Kunal Kumar Vs State of Hp

Neutral Citation No. ( 2025:HHC:398 )

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

Cr. MP(M) No. 2362 of 2024. Reserved on: 27.12.2024. Date of Decision: 03.01.2025.

Kunal Kumar		...Petitioner
	Versus
State of H.P.		...Respondent

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Coram

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Hon’ble Mr Justice Rakesh Kainthla , Judge. Whether approved for reporting?¹ No

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For the Petitioner	: Mr.	K.S. Gill, Advocate.
For the Respondent	: Mr.	Lokender Kutlehria, Additional
	Adv	ocate General for respondent.

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Rakesh Kainthla, Judge

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The petitioner has filed the present petition for seeking regular bail. It has been asserted that the petitioner was arrested in FIR No. 05 of 2024, dated 26.01.2024, for the commission of offences punishable under Sections 21 & 29 of the Narcotic Drugs and Psychotropic Substances Act (hereinafter referred to as ND&PS Act) registered at Police Station Parwanoo, District Solan, H.P. As per the prosecution, the police checked the bus bearing registration No. CH-01GA-8195. The petitioner and the co-accused were found occupying seats No. 35 and 34, respectively. The petitioner had a

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

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Neutral Citation No. ( 2025:HHC:398 ) carry bag, and police found 6.21 grams of heroin while checking it. The police arrested the petitioner and the co-accused. The petitioner has been in judicial custody since 26.01.2024. The coaccused has been released on bail. The petitioner is entitled to bail on the principle of parity. The quantity of heroin stated to have been recovered from the possession of the petitioner is just above the small quantity, and the rigours of Section 37 of the ND&PS Act do not apply to the present case. The petitioner had earlier filed a bail petition, bearing Cr.MP No. 1101 of 2024, which was dismissed as withdrawn on 23.07.2024. The petitioner has no criminal antecedents. He would abide by the terms and conditions, which the Court may impose.; therefore, it was prayed that the present petition be allowed and the petitioner be released on bail.

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The petition is opposed by filing a status report asserting that the police party received a secret information on 26.01.2024 regarding the transportation of heroin by Kunal and Prakash, who were travelling in the bus bearing registration No. CH-01GA-8145. The police completed the formalities and intercepted the bus at 6:50 PM. The police checked the passengers in the presence of the driver and the conductor. The petitioner was occupying seat No. 34 and had a carry bag with him. Prakash Chand was occupying seat No. 35. The police checked the petitioner’s carry

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Neutral Citation No. ( 2025:HHC:398 ) bag and found 6.21 grams of heroin. The police seized the heroin and arrested the petitioner and Prakash Chand. The heroin was sent to SFSL, and the result of the analysis confirmed it to be heroin. FIR No. 191 of 2019 dated 10.09.2019 for the commission of an offence punishable under Section 21 of the ND&PS Act and FIR No. 221 of 2022 dated 30.10.2022 for the commission of offences punishable under Sections 21 & 29 of ND&PS Act are registered against the petitioner in Police Station Sadar, Solan. The challan has been filed before the Court and is listed before learned Additional Sessions Judge Solan on 02.01.2025 for consideration on charge.

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I have heard Mr. K.S. Gill, learned counsel for the petitioner and Mr. Lokender Kutlehria, learned Additional Advocate General for the respondent/State.

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Mr. K.S. Gill, learned counsel for the petitioner, submitted that the petitioner is innocent and he was falsely implicated. Co-accused Prakash Chand has already been released on bail, and the petitioner is entitled to bail on the principle of parity. Hence, he prayed that the present petition be allowed and the petitioner be released on bail.

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Mr Lokender Kutlehria, learned Additional Advocate General for the respondent/State, submitted that the petitioner was

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Neutral Citation No. ( 2025:HHC:398 ) found in possession of a carry bag containing heroin. The coaccused was merely sitting on seat No. 35, which is located adjacent to seat No. 34. There is no parity between the petitioner and the coaccused. 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 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

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Neutral Citation No. ( 2025:HHC:398 ) 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 application for bail 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

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Neutral Citation No. ( 2025:HHC:398 ) 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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The present petition has to be decided as per the parameters laid down by the Hon’ble Supreme Court.

