2025:HHC:11235 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. MP (M) No. 645 of 2025 Reserved on: 01.04.2025 Date of Decision: 28th April 2025. Raju ...Petitioner Versus State of Himachal Pradesh ...Respondent Coram Hon’ble Mr Justice Rakesh Kainthla, Judge. Whether approved for reporting? No. For the Petitioner : Ms. Deeksha Thakur, Advocate. For the Respondent/State. : Mr. Ajit Sharma, Deputy 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 vide FIR no. 14/2025, dated 14th February 2025, for the commission of offences punishable under Sections 20 and 29 of the Narcotic Drugs and Psychotropic Substances Act 1985 (NDPS Act) registered in Police Station, Kunihar, Tehsil Arki, District Solan, HP. As per the prosecution, 307 grams of charas was recovered from the petitioner. The police have completed the ________________________ Whether reporters of Local Papers may be allowed to see the judgment? Yes. 2 2025:HHC:11235 investigation, and the petitioner’s custody is not required. The petitioner is a poor and innocent person. He was falsely implicated. He has been in judicial custody since 14th February 2025. The charge sheet is still to be filed, and it will take some time to file the charge sheet and conclude the trial. The petitioner is the sole earner of the family, and his aged parents are dependent upon him. FIR no. 6/2020, dated 13th January 2020, and FIR no. 71/2014, dated 22nd March 2014, have been registered against the petitioner. The petitioner would abide by all the terms and conditions which the Court may impose. Hence, the present petition. 2. The petition is opposed to filing a status report, asserting that the police were on patrolling duty on 14th February 2024. They received secret information at 12:25 am that a vehicle bearing registration number HP-08A-6193 was transporting a huge quantity of charas. Police reduced the information to writing and associated Naresh Kumar as an independent witness. The police intercepted the vehicle bearing registration number HP- 08A-6193. The driver revealed his name as Keval Ram, and the person sitting beside the driver identified himself as Raju (the present petitioner). The police searched the vehicle and recovered 3 2025:HHC:11235 a packet containing black sticks. The police checked the sticks and found them to be charas. These were weighed, and their weight was found to be 307 grams. The police arrested the occupants of the vehicle. FIR number 71/14 and FIR number 6/20 were registered against the petitioner, which are pending before the courts. The result of the analysis confirmed the substance to be cannabis. The police have prepared the chargesheet, which will be presented before the court. Hence, the status report. 3. I have heard Ms. Deeksha Thakur, learned counsel for the petitioner and Mr. Ajit Sharma, learned Deputy Advocate General for the respondent/State. 4. Ms. Deeksha Thakur, learned counsel for the petitioner, submitted that the petitioner is innocent and he was falsely implicated. The quantity of charas stated to have been recovered from the possession of the petitioner is less than commercial, and the rigours of Section 37 of the NDPS Act do not apply to the present case. The police have not filed the chargesheet; it will take some time to file the chargesheet and conclude the trial. The petitioner cannot be kept behind the bars indefinitely, hoping for an earlier conclusion of the trial. The petitioner would abide by the 4 2025:HHC:11235 terms and conditions, which the Court may impose. Therefore, she prayed that the present petition be allowed and the petitioner be released on bail. 5. Mr. Ajit Sharma, learned Deputy Advocate General, submitted that the petitioner was found in possession of a huge quantity of cannabis, which could not have been meant for self- consumption. Narcotics are adversely affecting society, and an offence involving the possession of narcotics should not be viewed lightly. Therefore, he prayed that the present petition be dismissed. 6. I have given considerable thought to the submissions of learned counsel for the parties 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 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 5 2025:HHC:11235 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 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 6 2025:HHC:11235 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 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 an 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 7 2025:HHC:11235 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; 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 petitioner was found sitting in the car from which 307 grams of cannabis was 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 8 2025:HHC:11235 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. & 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 9 2025:HHC:11235 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 also 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.” 12. The petitioner was present in the vehicle from which recovery was effected; hence, the petitioner was prima facie in possession of cannabis. 13. FIR no. 6/2020 and FIR No. 71/2014 were registered against the petitioner, which shows that the petitioner has criminal antecedents. This Court exhaustively dealt with the relevance of criminal antecedents in Aminodin vs State of H.P. 2024: 10 2025:HHC:11235 HHC: 6091 and held, after referring to various judgments, that a Judge must consider the criminal antecedents of the accused, the nature of such 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. 14. 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 his criminal antecedents, he 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.” 15. 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 an offence, 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 11 2025:HHC:11235 and gravity of the alleged offences and considering their criminal antecedents, in our opinion High Court should not have taken a lenient view, more particularly when there was sufÏcient material to show their prima facie involvement in the alleged offences under the UAPA. 16. In the present case, FIR number 6/2020 was registered against the petitioner under the NDPS Act, which shows that the possibility of the petitioner committing the crime in case of his release on bail cannot be ruled out. Therefore, the criminal antecedents of the petitioner would disentitle him to the concession of bail. 17. It was submitted that the police had only recovered an intermediate quantity of charas, and that the rigours of Section 37 of the NPDS Act do not apply to the present case, thus, the petitioner is entitled to bail as a matter of right. This submission cannot be accepted. This Court had already laid down in Dilbar Khan v. State of H.P., 2022 SCC OnLine HP 2441, that a person found in possession of an intermediate quantity of drugs is not entitled to bail as a matter of right. It was observed: - “9. No doubt the quantity of contraband in the case is intermediate and therefore the rigours of Section 37 of the NDPS Act will not be applicable. Merely because the quantity of contraband recovered is less than the commercial quantity may not, by itself, be sufÏcient to grant bail. 12 2025:HHC:11235 10. The menace of drug abuse is not unknown in society in modern times. The victims are innocent adolescents, among others. Drug abuse more often than not leads to drug addiction, which ruins the lives of a substantial number of such persons. The question arises as to how young adolescents, who by and large remain in the custody of their guardians, are able to procure the prohibited drug. Definitely, the drug is made available through a supply chain managed in an organised manner.” 18. 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 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 sufÏcient 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 13 2025:HHC:11235 cannot be guaranteed that there will be re-indulgence by the petitioner in similar activities, in case he is released on bail.” 19. 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.” 20. The Karnataka High Court took a similar view in Sri. Thaha Ummer vs Union of India Criminal Petition No.9450/2022 decided on 09-11-2022 and held that merely because Section 37 of the NDPS Act does not apply, a person involved in the commission of an offence punishable under the NDPS Act cannot be released on bail as a matter of right. 14 2025:HHC:11235 21. No other point was urged. 22. In view of the above, the present bail petition fails, and the same stands dismissed. 23. The observation made herein before shall remain confined to the disposal of the petition and will have no bearing, whatsoever, on the merits of the case (Rakesh Kainthla) 28th April 2025 Judge (Chander)