Dismissed¶85

Ravinder Kumar v. State of Hp

NDPS Act – Regular bail

Himachal Pradesh HC2 Apr 2025CRMPM/442/2025

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Case brief

AI extract

What is this about?

Cr. MP (M) No. 442 of 2025, High Court of Himachal Pradesh (Rakesh Kainthla, J.), decided 02.04.2025: regular bail refused to Ravinder Kumar, driver of a vehicle from which 5.77 g heroin was recovered (ss. 21 & 29 NDPS Act, FIR 191/2024, PS Kangra); conscious possession applied via Madan Lal; criminal antecedents (prior s. 20 conviction, two pending cases) weighed per Aminodin, Senthil Balaji, Barakathullah; intermediate quantity no automatic bail per Dilbar Khan and Khushi Ram Gupta; disability rejected as ground; Vijay Kumar distinguished for want of trial delay.

What did the court decide?

The petitioner was driving the vehicle from which the recovery was effected; hence, he was prima facie in possession of heroin. ¶58

Ravinder Kumar Vs State of Hp — Narcotics (NDPS) | Himachal Pradesh HC (2025)

What the court decided

AI extract

Outcome

Dismissed

¶85

Issue for consideration

Whether the petitioner is entitled to regular bail in case F.I.R. No. 191 of 2024 registered under Sections 21 and 29 of the NDPS Act at Police Station Kangra. +5 more

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Court's answer

In view of the parameters laid down by the Hon'ble Supreme Court and the above discussion, the petitioner is not entitled to the concession of bail; the petition fails and is dismissed.

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Ratio / Principle

The petitioner was driving the vehicle from which the recovery was effected; hence, he was prima facie in possession of heroin.

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Key takeaways

The submission that only an intermediate quantity of heroin was recovered and that the rigours of Section 37 NDPS Act do not apply cannot be accepted; a person found in possession of an intermediate quantity of drugs is not entitled to bail as a matter of right (following Dilbar Khan v. State of H.P.).ratio¶69
Criminal antecedents assume significance while considering bail; since the petitioner has been convicted in one case and two other cases are pending, the possibility of his committing a similar crime if released on bail cannot be ruled out, and he is not entitled to the concession of bail on this consideration.ratio¶68

Detailed headnote1 paragraphs

NDPS Act — Regular bail — Refusal. Petitioner, driver of vehicle No. HP-40A-8578 from whose dashboard 5.77 grams of heroin was recovered (F.I.R. No. 191 of 2024, Police Station Kangra, Sections 21 & 29 NDPS Act), held not entitled to bail: (i) following Madan Lal v. State of H.P., the driver/occupants of a vehicle in which contraband is concealed are prima facie in (conscious) possession; (ii) criminal antecedents — conviction under Section 20 NDPS Act in F.I.R. No. 156 of 2011 (15 days simple imprisonment and ₹20,000/- fine) and two other pending cases — make release risky (Aminodin; V. Senthil Balaji; Union of India v. Barakathullah); (iii) recovery of intermediate quantity confers no right to bail and does not take the case out of Section 37 considerations (Dilbar Khan); drug menace sends a negative signal to society (Khushi Ram Gupta); (iv) 40% disability in the left leg is no ground for bail as the petitioner was found driving; (v) no long incarceration or delay in trial, Vijay Kumar (supra) distinguished. Petition dismissed; observations confined to disposal of the petition.

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2025:HHC:8677

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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

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Cr. MP (M) No. 442 of 2025 Reserved on: 27.03.2025 Date of Decision: 442.04.2025

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Ravinder Kumar ...Petitioner

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Versus

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State of Himachal Pradesh ...Respondent

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Coram

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Hon’ble Mr Justice Rakesh Kainthla , Judge. Whether approved for reporting?¹ . Yes.

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For the Petitioner	: Mr. Yashveer Singh Rathore, Advocate.
For the Respondent/State	: Mr. Tarun Pathak, Deputy Advocate General.

