Sachin Kumar Vs State of Hp

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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

Cr. MP (M) No. 1483 of 2025 Reserved on: 08.07.2025 Date of Decision 28.07.2025. Sachin Kumar ...Petitioner Versus State of Himachal Pradesh ...Respondent

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Coram Hon’ble Mr Justice Rakesh Kainthla , Judge. Whether approved for reporting?¹ No. For the Petitioner Mr. Kamlesh Kumar, Advocate. For the Respondent/State: Mr. Jitender Kumar. Sharma, Additional Advocate General,

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1 Whether reporters of Local Papers may be allowed to see the judgment? Yes.

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Rakesh Kainthla, Judge

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The petitioner has filed the present petition for seeking regular bail in FIR 68 of 2025, dated 15.03.2025, registered at Police Station Sadar, District Mandi, for the commission of offences punishable under Sections 21 and 29 of the Narcotic Drugs and Psychotropic Substances Act (in short NDPS Act)

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It has been asserted that, as per prosecution, the police arrested the petitioner and recovered eight grams of heroin on 15.3.2025. The petitioner is innocent, and was falsely implicated. The trial is likely to take some time, and no fruitful purpose would be served by detaining the petitioner in custody. The petitioner is a permanent resident of District Mandi . He would abide by the terms and conditions which the Court may impose. Hence, the present petition.

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The petition is opposed by a filing a status report asserting that the police party was on patrolling duty on 15.03.2025. They received a secret information at about 12.55 p.m. that Sunil Kumar, Sachin Kumar and Harish were selling heroin on Pulgharat to Malori Road in a vehicle, and in case of their search, a huge quantity of heroin could be recovered. The police reduced the information into writing and sent it to the Supervisory Officer. The police went to the spot, found a vehicle parked near the Malori tunnel and inquired about the names of the occupants. The driver of the vehicle identified himself as Sunil Kumar, the person sitting beside him identified himself as Harish Kumar, and the person in the rear seat identified himself as Sachin Kumar (the present petitioner). The police searched the vehicle in the presence of witnesses and recovered 10 currency notes of ₹ 500/- each (total ₹ 5,000/). Police also found a piece of foil paper kept beneath the foot mat of the driver's seat. A Gold flake super star cigarette box and 10

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syringes were found inside the dashboard. The police opened the cigarette box and found 8 grams of heroin in it. Police seized the articles and arrested the occupants. FIR No.138 of 2024 and FIR No.24 of 2025 have been registered against the petitioner under the NDPS Act. The result of the analysis shows that the recovered substance was a sample of Diacetylmorphine (heroin). Hence, the status report.

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I have heard Mr. Kamlesh Kumar, learned counsel for the petitioner and Mr. Jitender Kumar Sharma, learned Additional Advocate General for the respondent-State.

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Mr. Kamlesh Kumar, learned counsel for the petitioner, submitted that the petitioner is innocent and was falsely implicated. The quantity of heroin stated to have been recovered from possession of the petitioner is an intermediate quantity, and the petitioner is entitled to bail as a matter of right. The co-accused have been

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released on bail, and the petitioner is entitled to bail on the principle of parity. No fruitful purpose would be served by detaining the petitioner in custody. The petitioner would abide by the terms and conditions which the Court may impose; hence, he prayed that the present petition be allowed and the petitioner be released on bail.

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6 Mr. Jitender Kumar Sharma, learned Additional Advocate General for the respondent-State, submitted that the petitioner was found involved in the commission of a heinous offence, two FIRs were registered against him, and he is likely to commit the similar offence in case he is released on bail. Therefore, he prayed that the present petition be dismissed.

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I have given considerable thought to the submissions made at the bar and have gone through the records carefully.

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The parameters for granting bail were considered by the Hon’ble Supreme Court in Ajwar v.

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Waseem (2024) 10 SCC 768: 2024 SCC OnLine SC 974,

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wherein it was observed at page 783: -

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“Relevant parameters for granting bail

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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 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 :

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(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] . ]

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This position was reiterated in Ramratan v.

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State of M.P., 2024 SCC OnLine SC 3068, wherein it was observed as under: -

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“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 below:

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“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)

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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: —

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“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

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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)

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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:

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“ 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; the reasonable possibility of securing the presence of the accused at the time of trial or the likelihood of his abscondence; character, behaviour and

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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)

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This position was reiterated in Shabeen Ahmed versus State of U.P., 2025 SCC Online SC 479.

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11. The present petition has to be decided as per the parameters laid down by the Hon’ble Supreme Court.

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12 A perusal of the status report shows that the petitioner was found present in the vehicle from which the recovery of 8 grams of heroin was effected. 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 the vehicle would be in conscious possession of the contraband. It was observed:

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“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.

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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 to make the possession illicit, there must be conscious possession.

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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.

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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

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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.

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The word “conscious” means awareness of a particular fact. It is a state of mind which is deliberate or intended.

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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 the case in question, while the person to whom physical possession is given holds it subject to that power or control.

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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)] .)

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Once possession is established, the person who claims that it was not a conscious

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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.

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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.”

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13 Therefore, the petitioner was prima facie found in possession of 8 grams of heroin.

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It was submitted that the petitioner was found in possession of an intermediate quantity of heroin, and he is entitled to bail as a matter of right. This submission is not acceptable. This Court 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

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of drugs is not entitled to bail as a matter of right. It was observed:

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“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 sufficient to grant bail.

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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.”

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It was laid down by this Court in Khushi Ram

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Gupta v. State of H.P., 2022 SCC OnLine HP 3779, that the

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menace of drug addiction has seriously eroded into the fabric of society, and the release of an accused on bail in

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NDPS cases will send a negative signal to society. It was

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observed:

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“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.

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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 sufficient 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.

