Kuldeep Singh Vs State of Hp

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Neutral Citation No. ( 2025:HHC:8635 )

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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

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Cr. MP (M) Nos 650 and 666 of 2025 Reserved on: 25.03.2025 Date of Decision: 1^st April 2025.

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1. Cr.MP(M) No. 650 of 2025

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Lal Singh ...Petitioner Versus
State of Himachal Pradesh ...Respondent
________________________________________ 2. Cr.MP(M) No. 666 of 2025
Kuldeep Singh ...Petitioner
Versus
State of Himachal Pradesh ...Respondent
Coram
*Hon’ble Mr Justice Rakesh Kainthla,Judge.* *Whether approved for reporting?*¹No
For the Petitioner : Mr. Deepak Kaushal, Sr. Advocate, with Mr. Abhishek Verma, Advocate, in both the petitions.
For the Respondent/State. : Mr. Lokender Kutlehria, Additional Advocate General with HC Ashu Aggarwal, No. 388, IO Police Station Renuka Ji, District Sirmour, H.P., in both the petitions.

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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:8635 )

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Rakesh Kainthla, Judge

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The petitioners have filed the present petitions for seeking pre-arrest bail. It has been asserted that FIR No. 15 of 2025, dated 01.03.2025, has been registered against the petitioners for the commission of an offence punishable under Section 22 of the Narcotic Drugs and Psychotropic Substances (NDPS) Act in Police Station Renuka Ji, District Sirmour, HP. As per the prosecution's case, the police effected the recovery of 125 capsules containing 61 grams of tramadol. The quantity of Tramadol is intermediate, and the rigours of Section 37 do not apply to the present case. There is a violation of Section 42 (d) and Section 50 of the NDPS Act. The petitioners are innocent, and they were falsely implicated. They would join the investigation as and when called upon to do so. They would not tamper with the prosecution evidence and would abide by all the terms and conditions, which the Court may impose; hence, the petition.

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The petitions are opposed by filing a status report asserting that the police party was on patrolling duty on 01.03.2025. A motorcycle bearing registration No. HP-71A-4955 came from Tirmali. The rider of the motorcycle was not wearing a helmet. The police stopped the motorcycle and demanded the documents. The

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Neutral Citation No. ( 2025:HHC:8635 )

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motorcycle rider revealed his name as Kuldeep Singh, and the pillion rider revealed his name as Lal Singh. Both of them appeared to be frightened. The police checked the motorcycle and recovered capsules bearing the words Spas C plus CORF. They were counted and found to be 125. They were weighed on an electronic scale, and their weight was found to be 62.16 grams. The police seized the capsules. The capsules were sent to FSL for analysis, and as per the result, they were found to contain Tramadol. Their weight was found to be 61.625 grams, and the weight of the powder was found to be 49.375 grams. FIR No. 14 of 2009, dated 07.03.2009, was registered in Police Station Renuka Ji and FIR no. 185 of 2021, dated 03.11.2021, was registered against petitioner Kuldeep Singh in Police Station Paonta Sahib. The petitioners are to be arrested. They are to be interrogated to determine the source and destination of the capsules. They would indulge in the commission of similar offences and destroy the evidence in case of their release on bail; hence, the status report.

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I have heard. Mr Deepak Kaushal learned Senior Counsel, assisted by Mr Abhishek Verma, learned counsel for the petitioners and Mr Lokender Kutlehria, learned Additional Advocate General, for the respondent/State.

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Neutral Citation No. ( 2025:HHC:8635 )

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Mr. Deepak Kaushal, learned Senior Counsel for the

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petitioners, submitted that the petitioners are innocent and they were falsely implicated. The quantity of Tramadol stated to have been recovered from the possession of the petitioners is intermediate, and the rigours of Section 37 of the NDPS Act do not apply to the present case. There is no prohibition in granting prearrest bail in offences registered under the NDPS Act. He relied upon the judgments of Ram Singh versus State of H.P . in Cr.MP(M) No. 600 of 2020 decided on 05.05.2020 and Cr.MP(M) No. 1930 of 2019, titled Pyare Lal versus S tate, decided on 07.11.2019 in support of his submission.

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Mr. Lokender Kutlehria, learned Additional Advocate General, for the respondent/State, submitted that the police have to determine the source and destination of the capsules. Petitioner Kuldeep was involved in the commission of similar offences earlier, which shows that he is a habitual offender. The psychotropic substances are affecting the young generation adversely, and cases of this nature should not be viewed lightly; hence, he prayed that the present petitions be dismissed.

