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Himachal Pradesh High Court · body

2025 DAILYLAW 4016 (HP)

Umesh Sharma v. State of Himachal Pradesh

2025-12-15

Rakesh Kainthla

body2025
JUDGMENT : Rakesh Kainthla, J. The petitioners have filed the present petitions for seeking pre-arrest bail in FIR No. 53/25 dated 12.08.2025 registered under Sections 303(2), 336(3), 338, 340(2), 238, 49 of Bhartiya Nyaya Sanhita (BNS) 2023 and Sections 21 and 22 of Mines and Minerals (Regulation & Development) Act, (Mining Act) 1957 at Police Station Sujanpur, District Hamirpur, H.P. 2. It has been asserted that a rukka was received in the police station regarding the illegal mining of stones and gravel in the Pung Khad by Mahavir Stone Crusher, owned by Praveen Kumar. The police registered the FIR. The petitioner, Umesh Sharma, is the brother of Ashish Sharma, an independent member of the Legislative Assembly of Himachal Pradesh. He resigned from the membership of the Legislative Assembly and contested the election as a candidate of the rival political party. The registration of the FIR is a result of political vengeance. The valid mining lease was granted to Sh. Praveen Sharma, in the year 2011, which is valid till 2026. The stone crusher was also duly registered with the Mining Department. The mining operation was stopped w.e.f 15.03.2024. The information was supplied to the Department of Mining and the Himachal Pradesh Pollution Control Board. There was no consumption of electricity except for the one used for watch and ward activities. The present proceedings are a result of malice being harboured against the petitioner’s brother. The petitioners would join the investigation as and when directed to do so. They would abide by the terms and conditions that the Court may impose. Hence, the petitions. 3. The petitions are opposed by filing status reports asserting that the police were on patrolling duty on 12.08.2025, when they received a secret information at about 2:00 pm that Praveen Sharma, owner of Mahavir Stone Crusher and his employees were carrying out illegal mining by using JCB and Tippers. The police registered an FIR and investigated the matter. They found that Mahavir Stone Crusher was ordered to suspend the operation by mining officers on 15.03.2024, and the lease in its favour was suspended w.e.f 01.07.2025 till 15.09.2025. The police party reached the spot with Rajender Singh Up Pradhan, Ward members and officials of the Pollution Control Board. Satish Kumar Munshi of Mahavir Stone Crusher was found on the spot. The police party reached the spot with Rajender Singh Up Pradhan, Ward members and officials of the Pollution Control Board. Satish Kumar Munshi of Mahavir Stone Crusher was found on the spot. A heap of stone boulders was lying on one side, and another heap of grit stone was lying towards the other side of the crusher. Crushed gravel was also found in the crusher. The police seized the CCTV Footage. In the meantime, Mining Inspector Suresh Kumar, Assistant Mining Inspectors Ashutosh Sharma and Bhupender Singh also arrived on the spot. The Police seized the boulders and the gravel. The User ID and password were not disclosed by Satish Kumar; hence, the police seized the DVR of the CCTV Footage and sent it to SFSL Junga. As per result of SFSL, JCB and Tipper were found parked at the spot, where the grit stone was found on 08.08.2025. The quantity of stone and gravel was found to be 4712.37 MT, and the quantity of old crushed gravel was found to be 1325.33 MT. Eye-witness Sunil Kumar video-recorded the illicit mining, which was sent to the SFSL and was confirmed to be correct. The record was seized from the Mining Department, and it was found that 109.8 Kanals of Government land were leased to Mahavir Stone Crusher by the Directorate of Industries on 20.05.2011. 42 Kanals of land were leased on 05.08.2009. The lease was extended on 04.10.2017 for 10 years. The Mahavir Stone Crusher was registered on 27.03.2010, and the registration was renewed for two years in 2023. The vehicles bearing Registration No. HP-67-8079 and HP-67- 4118 were found to be involved in the illicit mining. The police seized these vehicles. A fine of Rs.27,50,000/- was imposed for violating the conditions of the mining lease for producing 5500 metric tons more than the sanctioned limit. Penalty of Rs. 90,91,200/- was imposed on 30.04.2024; however, the penalty was not deposited. The owners and workers of Mahavir Stone Crusher were carrying out the mining despite the fact that their license was suspended. The petitioners had not cooperated during the investigation and did not produce copies of G-forms and W-forms. The crusher was found to be involved in the violation of various provisions of the Mining Act. The petitioners would influence the investigation and would intimidate the witnesses, in case of their release on bail; hence, the status reports. 4. The petitioners had not cooperated during the investigation and did not produce copies of G-forms and W-forms. The crusher was found to be involved in the violation of various provisions of the Mining Act. The petitioners would influence the investigation and would intimidate the witnesses, in case of their release on bail; hence, the status reports. 4. I have heard Mr Rajnish Maniktala, Senior Advocate, with Ms Bhushree Jain, learned counsel for the petitioners and Mr Lokender Kutlehria, learned Additional Advocate General for the respondent/State. 