2026:HHC:31630 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. MP(M) No. 1236 of 2026 Reserved on: 29.07.2026 Date of Decision: 30.07.2026 Sandeep Shah @ Sonu alias Arun Kumar ...Petitioner Versus State of Himachal Pradesh ...Respondent Coram Hon’ble Mr Justice Rakesh Kainthla, Judge. Whether approved for reporting?1 For the Petitioner : Mr Harsh Vardhan, Advocate. For the Respondent : Mr Lokender Kutlehira, Additional Advocate General with HC Kamal No. 122 P.S. Sadar, Shimla. Rakesh Kainthla, Judge The petitioner has filed the present petition for seeking regular bail in FIR No. 107 of 2024, dated 14.08.2024, registered for the commission of offences punishable under Sections 21, 27A and 29 of the Narcotic Drugs and Psychotropic Substances Act (hereinafter referred to as ‘the NDPS Act’) and Section 111 of Bhartiya Nyaya Sanhita, (BNS), 2023 at Police Station Sadar Shimla, District Shimla, H.P. 1 Whether reporters of Local Papers may be allowed to see the judgment? Yes. 2 2026:HHC:31630 2. It has been asserted that as per the prosecution, the police received secret information during patrolling on 13.08.2024 at about 12.05 a.m. that two persons staying in Hotel Himachal had a huge quantity of narcotics in their possession. The police completed the formalities and went to room No. 101, where they found Suraj and Rohit Panday. The police recovered one packet containing 6.38 grams of heroin, seized it and arrested Suraj and Rohit Panday. They disclosed during the interrogation that Sandeep Shah (the present petitioner) used to send them the location and direct them to keep the heroin in those locations. They would drop the heroin in those locations and send the location to Sandeep Shah through WhatsApp. The police checked the call detail record and bank account statement and found that the accused were in touch with Sandeep Shah and had financial transactions with him. These allegations are false. The police have completed the investigation and the custodial interrogation of the petitioner is not required. Sixty-seven other co-accused have been released on bail, and the charge sheet has been filed before the Court. The matter was listed for filing the reply to the application under Section 250 of Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023. The Court has not framed the charges due to the absence of 3 2026:HHC:31630 some of the co-accused. The petitioner has remained in custody for one and a half years, and the trial is not likely to conclude soon. The petitioner has criminal antecedents. He would abide by the terms and conditions that 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 received secret information on 14th August 2024 at about 12:05 am that two persons staying in room number 101 of the hotel Himachal had a huge quantity of narcotics. The Police reduced the information to writing and sent it to the supervisory officer. The Police went to room number 101 with independent witnesses. Suraj and Rohit Pandey were found in the room. The police searched the room and recovered one polythene packet containing 6.380 grams of heroin and a digital weighing machine. The Police seized the heroin and the digital weighing machine. The police arrested the occupants of the room. Suraj and Rohit Pandey disclosed during the investigation that Sandeep Shah (present petitioner) had supplied the heroin to them. Sandeep Shah used to send the locations and direct them to keep the heroin in those locations. They would drop the heroin and send the locations to the petitioner via WhatsApp. The police checked 4 2026:HHC:31630 the call detail records and the bank account statements. The police found that Jitender Verma, Jugal Kishore and Aastik Chauhan were in contact with Rohit Pandey and Suraj. They had transferred a huge amount to Sandeep Shah’s bank account. Police arrested Jitender Verma, Jugal Kishore, Aastik Chauhan, Sandeep Shah (present petitioner) and Neeraj Kashyap. The police found during the investigation that Sandeep Shah was dealing in narcotics. FIR number 108/2022 and FIR number 190/21 were registered against him. Sandeep Shah (present petitioner) disclosed during the interrogation that the police officials were also involved in the commission of the offence. He named Jugal Kishore, Sandy, Rajat and Rohit. The evidence of forward and backward linkage was found from the call detail record and the mobile phones of Suraj and Rohit Panday. The virtual number of the petitioner was found to have been saved in their mobile phones. They had videos of different locations in Shimla, and these videos were sent to different mobile numbers. Unusual transactions were found in the accounts of Sandeep Shah, Neeraj Kashyap, and Arpita Shah. Sandeep Shah was running a syndicate for the sale of heroin in which 60 to 70 persons were active. A huge transaction of crores of rupees was found to have taken place. The co-accused identified the places where they had 5 2026:HHC:31630 kept the heroin at the instance of Sandeep Shah. Sandeep Shah used to take the money from his customers through UPI and send the locations through the mobile. He had transferred money into the accounts of Ajay Goswami, Rohit Panday, Jugal Kishore Ashish, Shubham Shandil and Shubham Dhirta. Sandeep Shah was found to be in possession of the ATM card of Neeraj Kashyap, and he had withdrawn ₹1,50,000/- by using the card. The video clip, photographs, chatting and financial transactions were found in the mobile phone of the thirty-two co-accused. The