2025:HHC:39499 _________________________ 1 Whether reporters of Local Papers may be allowed to see the judgment? Yes. IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. MPM No. 2297 of 2025 Reserved on: 17.11.2025 Date of Decision: 22.11.2025 Raj Kumar alias Sethi .... Petitioner Versus State of Himachal Pradesh ...Respondent Coram Hon’ble Mr Justice Rakesh Kainthla, Judge. Whether approved for reporting? No. For the Petitioner : Mr Arsh Chauhan, Advocate. For the Respondent- State : Mr Jitender K. Sharma, Additional Advocate General with SI Ashok Kumar, I.O. P.S. Damtal, District Kangra, H.P. Rakesh Kainthla, Judge The petitioner has filed the present petition for seeking regular bail in F.I.R. No. 127 of 2024, dated 27.10.2024, registered for the commission of offences punishable under Sections 21, 27A and 29 of the Narcotic Drugs and Psychotropic Substances Act (NDPS Act) at Police Station Damtal District Kangra, H.P. 2 2025:HHC:39499 2. It has been asserted that, as per the prosecution, the police apprehended one Kamaljeet and recovered 262 grams of heroin from his possession. He disclosed during the investigation that the contraband was handed over to him by Rajesh Kumar for delivery to Rajat Kumar. Police arrested Rajesh Kumar, who disclosed that he used to work for Vishal Kumar alias Shalu Bali, and he used to hand over the sale proceeds of the heroin to petitioner Raj Kumar alias Sethi. The police arrested the petitioner based on the statement made by Rajesh Kumar. No recovery was effected from the petitioner. The petitioner was in custody w.e.f. 22.10.2024 till 21.12.2024, and he could not have participated in the conspiracy, collection or delivery of drugs. The police relied upon the call detail record to show the similarity of the tower location of the petitioner and Rajesh Kumar, which is insufficient to connect the petitioner to the commission of the crime. The investigation is complete. One of the co-accused, Gagan Sarna, has been enlarged on bail, and the petitioner is entitled to bail based on parity. The petitioner has roots in society. The petitioner would abide by all the terms and conditions that the court may impose. Hence, the present petition. 3 2025:HHC:39499 3. The petition is opposed by filing a status report asserting that the police party apprehended Kamaljeet Singh with a carry bag containing 262 grams of heroin on 27.10.2024. The police seized the heroin and arrested Kamaljeet, who revealed during the interrogation that he had purchased the heroin from Rajesh, and he was to deliver it to Rajat Kumar. The police checked call details records and found that Rajesh and Rajat Kumar had been in touch with each other. The police arrested Rajesh, who revealed that Vishal, a resident of Dubai, supplies the heroin to him with directions to further supply it to the persons named by him. He used to hand over the money to petitioner Raj Kumar alias Sethi. The police apprehended Rajesh Kumar alias Sethi. Petitoiner Raj Kumar alias Sethi revealed during the interrogation that he had handed over the money to Lakhvinder Singh as per the directions of Vishal. The police apprehended Lakhvinder, who revealed that he had handed over some of the money to Mohit Singh, an employee of Gaurav Jewellers. He had also handed over about three crores rupees to Gagan Sarna, owner of Gaurav Jeweller. The police arrested Mohit Singh and recovered the gold ornaments, currency notes, and the investment documents. The police also arrested Gagan 4 2025:HHC:39499 Sarna at the instance of Lakhwinder Singh and recovered currency notes of ₹1,15,00,000/- (Rupees One Crore and Fifteen Lakhs) and jewellery. F.I.R. No. 125 of 2019 dated 04.10.2019, F.I.R. No. 128 of 2020 dated 03.09.2020 and F.I.R. No.120 of 2024 dated 19.10.2024 are registered against the petitioner at Police Station Damtal, District Kangra, H.P., under the various provisions of the NDPS Act, which are pending before the Court. Petitoiner Raj Kumar @ Sethi is supplying the heroin sent by Vishal Kumar, his son-in-law. He disclosed during the investigation that he collected more than ₹3 Crore in cash for Lakhwinder father of Shalu Bali. Petitioner Raj Kumar is involved in the sale/purchase of narcotics and is likely to commit a similar offence in case of his release on bail. Hence, the status report. 4. I have heard Mr Arsh Chauhan, learned counsel for the petitioner and Mr Jitender K. Sharma, learned Additional Advocate General, for the respondent State. 5. Mr Arsh Chauhan, learned counsel for the petitioner, submitted that the petitioner is innocent and he was falsely implicated. The co-accused Rajesh Kumar and Gagan Sarna have 5 2025:HHC:39499 already been released on bail. The grounds of arrest were not supplied to the petitioner, and his constitutional right has been violated. There is no evidence against the petitioner except for the statement made by the co-accused. The petitioner would abide by all the terms and conditions that the Court may impose. Hence, he prayed that the present petition be allowed and the petitioner be released on bail. 6. Mr Jitender K. Sharma, learned Additional Advocate General for the respondent/State, submitted that the petitioner is connected to the supply of heroin to the youth of the area and has collected more than three crore. The narcotic is adversely affecting the younger generation, and the petitioner would indulge in the commission of a similar offence in case of his release on bail. Hence, he prayed that the present petition be dismissed. 7. 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 6 2025:HHC:39499 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.] 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) 7 2025:HHC:39499 “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) 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 8 2025:HHC:39499 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) “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; 9 2025:HHC:39499 (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 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 2025:HHC:39499 8. The present petition has to be decided as per the parameters laid down by the Hon’ble Supreme Court. 