5. Mr Rajnish Maniktala, learned Senior Advocate for the petitioners, submitted that the mining activity was carried out as per the law. The allegations against the petitioners are 2-3 years old, and there was no explanation for the delay. The crusher was closed. Show cause notices were issued, and a reply to them was submitted. A false case has been filed to harass the petitioners to settle the political scores. Hence, it was prayed that the petitions be allowed and the petitioners be released on bail. He has also filed a written response to the status report, which has been perused by me. 6. Mr Lokender Kutlehria, learned Additional Advocate General for the respondent/State, submitted that the petitioners are involved in large-scale theft of mining and minerals. They would indulge in a similar offence in case of their release on bail. The theft of the mining material was recorded in the CCTV footage and the video recording. These were verified as correct by the SFSL. Therefore, he prayed that the present petitions be dismissed. 7. I have given considerable thought to the submissions made at the bar and have gone through the records carefully. 8. It was laid down by the Hon’ble Supreme Court in P. Chidambaram v. Directorate of Enforcement , (2019) 9 SCC 24 : (2019) 3 SCC (Cri) 509 : 2019 SCC OnLine SC 1143 that the power of pre-arrest bail is extraordinary and should be exercised sparingly. It was observed: “69. Ordinarily, an arrest is a part of the procedure of the investigation to secure not only the presence of the accused but also several other purposes. Power under Section 438 Cr.P.C. is an extraordinary power, and the same has to be exercised sparingly. The privilege of pre- arrest bail should be granted only in exceptional cases. It was observed: “69. Ordinarily, an arrest is a part of the procedure of the investigation to secure not only the presence of the accused but also several other purposes. Power under Section 438 Cr.P.C. is an extraordinary power, and the same has to be exercised sparingly. The privilege of pre- arrest bail should be granted only in exceptional cases. The judicial discretion conferred upon the court has to be properly exercised after application of mind as to the nature and gravity of the accusation; the possibility of the applicant fleeing justice and other factors to decide whether it is a fit case for the grant of anticipatory bail. Grant of anticipatory bail to some extent interferes with the sphere of investigation of an offence, and hence, the court must be circumspect while exercising such power for the grant of anticipatory bail. Anticipatory bail is not to be granted as a matter of rule, and it has to be granted only when the court is convinced that exceptional circumstances exist to resort to that extraordinary remedy.” 9. This position was reiterated in Srikant Upadhyay v. State of Bihar , 2024 SCC OnLine SC 282, wherein it was held: “25. We have already held that the power to grant anticipatory bail is extraordinary. Though in many cases it was held that bail is said to be a rule, it cannot, by any stretch of the imagination, be said that anticipatory bail is the rule. It cannot be the rule, and the question of its grant should be left to the cautious and judicious discretion of the Court, depending on the facts and circumstances of each case. While called upon to exercise the said power, the Court concerned has to be very cautious, as the grant of interim protection or protection to the accused in serious cases may lead to a miscarriage of justice and may hamper the investigation to a great extent, as it may sometimes lead to tampering or distraction of the evidence. We shall not be understood to have held that the Court shall not pass interim protection pending consideration of such application as the Section is destined to safeguard the freedom of an individual against unwarranted arrest, and we say that such orders shall be passed in eminently fit cases.” 10. We shall not be understood to have held that the Court shall not pass interim protection pending consideration of such application as the Section is destined to safeguard the freedom of an individual against unwarranted arrest, and we say that such orders shall be passed in eminently fit cases.” 10. It was held in Pratibha Manchanda v. State of Haryana , (2023) 8 SCC 181 : 2023 SCC OnLine SC 785 that the Courts should balance individual rights, public interest and fair investigation while considering an application for pre-arrest bail. It was observed: “21. The relief of anticipatory bail is aimed at safeguarding individual rights. While it serves as a crucial tool to prevent the misuse of the power of arrest and protects innocent individuals from harassment, it also presents challenges in maintaining a delicate balance between individual rights and the interests of justice. The tightrope we must walk lies in striking a balance between safeguarding individual rights and protecting public interest. While the right to liberty and presumption of innocence are vital, the court must also consider the gravity of the offence, the impact on society, and the need for a fair and free investigation. The court's discretion in weighing these interests in the facts and circumstances of each case becomes crucial to ensure a just outcome.” 