2025:HHC:6256 IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr. MP(M) No.451 of 2025 Date of Decision: 17.3.2025 ________________________________________________________________ Pawan Kumar ...Petitioner Versus State of Himachal Pradesh …Respondent ________________________________________________________________ Coram: The Hon’ble Mr. Justice Sandeep Sharma, Judge. Whether approved for reporting?1 ________________________________________________________________ For the Petitioner: Mr. Surender Verma and Mr. Bharti Mehta, Advocates. For the Respondent: Mr. Anup Rattan, Advocate General with Mr. Rajan Kahol, Mr. Vishal Panwar and Mr. B.C. Verma, Additional Advocates General and Mr. Ravi Chauhan, Deputy Advocate General. ________________________________________________________________ Sandeep Sharma, J. (Oral) Bail petitioner, namely Pawan Kumar, who is behind the bars since 17.5.2024, has approached this Court in the instant proceedings filed under Section 483 BNSS, 2023, for grant of regular bail in case FIR No.74 of 2024, dated 17.05.2024, under Section 18 of NDPS Act, registered at Police Station Theog, District Shimla, Himachal Pradesh. 2. Respondent/State has filed status report and HC Vinod, PS Theog, has come present along with record. Record perused and returned. 3. Close scrutiny of record reveals that on 17.5.2024, police after having received secret information that person 1 Whether reporters of the local papers may be allowed to see the judgment? 2 2025:HHC:6256 namely Pawan Kumar, indulges in illegal trade of narcotics, laid Naka near Matiana Bazar and stopped one motorcycle bearing registration No. HP37B-0436 being driven by above named person for checking. Since driver of the motorcycle got perplexed and started making excuses, police deemed it necessary to effect his personal search as well as search of his motorcycle and allegedly recovered one bag hanging on the handle of the motorcycle containing 1kg of opium. Since no plausible explanation came to be rendered on record qua possession of aforesaid quantity of contraband by the rider/bail petitioner, police after completion of necessary codal formalities, registered FIR, as detailed hereinabove. On 17.5.2024, itself bail petitioner was arrested and since then, he is behind the bars. 4. Though prior to filing of the instant bail petition, bail petitioner had approached this Court by way of Cr.MP(M) No. 2350 of 2024, but at that juncture, bail petition was withdrawn with liberty to file afresh at appropriate stage. Since challan stands filed in the competent court of law and nothing remains to be recovered from him, he has approached this Court in the instant proceedings for grant of regular bail. 5. While fairly acknowledging factum with regard to filing of challan in the competent court of law, Mr. Rajan Kahol, learned Additional Advocate General, states that though nothing remains to be recovered from the bail petitioner, but keeping in view the gravity of the offence alleged to have been committed by 3 2025:HHC:6256 him, he does not deserve any leniency. While making this Court peruse status report as well as record made available to this Court by Investigating Officer present in the Court, Mr. Rajan Kahol, states that bail petitioner is a drug peddler and it may not be in the interest of justice to enlarge him on bail because in that event, he may not only flee from justice, but may again indulge in these activities, as such, prayer made by the bail petitioner for grant of bail deserves outright rejection 6. Having heard learned counsel for the parties and perused the material available on record, this Court is not persuaded to agree with Mr. Surender Verma, learned counsel for the petitioner that bail petitioner has been falsely implicated because there is ample evidence available on record suggestive of the fact that intermediate quantity of contraband was recovered from the conscious possession of the bail petitioner in the presence of the independent witnesses, however having taken note of the fact that bail petitioner is behind bars for almost eleven months coupled with the fact that rigors of Section 37 of the Act are not attracted on account of recovery of intermediate quantity of contraband, prayer made by the bail petitioner deserves to be considered. Though in the case at hand, FIR was lodged on 17.5.2024, but till date, prosecution evidence has not commenced. Prosecution intends to examine 23 prosecution witnesses to prove guilt of the petitioner, meaning thereby, considerable time is likely to be consumed in conclusion of the 4 2025:HHC:6256 trial. In case petitioner is left to incarcerate in jail during the trial, it would not only amount to pre-trial conviction, but would also be violative of Article 21 of the Constitution of India. 7. Leaving everything aside, this Court finds that there is nothing in the status report/record suggestive of the fact that bail petitioner has indulged in similar offence in past, as such, this Court is not persuaded to agree with learned Additional Advocate General that the bail petitioner is a drug peddler. Similarly, no material has been adduced on record with regard to financial transactions in the bank account of the bail petitioner suggestive of the fact that he has been purchasing and selling the contraband. 