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Himachal Pradesh High Court · body

2025 DAILYLAW 3500 (HP)

Rajinder Singh v. State of Himachal Pradesh

2025-09-26

Virender Singh

body2025
JUDGMENT : Virender Singh, Judge The above titled bail applications are disposed of by a common order, as, both the applicants have filed these applications, under Section 483 of the Bharatiya Nagarik Suraksha Sanhita (hereinafter referred to as the 'BNSS'), seeking the relief of bail, during the pendency of the trial, in a case, arising out of FIR No. 63/2024, dated 22.08.2024, registered with Police Station Tahliwal, District Una, H.P., under Sections 15 and 29 of the Narcotic  Drugs  and  Psychotropic  Substances  Act (hereinafter referred to as the ‘NDPS Act’). 2. According to the applicants, they are innocent persons and have falsely been implicated and arrested by the police, in the present case. 3. As per the applicants, they have been roped, in the present case, by some influential persons deliberately, in connivance with the local police. 4. It is the further case of the applicants that the investigation, in the present case, is complete and charge- sheet has been filed in the competent Court of law and the case is now fixed for PWs for 18th November, 2025. 5. According to the applicants, they are entitled to the bail, as, their custodial interrogation is no longer required. According to them, the grounds of arrest have not been supplied to them. 6. Applicants have earlier tried their luck, by moving similar applications, before this Court, however, the said applications were dismissed as withdrawn on 01.05.2025. 7. Apart from this, learned counsel appearing on behalf of the applicants, have given certain undertakings, on behalf of the applicants, for which, the applicants are ready to abide by, in case, ordered to be released, on bail, during the pendency of the trial. 8. On the basis of the above facts, a prayer has been made to allow the applications. 9. When put to notice, the police has filed the status report, disclosing therein, that on 22.08.2024, HC Devender Prakash, No.96, I.O. Police Station, Tahliwal, along with other police officials, was on patrolling duty, traffic checking, picketing duty and duty to detect the crime relating to excise and narcotics. 9.1. At about 2.55 p.m., when, the police party had put a picketing, for traffic checking at Tahliwal, near ‘Bhajne the Dhaba’, they noticed a car, being driven by its driver, coming from Santoshgarh side. The I.O. had given the signal to the driver to stop the car. 9.1. At about 2.55 p.m., when, the police party had put a picketing, for traffic checking at Tahliwal, near ‘Bhajne the Dhaba’, they noticed a car, being driven by its driver, coming from Santoshgarh side. The I.O. had given the signal to the driver to stop the car. Consequently, he has stopped the car bearing registration No.HP80A-9899, on the side of the road. 9.2. On inquiry, the driver has disclosed his name as Sahil Thakur. When, the I.O. was talking to the driver of the said car, meanwhile, he noticed a truck, being driven by its driver, coming from Santoshgarh side. The I.O. directed the driver to stop the same. Consequently, the truck driver stopped the truck, in front of ‘Bhajne the Dhaba’. Registration number of the said truck was HP19B- 7437. 9.3. The truck driver, on seeing the police party, became perplexed and apart from the driver, another person was also found, in the truck. Since the truck driver became perplexed. As such, the I.O. developed suspicion that some illegal article could be there in the truck. 9.4. Thereafter, Sahil Thakur (car driver) and HC Hardeep Singh No.108, were associated, as witnesses and the names of truck driver and his companion, were inquired. The person, on wheel disclosed his name, as Varender Singh (applicant in Cr.MP(M) No.2305 of 2025) and the person, accompanying him, had disclosed his name as Rajinder Singh (applicant in Cr.MP(M) No.2304 of 2025). Both the persons were found to be perplexed, as such, both were directed to come out of the truck. 9.5. In the presence of the witnesses, ‘Dalla’ of the truck was got opened and on checking, under the tarpaulin, five sack were found, out of which, four were of black coloured and one was of white colour. When the sack were opened, three sack were found to be containing ‘poppy husk’ and in two sack, ‘Khas-Khas’ (poppy seeds) were found. Poppy husk on weighment was found to be 54.910 grams and the Khas-Khas was found to be 49.730 kilograms. 10. Other codal formalities were completed and after registration of the FIR, case property, was taken into possession and accused persons were arrested. After conducting inventory proceedings, the case property was sent to SFSL, Junga, for analysis, from where, positive report has been received. 11. 