data obtained from the mobile phone of Sandeep Shah was being scrutinised. A huge amount of ₹1,36,39,546/- was found to have been deposited in the accounts of Sandeep Shah, Neeraj Kashyap, and Arpita Shah. The petitioner was found in possession of the Aadhaar card of Arun Kumar, PAN, ATM cards, mobile phone and virtual mobile number. Five FIRs have been registered against the petitioner, out of which two are for the possession of different quantities of heroin. The petitioner was declared a proclaimed offender in FIR No. 190 of 2021. The petitioner changes his addresses, and it is difficult to serve him. The petitioner has impersonated himself as Arun Kumar, and he has no permanent address. Four mobile sets were found in the petitioner’s possession. The police have arrested 6 2026:HHC:31630 seventy co-accused. The petitioner is the kingpin of the drug syndicate. Therefore, it was prayed that the present petition be dismissed. 4. I have heard Mr Harsh Vardhan, learned counsel for the petitioner and Mr Lokender Kutlehria, learned Additional Advocate General, for the respondent/State. 5. Mr Harsh Vardhan, learned counsel for the petitioner, submitted that the petitioner is innocent and he was falsely implicated. The petitioner has remained in custody for 1½ years. The learned Trial Court has failed to frame the charges in the present case. The prosecution has cited many witnesses, and the trial is not likely to conclude soon. The quantity of heroin recovered from the possession of the co-accused was 6.38 grams, which is slightly more than a small quantity. The petitioner has already undergone a substantial part of the imprisonment that can be awarded to him in case of his conviction. The petitioner would abide by the terms and conditions that the court may impose. Hence, it was prayed that the present petition be allowed and the petitioner be released on bail. 7 2026:HHC:31630 6. Mr Lokender Kutlehria, learned Additional Advocate General for the respondent State, submitted that the petitioner was declared a proclaimed offender in one of the FIRs and he would not join the investigation if released on bail. The petitioner was found to be the kingpin of the drug syndicate. He had supplied the heroin worth crores of rupees to the young children. Therefore, 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, wherein it was observed at page 380: (i) Broad principles for the grant of bail 56. In Gudikanti Narasimhulu 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 liberty 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 a conviction is confirmed, also bears upon the issue. 8 2026:HHC:31630 8. Another relevant factor is whether the course of justice would be thwarted by him who seeks the benignant jurisdiction of the Court to be freed for the time being. [Patrick Devlin, “The Criminal Prosecution 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 interfering with witnesses for the prosecution or otherwise polluting the process of justice. It is not only traditional 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 record which suggests that he is likely to commit serious 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 opportunity to inflict further crimes on the members of society. 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 highlighted 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 arbitrary 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 character, behaviour, means and standing 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 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 9 2026:HHC:31630 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 Upadhyay v. Sudarshan Singh, (2002) 3 SCC 598: 2002 SCC (Cri) 688, speaking through Banerjee, J., emphasised that a court exercising 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, but, however, calls for the 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 the placement of the accused in society, though it may be considered by itself, cannot be a guiding factor in the matter of grant of bail, the same should always be coupled with other circumstances warranting the grant of bail. The nature of the offence is one of the basic considerations 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 matrix 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 although 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. 10 2026:HHC:31630 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 circumstances 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, interfere with an order passed by the High Court granting or rejecting bail to the accused. However, it is equally incumbent upon the High Court to exercise its discretion judiciously, cautiously and strictly in compliance with the basic principles laid down in a plethora 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) xxxxxxx 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 11 2026:HHC:31630 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: (Brijmani Devi 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 cannot 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 to enable a court to arrive at a prima facie conclusion. 