11. It was held in Devinder Kumar Bansal v. State of Punjab , (2025) 4 SCC 493 : 2025 SCC OnLine SC 488 that pre-arrest bail can be granted in exceptional circumstances where the Court is of the view that the petitioner was falsely implicated in the case, and the presumption of innocence cannot be a reason to grant bail. It was observed at page 501: “21. The parameters for the grant of anticipatory bail in a serious offence like corruption are required to be satisfied. Anticipatory bail can be granted only in exceptional circumstances where the court is prima facie of the view that the applicant has been falsely enroped in the crime or the allegations are politically motivated or are frivolous. So far as the case at hand is concerned, it cannot be said that any exceptional circumstances have been made out by the petitioner-accused for the grant of anticipatory bail, and there is no frivolity in the prosecution. 22. So far as the case at hand is concerned, it cannot be said that any exceptional circumstances have been made out by the petitioner-accused for the grant of anticipatory bail, and there is no frivolity in the prosecution. 22. In the aforesaid context, we may refer to a pronouncement in CBI v. V. Vijay Sai Reddy [CBI v. V. Vijay Sai Reddy, (2013) 7 SCC 452 : (2013) 3 SCC (Cri) 563], wherein this Court expressed thus: (SCC p. 465, para 34) “34. While granting bail, the court has to keep in mind the nature of accusation, the nature of evidence in support thereof, the severity of the punishment which conviction will entail, the character of the accused, circumstances which are peculiar to the accused, reasonable possibility of securing the presence of the accused at the trial, reasonable apprehension of the witnesses being tampered with, the larger interests of the public/State and other similar considerations. It has also to be kept in mind that for the purpose of granting 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 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. It is not expected, at this stage, to have the evidence establishing the guilt of the accused beyond a reasonable doubt.” (emphasis in original and supplied) 23. The presumption of innocence, by itself, cannot be the sole consideration for the grant of anticipatory bail. The presumption of innocence is one of the considerations that the court should keep in mind while considering the plea for anticipatory bail. The salutary rule is to balance the cause of the accused and the cause of public justice. Over solicitous homage to the accused's liberty can, sometimes, defeat the cause of public justice. 12. The present petition has to be decided as per the parameters laid down by the Hon’ble Supreme Court. 13. It was mentioned in the petitions and the status report that the mining licence of Mahavir Stone Crusher was suspended. However, the police found large-scale extraction of mining and minerals, which was confirmed by the CCTV Footage and mobile recording. Thus, the petitioners are, prima facie, involved in the mining. 14. 13. It was mentioned in the petitions and the status report that the mining licence of Mahavir Stone Crusher was suspended. However, the police found large-scale extraction of mining and minerals, which was confirmed by the CCTV Footage and mobile recording. Thus, the petitioners are, prima facie, involved in the mining. 14. It was submitted that the old allegations are being repeated to harass the petitioners. This submission is not acceptable. The police collected the DVR and the video recording, which shows that the mining activity is continuing. 15. The Hon’ble Supreme Court noticed the ill effect of sand mining on the environment in Deepak Kumar v. State of Haryana , (2012) 4 SCC 629 : 2012 SCC OnLine SC 207 and observed at page 632: 8. We have no materials before us to come to the conclusion that the removal of minor miner- als, boulders, gravel, sand quarries, etc. covered by the auction notices dated 3-6-2011 and 8-8- 2011, in the places notified therein and also in the riverbeds of Yamuna, Ghaggar, Tangri, Markanda, Krishnavati River basin, Dohan River basin, etc. would not cause environmental degradation or threat to the biodiversity, de- stroy riverine vegetation, cause erosion, pollute water sources, etc. Sand mining on either side of the rivers, upstream and instream, is one of the causes for environmental degradation and also a threat to biodiversity. Over the years, India's rivers and riparian ecology have been badly af- fected by the alarming rate of unrestricted sand mining which damage the ecosystem of rivers and the safety of bridges, weakening of riverbeds, destruction of natural habitats of or- ganisms living on the riverbeds, affects fish breeding and migration, spells disaster for the conservation of many bird species, increases saline water in the rivers, etc. 9. Extraction of alluvial material from within or near a streambed has a direct impact on the stream's physical habitat characteristics. These characteristics include bed elevation, substrate composition and stability, instream roughness elements, depth, velocity, turbidity, sediment transport, stream discharge and temperature. Altering these habitat characteristics can have deleterious impacts on both instream biota and the associated riparian habitat. 