10. Other codal formalities were completed and after registration of the FIR, case property, was taken into possession and accused persons were arrested. After conducting inventory proceedings, the case property was sent to SFSL, Junga, for analysis, from where, positive report has been received. 11. After completion of investigation, charge sheet has been filed in the Court of learned Additional Sessions Judge, Una and the matter is now listed for evidence on 28.11.2025. 12. On the basis of the above facts, a prayer has been made to dismiss the applications. 13. The applicants, in the present case, have been arrested, under the provisions of NDPS Act. The legislature, in its wisdom, has enacted this statute to curb the menace of drug abuse with stringent punishment. Certain conditions are there, in the NDPS Act, in the shape of Section 37 of NDPS Act, which are, in addition to the conditions, as contained in Section 483 of the BNSS. Before releasing a person on bail, those conditions, as enumerated under Section 37 of the NDPS Act, are to be fulfilled, if the accused has been arrested for the offence, involving ‘commercial quantity’ of contraband. Contraband, i.e., 54.910 kilograms of poppy husk (Bhukki), falls within the definition of commercial quantity. 14. Once, it has been held that the contraband allegedly recovered from the possession of the accused (applicants) falls in the category of ‘commercial quantity’, as per the Notification issued by the Central Government, then, the rigors of Section 37 of the NDPS Act come into play. 15. In a recent decision, in case, titled as Narcotics Control Bureau versus Mohit Aggarwal, reported in AIR 2022 SC 3444 , the Hon’ble Supreme Court has reiterated the earlier view regarding compliance of the conditions, as enumerated in Section 37 of the NDPS Act, in a case, where, the accused, involving the commercial quantity of contraband, seeks his release on bail. Relevant paragraphs 10 to 15 of the judgment, are reproduced, as under: “10. The provisions of Section 37 of the NDPS Act read as follows: “[37. Relevant paragraphs 10 to 15 of the judgment, are reproduced, as under: “10. The provisions of Section 37 of the NDPS Act read as follows: “[37. Offences to be cognizable and non- bailable.–(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974)- (a) every offence punishable under this Act shall be cognizable; (b) no person accused of an offence punishable for [offences under section 19 or section 24 or section 27A and also for offences involving commercial quantity] shall be released on bail or on his own bond unless- (i) the Public Prosecutor has been given an opportunity to oppose the application for such release, and (ii) where the Public Prosecutor opposes the application, the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail. (2) The limitations on granting of bail specified in clause (b) of sub section (1) are in addition to the limitations under the Code of Criminal Procedure, 1973 (2 of 1974) or any other law for the time being in force, on granting of bail. 11. It is evident from a plain reading of the non- obstante clause inserted in sub-section (1) and the conditions imposed in sub-section (2) of Section 37 that there are certain restrictions placed on the power of the Court when granting bail to a person accused of having committed an offence under the NDPS Act. Not only are the limitations imposed under Section 439 of the Code of Criminal Procedure, 1973 to be kept in mind, the restrictions placed under clause (b) of sub-section (1) of Section 37 are also to be factored in. The conditions imposed in sub-section (1) of Section 37 is that (i) the Public Prosecutor ought to be given an opportunity to oppose the application moved by an accused person for release and (ii) if such an application is opposed, then the Court must be satisfied that there are reasonable grounds for believing that the person accused is not guilty of such an offence. Additionally, the Court must be satisfied that the accused person is unlikely to commit any offence while on bail. 12. The expression “reasonable grounds” has come up for discussion in several rulings of this Court. Additionally, the Court must be satisfied that the accused person is unlikely to commit any offence while on bail. 12. The expression “reasonable grounds” has come up for discussion in several rulings of this Court. In “Collector of Customs, New Delhi v. Ahmadalieva Nodira”, (2004) 3 SCC 549 , a decision rendered by a Three Judges Bench of this Court, it has been held thus:- “7. The limitations on granting of bail come in only when the question of granting bail arises on merits. Apart from the grant of opportunity to the Public Prosecutor, the other twin conditions which really have relevance so far as the present accused respondent is concerned, are: the satisfaction of the court that there are reasonable grounds for believing that the accused is not guilty of the alleged offence and that he is not likely to commit any offence while on bail. The conditions are cumulative and not alternative. The satisfaction contemplated