2025:HHC:9752 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.MP(M) No. 565 of 2025 Reserved on: 3.4.2025 Date of Decision: 09.4.2025 Moti Lal Budha ...Petitioner Versus State of Himachal Pradesh ...Respondent Coram Hon’ble Mr Justice Rakesh Kainthla, Judge. Whether approved for reporting?1 No. For the Petitioner : Ms. Suman Thakur, Advocate. For the Respondent : Mr. Jitender Sharma, Additional Advocate General. Rakesh Kainthla, Judge The petitioner has filed the present petition for seeking regular bail. It has been asserted that the petitioner was arrested for the commission of offences punishable under Sections 18 & 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short ‘NDPS Act’) vide FIR No. 114/2024, dated 03.07.2024 registered at Police Station, West (Boileauganj), District Shimla, H.P. As per the prosecution, the police had recovered 3.890 kilograms of opium from the petitioner and the co-accused. The seizure was made from 1 Whether reporters of Local Papers may be allowed to see the judgment? Yes. 2 2025:HHC:9752 a public place and there is no direct link to connect the petitioner with the commission of crime. The petitioner has been in custody for eight months. The petitioner has no criminal antecedents and he has roots in the society. He would abide by all the terms and conditions, which may be imposed upon him by the Court. No useful purpose would be served by detaining the petitioner in judicial custody. The police have filed the charge sheet and the custodial interrogation of the petitioner is not required. The trial is not likely to conclude soon and the petitioner cannot be kept behind the bars indefinitely. Therefore, it was prayed that the present petition be allowed and the petitioner be released on bail. 2. The petition is opposed by filing a status report asserting that the police party was on patrolling duty on 03.07.2024. They intercepted a bus bearing registration No. HP-36D-1830 and found one backpack each with the occupants of seat No. 30 and seat No.31. The occupant of seat No.30 revealed his name as Jeet Bahadur and the occupant of seat No.31 revealed his name as Moti Lal Budha. The police checked the backpacks and found two transparent packets in each backpack along with other articles. The police checked the plastic packets and found opium in them. The opium was weighed and its weight was found to be 3.890 Kgs. The police seized the 3 2025:HHC:9752 opium and arrested Jeet Bahadur and the present petitioner. It was found from their interrogation that the Dhan Bahadur, Moti Lal Budha (present petitioner), and Jeet Bahadur are residents of Nepal. They are related to each other. They had bought four packets of opium from some woman on 02.07.2024. Two packets were kept by Moti Lal and two packets were kept by Jeet Bahadur. The opium was sent to FSL, Junga and as per the report of analysis, the percentage of the morphine found in the opium was 7.19% w/w. The police filed the charge sheet before the Court on 13.09.2024. These are 27 prosecution witnesses out of whom statements of 02 witnesses have been recorded. 3. I have heard Ms Suman Thakur, learned counsel for the petitioner and Mr Jitender Sharma, learned Additional Advocate General, for the respondent/State. 4. Ms Suman Thakur, learned counsel for the petitioner submitted that the petitioner is innocent and he was falsely implicated. As per the prosecution case, recovery was made from a public place and there is nothing to connect the petitioner to the commission of crime. Even if the prosecution case is accepted in its entirety, it is not established how much quantity was found in 4 2025:HHC:9752 possession of the petitioner. Therefore, she prayed that the present petition be allowed and the petitioner be released on bail. 5. Mr Jitender Sharma, learned Additional Advocate General for the respondent-State submitted that the petitioner was found in possession of a commercial quantity of opium and rigours of Section 37 of NDPS apply to the present case. The petitioner has failed to satisfy the twin conditions laid down in Section 37 of the NDPS Act. Therefore, he prayed that the present petition be dismissed. 6. I have given considerable thought to the submissions made at the bar and have gone through the records carefully. 