Dharam Chand Vs State of Hp

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

Cr. MP(M) No. 106 of 2026. Reserved on: 6^th March, 2026 Date of Decision: 11 .03.2026.

__________________________________________ Ayansh Srivastav ...Petitioner Versus State of Himachal Pradesh ...Respondent 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 Sunil Kumar Banyal, Advocate. : For the Respondent Mr Ajit Sharma, 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 in FIR No. 204 of 2025, dated 22.09.2025, registered at Police Station Sunder Nagar, District Mandi, H. P., for the commission of offences punishable under Sections 20, 25 and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act).

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1 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 prosecution, the police had set up a naka at Pungh Fourlane, Sundernagar on 22.09.2025. They intercepted a car bearing registration No. UP16AX-2143. Five people were travelling in the car, who got frightened after seeing the police. The driver prevaricated in the production of the documents. The police became suspicious and checked the car in the presence of Kuldeep Kumar and Mukesh Kumar. They recovered a carry bag containing 1Kg, 174grams of charas. The occupants identified themselves as Divyanash Patel, Nakul Mittal, Arnav Chauhan, Saksham Bharti and Rohit Kumar. The police arrested the occupants and seized the car and charas. The petitioner’s name was not mentioned in the FIR, and he was named by the occupants of the car. There is no evidence against the petitioner. He was apprehended because he was studying in the same university as the occupants, and he had sent ₹9200/- on 20.09.2025 and ₹5000/- on 21.09.2025 to the account of coaccused Saksham Bharti. The police have completed the investigation, and no fruitful purpose would be served by detaining the petitioner in custody. The petitioner would abide by all the terms and conditions that the Court may impose.

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Hence, 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 had set up a nakka at Pungh fourlane and were checking the vehicles on 22.09.2025. They intercepted a vehicle bearing registration No. UP-16AX-2143. The driver and occupants of the vehicle got frightened after seeing the police. The police associated Kuldeep Kumar and Mukesh Kumar as independent witnesses. The police inquired about the names of the occupants of the vehicle. The driver identified himself as Devayas Patel, the person sitting beside him identified himself as Nakul Mittal, and the persons sitting on the rear seat identified themselves as Arnav Chauhan, Saksham Bharti and Rohit Kumar. The police searched the vehicle and recovered a carry bag containing 1174 grams of charas. The police seized the charas and arrested the occupants of the vehicle. The charas was sent to SFSL, Junga, and as per the report of analysis, it was confirmed to be a sample of charas. The occupants revealed during interrogation that they had handed over ₹5000/- each to Kashin Kashyap, who had also accompanied the co-accused on his motorcycle. They identified the room where they had stayed in

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Kullu. The bank details of Kashin showed that an amount of ₹50,000/- was transferred from his mother’s account. Kashin led the police to a bridge constructed on Naulgari Nala at Lag valley. The bank account details of Rewat Ram also showed the receipt of ₹50,000/-. The police arrested Rewat Ram, who confirmed that he had sold the charas at a place mentioned by Kashin. Rewat Ram also disclosed that he had sold charas to four boys for ₹50,000/-. The bank detail records of the occupants were also checked. It was found during the investigation that Divyansh Patel, Nakul Mittal, Rohit Kumar, Saksham Bharati, Arnav Chauhan, Kashin Kashyap, Ayansh Shrivastav (petitioner) and Aditya Kumar had gone to Kullu to purchase the Charas. Nakul Mittal, Rohit Kumar, Arnav Chauhan and Aditya Kumar stayed at 9 miles, whereas Divyansh Patel, Saksham Bharti, Kashin Kashyap and Ayansh Srivastav went towards Kullu on two motorcycles. They purchased the charas from Rewat Ram for ₹50,000/-. They had stayed at Sharma Guest House, where the names of Divyaansh Patel, Saksham Bharti, Kashin Kashyap and Ayansh were recorded in the visitors' register. CCTV footage also showed their presence. Kashin Kashyap and Aditya rode the motorcycle No. HR-26A-6605 and Ayansh rode the motorcycle

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bearing registration No. UP-70FW-0637. The rest of the persons travelled in the vehicle bearing registration No. UP-16Ax-2143 and were apprehended at the Pung barrier. The petitioner had transferred ₹9200 to Saksham Bharti on 20.09.2025 and ₹5000/on 21.09.2025. He had stayed with the other co-accused. The charas was meant for the sale to students. The charge sheet was filed before the Court on 17.01.2026. Hence the status report.

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I have heard Mr Sunil Kumar Banyal, learned counsel for the petitioner and Mr Ajit Sharma, learned Deputy Advocate General for the respondent/State.

