Pankaj @ Panku Vs State of Hp

The petitioner has filed the present petition for seeking regular bail in FIR No. 35 of 2024, dated 1.3.2024, registered at Police Station Palampur, District Kangra, H.P., for the commission of offences punishable under Sections 21 and 29 of the Narcotic Drugs and Psychotropic Substances Act (in short ‘the ND&PS Act’).

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

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It has been asserted that, as per the case of the prosecution, 08 grams of heroin were recovered from the possession of the petitioner. The petitioner was arrested in March 2024, and he has been in custody since then. The petitioner has no connection with the commission of the crime. Contraband was not recovered from the petitioner's exclusive possession. The heroin was found under the mattress, as per the prosecution. The petitioner did not know Shashi Kumar alias Ashu or his brother Deepak. Investigation has been completed, and the charge sheet has been filed before the Court. 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, the petition.

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The petition is opposed by filing a status report asserting that the police party was on patrolling duty on 1.3.2024. They received a secret information at 5.45 PM at Ram Chowk that Shashi Kumar alias Ashu and his elder brother Deepak Kumar, and Pankaj Kumar alias Panku were selling heroin from their house. The information was reduced into writing and was sent to the Sub Divisional Police Officer, Palampur (SDPO). Witnesses Nisha Devi and Nardev Singh were

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associated, and the police party went to the residence of Shashi Kumar, where Shashi Kumar, his elder brother, Deepak Kumar, and Pankaj alias Panku (the present petitioner) were found present. The police party searched the room of Shashi Kumar and recovered a transparent polythene concealed beneath the mattress. The police took out the polythene and found 08 grams of heroin in it. The police seized the heroin and arrested Shashi Kumar, Deepak Kumar and Pankaj. The bank account details and the property were reviewed, but no suspicious activity was found. Learned Special Judge, Palampur had released all the accused on 1.4.2024 on personal and surety bond of ₹1,50,000/each; however, the petitioner and Shashi Kumar were found involved in the commission of a similar offence for possessing 26 grams of opium and 22 grams of heroin. Hence, FIR No. 129 of 2024, dated November 14, 2024, was registered against them. An application was filed for the cancellation of their bail in the present case, which was allowed, and the bail was cancelled on 2^nd April, 2025. The heroin was sent to the SFSL, Junga and as per the analysis, it was found to be a sample of diacetylmorphine (heroin). FIR Nos. 96 of 2017, 165 of 2018, 104 of 2023 and 129 of 2024 are registered against the petitioner

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under the ND&PS Act. The petitioner is involved in the commission of a heinous offence, and he is likely to indulge in the commission of similar offences if released on bail. Therefore, it was prayed that the present petition be dismissed.

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I have heard M/s Jeevan Kumar and Ekta Kumari, learned counsel for the petitioner and Mr. Ajit Sharma, learned Deputy Advocate General, for the respondent-State.

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Mr. Jeevan Kumar, learned counsel for the petitioner, submitted that the petitioner is innocent and was falsely implicated. As per the prosecution, the petitioner was found in possession of an intermediate quantity of heroin, and the rigours of Section 37 of the ND&PS Act do not apply to the present case. The police have filed the charge sheet before the learned Trial Court. No fruitful purpose would be served by detaining the petitioner in custody. Hence, he prayed that the present petition be allowed and the petitioner be released on bail.

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Mr. Ajit Sharma, learned Deputy Advocate General, for the respondent-State, submitted that the petitioner was released on bail by the learned Trial Court; however, the

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petitioner violated the terms and conditions of the bail, and his bail was cancelled by the learned Trial Court. The petitioner has a criminal record, and he is likely to commit similar offences if 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. Waseem (2024) 10 SCC 768: 2024 SCC OnLine SC 974, 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

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SCC 528: 2004 SCC (Cri) 1977]; Masroor v. State of U.P. [Masroor v. State of U.P., (2009) 14 SCC 286 : (2010) 1 SCC (Cri) 1368]; Prasanta Kumar Sarkar v. Ashis Chatterjee [Prasanta Kumar Sarkar v. Ashis Chatterjee, (2010) 14 SCC 496 : (2011) 3 SCC (Cri) 765]; Neeru Yadav v. State of U.P. [Neeru Yadav v. State of U.P., (2014) 16 SCC 508 : (2015) 3 SCC (Cri) 527]; Anil Kumar Yadav v. State (NCT of Delhi)[Anil Kumar Yadav v. State (NCT of Delhi), (2018) 12 SCC 129 : (2018) 3 SCC (Cri) 425]; Mahipal v. Rajesh Kumar [Mahipal v. Rajesh Kumar, (2020) 2 SCC 118 : (2020) 1 SCC (Cri) 558] . ]

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This position was reiterated in Ramratan v. State of

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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 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

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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 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

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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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A similar view was taken in Shabeen Ahmed versus State of U.P., 2025 SCC Online SC 479.