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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 cannot be guaranteed that

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there will be re-indulgence by the petitioner in similar activities, in case he is released on bail.”

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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:

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“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.

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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.”

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The status report shows that two FIRs have been registered against the petitioner for the commission of offences punishable under various provisions of the NDPS Act. The petitioner did not mention these FIRs in the petition filed by him, and tried to conceal the material facts from the Court. It was laid down by this Court in Prem Singh vs. State of H.P. 2020 (1) Shim. L.C. 476 that a person seeking bail should mention the pendency of the criminal cases against him in the bail petition. It was observed:

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“7. The burden is on the petitioner to mention his criminal history. The data bank of the State and the Country is not elaborate enough to contain the criminal history of every accused. Apart from that, there would be some cases where the petitioner might have committed serious offences outside India. As such, the burden is on the petitioner to mention all such facts in the bail petition.

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Section 106 of the Indian Evidence Act, 1872, mandates that when any fact is especially within the knowledge of any

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person, the burden of proving that fact is upon him.”

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A direction was issued in the aforesaid case to

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the petitioners to mention the criminal history in the bail petition. It was observed:

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“15. Given above, henceforth it is obligatory that in every bail petition, the petitioner must mention about all pending FIRs and pending criminal trials, where the sentence provided is seven years or more. Furthermore, the petitioner must specify details of all cases where he was convicted and sentenced to imprisonment for one year or more.

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In addition to the above, in every bail petition filed in any Court within the jurisdiction of the State of Himachal Pradesh, the State/Respondent(s) shall explicitly mention in the status report about the criminal history. In bail petitions where there is no pleading about the criminal history, then the State/Respondent(s) shall bring it to the notice of the concerned Court about the non-mentioning of the criminal history. In such a situation, it shall be for the concerned Court to take a call, if it so desires, depending upon the facts of each case.”

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A similar direction was issued by the Hon’ble Supreme Court in Munnesh v. State of U.P., 2025 SCC OnLine SC 1319, wherein it was observed:

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“11. However, before parting, we consider it necessary to dwell on one aspect. A growing trend is being noticed of individuals seeking from this Court the concession of bail or concession of protection from arrest, not disclosing in the special leave petitions their involvement in other criminal cases. In such cases where involvement is not disclosed, on a prima facie satisfaction that long incarceration without reasonable progress in the trial is invading the right to life of the accused or that the offences for which the FIR has been registered are not too serious, notices are issued and only thereafter, information of criminal antecedents is being provided in the counter affidavits filed by the respective respondents-States, as in the present case. The result is that this Court, being the apex court of the country, is being taken for a ride. This Court has shown leniency in the past, but we think it is time that such a state of affairs is not allowed to continue further.

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12. We, accordingly, direct that henceforth each individual who approaches this Court with a Special Leave Petition (Criminal)

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challenging orders passed by the high courts/sessions courts declining prayers under Sections 438/439 of the Criminal Procedure Code, 1973 or under Sections 482/483, Bharatiya Nagrik Suraksha Sanhita shall mandatorily disclose in the ‘SYNOPSIS’ that either he is a man of clean antecedents or if he has knowledge of his involvement in any criminal case, he shall clearly indicate the same together with the stage that the proceedings, arising out of such case, have reached. Should the disclosure be found to be incorrect subsequently, that itself could be considered as a ground for dismissal of the special leave petition.

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13. We are conscious that complying with this direction could result in inconvenience for some; however, having noticed that orders dated 13^th October, 2023 and 19^th October, 2023 of this Court in SLP (Crl.) No. 12876 of 2023 Kulwinder Singh v. State of Punjab and SLP (Crl.) No. 2863 of 2023Sheikh Bhola v. State of Bihar , respectively, requiring steps to be initiated for eliciting proper and correct information from the individuals seeking orders of regular bail/pre-arrest bail have not produced the desired results, we have proceeded to make the aforesaid direction in the institutional interest so that proceedings before this Court are not taken lightly by those who choose to approach it and the process of law is not abused.

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The registration of the FIR for the commission of offences punishable under the NDPS cases 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: HHC: 6091 and held, after referring to various judgments, that a Judge must consider the criminal antecedents of the accused, the nature of 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.

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It was held in Harpreet Singh Talwar v. State of Gujarat, 2025 SCC OnLine SC 1103, that the criminal antecedents are relevant to determine the propensity to commit the crime. It was observed:

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31. Moreover, the Appellant's criminal antecedents, though not involving prior accusations under the NDPS Act, include

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multiple DRI and customs proceedings involving smuggling of cigarettes, undervaluation of imports, and alleged complicity in corruption offences. These antecedents are relevant only for the limited purpose of evaluating the Appellant's propensity to interfere with the process of justice if enlarged on bail.

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It was held in V. Senthil Balaji v. Enforcement

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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:

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“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.”

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Similarly, it was held in Union of India v.

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Barakathullah, 2024 SCC OnLine SC 1019, that where the persons were involved in the commission of similar

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offences, they should not be released on bail. It was

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observed: -

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“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 charge sheet against the respondents, except accused Nos. 1, 4 and 6, who are shown to have been involved in two cases. Considering the nature 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 sufficient material to show their prima facie involvement in the alleged offences under the UAPA.

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Therefore, the criminal antecedents of the petitioner would disentitle him from the concession of bail, especially when the F.I.Rs. registered against the petitioner relate to the commission of various offences punishable under the NDPS Act, and the possibility of commission of a similar offence cannot be ruled out.

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It was submitted that the co-accused have

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been released on bail and the petitioner is entitled to bail on the principle of parity. This submission cannot be accepted. The petitioner has criminal antecedents, which he had concealed from the Court, and it is not shown that the co-accused had similar antecedents; hence, the petitioner cannot claim parity with the co-accused.

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No other point was urged.

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