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 consideration must be given to facts suggestive of the nature of crime, the criminal antecedents of the accused, if any, and the nature of punishment that would follow a conviction vis-à-vis the offence(s) alleged against an accused.” (emphasis supplied) 9. Hon’ble Supreme Court held in State of Rajasthan v. Balchand, (1977) 4 SCC 308: 1977 SCC (Cri) 594: 1977 SCC OnLine SC 261 that the normal rule is bail and not jail, except where the gravity of the crime or the heinousness of the offence suggests otherwise. It was observed at page 308: 2. The basic rule may perhaps be tersely put as bail, not jail, except where there are circumstances suggestive of fleeing from justice or thwarting the course of justice or creating 12 2026:HHC:31630 other troubles in the shape of repeating offences or intimidating witnesses and the like, by the petitioner who seeks enlargement on bail from the Court. We do not intend to be exhaustive but only illustrative. 3. It is true that the gravity of the offence involved is likely to induce the petitioner to avoid the course of justice and must weigh with us when considering the question of jail. So also, the heinousness of the crime….” 10. The present petition has to be decided as per the parameters laid down by the Hon’ble Supreme Court. 11. The status report mentions that the petitioner is the kingpin of the drug syndicate in Shimla. The police had found the petitioner’s virtual mobile number to have been saved in the mobile phones of the co-accused. However, the status report is silent as to how the police found out that this virtual mobile number belonged to the petitioner. Thus, this piece of evidence will not help the prosecution. 12. The police are heavily relying upon the statements made by the co-accused, financial transactions and the call detail record to connect the petitioner to the commission of the crime; however, prima facie, these are not sufficient to connect the petitioner to the commission of the crime. It was laid down by the Hon’ble Supreme Court in Dipakbhai Jagdishchandra Patel v. State of Gujarat, (2019) 16 SCC 547: (2020) 2 SCC (Cri) 361: 2019 SCC 13 2026:HHC:31630 OnLine SC 588 that a statement made by an accused during the investigation is hit by Section 162 of Cr.P.C. and cannot be used as a piece of evidence. It was also held that the confession made by the co-accused is inadmissible under Section 25 of the Indian Evidence Act. It was observed at page 568: - 44. Such a person, viz., the person who is named in the FIR, and therefore, the accused in the eye of the law, can indeed be questioned, and the statement is taken by the police officer. A confession that is made to a police officer would be inadmissible, having regard to Section 25 of the Evidence Act. A confession, which is vitiated under Section 24 of the Evidence Act, would also be inadmissible. A confession, unless it fulfils the test laid down in Pakala Narayana Swami [Pakala Narayana Swami v. King Emperor, 1939 SCC OnLine PC 1: (1938-39) 66 IA 66: AIR 1939 PC 47] and as accepted by this Court, may still be used as an admission under Section 21 of the Evidence Act. This, however, is subject to the bar of admissibility of a statement under Section 161 CrPC. Therefore, even if a statement contains an admission, the statement being one under Section 161, it would immediately attract the bar under Section 162 CrPC.” 13. Similarly, it was held in Surinder Kumar Khanna vs Intelligence Officer Directorate of Revenue Intelligence 2018 (8) SCC 271 that a confession made by a co-accused cannot be taken as a substantive piece of evidence against another co-accused and can only be utilised to lend assurance to the other evidence. The Hon’ble Supreme Court subsequently held in Tofan Singh Versus State of Tamil Nadu 2021 (4) SCC 1 that a confession made to a 14 2026:HHC:31630 police officer during the investigation is hit by Section 25 of the Indian Evidence Act and is not saved by the provisions of Section 67 of the NDPS Act. Therefore, no advantage can be derived by the prosecution from the confessional statement made by the co- accused implicating the petitioner. 14. A similar situation arose before this Court in Dinesh Kumar @ Billa Versus State of H.P. 2020 Cri. L.J. 4564, and it was held that a confession of the co-accused and the phone calls are not sufficient to deny bail to a person. 15. It was laid down by this Court in Saina Devi vs State of Himachal Pradesh 2022 Law Suit (HP) 211 that where the police have no material except the call details record and the disclosure statement of the co-accused, the petitioner cannot be kept in custody. It was observed: - “[16] In the facts of the instant case, the prosecution, for implicating the petitioner, relies upon firstly the confessional statement made by accused Dabe Ram and secondly the CDR details of calls exchanged between the petitioner and the wife of co-accused Dabe Ram. Taking into consideration the evidence with respect to the availability of CDR details involving the phone number of the petitioner and the mobile phone number of the wife of co-accused Dabe Ram, this Court had considered the existence of a prima facie case against the petitioner and 15 2026:HHC:31630 had rejected the bail application as not satisfying the conditions of Section 37 of the NDPS Act. [17] Since the existence of CDR details of the accused person(s) has not been considered as a circumstance sufficient to hold a prima facie case against the accused person(s), in Pallulabid Ahmad's case (supra), this Court is of the view that the petitioner has made out a case for maintainability of his successive bail application as also for grant of bail in his favour. [18] Except for the existence of CDRs and the disclosure statement of the