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Mr Sunil Kumar Banyal, learned counsel for the petitioner, submitted that the petitioner is innocent and that he was falsely implicated. There is no material to connect him to the commission of crime except the statement made by the coaccused and the financial transactions. These are not sufÏcient. The petitioner was not apprehended on the spot. Co-accused Kashin Kashyap has been released on bail, and the petitioner is entitled to bail on the principle of parity. The petitioner is a student and has no criminal antecedents. His studies are adversely affected by his continued detention. Hence, he prayed

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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 had abetted the possession of a commercial quantity of charas. The rigours of Section 37 of the NDPS Act apply to the present case, and the petitioner has not satisfied the twin conditions laid down under Section 37 of the NDPS Act. Hence, 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 record carefully.

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The parameters for granting bail were considered by the Hon’ble Supreme Court in Pinki v. State of U.P., (2025) 7 SCC

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314: 2025 SCC OnLine SC 781, wherein it was observed at page 380:

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( i ) Broad principles for the grant of bail

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56. In Gudikanti Narasimhulu v. High Court of A.P., (1978) 1 SCC 240: 1978 SCC (Cri) 115 , Krishna Iyer, J., while elaborating on the content of Article 21 of the Constitution of India in the context of personal liberty of a person under trial, has laid down the key factors that should be considered while granting bail, which are extracted as under: (SCC p. 244, paras 7-9)

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“ 7 . It is thus obvious that the nature of the charge is the vital factor, and the nature of the evidence is also pertinent. The punishment to which the party may be

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liable, if convicted or a conviction is confirmed, also bears upon the issue.

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8 . Another relevant factor is whether the course of justice would be thwarted by him who seeks the benignant jurisdiction of the Court to be freed for the time being . [ Patrick Devlin, “The Criminal Prosecution in England” (Oxford University Press, London 1960) p. 75 — Modern Law Review, Vol. 81, Jan. 1968, p. 54.]

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9 . Thus, the legal principles and practice validate the Court considering the likelihood of the applicant interfering with witnesses for the prosecution or otherwise polluting the process of justice. It is not only traditional but rational, in this context, to enquire into the antecedents of a man who is applying for bail to find whether he has a bad record, particularly a record which suggests that he is likely to commit serious offences while on bail. In regard to habituals, it is part of criminological history that a thoughtless bail order has enabled the bailee to exploit the opportunity to inflict further crimes on the members of society. Bail discretion, on the basis of evidence about the criminal record of a defendant, is therefore not an exercise in irrelevance .” (emphasis supplied)

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57. In Prahlad Singh Bhati v. State (NCT of Delhi), (2001) 4 SCC 280: 2001 SCC (Cri) 674 , this Court highlighted various aspects that the courts should keep in mind while dealing with an application seeking bail. The same may be extracted as follows: (SCC pp. 284-85, para 8)

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“ 8 . The jurisdiction to grant bail has to be exercised on the basis of well-settled principles, having regard to the circumstances of each case and not in an arbitrary manner. While granting the 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, behaviour, means and standing 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

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public or State and similar other considerations. It has also to be kept in mind that for the purposes of granting the bail the legislature has used the words “reasonable grounds for believing” instead of “the evidence” which means the court dealing with the grant of bail can only satisfy it (sic itself) as to whether there is a genuine case against the accused and that the prosecution will be able to produce prima facie evidence in support of the charge .” (emphasis supplied)

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58. This Court in Ram Govind Upadhyay v. Sudarshan Singh, (2002) 3 SCC 598: 2002 SCC (Cri) 688 , speaking through Banerjee, J., emphasised that a court exercising discretion in matters of bail has to undertake the same judiciously. In highlighting that bail should not be granted as a matter of course, bereft of cogent reasoning, this Court observed as follows: (SCC p. 602, para 3)

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“ 3 . Grant of bail, though being a discretionary order, but, however, calls for the exercise of such a discretion in a judicious manner and not as a matter of course. An order for bail bereft of any cogent reason cannot be sustained. Needless to record, however, that the grant of bail is dependent upon the contextual facts of the matter being dealt with by the court and facts do always vary from case to case. While the placement of the accused in society, though it may be considered by itself, cannot be a guiding factor in the matter of grant of bail, the same should always be coupled with other circumstances warranting the grant of bail. The nature of the offence is one of the basic considerations for the grant of bail — the more heinous is the crime, the greater is the chance of rejection of the bail, though, however, dependent on the factual matrix of the matter .” (emphasis supplied)

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59. In Kalyan Chandra Sarkar v. Rajesh Ranjan, (2004) 7 SCC 528: 2004 SCC (Cri) 1977 , this Court held that although it is established that a court considering a bail application cannot undertake a detailed examination of evidence and an elaborate discussion on the merits of the case, yet the court is required to indicate the prima facie reasons justifying the grant of bail.