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

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It is undisputed that the petitioner was released on bail by the learned Trial Court in the present case; however, he was found involved in the commission of a similar offence subsequently. Hence, his bail was cancelled because of the violation of the terms and conditions of the bail.

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The status report shows that four FIRs have been registered against the petitioner, which shows that the petitioner has criminal antecedents. This Court exhaustively dealt with the relevance of criminal antecedents in Aminodin vs State of H.P. 2024: HHC: 6091 and held, after referring to various judgments, that a Judge must consider the criminal antecedents

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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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In the present case, the petitioner had committed a similar offence when he was granted bail. Therefore, there is every likelihood that the petitioner would indulge in the commission of crime, thus, he cannot be released on bail.

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It was submitted that the petitioner was not found in possession of the heroin as the same was recovered from the room of Shashi Kumar alias Ashu, which was concealed beneath the mattress. The petitioner would not have known about the concealment of the heroin; therefore, he cannot be held prima facie liable for the commission of the offence. This submission will not help the petitioner. It was specifically stated in the status report that the petitioner was present in the room from which the recovery was effected. The petitioner was not a stranger to the co-accused Shashi Kumar alias Ashu, as is apparent from the fact that the petitioner and Shashi Kumar were found involved in the commission of a similar offence. It

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was laid down by the Hon’ble Supreme Court in Union of India v. Mohd. Nawaz Khan , (2021) 10 SCC 100: (2021) 3 SCC (Cri) 721: 2021 SCC OnLine SC 1237, that a person is in possession if he is in a position to exercise control over the article. It was observed at page 111:

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25. We shall deal with each of these circumstances in turn. The respondent has been accused of an offence under Section 8 of the NDPS Act, which is punishable under Sections 21, 27-A, 29, and 60(3) of the said Act. Section 8 of the Act prohibits a person from possessing any narcotic drug or psychotropic substance. The concept of possession recurs in Sections 20 to 22, which provide for punishment for offences under the Act. In Madan Lal v. State of H.P. [Madan Lal v. State of H.P., (2003) 7 SCC 465: 2003 SCC (Cri) 1664 ] this Court held that : (SCC p. 472, paras 19-23 & 26)

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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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20 . Section 20( b ) makes possession of contraband articles an offence. Section 20 appears in Chapter IV of the Act, which relates to offences for possession of such articles. It is submitted that in order to make the possession illicit, there must be a conscious possession.

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21 . It is highlighted that unless the possession was coupled with the requisite mental element, i.e.

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conscious possession and not mere custody without awareness of the nature of such possession, Section 20 is not attracted.

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22 . The expression “possession” is a polymorphous term which assumes different colours in different contexts. It may carry different meanings in contextually different backgrounds. It is impossible, as was observed in Supt. & Remembrancer of Legal Affairs, W.B. v. Anil Kumar Bhunja [Supt. & Remembrancer of Legal Affairs, W.B. v. Anil Kumar Bhunja, (1979) 4 SCC 274: 1979 SCC (Cri) 1038 ] to work out a completely logical and precise definition of “possession” uniform[ly] applicable to all situations in the context of all statutes.

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

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26 . Once possession is established, the person who claims that it was not a conscious possession has to establish it because how he came to be in possession is within his special knowledge. Section 35 of the Act gives a statutory recognition of this position because of the presumption available in law. Similar is the position in terms of Section 54, where also a presumption is available to be drawn from possession of illicit articles.”

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26. What amounts to “conscious possession” was also considered in Dharampal Singh v. State of Punjab [Dharampal Singh v. State of Punjab, (2010) 9 SCC 608 : (2010) 3 SCC (Cri) 1431 ], where it was held that the knowledge of possession of contraband has to be gleaned from the facts and circumstances of a case. The standard of conscious possession would be different in the case of a public transport vehicle with several persons as opposed to a private vehicle with a few persons known to one another. In Mohan Lal v. State of Rajasthan [Mohan

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Lal v. State of Rajasthan, (2015) 6 SCC 222: (2015) 3 SCC (Cri) 881] , this Court also observed that the term “possession” could mean physical possession with animus; custody over the prohibited substances with animus; exercise of dominion and control as a result of concealment; or personal knowledge as to the existence of the contraband and the intention based on this knowledge.

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In the present case, the petitioner was able to exercise control over the narcotics recovered by the police. Therefore, the petitioner was prima facie found in possession of the heroin. The burden would shift upon him under Sections 35 and 54 of the ND&PS Act to establish that the possession was not conscious. Hence, the plea of the petitioner that he has no prima facie involvement in the commission of the offence is not acceptable.

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It was submitted that the petitioner was found in possession of 08 grams of heroin as per the prosecution’s case, which is less than a commercial quantity, and the petitioner 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 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 Gupta v.

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State of H.P., 2022 SCC OnLine HP 3779, that the menace of drug addiction has seriously eroded into the fabric of society, and the release of an accused on bail in NDPS Act cases will send a negative signal to society. It was observed:

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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 the 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

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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 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.,

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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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No other point was urged.

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