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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 vide F.I.R. No. 191 of 2024, dated 14.11.2024, for the commission of offences punishable under Sections 21 and 29 of the Narcotic Drugs and Psychotropic Substances Act (in short ‘NDPS Act’) registered at Police Station Kangra, H.P. The prosecution case is based on the absurd, baseless and imaginary

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

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story. No case is made out against the petitioner. Two cases are pending against him in which he was granted bail. He was exonerated in another case. The petitioner had no role in the commission of crime. No recovery was made from him. The petitioner has a 40% disability in his left leg. The petitioner would abide by all 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 14.11.2024. They found a vehicle bearing registration No. HP-40A-8578 parked near Smella Railway Station, Link Road, at 6:30 p.m. The police went to the vehicle and found that three persons were sitting in it. They could not give any satisfactory reason for parking their vehicle. The police checked the vehicle in the presence of Ajay Kumar and Anil Kumar and found 5.77 grams of heroin inside the dashboard. The driver revealed his name as Ravinder Kumar. The person sitting beside him revealed his name as Aseem and the other person sitting on the rear seat revealed his name as Sanjay Kumar. The police arrested the occupants of the vehicle and seized the heroin. The heroin was sent to SFSL Junga for chemical analysis and was

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found to be containing Diacetylmorphine (heroin). Two F.I.R.s are pending against the petitioner. He was convicted in F.I.R. No. 156 of 2011 dated 13.11.2011, for the commission of an offence punishable under Section 20 of the NDPS Act and was sentenced to undergo simple imprisonment for 15 days, pay a fine of ₹20,000/-. The petitioner is a drug peddler. He would indulge in the commission of similar offences, and he would intimidate the witnesses on his release on bail. Hence, the status report.

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I have heard Mr. Yashveer Singh Rathore, learned counsel for the petitioner and Mr. Tarun Pathak, learned Deputy Advocate General for the respondent-State.

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Mr Yashveer Singh Rathore, the learned counsel of the petitioner, submitted that the petitioner is innocent and he was falsely implicated. He is suffering from 40% disability. The quantity of narcotics found in the possession of the petitioner in earlier cases was intermediate. The rigours of Section 37 of the NDPS Act do not apply to the present case. Therefore, he prayed that the present petition be allowed. He relied upon the

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judgment of this Court in Vijay Kumar vs State of H.P. 2024:HHC:5122 in support of his submission.

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Mr. Tarun Pathak, learned Deputy Advocate General, submitted that the petitioner was involved in the commission of a similar offence earlier. He was convicted by the competent Court of law for the commission of an offence punishable under Section 20 of the NDPS Act. This shows that the petitioner is a habitual offender. He would indulge in the commission of a similar offence in case of release on bail. Therefore, he prayed that the present petition be dismissed.

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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 as under 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

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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 : (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 M.P., 2024 SCC OnLine SC 3068, wherein it was observed as

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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 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

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

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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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Perusal of the status report shows that the petitioner was found to be the driver of the vehicle bearing registration No.HP40A-8578 from which 5.77 grams of heroin was recovered. 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

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of the vehicle would be in conscious possession of the

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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 in order 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 Supdt. & Remembrancer of Legal Affairs, W.B. v. Anil Kumar 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 about 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

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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 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 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 accusedappellants that the possession was not conscious in the logical background of Sections 35 and 54 of the Act.”

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The petitioner was driving the vehicle from which

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recovery was effected; hence, the petitioner was, prima facie, in possession of heroin.

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Perusal of the status report further shows that the petitioner was convicted in F.I.R. No. 156 of 2011. Two other cases are pending against him for the commission of an offence

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punishable under Section 20 of the NDPS Act. It means 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 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

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It was held in V. Senthil Balaji v. Enforcement Directorate, 2024 SCC OnLine SC 2626 that where the petitioner can become a threat to society because of his criminal antecedent 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. Barakathullah, 2024 SCC OnLine SC 1019 that where the persons were involved in the commission of similar offences, they should not be released on bail. It was observed: -

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“20. … So far as the respondents in the instant appeals are concerned, they are in custody hardly for one and 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 chargesheet against the respondents, except accused no. 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 sufÏcient material to show their prima facie involvement in the alleged offences under the UAPA.

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Thus, the criminal antecedent assumes significance while considering the bail of the accused.