8. No doubt, petitioner is accused of having committed a heinous crime punishable under the NDPS Act, having adverse impact on society, but this court cannot lose sight of the fact that guilt, if any, of the bail petitioner is yet to be established on record by leading cogent and convincing evidence. Though recovery of intermediate quantity has been allegedly effected from the conscious possession of the bail petitioner in the presence of the independent witnesses, but they are yet to depose before the court below. 9. Hon’ble Apex Court as well as this Court in catena of cases have repeatedly held that one is deemed to be innocent till the time guilt, if any, of his/her is not proved in accordance with law. In the case at hand also, guilt, if any, of the accused is yet 5 2025:HHC:6256 to be proved in accordance with law, by leading cogent and convincing material on record, as such, his incarceration for an indefinite period is clear cut violation of Fundamental Right granted under Article 21 of the Constitution of India. Apprehension expressed by the learned Additional Advocate General that in the event of petitioner’s being enlarged on bail, he may flee from justice, can be best met by putting the bail petitioner to stringent conditions as has been fairly stated by the learned counsel for the petitioner. 10. Hon'ble Apex Court in Criminal Appeal No. 227/2018, Dataram Singh vs. State of Uttar Pradesh & Anr decided on 6.2.2018 has held that freedom of an individual cannot be curtailed for indefinite period, especially when his/her guilt is yet to be proved. It has been further held by the Hon'ble Apex Court in the aforesaid judgment that a person is believed to be innocent until found guilty. 11. Hon’ble Apex Court in Sanjay Chandra versus Central Bureau of Investigation (2012)1 Supreme Court Cases 49 has held that gravity alone cannot be a decisive ground to deny bail, rather competing factors are required to be balanced by the court while exercising its discretion. It has been repeatedly held by the Hon’ble Apex Court that object of bail is to secure the appearance of the accused person at his trial by reasonable amount of bail. The object of bail is neither punitive nor preventative. 6 2025:HHC:6256 12. In Manoranjana Sinh alias Gupta versus CBI, (2017) 5 SCC 218, Hon'ble Apex Court has held that the object of the bail is to secure the attendance of the accused in the trial and the proper test to be applied in the solution of the question whether bail should be granted or refused is whether it is probable that the party will appear to take his trial. Otherwise also, normal rule is of bail and not jail. Apart from above, Court has to keep in mind nature of accusations, nature of evidence in support thereof, severity of the punishment, which conviction will entail, character of the accused, circumstances which are peculiar to the accused involved in that crime. 13. The Apex Court in Prasanta Kumar Sarkar versus Ashis Chatterjee and another (2010) 14 SCC 496, has laid down various principles to be kept in mind, while deciding petition for bail viz. prima facie case, nature and gravity of accusation, punishment involved, apprehension of repetition of offence and witnesses being influenced. 14. In view of the aforesaid discussion as well as law laid down by the Hon’ble Apex Court, petitioner has carved out a case for grant of bail. Accordingly, present petition is allowed and the petitioner is ordered to be enlarged on bail in aforesaid FIR, subject to his furnishing personal bond in the sum of Rs.2,00,000/- with two local sureties in the like amount to the satisfaction of concerned Chief Judicial Magistrate/trial Court, with following conditions: 7 2025:HHC:6256 (a) he shall make himself available for the purpose of interrogation, if so required and regularly attend the trial Court on each and every date of hearing and if prevented by any reason to do so, seek exemption from appearance by filing appropriate application; (b) he shall not tamper with the prosecution evidence nor hamper the investigation of the case in any manner whatsoever; (c) he shall not make any inducement, threat or promises to any person acquainted with the facts of the case so as to dissuade him/her from disclosing such facts to the Court or the Police Officer; and (d) he shall not leave the territory of India without the prior permission of the Court. 15. It is clarified that if the petitioner misuses the liberty or violates any of the conditions imposed upon him, the investigating agency shall be free to move this Court for cancellation of the bail. 16. Any observations made hereinabove shall not be construed to be a reflection on the merits of the case and shall remain confined to the disposal of this application alone. The petition stands accordingly disposed of. 17. The petitioner is permitted to produce copy of the order downloaded from the High Court Website and the trial court shall not insist for certified copy of the order, however, it may verify the order from the High Court website or otherwise. (Sandeep Sharma) Judge March 17, 2025 Manjit