regarding the accused being not guilty has to be based on reasonable grounds. The expression “reasonable grounds” means something more than prima facie grounds. It contemplates substantial probable causes for believing that the accused is not guilty of the alleged offence. The reasonable belief contemplated in the provision requires existence of such facts and circumstances as are sufficient in themselves to justify satisfaction that the accused is not guilty of the alleged offence.” [emphasis added] 13. The expression “reasonable ground” came up for discussion in “State of Kerala and others Vs. Rajesh and others” (2020) 12 SCC 122 and this Court has observed as below: “20. The expression “reasonable grounds” means something more than prima facie grounds. It contemplates substantial probable causes for believing that the accused is not guilty of the alleged offence. The reasonable belief contemplated in the provision requires existence of such facts and circumstances as are sufficient in themselves to justify satisfaction that the accused is not guilty of the alleged offence. In the case on hand, the High Court seems  to  have  completely  overlooked  the underlying object of Section 37 that in addition to the limitations provided under the CrPC, or any other law for the time being in force, regulating the grant of bail, its liberal approach in the matter of bail under the NDPS Act is indeed uncalled for.” [emphasis added] 14. To sum up, the expression “reasonable grounds” used in clause (b) of Sub-Section (1) of Section 37 would mean credible, plausible and grounds for the Court to believe that the accused person is not guilty of the alleged offence. For arriving at any such conclusion, such facts and circumstances must exist in a case that can persuade the Court to believe that the accused person would not have committed such an offence. Dove-tailed with the aforesaid satisfaction is an additional consideration that the accused person is unlikely to commit any offence while on bail. 15. We may clarify that at the stage of examining an application for bail in the context of the Section 37 of the Act, the Court is not required to record a finding that the accused person is not guilty. The Court is also not expected to weigh the evidence for arriving at a finding as to whether the accused has committed an offence under the NDPS Act or not. The entire exercise that the Court is expected to undertake at this stage is for the limited purpose of releasing him on bail. Thus, the focus is on the availability of reasonable grounds for believing that the accused is not guilty of the offences that he has been charged with and he is unlikely to commit an offence under the Act while on bail.” 16. The Hon’ble Supreme Court in a case, Criminal Appeal No. 5544 of 2024, titled as ‘Narcotics Control Bureau versus Kashif’, Neutral Citation No. 2024 INSC 1045 , has again reiterated the law, as enumerated by it, in Mohit Aggarwal’s case (supra). The Hon’ble Supreme Court, in this case, has held that the provisions of Section 37 of NDPS Act are mandatory in nature. Relevant paragraphs 8 and 39 of the said judgment are reproduced, as under: “8. There has been consistent and persistent view of this Court that in the NDPS cases, where the offence is punishable with minimum sentence of ten years, the accused shall generally be not released on bail. Negation of bail is the rule and its grant is an exception. While considering the application for bail, the court has to bear in mind the provisions of Section 37 of the NDPS Act, which are mandatory in nature. Negation of bail is the rule and its grant is an exception. While considering the application for bail, the court has to bear in mind the provisions of Section 37 of the NDPS Act, which are mandatory in nature. The recording of finding as mandated in Section 37 is a sine qua non for granting bail to the accused involved in the offences under the said Act. Apart from the granting opportunity of hearing to the Public Prosecutor, the other two conditions i.e., (i) the satisfaction of the court that there are reasonable grounds for believing that the accused is not guilty of the alleged offence and that (ii) he is not likely to commit any offence while on bail, are the cumulative and not alternative conditions. xxx xxx xxx 39. The upshot of the above discussion may be summarized as under: (i) The provisions of NDPS Act are required to be interpreted keeping in mind the scheme, object and purpose of the Act; as also the impact on the society as a whole. It has to be interpreted literally and not liberally, which may ultimately frustrate the object, purpose and Preamble of the Act. (ii) While considering the application for bail, the Court must bear in mind the provisions of Section 37 of the NDPS Act which are mandatory in nature. Recording of findings as mandated in Section 37 is sine qua non is known for granting bail to the accused involved in the offences under the