Research › Search › Judgment

Himachal Pradesh High Court · body

2025 DAILYLAW 3707 (HP)

Mohit Sharma v. State of Himachal Pradesh

2025-09-24

Rakesh Kainthla

body2025
JUDGMENT : Rakesh Kainthla, J. The petitioner has filed the present petition for seeking regular bail in F.I.R. No.05 of 2025, dated 04.01.2025, registered at Police Station Baddi, District Solan, H.P., for the commission of offences punishable under Sections 21 and 29 of the Narcotic Drugs and Psychotropic Substances Act (for short ‘NDPS’). 2. It has been asserted that, as per the prosecution,the petitioner and the co-accused were sitting on a motorcycle bearing registration No.HP-12Q-1679 on 04.01.2025. The police searched the motorcycleand recovered a transparent plastic pouch containing 6.730 grams of heroin from the speedometer. The police registered the F.I.R. and arrested the petitioner and the co- accused. The police seized the heroin and the motorcycle. The chargesheet has been filed, and the petitioner’s custody is not required. The co-accused was released on bail, and the petitioner is entitled to bail on the principle of parity. Three F.I.R.s are pending against the petitioner. The petitioner would abide by all the terms and conditions which the Court may impose. Hence, it was prayed that the present petition be allowed and the petitioner be released on bail. 3. The petition is opposed by filing a status report asserting that the police were patrolling on 04.01.2025 when they received a secret information that Mohit Sharma (the present petitioner) and Mohit Kumar son of Raj Kishore were selling heroin. The police documented the information and sent it to the Supervisory Officer. They joined independent witnesses and went to the location where the petitioner and the co-accused were found sitting on a motorcycle bearing registration No. HP-12Q-1679. The driver of the motorcycle identified himself as Mohit Sharma (the present petitioner), and the pillion rider identified himself as Mohit Kumar. The police searched the motorcycle and found a transparent polythene packet containing 6.730 grams of heroin kept near the speedometer. The police seized the heroin and arrested the petitioner and the co- accused. The heroin was sent to the FSL and was confirmed to be diacetylmorphine (Heroin). Four FIRs have been registered against the petitioner. The police filed a chargesheet before the Court on 28.02.2025. The matter is now listed before the learned Special Judge, Nalagarh, District Solan, H.P., for recording the statements of prosecution witnesses on 07.10.2025. Hence, the status report. 4. I have heard Mr Parikshit Rathour, learned counsel for the petitioner and Mr Prashant Sen, learned Deputy Advocate General for the respondent-State. 5. The matter is now listed before the learned Special Judge, Nalagarh, District Solan, H.P., for recording the statements of prosecution witnesses on 07.10.2025. Hence, the status report. 4. I have heard Mr Parikshit Rathour, learned counsel for the petitioner and Mr Prashant Sen, learned Deputy Advocate General for the respondent-State. 5. Mr Parikshit Rathour, learned counsel for the petitioner, submitted that the petitioner is innocent and was falsely implicated. As per the prosecution, the police have recovered 06.730 grams of heroin, which is intermediate, and the rigours of Section 37 of the NDPS Act do not apply to the present case. The chargesheet has been filed before the court, and the petitioner’s custody is not required. The petitioner would abide by all the terms and conditions which the Court may impose. Hence, he prayed that the present petition be allowed and the petitioner be released on bail. 6. Mr Prashant Sen, learned Deputy Advocate General for the respondent/State, submitted that the petitioner was found in possession of heroin, whichis adversely affecting the younger generation of society. The petitioner has a criminal antecedent, and he is likely to commit a similar offence in case of his release on bail. Hence, 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. 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, and it was observedat page 380: - (i) Broad principles for the grant of bail 56. InGudikantiNarasimhulu 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 lib- erty 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 con- firmed, also bears upon the issue. 8. 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 con- firmed, also bears upon the issue. 8. Another relevant factor is whether the course of justice would be thwarted by him who seeks the be- nignant jurisdiction of the Court to be freed for the time being. [Patrick Devlin, “The Criminal Prosecu- tion 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 in- terfering with witnesses for the prosecution or other- wise polluting the process of justice. It is not only tra- ditional 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 re- cord which suggests that he is likely to commit seri- ous 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 opportu-nity to inflict further crimes on the members of soci- ety. 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 high- lighted 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 arbi- trary manner. 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 arbi- trary 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 charac- ter, behaviour, means and standing of the accused, circumstances which are peculiar to the accused, rea- sonable possibility of securing the presence of the ac- cused 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 Upadhyayv.Sudarshan Singh, (2002) 3 SCC 598 : 2002 SCC (Cri) 688, speaking through Banerjee, J., emphasised that a court exer- cising 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, calls for 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. 