co-accused, no other material appears to have been collected against the petitioner. The disclosure made by the co-accused cannot be read against the petitioner as per the mandate of the Hon'ble Supreme Court in Tofan Singh Vs State of Tamil Nadu, 2021 4 SCC 1. Further, on the basis of the aforesaid elucidation, the petitioner is also entitled to the benefit of bail. 16. The police have also relied upon the financial transaction to connect the petitioner to the commission of the crime; however, that is not sufficient. It was laid down by the Kerala High Court in Amal E vs State of Kerala 2023:KER:39393 that financial transactions are not sufficient to connect the accused with the commission of a crime. It was observed: “From the perusal of the case records, it can be seen that, apart from the aforesaid transactions, there is nothing to show the involvement of the petitioners. It is true that the documents indicate the monetary transactions between the petitioners and some of the accused persons, but the question that arises is whether the said transactions were in connection with the sale of Narcotic drugs. To establish the same, apart from the confession statements of the accused, there is nothing. However, as it is an aspect to be 16 2026:HHC:31630 established during the trial, I do not intend to enter into any finding at this stage, but the said aspect is sufficient to record the satisfaction of the conditions contemplated under section 37 of the NDPS Act, as the lack of such materials evokes a reasonable doubt as to the involvement of the petitioner.” 17. Therefore, the petitioner cannot be detained in custody based on the statement made by the co-accused, financial transactions and the call detail records. 18. The police have also added section 111 of BNS. It reads as under: “111. Organised Crime. “(1) Any continuing unlawful activity including kidnapping, robbery, vehicle theft, extortion, land grabbing, contract killing, economic offence, cyber-crimes, trafficking of persons, drugs, weapons or illicit goods or services, human trafficking for prostitution or ransom, by any person or a group of persons acting in concert, singly or jointly, either as a member of an organized crime syndicate or on behalf of such syndicate, by use of violence, threat of violence, intimidation, coercion, or by any other unlawful means to obtain direct or indirect material benefit including a financial benefit, shall constitute organized crime. Explanation. Explanation. —For the purposes of this sub-section,— (i) “organised crime syndicate” means a group of two or more persons who, acting either singly or jointly, as a syndicate or gang, indulge in any continuing unlawful activity; (ii) “continuing unlawful activity” means an activity prohibited by law which is a cognizable offence punishable with imprisonment of three years or more, undertaken by any person, either singly or 17 2026:HHC:31630 jointly, as a member of an organised crime syndicate or on behalf of such syndicate in respect of which more than one charge-sheets have been filed before a competent Court within the preceding period of ten years and that Court has taken cognizance of such offence, and includes economic offence; (iii) “economic offence” includes criminal breach of trust, forgery, counterfeiting of currency-notes, bank-notes and Government stamps, hawala transaction, mass-marketing fraud or running any scheme to defraud several persons or doing any act in any manner with a view to defraud any bank or financial institution or any other institution or organisation for obtaining monetary benefits in any form. (2) Whoever commits organised crime shall— (a) If such offence has resulted in the death of any person, be punished with death or imprisonment for life, and shall also be liable to a fine which shall not be less than ten lakh rupees; (b) In any other case, be punished with imprisonment for a term which shall not be less than five years but which may extend to imprisonment for life, and shall also be liable to a fine which shall not be less than five lakh rupees. (3) Whoever abets, attempts, conspires or knowingly facilitates the commission of an organised crime, or otherwise engages in any act preparatory to an organised crime, shall be punished with imprisonment for a term which shall not be less than five years but which may extend to imprisonment for life, and shall also be liable to a fine which shall not be less than five lakh rupees. (4) Any person who is a member of an organised crime syndicate shall be punished with imprisonment for a term which shall not be less than five years but which may extend to imprisonment for life, and shall also be liable to a fine which shall not be less than five lakh rupees. 18 2026:HHC:31630 (5) Whoever, intentionally, harbours or conceals any person who has committed the offence of an organised crime shall be punished with imprisonment for a term which shall not be less than three years but which may extend to imprisonment for life, and shall also be liable to fine which shall not be less than five lakh rupees: Provided that this sub-Section shall not apply to any case in which the harbour or concealment is by the spouse of the offender. (6) Whoever possesses any property derived or obtained from the commission of an organised crime or proceeds of any organised crime or which has been acquired through the organised crime, shall be punishable with imprisonment for a term which shall not be less than three years but which may extend to imprisonment for life and shall also be liable to a fine which shall not be less than two lakh rupees. (7) If any person on behalf of a member of an organized crime syndicate is, or at any time has been in possession of movable or immovable property which he cannot satisfactorily account for, shall be punishable with imprisonment for a term which shall not be less than three years but which may extend to imprisonment for ten years and shall also be liable to fine which shall not be less than one lakh rupees”. 