7. The parameters for granting bail were considered by the Hon’ble Supreme Court in Ajwar v. Waseem (2024) 10 SCC 768: 2024 SCC OnLine SC 974, wherein it was observed as under page 783: - “Relevant parameters for granting bail 26. While considering as to whether bail ought to be granted in a matter involving a serious criminal offence, the Court must consider relevant factors like the nature of the accusations made against the accused, the manner in which the crime is alleged to have been committed, the gravity of the offence, the role attributed to the accused, the criminal antecedents of the accused, the probability of tampering of the witnesses and repeating the offence, if the accused are released on bail, the likelihood of the accused being unavailable in the event bail is granted, the possibility of 5 2025:HHC:9752 obstructing the proceedings and evading the courts of justice and the overall desirability of releasing the accused on bail. [Refer: Chaman Lal v. State of U.P. [Chaman Lal v. State of U.P., (2004) 7 SCC 525: 2004 SCC (Cri) 1974]; Kalyan Chandra Sarkar v. Rajesh Ranjan [Kalyan Chandra Sarkar v. Rajesh Ranjan, (2004) 7 SCC 528: 2004 SCC (Cri) 1977]; Masroor v. State of U.P. [Masroor v. State of U.P., (2009) 14 SCC 286 : (2010) 1 SCC (Cri) 1368]; Prasanta Kumar Sarkar v. Ashis Chatterjee [Prasanta Kumar Sarkar v. Ashis Chatterjee, (2010) 14 SCC 496 : (2011) 3 SCC (Cri) 765]; Neeru Yadav v. State of U.P. [Neeru Yadav v. State of U.P., (2014) 16 SCC 508 : (2015) 3 SCC (Cri) 527]; Anil Kumar Yadav v. State (NCT of Delhi)[Anil Kumar Yadav v. State (NCT of Delhi), (2018) 12 SCC 129 : (2018) 3 SCC (Cri) 425]; Mahipal v. Rajesh Kumar [Mahipal v. Rajesh Kumar, (2020) 2 SCC 118 : (2020) 1 SCC (Cri) 558] .] 8. This position was reiterated in Ramratan v. State of M.P., 2024 SCC OnLine SC 3068, wherein it was observed as under: - “12. The fundamental purpose of bail is to ensure the accused's presence during the investigation and trial. Any conditions imposed must be reasonable and directly related to this objective. This Court in Parvez Noordin Lokhandwalla v. State of Maharastra (2020) 10 SCC 77 observed that though the competent court is empowered to exercise its discretion to impose “any condition” for the grant of bail under Sections 437(3) and 439(1)(a) CrPC, the discretion of the court has to be guided by the need to facilitate the administration of justice, secure the presence of the accused and ensure that the liberty of the accused is not misused to impede the investigation, overawe the witnesses or obstruct the course of justice. The relevant observations are extracted herein below: “14. The language of Section 437(3) CrPC, which uses the expression “any condition … otherwise in the interest of justice” has been construed in several decisions of this Court. Though the competent court is empowered to exercise its discretion to impose “any condition” for the grant of bail 6 2025:HHC:9752 under Sections 437(3) and 439(1)(a) CrPC, the discretion of the court has to be guided by the need to facilitate the administration of justice, secure the presence of the accused and ensure that the liberty of the accused is not misused to impede the investigation, overawe the witnesses or obstruct the course of justice. Several decisions of this Court have dwelt on the nature of the conditions which can legitimately be imposed both in the context of bail and anticipatory bail.” (Emphasis supplied) 13. In Sumit Mehta v. State (NCT of Delhi) (2013) 15 SCC 570, this Court discussed the scope of the discretion of the Court to impose “any condition” on the grant of bail and observed in the following terms:— “15. The words “any condition” used in the provision should not be regarded as conferring absolute power on a court of law to impose any condition that it chooses to impose. Any condition has to be interpreted as a reasonable condition acceptable in the facts permissible in the circumstance and effective in the pragmatic sense and should not defeat the order of grant of bail. We are of the view that the present facts and circumstances of the case do not warrant such extreme condition to be imposed.” (Emphasis supplied) 14. This Court, in Dilip Singh v. State of Madhya Pradesh (2021) 2 SCC 779, laid down the factors to be taken into consideration while deciding the bail application and observed: “4. It is well settled by a plethora of decisions of this Court that criminal proceedings are not for the realisation of disputed dues. It is open to a court to grant or refuse the prayer for anticipatory bail, depending on the facts and circumstances of the particular case. The factors to be taken into consideration while considering an application for bail are the nature of the accusation and the severity of the punishment in the