9. Extraction of alluvial material from within or near a streambed has a direct impact on the stream's physical habitat characteristics. These characteristics include bed elevation, substrate composition and stability, instream roughness elements, depth, velocity, turbidity, sediment transport, stream discharge and temperature. Altering these habitat characteristics can have deleterious impacts on both instream biota and the associated riparian habitat. The demand for sand continues to increase day by day as build- ing and construction of new infrastructures and expansion of existing ones are continuous, thereby placing immense pressure on the supply of the sand resource, and hence, mining activi- ties are going on legally and illegally without any restrictions. Lack of proper planning and sand management causes disturbance of the marine ecosystem and also upsets the ability of natural marine processes to replenish the sand. 16. This position was reiterated in State (UT of J&K) v. Raja Muzaffar Bhat, 2025 SCC OnLine SC 1789, wherein it was observed: 31. Demand for construction-grade sand is growing at a tremendous rate, and it is said that the world is expected to run out of this resource by 2050. Construction-grade sand can be found in aquatic environments, such as rivers and is a provisioning ecosystem service. Even under controlled circumstances, the practice of extracting sand from the riverbed and banks impacts the environment. In the physical environment, the primary effects are riverbed widening and lowering. In the biological environment, the overarching effect is a reduced biodiversity and stretches from the aquatic and shoreline flora and fauna to the whole floodplain area. Due to easy access, river sand and gravel have been used extensively in construction projects. Depending on the mining operation method as well as morphologic and hydraulic characteristics of the river, sand mining may cause bed and bank erosion or other negative consequences for the river ecosystem. It is, therefore, necessary to conduct appropriate studies, including those of replenishment, to explore sustainable and cost-effective methods for river mining. 17. Therefore, the petitioners have not committed a theft but endangered the survival of humanity. 18. It was laid down by the Madras High Court in Bala v. State , 2020 SCC OnLine Mad 28623, that pre- arrest bail cannot be granted to persons engaged in illegal sand mining. It was observed: “28. 17. Therefore, the petitioners have not committed a theft but endangered the survival of humanity. 18. It was laid down by the Madras High Court in Bala v. State , 2020 SCC OnLine Mad 28623, that pre- arrest bail cannot be granted to persons engaged in illegal sand mining. It was observed: “28. As referred earlier, this court is of the opinion that the offenders, despite several orders passed by various benches of this court regarding illegal sand mining and knowing fully well about the evil consequences affecting the environment and society at large, and the implications thereon, are indulging in the offences of illegal quarrying/mining, theft and smuggling of sand and minerals. Ignorance and feigned ignorance of the law cannot be excused. These cases come within the category of cases of large magnitude affecting and impacting the livelihood of a very large number of people, knowingly and unknowingly. Though the individual seizure may seem small, small drops make a big ocean. 29. This Court finds that the discretionary power has been consciously and continuously misused by the offenders and the enforcers as well in an organised manner, and this Court is of the firm opinion that the discretionary powers cannot be extended to persons indulging in illegal sand mining, smuggling and theft of sand and minerals.” 19. A similar view was taken by Punjab and Haryana High Court held in Kanwaljeet Singh v. State of Punjab , 2024 SCC OnLine P&H 8890, wherein it was observed: “6. The petitioner is alleged to be involved in the business of illegal mining of sand alongside side Beas River with the help of tipper vehicles and a JCB machine. 08 tipper vehicles were recovered from the spot, out of which one was loaded with sand. One JCB machine was also recovered from the spot on the basis of the secret information. The said secret information was specific about the petitioner. The allegations against the petitioner are specific and serious in nature. The well-settled proposition of law is that while considering an application for the grant of anticipatory bail, the Court has to consider the nature of the offence, the role of the person, the likelihood of his influencing the course of investigation or tampering with evidence, including intimidating witnesses. The powers under Section 438 of the Cr. P.C. are to be exercised in extraordinary and sparing circumstances. The powers under Section 438 of the Cr. P.C. are to be exercised in extraordinary and sparing circumstances. More so, custodial interrogation of a suspected person is qualitatively more elicitation-oriented than questioning a suspect who is well ensconced with a favourable order under Section 438 of Cr. P.C. Many useful information can be disinterred during custodial interrogation. It has also to be seen that an order of anticipatory bail does not operate as an intrusion in the normal legal procedure of criminal cases by the trial Court. It is also a matter of discretion to grant or not to grant pre- arrest bail. Keeping in view the discussion made above, I am of the considered opinion that no extraordinary or sparing circumstance entitling the petitioner to seek concession of pre-arrest bail has been made out; rather, his custodial interrogation is required for thorough investigation in the matter by the police. Accordingly, finding no merit, the petition is dismissed.” 