19. It is apparent from the bare perusal of the section that a person should indulge in a specified activity either singly or jointly as a member of an organised crime syndicate in respect of which more than one charge-sheet has been filed before a court within the preceding period of ten years and the Court has taken cognisance of such offence. 19 2026:HHC:31630 20. This section was explained by the Karnataka High Court in Avinash vs. State of Karnataka (11.03.2025 - KARHC): MANU/KA/0938/2025 as under: 1. The primary intent behind introducing Section 111 of BNS, 2023, is to provide a targeted and effective mechanism to dismantle organised crime syndicates. From a reading of the said provision of law, it is manifest that for the purpose of invoking Section 111 of BNS, 2023, there are certain basic parameters, and if it is found that the accused comes within the said parameters, the offence punishable under Section 111 of BNS, 2023 can be invoked. The said parameters are as follows: (a) the offences enlisted in the Section must have been committed; (b) accused should be a member of an organised crime syndicate; (c) he should have committed the crime as a member of an organised crime syndicate or on behalf of such a syndicate. (d) he should have been chargesheeted more than once before a competent Court within the preceding period of ten years for a cognizable offence punishable with imprisonment for three years or more, and the Court before which the chargesheet has been filed should have taken cognisance of such offence, including economic offence. (e) the crime must be committed by using violence, intimidation, threat, coercion or by any other unlawful means. 21. It was laid down by the Kerala High Court in Mohd. Hashim v. State of Kerala, 2024 SCC OnLine Ker 5260 that where no charge sheet was filed against the accused in the preceding ten 20 2026:HHC:31630 years, he cannot be held liable for the commission of an offence punishable under Section 111 of the BNS Act. It was observed: “10. Section 111 (1) explicitly stipulates that to attract the offence, there should be a continuing unlawful activity, by any person or group of persons acting in concert, singly or jointly, either as a member of an organised crime syndicate or on behalf of such syndicate. The material ingredient to attract the above provision, so far as the present case is concerned, is that there should have been a continuing unlawful activity committed by a member of an organised crime syndicate or on behalf of such syndicate. 11. Explanation (i) and (ii) of sub-section (1) of Section 111 of the BNS define an organised crime syndicate and a continuing unlawful activity, respectively. 12. Continuing unlawful activity under explanation (ii) of Section 111(1) of the BNS means an activity prohibited by law, which is a cognizable offence punishable with imprisonment of three years or more, undertaken by any person, either singly or jointly, as a member of an organised crime syndicate or on behalf of such syndicate in respect of which more than one charge-sheet has to be filed before a competent Court within the preceding period of ten years and that Court has taken cognizance of such an offence. Furthermore, an organised crime syndicate under Explanation (i) of sub-section (1) of Section 111 of the BNS means a group of two or more persons who, acting either singly or jointly as a syndicate or gang, indulge in any continuing unlawful activity. 13. While interpreting the analogous provisions of the Maharashtra Control of Organised Crime Act, 1999, which mandates the existence of at least two charge sheets in respect of a specified offence in the preceding ten years, the Honourable Supreme Court in State of Maharashtra v. Shiva alias Shivaji Ramaji Sonawane [(2015) 14 SCC 272] has unequivocally held as follows: 21 2026:HHC:31630 “9. It was in the above backdrop that the High Court held that once the respondents had been acquitted for the offence punishable under the IPC and Arms Act in Crimes No. 37 and 38 of 2001 and once the Trial Court had recorded an acquittal even for the offence punishable under Section 4 read with Section 25 of the Arms Act in MCOCA Crimes No. 1 and 2 of 2002 all that remained incriminating was the filing of charge sheets against the respondents in the past and taking of cognizance by the competent court over a period of ten years prior to the enforcement of the MCOCA. The filing of charge sheets or taking of cognisance in the same did not, declared the High Court, by itself constitute an offence punishable under Section 3 of the MCOCA. That is because the involvement of respondents in previous offences was just about one requirement, but by no means the only requirement, which the prosecution has to satisfy to secure a conviction under MCOCA. What was equally, if not more important, was the commission of an offence by the respondents that would constitute “continuing unlawful activity”. So long as that requirement failed, as was the position in the instant case, there was no question of convicting the respondents under Section 3 of the MCOCA. That reasoning does not, in our opinion, suffer from any infirmity. 