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60. In Prasanta Kumar Sarkar v. Ashis Chatterjee, (2010) 14 SCC 496: (2011) 3 SCC (Cri) 765 , this Court observed that where a High Court has granted bail mechanically, the said order would suffer from the vice of non-application of mind, rendering it illegal. This Court held as under with regard to the circumstances under which an order granting bail may be set aside. In doing so, the factors which ought to have guided the Court's decision to grant bail have also been detailed as under: (SCC p. 499, para 9)

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“ 9 . … It is trite that this Court does not, normally, interfere with an order passed by the High Court granting or rejecting bail to the accused. However, it is equally incumbent upon the High Court to exercise its discretion judiciously, cautiously and strictly in compliance with the basic principles laid down in a plethora of decisions of this Court on the point. It is well settled that, among other circumstances, the factors to be borne in mind while considering an application for bail are :

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( i ) whether there is any prima facie or reasonable ground to believe that the accused had committed the offence ;

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( ii ) nature and gravity of the accusation ;

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( iii ) severity of the punishment in the event of conviction ;

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( iv ) danger of the accused absconding or fleeing, if released on bail ;

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( v ) character, behaviour, means, position and standing of the accused ;

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( vi ) likelihood of the offence being repeated ;

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( vii ) reasonable apprehension of the witnesses being influenced; and

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( viii ) danger, of course, of justice being thwarted by grant of bail .” (emphasis supplied)

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62. One of the judgments of this Court on the aspect of application of mind and requirement of judicious exercise of discretion in arriving at an order granting bail to the accused is Brijmani Devi v. Pappu Kumar, (2022) 4 SCC 497 :

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(2022) 2 SCC (Cri) 170 , wherein a three-Judge Bench of this Court, while setting aside an unreasoned and casual order ( Pappu Kumar v. State of Bihar, 2021 SCC OnLine Pat 2856 and Pappu Singh v. State of Bihar, 2021 SCC OnLine Pat 2857 ) of the High Court granting bail to the accused, observed as follows: ( Brijmani Devi v. Pappu Kumar, (2022) 4 SCC 497 : (2022) 2 SCC (Cri) 170] ), SCC p. 511, para 35)

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“ 35 . While we are conscious of the fact that liberty of an individual is an invaluable right, at the same time while considering an application for bail courts cannot lose sight of the serious nature of the accusations against an accused and the facts that have a bearing in the case, particularly, when the accusations may not be false, frivolous or vexatious in nature but are supported by adequate material brought on record to enable a court to arrive at a prima facie conclusion. While considering an application for the grant of bail, a prima facie conclusion must be supported by reasons and must be arrived at after having regard to the vital facts of the case brought on record. Due consideration must be given to facts suggestive of the nature of crime, the criminal antecedents of the accused, if any, and the nature of punishment that would follow a conviction vis-à-vis the offence(s) alleged against an accused .” (emphasis supplied)

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Hon’ble Supreme Court held in State of Rajasthan v.

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Balchand , (1977) 4 SCC 308: 1977 SCC (Cri) 594: 1977 SCC OnLine SC 261 that the normal rule is bail and not jail, except where the gravity of the crime or the heinousness of the of f ence suggests otherwise. It was observed at page 308:

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2. The basic rule may perhaps be tersely put as bail, not jail, except where there are circumstances suggestive of fleeing from justice or thwarting the course of justice or creating other troubles in the shape of repeating offences or intimidating witnesses and the like, by the petitioner who

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seeks enlargement on bail from the Court. We do not intend to be exhaustive but only illustrative.

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3. It is true that the gravity of the offence involved is likely to induce the petitioner to avoid the course of justice and must weigh with us when considering the question of jail. So also, the heinousness of the crime….”

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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 mentions that the petitioner was not found in the vehicle from which the recovery was made. The police connected the petitioner to the commission of the crime based on the statement made by the co-accused and the financial transaction between him and the co-accused. It was laid down by the Hon’ble Supreme Court in Dipakbhai Jagdishchandra Patel v. State of Gujarat, (2019) 16 SCC 547: (2020) 2 SCC (Cri) 361: 2019 SCC OnLine SC 588 that a statement made by a co-accused during the investigation is hit by Section 162 of Cr.P.C. and cannot be used as a piece of evidence. It was also held that the confession made by the co-accused is inadmissible under Section 25 of the Indian Evidence Act. It was observed at page 568: -

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44. Such a person, viz., the person who is named in the FIR, and therefore, the accused in the eye of the law, can indeed be questioned, and the statement is taken by the police ofÏcer. A confession that is made to a police ofÏcer would be inadmissible, having regard to Section 25 of the

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Evidence Act. A confession, which is vitiated under Section 24 of the Evidence Act, would also be inadmissible. A confession, unless it fulfils the test laid down in Pakala Narayana Swami [Pakala Narayana Swami v. King Emperor, 1939 SCC OnLine PC 1 : (1938-39) 66 IA 66: AIR 1939 PC 47] and as accepted by this Court, may still be used as an admission under Section 21 of the Evidence Act. This, however, is subject to the bar of admissibility of a statement under Section 161 CrPC. Therefore, even if a statement contains an admission, the statement being one under Section 161, it would immediately attract the bar under Section 162 CrPC.”