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Neutral Citation No. ( 2025:HHC:8635 )

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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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It was laid down by the Hon’ble Supreme Court in P. Chidambaram v. Directorate of Enforcement, (2019) 9 SCC 24: (2019) 3 SCC (Cri) 509: 2019 SCC OnLine SC 1143 that the power of pre-arrest bail is extraordinary and should be exercised sparingly. It was observed:

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“69. Ordinarily, arrest is a part of the procedure of the investigation to secure not only the presence of the accused but also several other purposes. Power under Section 438 Cr.P.C. is an extraordinary power, and the same has to be exercised sparingly. The privilege of pre-arrest bail should be granted only in exceptional cases. The judicial discretion conferred upon the court has to be properly exercised after application of mind as to the nature and gravity of the accusation; the possibility of the applicant fleeing justice and other factors are considered to decide whether it is a fit case for the grant of anticipatory bail. Grant of anticipatory bail to some extent interferes in the sphere of investigation of an offence, and hence, the court must be circumspect while exercising such power for the grant of anticipatory bail. Anticipatory bail is not to be granted as a matter of rule, and it has to be granted only when the court is convinced that exceptional circumstances exist to resort to that extraordinary remedy.”

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It was held in P Chidambaram (supra) that economic

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offences are to be treated differently from other offences. It was

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observed:

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Neutral Citation No. ( 2025:HHC:8635 )

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Economic ofences f

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78. Power under Section 438 CrPC being an extraordinary remedy, has to be exercised sparingly; more so, in cases of economic offences. Economic offences stand as a different class as they affect the economic fabric of society. In Directorate of Enforcement v. Ashok Kumar Jain [ Directorate of Enforcement v. Ashok Kumar Jain , (1998) 2 SCC 105: 1998 SCC (Cri) 510] , it was held that in economic offences, the accused is not entitled to anticipatory bail.

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80. Observing that economic offence is committed with deliberate design with an eye on personal profit regardless of the consequence to the community, in State of Gujarat v. Mohanlal Jitamalji Porwal [State of Gujarat v. Mohanlal Jitamalji Porwal, (1987) 2 SCC 364: 1987 SCC (Cri) 364] , it was held as under: (SCC p. 371, para 5)

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“ 5 . … The entire community is aggrieved if the economic offenders who ruin the economy of the State are not brought to book. A murder may be committed in the heat of the moment, upon passions being aroused. An economic offence is committed with cool calculation and deliberate design with an eye on personal profit, regardless of the consequences to the community. A disregard for the interest of the community can be manifested only at the cost of forfeiting the trust and faith of the community in the system to administer justice in an even-handed manner without fear of criticism from the quarters which view white-collar crimes with a permissive eye unmindful of the damage done to the national economy and national interest.”

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81. Observing that economic offences constitute a class apart and need to be visited with a different approach in the matter of bail, in Y.S. Jagan Mohan Reddy v. CBI [Y.S. Jagan Mohan Reddy v. CBI, (2013) 7 SCC 439: (2013) 3 SCC (Cri) 552] , the Supreme Court held as under: (SCC p. 449, paras 34-35)

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“ 34 . Economic offences constitute a class apart and need to be viewed with a different approach in the matter of bail.

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Neutral Citation No. ( 2025:HHC:8635 )

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The economic offences having deep-rooted conspiracies and involving huge loss of public funds need to be viewed seriously and considered as grave offences affecting the economy of the country as a whole and thereby posing a serious threat to the financial health of the country.

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35 . While granting bail, the court has to keep in mind the nature of accusations, the nature of evidence in support thereof, the severity of the punishment which conviction will entail, the character of the accused, circumstances which are peculiar to the accused, reasonable possibility of securing the presence of the accused at the trial, reasonable apprehension of the witnesses being tampered with, the larger interests of the public/State and other similar considerations.” (emphasis supplied)

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82. Referring to Dukhishyam Benupani v. Arun Kumar Bajoria [Dukhishyam Benupani v. Arun Kumar Bajoria, (1998) 1 SCC 52: 1998 SCC (Cri) 261 ], in Directorate of Enforcement v. Bher Chand Tikaji Bora [Directorate of Enforcement v. Bher Chand Tikaji Bora, (1999) 5 SCC 720: 1999 SCC (Cri) 1045] , while hearing an appeal by the Enforcement Directorate against the order [ Bherchand Tikaji Bora v. State of Maharashtra, Criminal Application No. 2140 of 1998, decided on 21-7-1998 (Bom) ] of the Single Judge of the Bombay High Court granting anticipatory bail to the respondent thereon, the Supreme Court set aside the order of the Single Judge granting anticipatory bail.

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This position was reiterated in Srikant Upadhyay v. State of

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Bihar, 2024 SCC OnLine SC 282, wherein it was held:

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“25. We have already held that the power to grant anticipatory bail is extraordinary. Though in many cases it was held that bail is said to be a rule, it cannot, by any stretch of the imagination, be said that anticipatory bail is the rule. It cannot be the rule, and the question of its grant should be left to the cautious and judicious discretion of the Court, depending on the facts and circumstances of each case. While called upon to exercise the said power, the Court concerned has to be very

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Neutral Citation No. ( 2025:HHC:8635 )

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cautious as the grant of interim protection or protection to the accused in serious cases may lead to a miscarriage of justice and may hamper the investigation to a great extent as it may sometimes lead to tampering or distraction of the evidence. We shall not be understood to have held that the Court shall not pass interim protection pending consideration of such application as the Section is destined to safeguard the freedom of an individual against unwarranted arrest, and we say that such orders shall be passed in eminently fit cases.”