10. The very fact that more than one charge sheet had been filed against the respondents, alleging offences punishable with more than three years' imprisonment, is not enough. As rightly pointed out by the High Court, commission of offences before the enactment of MCOCA does not constitute an offence under MCOCA. Registration of cases, filing of charge sheets and taking of cognisance by the competent court in relation to the offence alleged to have been committed by the respondents in the past is but one of the requirements for invocation of Section 3 of the MCOCA. Continuation of unlawful activities is the second and equally important requirement that ought to be satisfied. Only if an organised crime is committed by the accused after the 22 2026:HHC:31630 promulgation of MCOCA, he may, seen in the light of the previous charge sheets and the cognisance taken by the competent court, be said to have committed an offence under Section 3 of the Act. 11. In the case at hand, the offences which the respondents are alleged to have committed after the promulgation of MCOCA were not proved against them. The acquittal of the respondents in Crimes Nos. 37 and 38 of 2001 signified that they were not involved in the commission of the offences with which they were charged. Not only were the respondents acquitted of the charge under the Arms Act, but also in Crimes Case Nos. 1 and 2 of 2002. No appeal against that acquittal had been filed by the State. This implied that the prosecution had failed to prove the second ingredient required for completion of an offence under MCOCA. The High Court was, therefore, right in holding that Section 3 of the MCOCA could not be invoked only on the basis of the previous charge sheets for Section 3 would come into play only if the respondents were proved to have committed an offence for gain or any pecuniary benefit or undue economic or other advantage after the promulgation of MCOCA. Such being the case, the High Court was, in our opinion, justified in allowing the appeal and setting aside the order passed by the Trial Court”. 14. Subsequently, the Honourable Supreme Court in State of Gujarat v. Sandip Omprakash Gupta [2022 SCC OnLine SC 1727], while interpreting the analogous provisions of the Gujarat Control of Terrorism and Organised Crime Act, 2015, clarified the ratio in Shivaji alias Shivaji Ramaji Sonawane (supra) by observing thus: “52. It is a sound rule of construction that the substantive law should be construed strictly so as to give effect and protection to the substantive rights unless the statute otherwise intends. Strict construction is one which limits the application of the statute by the words used. According to Sutherland, ‘strict construction refuses to extend the import of words used in a statute so 23 2026:HHC:31630 as to embrace cases or acts which the words do not clearly describe’. 53. The rule as stated by Mahajan C.J. in Tolaram Relumal v. State of Bombay, (1954) 1 SCC 961: AIR 1954 SC 496, is that “if two possible and reasonable constructions can be put upon a penal provision, the court must lean towards that construction which exempts the subject from penalty rather than the one which imposes a penalty. It is not competent to the court to stretch the meaning of an expression used by the legislature in order to carry out the intention of the legislature.” In State of Jharkhand v. Ambay Cements, (2005) 1 SCC 368, this Court held that it is a settled rule of interpretation that where a statute is penal in character, it must be strictly construed and followed. The basic rule of strict construction of a penal statute is that a person cannot be penalised without a clear reading of the law. Presumptions or assumptions have no role in the interpretation of penal statutes. They are to be construed strictly in accordance with the provisions of law. Nothing can be implied. In such cases, the courts are not so much concerned with what might possibly have been intended. Instead, they are concerned with what has actually been said. 54. We are of the view and the same would be in tune with the dictum as laid in Shiva alias Shivaji Ramaji Sonawane (supra) that there would have to be some act or omission which amounts to organised crime after the 2015 Act came into force i.e., 01.12.2019 in respect of which, the accused is sought to be tried for the first time in the special court. 55. We are in agreement with the view taken by the High Court of Judicature at Bombay in the case of Jaisingh (supra) that neither the definition of the term ‘organised crime’ nor of the term ‘continuing unlawful activity’ nor any other provision therein declares any activity performed prior to the enactment of the MCOCA to be an offence under the 1999 Act nor the provision relating to punishment relates to any offence prior to the date of 24 2026:HHC:31630 enforcement of the 1999 Act, i.e., 24.02.1999. However, by referring to the expression ‘preceding period of ten years' in Section 2(1)(d), which is a definition clause of the term ‘continuing unlawful activity ’, an inference is sought to be drawn that, in fact, it takes into its ambit the acts done prior to the enforcement of the 1999 Act as being an offence under the 1999 Act. The same analogy will apply to the 2015 Act. 56. There is a