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 considera- tions 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 ma- trix 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 al- though 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 circum- stances 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, in- terfere with an order passed by the High Court grant- ing or rejecting bail to the accused. However, it is equally incumbent upon the High Court to exercise its discretion judiciously, cautiously and strictly in com- pliance with the basic principles laid down in a pleth- ora of decisions of this Court on the point. However, it is equally incumbent upon the High Court to exercise its discretion judiciously, cautiously and strictly in com- pliance with the basic principles laid down in a pleth- ora 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) xxxx 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: (BrijmaniDevi 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 can- not 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 conclu- sion. 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. 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 con- sideration must be given to facts suggestive of the nature of crime, the criminal antecedents of the ac- cused, if any, and the nature of punishment that would follow a conviction vis-à-vis the offence(s) al- leged against an accused.” (emphasis supplied) 9. The present petition has to be decided as per the parameters laid down by the Hon’ble Supreme Court. 10. The status report shows that the petitioner was riding the motorcycle bearing registration No. HP-12Q- 1679, from which 6.730 grams of Heroin were recovered. 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 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, in order 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. 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 about 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 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.” 11. Therefore, in view of the binding precedent of the Hon’ble Supreme Court, the petitioner has to be treated as in possession of the Heroin. 12. 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.” 11. Therefore, in view of the binding precedent of the Hon’ble Supreme Court, the petitioner has to be treated as in possession of the Heroin. 12. It was submitted that the petitioner was found in possession of an intermediate quantity of heroin, and he is entitled to bail as a matter of right. This submission is not acceptable.It was laid down by this Court in Khushi Ram Gupta v. State of H.P., 2022 SCC OnLine HP 3779, that the menace of drug addiction has seriously eroded into the fabric of society, and the release of an accused on bail in NDPS Act cases will send a negative signal to society. It was observed: “8. The menace of drug addiction, especially in adolescents and students, has seriously eroded into the fabric of society, putting the future generation as well as the prospects of future nation-building into serious peril. 9. It is not a case where the investigating agency is clueless in respect of evidence against the petitioner. Though allegations against the petitioner are yet to be proved in accordance with the law, it cannot be taken singly as a factor to grant bail to the petitioner. Nothing has been placed on record on behalf of the petitioner to divulge as to how and in what manner he came in contact with the persons who were residents of the State of Himachal Pradesh. Thus, there is sufficient prima facie material to infer the implication of the petitioner in the crime. In such circumstances, the release of the petitioner on bail will send a negative signal in society, which will definitely be detrimental to its interests. 10. The prima facie involvement of the petitioner in the dangerous trade of contraband cannot be ignored merely on account of the fact that he has no past criminal history. It cannot be guaranteed that there will be re-indulgence by the petitioner in similar activities, in case he is released on bail.” 13. Similarly, it was held in Bunty Yadav v. State of H.P., 2022 SCC OnLine HP 4996, that even where the rigours of Section 37 of the NDPS Act are not applicable, the bail cannot be claimed as a matter of right. Similarly, it was held in Bunty Yadav v. State of H.P., 2022 SCC OnLine HP 4996, that even where the rigours of Section 37 of the NDPS Act are not applicable, the bail cannot be claimed as a matter of right. Each case has to be adjudged on its own facts. It was observed: “6. The quantity involved in the case is 89.89 grams of heroin and 3.90 grams of MDMA. Such quantity may not technically fall under the category of commercial quantity; nevertheless, such quantity cannot be termed to be less by any stretch of the imagination. The evident nature of commercial transactions and dealing with the contraband aggravates the situation for the petitioner. In a case where Section 37 of the NDPS Act is not applicable, the bail cannot be claimed as a matter of right. The fate depends on the facts of each and every case. 7. The menace of drug addiction, especially in adolescents and students, has seriously eroded into the fabric of society, putting the future generation as well as the prospects of future nation-building into serious peril.” 14. The status report shows that the petitioner was convicted in F.I.R. No. 50 of 2020 dated 08.03.2020. F.I.R. No. 149 of 2021 dated 05.12.2021, F.I.R. No. 129 of 2022 dated 14.09.2022 and F.I.R. No. 192 of 2023 dated 14.10.2023 are pending against the petitioner before the Court.F.I.R. No. 149 of 2021 dated 05.12.2021 and F.I.R. No. 129 of 2022 dated 14.09.2022 were registered for the commission of offences punishable under Sections 21 and 29 of the NDPS Act, which shows that the apprehension expressed by the police that the petitioner is likely to indulge inthe commission of similar offences in case of his release on bail cannot be ruled out. Further, the registration of so many F.I.Rs. against the petitioner shows that he has criminal antecedents. This Court exhaustively dealt with the relevance of criminal antecedents inAminodin vs State of H.P. 2024: HHC: 6091 and held, after referring to various judgments, that a Judge must consider the criminal antecedents of the accused, the nature of offences and his general conduct while considering the bail petition. The bail should not be generally granted to an accused having criminal antecedents when there is a likelihood of the commission of the crime. 