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In the present case, the petitioner has been convicted in one case, and two other cases are still pending against him. Hence, the possibility of the petitioner committing a similar crime if released on bail cannot be ruled out, and he is not entitled to the concession of bail on this consideration as well.

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It was submitted that the police had only recovered an intermediate quantity of heroin, the rigours of Section 37 of the NPDS Act do not apply to the present case, and the petitioner is entitled to bail as a matter of right. This submission cannot be accepted. It was laid down by this Court in Dilbar Khan v. State of H.P., 2022 SCC OnLine HP 2441, that a person found in possession

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of an intermediate quantity of drugs is not entitled to bail as a matter or 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 sufÏcient to grant bail.

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10. The menace of drug abuse is not unknown in the 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 organized 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 the 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 law, it cannot be singly taken

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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 State of Himachal Pradesh. Thus there is sufÏcient 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 definitely shall be detrimental to its interest.

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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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It was submitted that the petitioner is having a disability of 40%. This will not help him as he was found driving the vehicle. He was involved in the commission of similar offences earlier, which prima facie shows that he can commit similar crime. Therefore, physical disability will not entitle the petitioner to bail.

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In Vijay Kumar (supra), the Court granted the bail to the accused because of the delay in the conclusion of the trial. He was in judicial custody for more than one year, and it was held that further incarceration of the petitioner was not justified.

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In the present case, the petitioner was only arrested on 14.11.2024. The challan has only been filed against the petitioner, and it is not a case of long incarceration or delay in the progress of trial justifying the grant of bail to the petitioner, therefore, the cited judgment will not assist the petitioner.

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In view of the above, the petitioner is not entitled to the concession of bail and consequently, 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) 2^nd April, 2025 Judge (ravinder)

Issues for consideration

6 issues framed by the court

AI extract

1.
Whether the petitioner is entitled to regular bail in case F.I.R. No. 191 of 2024 registered under Sections 21 and 29 of the NDPS Act at Police Station Kangra.¶11
The court held
In view of the parameters laid down by the Hon'ble Supreme Court and the above discussion, the petitioner is not entitled to the concession of bail; the petition fails and is dismissed.ratio¶85
2.
Whether the petitioner, who was driving the vehicle from which 5.77 grams of heroin was recovered from the dashboard, was prima facie in possession (conscious possession) of the contraband.medium confidence¶58
The court held
The petitioner was driving the vehicle from which the recovery was effected; hence, he was prima facie in possession of heroin.ratio¶58
3.
Whether recovery of only an intermediate quantity of heroin takes the case out of the rigours of Section 37 of the NDPS Act and entitles the petitioner to bail as a matter of right.¶69
The court held
The submission that only an intermediate quantity of heroin was recovered and that the rigours of Section 37 NDPS Act do not apply cannot be accepted; a person found in possession of an intermediate quantity of drugs is not entitled to bail as a matter of right (following Dilbar Khan v. State of H.P.).ratio¶69
4.
Whether the petitioner's criminal antecedents (prior conviction under Section 20 NDPS Act and two pending cases) disentitle him to the concession of bail.¶68
The court held
Criminal antecedents assume significance while considering bail; since the petitioner has been convicted in one case and two other cases are pending, the possibility of his committing a similar crime if released on bail cannot be ruled out, and he is not entitled to the concession of bail on this consideration.ratio¶68
5.
Whether the petitioner's 40% physical disability entitles him to bail.¶81
The court held
The petitioner's 40% physical disability does not entitle him to bail, as he was found driving the vehicle and was involved in the commission of similar offences earlier, which prima facie shows he can commit similar crimes.ratio¶81
6.
Whether long incarceration or delay in the progress of trial, as in Vijay Kumar (supra), justifies the grant of bail, given that the petitioner was arrested on 14.11.2024 and the challan has been filed.¶84
The court held
Since the petitioner was only arrested on 14.11.2024 and the challan has been filed, this is not a case of long incarceration or delay in the progress of trial justifying bail; the judgment in Vijay Kumar (supra) will not assist the petitioner.ratio¶84

Ravinder Kumar v. State of Hp

Case brief

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Ravinder Kumar v. State of Hp

Case brief

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