case of conviction and the nature of the materials relied upon by the prosecution; reasonable apprehension of tampering with the witnesses or apprehension of threat to the complainant or the witnesses; 7 2025:HHC:9752 the reasonable possibility of securing the presence of the accused at the time of trial or the likelihood of his abscondence; character, behaviour and standing of the accused; and the circumstances which are peculiar or the accused and larger interest of the public or the State and similar other considerations. A criminal court, exercising jurisdiction to grant bail/anticipatory bail, is not expected to act as a recovery agent to realise the dues of the complainant, and that too, without any trial.” (Emphasis supplied) 9. This position was reiterated in Shabeen Ahmed versus State of U.P, 2025 SCC Online SC 479. 10. The present petition has to be decided as per the parameters laid down by the Hon’ble Supreme Court. 11. A perusal of the status report shows that the police checked the backpacks of the petitioner and co-accused. The police found two packets in the backpack of the petitioner and two packets in the backpack of Jeet Bahadur amongst other things. The police weighed four packets and found their weight to be 3.890 kg. The police did not weigh the packets individually to find out the weight of each packet. The packets were not even sent to the FSL to determine whether each packet contained opium in it. They were collectively found to be containing opium. The result of the analysis reads that representative samples were taken and homogenized. The report does not mention whether the representative samples 8 2025:HHC:9752 were taken from each packet or all the packets collectively. Therefore, it is difÏcult to determine at this stage the quantity of opium found in the possession of the petitioner. Hence the submission that 3.890 Kg of opium, which was found in four packets, is to be attributed to the petitioner alone is not acceptable. Therefore, it cannot be said that there is sufÏcient material on record to hold that the petitioner was found in possession of a commercial quantity of opium and the submission that rigours of Section 37 of NDPS apply to be present case and the petitioner was unable to satisfy the twin conditions laid down in Section 37 of NDPS Act is not acceptable. 12. The petitioner asserted that he has no criminal antecedents. This was not stated to be incorrect in the status report. The status report shows that the charge sheet was filed before the Court on 13.9.2024 and the matter is listed before learned Special Judge-II Shimla on 10.4.2025. The prosecution has cited 27 witnesses out of whom only two witnesses have been examined, which shows that the prosecution was only able to examine two witnesses in a period of 08 months and the submission that the petitioner cannot be detained in custody indefinitely hoping for an early conclusion of trial has to be accepted as correct. 9 2025:HHC:9752 13. It was averred that the petitioner can abscond in case of his release on bail. Ms. Suman Thakur, learned counsel for the petitioner stated, on instructions, that the petitioner would furnish two local sureties to remove this apprehension. Thus, the bail cannot be denied because the petitioner is a permanent resident of Nepal. 14. In view of the above, 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 ₹2,00,000/- with two local sureties 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 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 concerned Police Station and the Court. (iv) 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 10 2025:HHC:9752 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. 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 the Court for cancellation of the bail. 16. The observations made hereinabove are regarding the disposal of this petition and will have no bearing whatsoever on the case's merits. 17. The petition stands accordingly disposed of. A copy of this order will be sent to the Superintendent, Kaithu Jail, District Shimla, H.P., and the learned Trial Court by FASTER. 18. A downloaded copy of this order shall be accepted by the learned Trial Court while accepting the bail bonds from the petitioner, and in case said Court intends to ascertain the veracity of the downloaded copy of the order presented to it, same may be ascertained from the ofÏcial website of this Court. (Rakesh Kainthla) Judge 9th April 2025 (mamta) Digitally signed by KARAN SINGH GULERIA Date: 2025.04.09 12:58:39 IST