20. It was held in Gurdial Singh Kachure v. State of Punjab , 2025 SCC OnLine P&H 2768, that the offence of illegal mining in the river has to be taken in all seriousness, and no anticipatory bail can be granted in such cases. It was observed: “8. In view of the above and the fact that humanity has suffered enough environmental damage, especially to the river as well as to the environment at large, the offence of illegal mining in rivers needs to be taken in all seriousness despite less punishment prescribed under the said Act, and therefore, this Court deems it appropriate not to interfere in the matter. Accordingly, the petition for the grant of anticipatory bail to the petitioner stands dismissed.” 21. It is undisputed that the petitioner, Umesh, is a politically influential person; therefore, the apprehension of the prosecution that he would use his influence to interfere with the investigation has some basis. 22. The status report shows that the petitioners continued with the mining activities despite the suspension of the lease, which prima facie shows that the petitioners have no respect for the law, and they would indulge in the commission of similar offences, in case of their release on bail. 23. The police asserted in the status report that the petitioners have not cooperated with the investigation, and their custodial interrogation is necessary to unearth the nature and extent of the crime. 23. The police asserted in the status report that the petitioners have not cooperated with the investigation, and their custodial interrogation is necessary to unearth the nature and extent of the crime. It was laid down by the Hon’ble Supreme Court in State Versus Anil Sharma (1997) 7 SCC 187 that where custodial interrogation is required, pre-arrest bail should not be granted. It was observed: - “6. We find force in the submission of the CBI that custodial interrogation is qualitatively more elicitation-oriented than questioning a suspect who is well-ensconced with a favourable order under Section 438 of the Code. In a case like this, effective interrogation of a suspected person is of tremendous advantage in disinterring much useful information and also materials which would have been concealed. Success in such interrogation would elude if the suspected person knows that he is well protected and insulated by a pre-arrest bail order during the time he is interrogated. Very often, interrogation in such a condition would reduce to a mere ritual. The argument that the custodial interrogation is fraught with the danger of the person being subjected to third- degree methods need not be countenanced, for such an argument can be advanced by all accused in all criminal cases. The Court has to presume that responsible Police Officers would conduct themselves in a responsible manner and that those entrusted with the task of disinterring offences would not conduct themselves as offender” 24. A similar view was taken by the Delhi High Court in Mukesh Khurana v. State (NCT of Delhi), 2022 SCC OnLine Del 1032, wherein it was observed: - “13. One of the significant factors in determining this question would be the need for custodial interrogation. Without a doubt, custodial interrogation is more effective for questioning a suspect. The cocoon of protection afforded by a bail order insulates the suspect, and he could thwart interrogation, reducing it to futile rituals. But it must also be kept in mind that while interrogation of a suspect is one of the basic and effective methods of crime solving, the liberty of an individual also needs to be balanced out.” 25. It was held in P Chidambaram (supra) that the grant of pre-arrest bail may hamper the investigations. It was observed: “83. But it must also be kept in mind that while interrogation of a suspect is one of the basic and effective methods of crime solving, the liberty of an individual also needs to be balanced out.” 25. It was held in P Chidambaram (supra) that the grant of pre-arrest bail may hamper the investigations. It was observed: “83. Grant of anticipatory bail at the stage of investigation may frustrate the investigating agency in interrogating the accused and in collecting useful information, and also the materials which might have been concealed. Success in such interrogation would elude if the accused knows that he is protected by the order of the court. Grant of anticipatory bail, particularly in economic offences, would definitely hamper the effective investigation. Having regard to the materials said to have been collected by the respondent Enforcement Directorate and considering the stage of the investigation, we are of the view that it is not a fit case to grant anticipatory bail.” 26. No other point was urged. 27. In view of the above, the present petitions fail, and they are dismissed. 28. The observations made heretofore shall remain confined to the disposal of the petitions and will have no bearing, whatsoever, on the merits of the case.