vast difference between the act or activity, which is being termed or called an offence under a statute and such act or activity being taken into consideration as one of the requisites for taking action under the statute. For the purpose of organised crime, there has to be a continuing unlawful activity. There cannot be continuing unlawful activity unless at least two charge sheets are found to have been lodged in relation to the offence punishable with three years' imprisonment during the period of ten years. Indisputably, the period of ten years may relate to the period prior to 01.12.2019 or thereafter. In other words, it provides that the activities, which were offences under the law in force at the relevant time and in respect of which two charge sheets have been filed and the Court has taken cognisance thereof, during the period of preceding ten years, then it will be considered as continuing unlawful activity on 01.12.2019 or thereafter. It nowhere by itself declares any activity to be an offence under the said 2015 Act prior to 01.12.2019. It also does not convert any activity done prior to 01.12.2019 to be an offence under the said 2015 Act. It merely considers two charge sheets in relation to the acts which were already declared as offences under the law in force to be one of the requisites for the purpose of identifying continuing unlawful activity and/or for the purpose of an action under the said 2015 Act. 57. If the decision of the coordinate Bench of this Court in the case of Shiva alias Shivaji Ramaji Sonawane (supra) is looked into closely along with other provisions of the Act, the same would indicate that the offence of 25 2026:HHC:31630 ‘organised crime’ could be said to have been constituted by at least one instance of continuation, apart from continuing unlawful activity evidenced by more than one chargesheets in the preceding ten years. We say so, keeping in mind the following: (a) If ‘organised crime’ was synonymous with ‘continuing unlawful activity’, two separate definitions were not necessary. (b) The definitions themselves indicate that the ingredients of the use of violence in such activity with the objective of gaining pecuniary benefit are not included in the definition of ‘continuing unlawful activity’, but find place only in the definition of ‘organised crime’. (c) What is made punishable under Section 3 is ‘organised crime’ and not ‘continuing unlawful activity’. (d) If ‘organised crime’ were to refer to only more than one chargesheets filed, the classification of crime in Section 3(1)(i) and 3(1)(ii) resply on the basis of consequence of resulting in death or otherwise would have been phrased differently, namely, by providing that ‘if any one of such offence has resulted in the death’, since continuing unlawful activity requires more than one offence. Reference to ‘such offence’ in Section 3(1) implies a specific act or omission. (e) As held by this Court in State of Maharashtra v. Bharat Shanti Lal Shah (supra) continuing unlawful activity evidenced by more than one chargesheets is one of the ingredients of the offence of organised crime and the purpose thereof is to see the antecedents and not to convict, without proof of other facts which constitute the ingredients of Section 2(1)(e) and Section 3, which respectively define commission of offence of organised crime and prescribe punishment. 26 2026:HHC:31630 (f) There would have to be some act or omission which amounts to organised crime after the Act came into force, in respect of which the accused is sought to be tried for the first time, in the Special Court (i.e. has not been or is not being tried elsewhere). (g) However, we need to clarify something important. Shiva alias Shivaji Ramaji Sonawane (supra) dealt with the situation where a person commits no unlawful activity after the invocation of the MCOCA. In such circumstances, the person cannot be arrested under the said Act on account of the offences committed by him before the coming into force of the said Act, even if he is found guilty of the same. However, if the person continues with the unlawful activities and is arrested after the promulgation of the said Act, then such a person can be tried for the offence under the said Act. If a person ceases to indulge in any unlawful act after the said Act, then he is absolved of the prosecution under the said Act. But, if he continues with the unlawful activity, it cannot be said that the State has to wait till he commits two acts of which cognisance is taken by the Court after coming into force. The same principle would apply, even in the case of the 2015 Act, with which we are concerned. 58. In the overall view of the matter, we are convinced that the dictum as laid by this Court in Shiva alias Shivaji Ramaji Sonawane(supra) does not require any relook. The dictum in Shiva alias Shivaji Ramaji Sonawane (supra) is the correct exposition of law. 16. Section 111 (1) of the BNS in respect of organised crime is, in essence, analogous to the provisions of the Maharashtra Control of Organised Crime Act and the Gujarat Control of Terrorism and Organised Crime Act. The legal principles laid down by the Honourable Supreme Court in its interpretation of organised crime as defined by the above two state legislations are applicable on all fours to 27 2026:HHC:31630 Section 111 (1) of the BNS. Thus, it is not necessary to have a further interpretation of the above analogous provision. 