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It was held in Pratibha Manchanda v. State of Haryana,

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(2023) 8 SCC 181: 2023 SCC OnLine SC 785 that the Courts should balance individual rights, public interest and fair investigation while considering an application for pre-arrest bail. It was observed:

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“21. The relief of anticipatory bail is aimed at safeguarding individual rights. While it serves as a crucial tool to prevent the misuse of the power of arrest and protects innocent individuals from harassment, it also presents challenges in maintaining a delicate balance between individual rights and the interests of justice. The tightrope we must walk lies in striking a balance between safeguarding individual rights and protecting public interest. While the right to liberty and presumption of innocence are vital, the court must also consider the gravity of the offence, the impact on society, and the need for a fair and free investigation. The court's discretion in weighing these interests in the facts and circumstances of each case becomes crucial to ensure a just outcome.”

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It was laid down by the Hon’ble Supreme Court in State of

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Haryana v. Samarth Kumar, 2022 SCC OnLine SC 2087, that an accused dealing in narcotics should not be released on bail. It was observed:

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Neutral Citation No. ( 2025:HHC:8635 )

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“9. To grant anticipatory bail in a case of this nature is not really warranted. Therefore, we are of the view that the High Court fell into an error in granting anticipatory bail to the respondents.”

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In the present case, the police had found 125 capsules, which is a huge quantity and could not have been meant for selfconsumption. It has been asserted that the police have to ascertain the source and destination of the capsules. Keeping in view the adverse effect of narcotics on society, the prayer of the police to interrogate the petitioners to determine the source and destination of the narcotics appears to be justified.

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It was laid down by the Hon’ble Supreme Court in State Versus Anil Sharma (1997) 7 SCC 187 that where custodial interrogation is required, pre-arrest bail should not be granted. It was observed: -

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“6. We find force in the submission of the CBI that custodial interrogation is qualitatively more elicitation-oriented than questioning a suspect who is well-ensconced with a favourable order under Section 438 of the Code. In a case like this, effective interrogation of a suspected person is of tremendous advantage in disintering many useful information and also materials which would have been concealed. Success in such interrogation would elude if the suspected person knows that he is well protected and insulated by a pre-arrest bail order during the time he is interrogated. Very often, interrogation in such a condition would reduce to a mere ritual. The argument that the custodial interrogation is fraught with the danger of the person being subjected to third-degree methods need not

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Neutral Citation No. ( 2025:HHC:8635 )

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be countenanced, for such an argument can be advanced by all accused in all criminal cases. The Court has to presume that responsible Police Officers would conduct themselves in a responsible manner and that those entrusted with the task of disinterring offences would not conduct themselves as offender”

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A similar view was taken by the Delhi High Court in Mukesh Khurana v. State (NCT of Delhi), 2022 SCC OnLine Del 1032,

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wherein it was observed: -

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“13. One of the signifcant factors in determining this question i would be the need for custodial interrogation. Without a doubt, custodial interrogation is more ef f ective to question a suspect. The cocoon of protection af f orded by a bail order insulates the suspect, and he could thwart interrogation, reducing it to futile rituals. But it must be also kept in mind that while interrogation of a suspect is one of the basic and ef f ective methods of crime solving, the liberty of an individual also needs to be balanced out.”

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It was held in P Chidambaram (supra) that the grant of

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pre-arrest bail may hamper the investigation. It was observed:

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“83. Grant of anticipatory bail at the stage of investigation may frustrate the investigating agency in interrogating the accused and in collecting useful information, and also the materials which might have been concealed. Success in such interrogation would elude if the accused knows that he is protected by the order of the court. Grant of anticipatory bail, particularly in economic offences, would definitely hamper the effective investigation. Having regard to the materials said to have been collected by the respondent Enforcement Directorate and considering the stage of the investigation, we are of the view that it is not a fit case to grant anticipatory bail.”

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Neutral Citation No. ( 2025:HHC:8635 )

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It was submitted that there is a violation of Sections 42 and 50 of the NDPS Act. This is not acceptable. The present case is one of chance recovery, and prima facie, the provisions of Sections 42 and 50 do not apply to the present case.

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The judgments cited at the bar will not help the petitioners because the cited judgments deal with the cultivation of opium, where the possession of the field was not established. In the present case, the status report shows that a prima facie case is made against the petitioners.

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Keeping in view the quantity of narcotics recovered and the material collected by the police, the petitioners are not entitled to the concession of pre-arrest bail. Hence, the present petitions fail, and the same are dismissed.

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The observations made heretofore shall remain confined to the disposal of the petitions and will have no bearing, whatsoever, on the merits of the case.

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1^st April 2025 Judge

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( Saurav Pathania )

Kuldeep Singh v. State of Hp

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Kuldeep Singh v. State of Hp

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