15. The bail should not be generally granted to an accused having criminal antecedents when there is a likelihood of the commission of the crime. 15. It was held in V. Senthil Balaji v. Enforcement Directorate, 2024 SCC OnLine SC 2626, that where the petitioner can become a threat to society because of her criminal antecedents, she should not be released on bail. It was observed: “27…..An exception will also be in a case where, considering the antecedents of the accused, there is every possibility of the accused becoming a real threat to society if enlarged on bail. The jurisdiction to issue prerogative writs is always discretionary. 16. Similarly,  it  was  held  in  Union  of  India  v. Barakathullah, 2024 SCC OnLine SC 1019, that where the persons were involved in the commission of similar offences, they should not be released on bail. It was observed: - “20. … So far as the respondents in the instant appeals are concerned, they are in custody for hardly one and a half years, apart from the fact that all the respondents are shown to have been involved in previous cases. There are about 8 to 9 previous cases shown in the chargesheet against the respondents, except accused Nos. 1, 4 and 6, who are shown to have been involved in two cases. Considering the nature and gravity of the alleged offences and considering their criminal antecedents, in our opinion, the High Court should not have taken a lenient view, more particularly when there was sufficient material to show their prima facie involvement in the alleged offences under the UAPA. 17. It was laid down by the Hon’ble Supreme Court in Pinki v. State of U.P., (2025) 7 SCC 314 : 2025 SCC OnLine SC 781that libertyof a person has to be balanced with peace and harmony in society. Liberty cannot be elevated to such a high pedestal as would bring in anarchy or disorder in society. It was observedon page 384: “65. We are absolutely conscious that the liberty of a person should not be lightly dealt with, for the deprivation of the liberty of a person has an immense impact on the mind of a person. Incarceration creates a concavity in the personality of an individual. Sometimes it causes a sense of vacuum. Needless to emphasise, the sacrosanctity of liberty is paramount in a civilised society. Incarceration creates a concavity in the personality of an individual. Sometimes it causes a sense of vacuum. Needless to emphasise, the sacrosanctity of liberty is paramount in a civilised society. However, in a democratic body polity which is wedded to the rule of law, an individual is expected to grow within the social restrictions sanctioned by law. Individual liberty is restricted by larger social interests, and its deprivation must have due sanction of law. In an orderly society, an individual is expected to live with dignity, having respect for the law and also giving due respect to others' rights. It is a well-accepted principle that the concept of liberty is not in the realm of absolutism but is a restricted one. The cry of the collective for justice, its desire for peace and harmony and its necessity for security cannot be allowed to be trivialised. The life of an individual living in a society governed by the rule of law has to be regulated, and such regulations, which are the source of law, subserve the social balance and function as a significant instrument for the protection of human rights and the security of the collective. This is because, fundamentally, laws are made for their obedience so that every member of the society lives peacefully in a society to achieve his individual as well as social interests. That is why Edmond Burke, while discussing about liberty, opined, “it is regulated freedom”. 66. It is also to be kept in mind that individual liberty cannot be accentuated to such an extent or elevated to such a high pedestal which would bring in anarchy or disorder in society. The prospect of greater justice requires that law and order prevail in a civilised milieu. True it is, there can be no arithmetical formula for fixing the parameters in precise exactitude, but the adjudication should express not only application of mind but also exercise of jurisdiction on accepted and established norms. Law and order in a society protect the established precepts and see to it that contagious crimes do not become epidemic. In an organised society, the concept of liberty basically requires citizens to be responsible and not to disturb the tranquillity and safety which every well-meaning person desires. Not for nothing, J. Oerter stated: “Personal liberty is the right to act without interference within the limits of the law.” 67. In an organised society, the concept of liberty basically requires citizens to be responsible and not to disturb the tranquillity and safety which every well-meaning person desires. Not for nothing, J. Oerter stated: “Personal liberty is the right to act without interference within the limits of the law.” 67. Thus analysed, it is clear that though liberty is a greatly cherished value in the life of an individual, it is a controlled and restricted one, and no element in the society can act in a manner by consequence of which the life or liberty of others is jeopardised, for the rational collective does not countenance an anti- social  or  anti-collective  act. (See: Ash Mohammad v. Shiv Raj Singh, (2012) 9 SCC 446 : (2012) 3 SCC (Cri) 1172.) 18. Therefore, the petitioner cannot be held entitled to bail because of his criminal antecedents. 19. It was submitted that the co-accused has been released on bail, and the petitioner is entitled to bail on the principle of parity. This submission is not acceptable. The status report specifically mentions that the co-accused does not have criminal antecedents. Hence, the petitioner cannot claim parity with the co-accused. 20. In view of the above, the present petition fails, and it is dismissed. 21. The observations made hereinabove are regarding the disposal of this petition and will have no bearing, whatsoever, on the case's merits.