Mohinder Sharma Vs State of Hp

The petitioner has filed the present petition for seeking regular bail. It has been asserted that the petitioner was arrested vide F.I.R. No. 170 of 2024, dated 19.10.2024, for the commission of an offence punishable under Section 21 of the Narcotic Drugs and Psychotropic Substances Act (in short ‘NDPS Act’) registered at Police Station Kangra, H.P.

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

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As per the prosecution, the police recovered 6.07 grams of heroin during the personal search of the accused. The petitioner is innocent, and he was falsely implicated. The rigours of Section 37 of the NDPS Act do not apply to the present case because the quantity stated to have been recovered from the petitioner’s possession is an intermediate quantity. The petitioner is a permanent resident of District Kangra, and there is no chance of his absconding. The investigation is complete, and the charge sheet has been filed before the Court. The matter was listed for consideration of charge on 22.02.2025 and there is no likelihood of early completion of trial. The petitioner would abide by all the terms and conditions, which the Court may impose. Hence, the present petition.

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The petition is opposed by filing a status report asserting that the police party was on patrolling duty on 19.10.2024 when the police received a secret information that the petitioner was selling narcotics, and in case of his search, the police could recover a huge quantity of narcotics. The police reduced the information into writing and sent it to Dy. S.P., Kangra. The police associated two independent witnesses and found the petitioner near the Government Primary School,

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Ujjain. He tried to run after seeing the police. The police apprehended him. The petitioner opted to be searched before a Gazetted Officer, and his personal search was conducted before Dy.S.P. Kangra. The police recovered 6.07 grams of heroin during the personal search of the petitioner. The police arrested the petitioner and seized the heroin. The heroin was sent to SFSL, Junga, H.P. and as per the report, it was found to be a sample of Diacetylmorphine (Heroin). The police filed the charge sheet on 17.12.2024, and the matter was listed on 22.02.2025 for consideration of the charge.

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I have heard Mr Vinod Kumar Soni, learned counsel for the petitioner and Mr Jitender K. Sharma, learned Additional Advocate General for the respondent/State.

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Mr Vinod Kumar Soni, learned counsel for the petitioner, submitted that the petitioner is innocent and he was falsely implicated. The quantity of heroin stated to have been recovered from the petitioner’s possession is intermediate and the rigours of Section 37 of the NDPS Act do not apply to the present case. The petitioner is the first offender, and he should be given a chance to reform. He would abide by all the terms

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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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Mr Jitender K. Sharma, learned Additional Advocate General for the respondent/State, submitted that the petitioner was found in possession of 6.07 grams of heroin. Heroin is affecting the younger generation adversely. 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 Ramratan v. State of M.P., 2024 SCC

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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,

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overawe the witnesses or obstruct the course of justice. The relevant observations are extracted herein 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 circumstance and effective in the pragmatic sense and should not defeat the order of grant of bail. We are of the view that the present facts and circumstances of the case do not warrant such extreme condition to be imposed.” (Emphasis supplied)

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

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Perusal of the status report shows that the petitioner was found in possession of 6.07 grams of heroin. Central Government has notified 5 grams as the small quantity and 250 grams as the commercial quantity in the case of heroin. The petitioner was stated to be in possession of 6.07 grams of heroin, which is slightly more than the small quantity and less

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than the commercial quantity. Therefore, the rigours of Section 37 of the NDPS Act do not apply to the present case.

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The petitioner has been in judicial custody since 19.10.2024, and as per the status report, the matter was listed for consideration of charge. This shows that the trial has not commenced, and there is no likelihood of an early conclusion of the trial. Keeping in view the quantity stated to have been recovered from the possession of the petitioner and the time of his custody, the further pre-trial detention of the petitioner is not justified.

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The petitioner asserted that he is a first offender and that no previous FIR has been registered against him. This has not been stated as incorrect in the status report filed by the police. As a first offender, the petitioner deserves a chance to reform himself, and he is entitled to bail based on this consideration as well.

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It was submitted that the petitioner can indulge in the commission of the crime in case of his release on bail. No material was placed on record to justify this apprehension. The petitioner cannot be detained in judicial custody for an

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indefinite period based on the apprehension alone, and stringent conditions can be imposed upon the petitioner to prevent him from committing a similar crime.

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It was submitted that the petitioner can intimidate the witnesses in case of his release. Again, no material was placed on record in support of this apprehension. The conditions can be imposed upon the petitioner to prevent him from interfering with the evidence collected against him, but he cannot be detained in judicial custody for an indefinite period merely based on the apprehension.

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The petitioner asserted that he is a permanent resident of District Kangra, H.P., which was not stated to be incorrect by the police in the status report. It means that the petitioner has roots in society, and there is no chance of his absconding.

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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 two sureties in the like amount to the satisfaction of the learned

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Trial Court. The petitioner, while on bail, will abide by the following terms and conditions: -

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i) The petitioner will not intimidate the witnesses nor will he influence any evidence in any manner whatsoever.

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ii) The petitioner shall attend the trial and will not seek unnecessary adjournments.

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(iii) The petitioner will not leave the present address for a continuous period of seven days without furnishing the address of the intended visit to the concerned Police Station and the Court.

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(iv) The petitioner will surrender his passport, if any, to the Court; and

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(v) Petitioner shall not tamper with the prosecution evidence, in any manner, whatsoever and shall not dissuade any person from speaking the truth in relation to the facts of the case in hand.

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(vi) 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.

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It is expressly made clear that in case of violation of

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any of these conditions, the prosecution will have a right to file a petition for cancellation of the bail.

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The observation made herein before shall remain

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confined to the disposal of the petition and will have no bearing, whatsoever, on the merits of the case

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The petition stands accordingly disposed of. A copy of this order be sent to the Superintendent, Lala Lajpat Rai Open Air Correctional Home, Dharamshala, District Kangra, H.P., and the learned Trial Court by FASTER.

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A downloaded copy of this order shall be accepted by the learned Trial Court while accepting the bail bonds from the petitioner, and in case said Court intends to ascertain the veracity of the downloaded copy of the order presented to it, same may be ascertained from the official website of this Court.

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( Rakesh Kainthla) 03^rd March, 2025 Judge (ravinder)

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Digitally signed by KARAN SINGH GULERIA DN: C=IN, O=HIGH COURT OF HIMACHAL KARAN PRADESH, OU=HIGH COURT OF HIMACHAL PRADESH SHIMLA, Phone=e5d61f6599be410af7c5f0b57379e22 5878f23c9ea27b281046985b3b1fe0b75, PostalCode=171001, S=Himachal Pradesh, SINGH SERIALNUMBER=f72cf9165791d55ec93937 5291962d0d90d094876bd59591426c0b1ce6 51f01f, CN=KARAN SINGH GULERIA Reason: I am the author of this document GULERIA Location: Date: 2025-03-03 12:04:02

Mohinder Sharma v. State of Hp

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Mohinder Sharma v. State of Hp

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