NDPS Act. (iii) The purpose of insertion of Section 52A laying down the procedure for disposal of seized Narcotic Drugs and Psychotropic Substances, was to ensure the early disposal of the seized contraband drugs and substances. It was inserted in 1989 as one of the measures to implement and to give effect to the International Conventions on the Narcotic drugs and psychotropic substances. (iv) Sub-section (2) of Section 52A lays down the procedure as contemplated in sub-section (1) thereof, and any lapse or delayed compliance thereof would be merely a procedural irregularity which would neither entitle the accused to be released on bail nor would vitiate the trial on that ground alone. (v) Any procedural irregularity or illegality found to have been committed in conducting the search and seizure during the course of investigation or thereafter, would by itself not make the entire evidence collected during the course of investigation, inadmissible. (v) Any procedural irregularity or illegality found to have been committed in conducting the search and seizure during the course of investigation or thereafter, would by itself not make the entire evidence collected during the course of investigation, inadmissible. The Court would have to consider all the circumstances and find out whether any serious prejudice has been caused to the accused. (vi) Any lapse or delay in compliance of Section 52A by itself would neither vitiate the trial nor would entitle the accused to be released on bail. The Court will have to consider other circumstances and the other primary evidence collected during the course of investigation, as also the statutory presumption permissible under Section 54 of the NDPS Act.” (self-emphasis supplied) 17. In view of the above, there is nothing on record to give an occasion for this Court to hold that the twin conditions, as enumerated, in Section 37 of the NDPS Act, are in favour of the applicants, in the present case. 18. Learned counsel for the applicants have also argued that the grounds of arrest have not been supplied to the applicants. To buttress their contentions, learned counsel for the applicants have relied upon the decision of the Hon’ble Supreme Court in Vihan Kumar versus State of Haryana & Another, 2025 LiveLaw (SC) 169. 19. With due respect to the law laid down by the Hon’ble Supreme Court, the applicants are not entitled to any benefit, as the recovery, in the present case, is not on the basis of the prior information. The recovery, as per the case of the police, is chance recovery. 20. Considering the stand of the police that on the spot, the police put the contraband in the same sack and the sack were sealed with one seal having impression ‘K’, NCB forms, in triplicate, were filled-in and the memos were duly signed by both the applicants and copy of the said memos were supplied to both the accused persons. When the documents, which were prepared, on the spot, were duly signed, by the applicants, then, it cannot be said that the grounds of arrest were not supplied to the applicants or the applicants were not apprised about the grounds of arrest. 21. From the above documents, the substantial compliance is proved, in this case. 22. When the documents, which were prepared, on the spot, were duly signed, by the applicants, then, it cannot be said that the grounds of arrest were not supplied to the applicants or the applicants were not apprised about the grounds of arrest. 21. From the above documents, the substantial compliance is proved, in this case. 22. If the facts and circumstances of the present case is seen in the light of the decision of a three judge Bench of the Hon’ble Supreme Court in, Madhu Limaye & Others, 1969 (1) Supreme Court Cases 292, the applicants are not entitled to the relief on the alleged violation of non-supply of grounds of arrest. Relevant paragraph 10 of the judgment, is reproduced, as under:- 10. Article 22(1) embodies a rule which has always been regarded as vital and fundamental for safeguarding personal liberty in all legal systems where the rule of law prevails. For example, the 6th amendment to the Constitution of the United States of America contains similar provisions and so does Article XXXIV of the Japanese Constitution of 1946. In England whenever an arrest is made without a warrant, the arrested person has a right to be informed not only that he is being arrested but also of the reasons or grounds for the arrest. The House of Lords in Christie & Another v. Leachinsky ((1947) 1 All EER 567) went into the origin and development of this rule. In the words of Viscount Simon if a policeman who entertained a reasonable suspicion that X had committed a felony were at liberty to arrest him and march him off to a police station without giving any explanation of why he was doing this, the prima facie right of personal liberty would be gravely infringed. Viscount Simon laid down several propositions which were not meant to be exhaustive. For