9. It was submitted that the grounds of arrest were not communicated to the petitioner, and his detention is illegal. This submission is not acceptable. Hon’ble Supreme Court held in Mihir Rajesh Shah v. State of Maharashtra, 2025 SCC OnLine SC 2356 that the communication of the grounds of the arrests in all the offences would apply prospectively from the date of the pronouncement of the judgment. It was observed: “58. We are cognizant that there existed no consistent or binding requirement mandating the written communication of the grounds of arrest for all the offences. Holding as above, in our view, would ensure implementation of the constitutional rights provided to an arrestee as engrafted under Article 22 of the Constitution of India in an effective manner. Such clarity on obligation would avoid uncertainty in the administration of criminal justice. The ends of fairness and legal discipline, therefore, demand that this procedure, as affirmed above, shall govern arrests henceforth.” (Emphasis supplied) 10. Therefore, the non-supply of grounds of arrest will not make any difference. 11. The status report shows that police arrested Rajesh Kumar, who named the petitioner during interrogation. It was laid down by the Hon’ble Supreme Court in Dipakbhai 11 2025:HHC:39499 Jagdishchandra Patel v. State of Gujarat, (2019) 16 SCC 547: (2020) 2 SCC (Cri) 361: 2019 SCC OnLine SC 588 that a statement made by co-accused during the investigation is hit by Section 162 of Cr.P.C. (corresponding to Section 181 of BNSS) and cannot be used as a piece of evidence. Further, the confession made by the co-accused is inadmissible because of Section 25 of the Indian Evidence Act (corresponding to Section 23 of BSA). It was observed at page 568: - “44. Such a person, viz., the person who is named in the FIR, and therefore, the accused in the eyes of the law, can indeed be questioned, and the statement is taken by the police officer. A confession that is made to a police officer would be inadmissible, having regard to Section 25 of the Evidence Act. A confession, which is vitiated under Section 24 of the Evidence Act, would also be inadmissible. A confession, unless it fulfils the test laid down in Pakala Narayana Swami v. King Emperor, 1939 SCC OnLine PC 1: (1938-39) 66 IA 66: AIR 1939 PC 47 and as accepted by this Court, may still be used as an admission under Section 21 of the Evidence Act. This, however, is subject to the bar of admissibility of a statement under Section 161 CrPC. Therefore, even if a statement contains an admission, the statement being one under Section 161, it would immediately attract the bar under Section 162 CrPC.” 12. Similarly, it was held in Surinder Kumar Khanna vs Intelligence Officer, Directorate of Revenue Intelligence 2018 (8) SCC 271 that a confession made by a co-accused cannot be taken 12 2025:HHC:39499 as a substantive piece of evidence against another co-accused and can only be utilised to lend assurance to the other evidence. The Hon’ble Supreme Court subsequently held in Tofan Singh Versus State of Tamil Nadu 2021 (4) SCC 1 that a confession made to a police officer during the investigation is hit by Section 25 of the Indian Evidence Act. Therefore, the statements made by the accused and the co-accused cannot be relied upon to implicate the petitioner. 13. The police have relied upon the location of the petitioner and co co-accused in the call detail record. This will not help the prosecution. It was held by Division Bench of this Court in DSR No.1 of 2018, State of HP. Versus Chander Sharma and others 2025:HCC:33005, that the cellular networks are designed for billing and not for tracing the location of the subscriber. The police had not mentioned in the status report that the locations were checked with the help of the mobile phones of the petitioner and the co-accused and were found to be identical. Therefore, not much advantage can be derived from the call detail records. 13 2025:HHC:39499 14. There is no other evidence to connect the petitioner to the commission of crime, and there is insufficient material to, prima facie, connect the petitioner to the commission of crime. 15. The police have filed the charge sheet, which means that the investigation is complete, and the petitioner cannot interfere with the investigation if released on bail. The police also did not place any other material on record to justify the petitioner’s pre-trial detention. 16. Consequently, the present petition is allowed, and the petitioner is ordered to be released on bail, subject to his furnishing bail bonds in the sum of ₹1,00,000/- with one surety in the like amount to the satisfaction of the learned Trial Court. While on bail, the petitioner will abide by the following conditions:- (I) The petitioner will not intimidate the witnesses, nor will he influence any evidence in any manner whatsoever. (II) The petitioner shall attend the trial on each and every hearing and will not seek unnecessary adjournments. (III) The petitioner will not leave the present address for a continuous period of seven days without furnishing the address of the intended visit to the SHO concerned, the Police Station concerned and the Trial Court. 14 2025:HHC:39499 (IV) The petitioner will surrender his passport, if any, to the Court; and (V) The petitioner will furnish his mobile number and social media contact 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. 17. 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. 18. The petition stands accordingly disposed of. A copy of this order be sent to the Superintendent Sub Jail Nurpur, District Kangra, H.P. and the learned Trial Court by FASTER. 19. The observations made hereinabove are regarding the disposal of this petition and will have no bearing, whatsoever, on the case's merits. (Rakesh Kainthla) Judge 22nd November, 2025 (ravinder) Digitally signed by RAVINDER KUMAR DN: C=IN, O=HIGH COURT OF HIMACHAL PRADESH SHIMLA, Phone=35ecb6f93c6891a7dae90f163e34d7ecaa420b13af1363 204ab0e0f5c87077dc, PostalCode=171001, S=Himachal Pradesh, SERIALNUMBER=f6cc63c55495d14ce1f8623eacdb6cb9ef2c55 3803537a2f53c4ee637cbebaff, CN=RAVINDER KUMAR Reason: I am the author of this document Location: Date: 2025-11-22 10:37:06 RAVINDER KUMAR