediate quantity; hence, the rigours of Section 37 of the NDPS Act do not apply to the present case. 14. The status report shows that no other case was registered against the petitioners. The ages of the petitioners are 11 23 and 27 years. They deserve a chance to reform themselves. Their continued detention in judicial custody would bleak their chance of reformation because they would come in contact with hardened criminal, which would harm their chances of reformation. 15. It has been asserted in the petitions that the petitioners are residents of Delhi. This was not stated to be incorrect. It means that the petitioners have roots in society, and there is no chance of their absconding. 16. It was submitted that the petitioners would influence the investigation and intimidate the witnesses if released on bail. This apprehension can be removed by imposing conditions, and it is not sufficient to deny bail to the petitioners. 17. Consequently, the present petitions are allowed, and the petitioners are ordered to be released on bail subject to their furnishing bail bonds in the sum of ₹1,00,000/- each with one surety each of the like amount to the satisfaction of the learned Trial Court. While on bail, the petitioners will abide by the following terms and conditions: - (I) The petitioners will not intimidate the witnesses, nor will they influence any evidence in any manner whatsoever. 12 (II) The petitioners shall attend the trial on each and every hearing and will not seek unnecessary adjournments. (III) The petitioners will not leave the present address for a continuous period of seven days without furnishing their addresses of the intended visit to the SHO concerned, the Police Station concerned and the Trial Court. (IV) The petitioners will surrender their passport, if any, to the Court; and (V) The petitioners will furnish their mobile number and social media contacts to the Police and the Court and will abide by the summons/notices received from the Police/Court through SMS/WhatsApp/Social Media Account. In case of any change in the mobile number or social media accounts, the same will be intimated to the Police/Court within five days from the date of the change. 18. It is expressly made clear that in case of violation of any of these conditions, the prosecution will have the right to file a petition for cancellation of the bail. 19. The petitions stand accordingly disposed of. A copy of this order be sent to the Superintendent, Sub Jail, Mandi, District Mandi, H.P. and the learned Trial Court through FASTER. 20. The observations made hereinabove are regarding the disposal of the petitions and will have no bearing whatsoever on the case's merits. (Rakesh Kainthla) Judge 08th October,2025 (ravinder) Digitally signed by RAVINDER KUMAR DN: C=IN, O=HIGH COURT OF HIMACHAL PRADESH SHIMLA, Phone=35ecb6f93c6891a7dae90f163e34d7ecaa420b13af136320 4ab0e0f5c87077dc, PostalCode=171001, S=Himachal Pradesh, SERIALNUMBER=f6cc63c55495d14ce1f8623eacdb6cb9ef2c553 803537a2f53c4ee637cbebaff, CN=RAVINDER KUMAR Reason: I am the author of this document Location: Date: 2025-10-08 12:47:33 RAVINDER KUMAR