our purposes we may refer to the first and the third : "1. If a policeman arrests without warrant upon reasonable suspicion of felony, or of other crime of a sort which does not require a warrant, he must in ordinary circumstances inform the person arrested of the true ground of arrest. He is not entitled to keep the reason to himself or to give a reason which is not the true reason. If a policeman arrests without warrant upon reasonable suspicion of felony, or of other crime of a sort which does not require a warrant, he must in ordinary circumstances inform the person arrested of the true ground of arrest. He is not entitled to keep the reason to himself or to give a reason which is not the true reason. In other words, a citizen is entitled to know on what charge or on suspicion of what crime he is seized. 2. X X X X 3. The requirement that the person arrested should be informed of the reason why he is seized naturally does not exist if the circumstances are such that he must know the general nature of the alleged offence for which he is detained." Lord Simonds gave an illustration of the circumstances where the accused must know why he is being arrested. "There is no need to explain the reasons of arrest if the arrested man is caught red-handed and the crime is patent to high Heaven." The two requirements of clause (1) of Article 22 are meant to afford the earliest opportunity to the arrested person to remove any mistake, misapprehension or misunderstanding in the minds of the arresting authority and, also, to know exactly what the accusation against him is so that he can exercise the second right, namely, of consulting a legal practitioner of his choice and to be defended by him. Clause (2) of Article 22 provides the next and most material safeguard that the arrested person must be produced before a Magistrate within 24 hours of such arrest so that an independent authority exercising judicial powers may without delay apply is mind to his case. The Criminal Procedure Code contains analogous provisions in Section 60 and 340 but out Constitution- makers were anxious to make these safeguards an integral part of fundamental rights. This is what Dr. B. R. Ambedkar said while moving for insertion of Article 15-A (as numbered in the Draft Bill of the Constitution) which corresponded to present Article 22 : "Article 15-A merely lifts from the provisions of the Criminal Procedure Code two of the most fundamental principles which every civilised country follows as principles of international justice. This is what Dr. B. R. Ambedkar said while moving for insertion of Article 15-A (as numbered in the Draft Bill of the Constitution) which corresponded to present Article 22 : "Article 15-A merely lifts from the provisions of the Criminal Procedure Code two of the most fundamental principles which every civilised country follows as principles of international justice. It is quite true that these two provisions contained in clause (1) and clause (2) are already to be found in the Criminal Procedure Code and thereby probably it might be said that we are really not making any very fundamental change. But we are, as I contend, making a fundamental change because what we are doing by the introduction of Article 15-A is to put a limitation upon the authority both of Parliament as well as of the Provincial Legislature not to abrogate the two provisions, because they are now introduced in our Constitution itself." As stated in Ram Narayan Singh v. State of Delhi & Ors. this court has often reiterated that those who feel called upon to deprive other persons of liberty in the discharge of what they conceive to be their duty must, strictly and scrupulously, observe the forms and rules of law. Whenever that is not done the petitioner would be entitled to a writ of Habeas Corpus directing his release.” (Self Emphasis supplied) 23. Even otherwise, the applicants were arrested on the spot, along with contraband and the documents, which were prepared on the spot, were duly signed by them, as such, they cannot take the stand that they were not aware about the offence, for which, they have been detained, by the police. 24. Considering all these facts, this Court is of the view that the applicants are not able to make out a case, on the basis of which, it can be said that the applicants are not guilty of such offence and in case, they are ordered to be released, on bail, they are not likely to commit any offence. As such, in the absence of the satisfaction of the twin conditions, the applicants are not held entitled to any relief, under Section 483 of the BNSS. Consequently, the bail applications are dismissed. 25. As such, in the absence of the satisfaction of the twin conditions, the applicants are not held entitled to any relief, under Section 483 of the BNSS. Consequently, the bail applications are dismissed. 25. Any of the observations, made herein above, 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.