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The status report shows that the petitioner was found in possession of the carry bag from which 6.21 grams of heroin was recovered. It was submitted that the co-accused has been released on bail, and the petitioner is entitled to bail on the principle of parity. This submission is not acceptable. It was laid down by the Hon’ble Supreme Court in Ramesh Bhavan Rathod v. Vishanbhai Hirabhai Makwana , (2021) 6 SCC 230: (2021) 2 SCC (Cri) 722: 2021 SCC OnLine SC 335 that while determining the parity, the role of the accused has to be considered. It was observed on page 246

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“Parity while granting bail must focus upon the role of the accused. Merely observing that another accused who was granted bail was armed with a similar weapon is not sufficient to determine whether a case for the grant of bail on the basis of parity has been established. In deciding the aspect of parity, the role attached to the accused, their position in relation to the incident, and the victims is of utmost importance. The High Court has proceeded on the basis of parity on a simplistic assessment as noted above, which again cannot pass muster under the law.”

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Neutral Citation No. ( 2025:HHC:398 )

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This position was reiterated in Tarun Kumar v.

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Enforcement Directorate, AIR 2024 SC 169: 2023 SCC OnLine SC 1486, wherein it was observed:

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“18. The submission of learned Counsel Mr Luthra to grant bail to the appellant on the ground that the other coaccused, who were similarly situated as the appellant, have been granted bail, also cannot be accepted. It may be noted that parity is not the law. While applying the principle of parity, the Court is required to focus upon the role attached to the accused whose application is under consideration.”

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The bail order of the co-accused Prakash Chand shows

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that he was released on bail on the ground that he was travelling on public transport, and there was no material to connect him with the present petition. The statement made by the petitioner was held to be inadmissible, and in the absence of any evidence, the co-accused was released on bail.

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It is apparent from the bail order that the co-accused was released on bail because the prosecution had no material to connect him with the commission of crime. The petitioner was found in actual possession of the heroin, and he cannot claim parity with the co-accused.

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The petitioner asserted in the bail petition in para 13 that he has no criminal history in the cases under the ND&PS Act. This is patently false because the status report shows that FIR No.

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Neutral Citation No. ( 2025:HHC:398 ) 191 of 2019 dated 10.09.2019 and FIR No. 221 of 2022 dated 30.10.2022 were registered against him for the commission of an offence punishable under Section 21 of ND&PS Act inter alia in Police Station Sadar, Solan. This shows that the petitioner has a criminal history. He has not only concealed his criminal history but has made a false statement that he has no criminal history. The registration of two FIRs against the petitioner for the commission of offences punishable under Section 21 of the ND&PS Act shows that he is likely to commit the offence in case of his release on bail. 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 such offences and his general conduct while considering the bail petition. The bail should not be generally granted to an accused having criminal antecedents when there is a likelihood of the commission of the crime. In the present case, the registration of the FIRs against the petitioner shows that he is likely to commit a crime in case of his release on bail, and the petitioner cannot be released on bail on this consideration as well.

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It was submitted that the petitioner is in judicial custody, and there is a delay in the progress of the trial. The copies

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Neutral Citation No. ( 2025:HHC:398 ) of the order sheets have also been filed. A perusal of the copies of the order sheet shows that the learned counsel for the petitioner had sought time to check the copies on 28.06.2024. Thereafter, the time was again sought to check the copies on 28.08.2024. The order sheet of 30.10.2024 has not been filed. The order sheets show that the adjournment is being sought by the learned counsel for the petitioner. Therefore, the petitioner cannot claim bail on the ground that the prosecution or the Court is at fault for not proceeding with the trial, and the petitioner cannot claim bail on the ground of delay in the progress of the trial.

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Keeping in view the quantity of the heroin and the criminal antecedents of the petitioner, the petitioner cannot be held entitled to bail at this stage. Hence, the present petition fails, and the same is dismissed.

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The observation made herein before shall remain confined to the disposal of the petition and will have no bearing, whatsoever, on the merits of the case.

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(Rakesh Kainthla) Judge

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3^rd January, 2025 (Nikita)

Kunal Kumar v. State of Hp

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Kunal Kumar v. State of Hp

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