17. In view of the above discussion, to attract an offence under Section 111 (1) of the BNS it is imperative that a group of two or more persons indulge in any continuing unlawful activity prohibited by law, which is a cognizable offence punishable with imprisonment of three years or more, undertaken by any person, either singly or jointly, as a member of an organised crime syndicate or on behalf of such syndicate in respect of which more than one charge- sheet has to be filed before a competent Court within the preceding period of ten years and that Court has taken cognizance of such an offence. 18. In the present case, it is undisputed that no charge sheet has been filed against the petitioner in any court in the last ten years. Therefore, prima facie, the offence under Section 111(1) is not attracted. Nevertheless, these are matters to be investigated and ultimately decided after trial. Additionally, the petitioner has been in judicial custody for the last 57 days, and recovery has been effected. 22. This judgment was followed in Pesala Sivashankar Reddy v. State of A.P., 2024 SCC OnLine AP 5422, wherein it was held: “8. The Hon'ble Supreme Court in the matter of State of Maharashtra v. Shiva Alias Shivaji Ramaji Sonawane, 2015 SCC OnLine SC 648, was dealing with the Maharashtra Control of Organised Crime Act, 1999 (MCOC) Act and the offence of organised crime under the said Act. The Hon'ble Supreme Court has held that only if an organised crime is committed by the accused after the promulgation of the MCOCA Act, and that he may be seen in the light of the previous charge sheet, which is taken cognisance of by the competent court, would he have committed an offence under Section 3 of the Act. 28 2026:HHC:31630 9. The Hon'ble Supreme Court, in the matter of Mohamad Iliyas Mohamad Bilal Kapadiya v. State of Gujarat, 2022 Live Law (SC) 538, held that to invoke the provisions of the Gujarat Control of terrorism and Organised Crime Act, 2015, in respect of an act of organised crime, more than one charge sheet should be filed in the preceding ten years. Section 111 of B.N.S. is analogous to the organised crime acts of various states, which were dealt with by the Hon'ble Supreme Court. 10. The Hon'ble High Court of Kerala in the matter of Mohammed Hashim v. State of Kerala, 2024 SCC OnLine Ker 5260. The learned Judge of the Kerala High Court has emphasised that Section 111 can be invoked only if more than one charge sheet has been filed for such offences in the preceding ten years before a competent court, and such charge sheets are taken cognisance of by the court. 11. This Court agrees with the observations of the Kerala High Court, and admittedly, no charge sheet has been filed against the petitioner for similar offences in any court of law in the preceding ten years; as such, cause for invocation of Section 111 of B.N.S. has to be dealt appropriately by the investigating officer during the course of investigation of the crime.” 23. It was held in Suraj Singh vs. State of Punjab (25.09.2024 - PHHC): MANU/PH/4288/2024 that the police must gather legally admissible evidence to connect the accused with the commission of a crime punishable under Section 111 of the BNS Act. It was observed: “15. To bring an offence into the four corners of an organised crime, the offence must fall under a category described in S. 111 of BNS, 2023. The prima facie evidence must be legally admissible to constitute any continuing unlawful activity to constitute an organised crime as 29 2026:HHC:31630 defined in S. 111 of BNS. Without legally admissible prima facie evidence, the State cannot make any suspect undergo custodial interrogation to hunt for such evidence against the suspect or others. The evidence must be gathered first to make out a prima facie case within the scope of S. 111 of BNS, and such evidence alone would justify custodial interrogation to carry out further investigation. Without legally admissible accusations, allegations, or evidence, the State cannot arrest a suspect to fish evidence against them or use such a suspect as custodial bait by any hook, line, and sinker to bring the case into the fold of S. 111 of BNS. Prima facie evidence must be admissible, and if such evidence is deemed inadmissible, the entire foundation will collapse.” 24. In the present case, there is no legally admissible evidence to connect the petitioner with the commission of organised crime and prima facie section 111 of BNS is not attracted to the present case. 25. 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 ₹1,00,000/- with one surety 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 on each and every hearing and will not seek unnecessary adjournments. 30 2026:HHC:31630 (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 SHO concerned, the Police Station concerned and the Trial Court. (IV) The petitioner will surrender his passport, if any, to the Court; and (V) 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 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. 26. It is expressly made clear that in case of violation of any of these conditions, the prosecution will have the right to file a petition for cancellation of the bail. 27. The petition stands accordingly disposed of. A copy of this order be sent to the Jail Superintendent, Model Central Jail Nahan, Sirmour, H.P. 28. The observations made hereinabove are regarding the disposal of this petition and will have no bearing whatsoever on the merits of the case. (Rakesh Kainthla) 30th July, 2026. Judge (Ravinder)