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Similarly, it was held in Surinder Kumar Khanna vs

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Intelligence OfÏcer Directorate of Revenue Intelligence 2018 (8) SCC

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271 that a confession made by a co-accused cannot be taken as a substantive piece of evidence against another co-accused and can only be utilised to lend assurance to the other evidence. The Hon’ble Supreme Court subsequently held in Tofan Singh Versus State of Tamil Nadu 2021 (4) SCC 1 that a confession made to a police ofÏcer during the investigation is hit by Section 25 of the Indian Evidence Act and is not saved by the provisions of Section 67 of the NDPS Act. Therefore, no advantage can be derived by the prosecution from the confessional statement made by the coaccused implicating the petitioner.

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13 A similar situation arose before this Court in Dinesh Kumar @ Billa Versus State of H.P. 2020 Cri. L.J. 4564, and it was

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held that a confession of the co-accused and the phone calls are not sufÏcient to deny bail to a person.

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It was laid down by this Court in Saina Devi vs State of Himachal Pradesh 2022 Law Suit (HP) 21 1 that where the police have no material except the call details record and the disclosure statement of the co-accused, the petitioner cannot be kept in custody. It was observed: -

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“ [16] In the facts of the instant case, the prosecution, for implicating the petitioner, relies upon firstly the confessional statement made by accused Dabe Ram and secondly the CDR details of calls exchanged between the petitioner and the wife of co-accused Dabe Ram. Taking into consideration the evidence with respect to the availability of CDR details involving the phone number of the petitioner and the mobile phone number of the wife of co-accused Dabe Ram, this Court had considered the existence of a prima facie case against the petitioner and had rejected the bail application as not satisfying the conditions of Section 37 of the NDPS Act.

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[17] Since the existence of CDR details of accused person(s) has not been considered as a circumstance sufÏcient to hold a prima facie case against the accused person(s), in Pallulabid Ahmad's case (supra), this Court is of the view that petitioner has made out a case for maintainability of his successive bail application as also for grant of bail in his favour.

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[18] Except for the existence of CDRs and the disclosure statement of the co-accused, no other material appears to have been collected against the petitioner. The disclosure made by the co-accused cannot be read against the petitioner as per the mandate of the Hon'ble Supreme

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Court in Tofan Singh Vs State of Tamil Nadu, 2021 4 SCC 1 . Further, on the basis of the aforesaid elucidation, the petitioner is also entitled to the benefit of bail.

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A similar view was taken by this Court in Dabe Ram vs. State of H.P., Cr.MP(M) No. 1894 of 2023, decided on 01.09.2023, Parvesh Saini vs State of H.P., Cr.MP(M) No. 2355 of 2023, decided on 06.10.2023 and Relu Ram vs. State of H.P. Cr.MP(M) No. 1061 of 2023, decided on 15.05.2023,

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Therefore, the petitioner cannot be detained in custody based on a statement made by the co-accused or the confession made by him, as they are not legally admissible.

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The police have also relied upon the financial transactions between the petitioner and co-accused Saksham Bharti. This is not sufÏcient. It was laid down by the Kerala High Court in Amal E vs State of Kerala 2023:KER:39393 that financial transactions are not sufÏcient to connect the accused with the commission of a crime. It was observed:

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“From the perusal of the case records, it can be seen that, apart from the aforesaid transactions, there is nothing to show the involvement of the petitioners. It is true that the documents indicate the monetary transactions between the petitioners and some of the accused persons, but the question that arises is whether the said transactions were in connection with the sale of Narcotic drugs. To establish the same, apart from the confession statements of the ac-

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cused, there is nothing. However, as it is an aspect to be established during the trial, I do not intend to enter into any finding at this stage, but the said aspect is sufÏcient to record the satisfaction of the conditions contemplated under section 37 of the NDPS Act, as the lack of such materials evokes a reasonable doubt as to the involvement of the petitioner.”

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It was submitted that the petitioner had stayed with the co-accused and his name was found entered in the visitors'

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register. He was also seen in the CCTV footage. This is not sufÏcient. The mere fact that the petitioner was with the coaccused before the incident cannot lead to an inference of abetment without any other evidence. The police have not collected any other evidence and merely relied upon the inadmissible disclosure statements. Therefore, the petitioner cannot be detained in custody based on the material collected by the prosecution.

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The investigation is complete, and no fruitful purpose would be served by detaining the petitioner in custody. The petitioner is a student, and keeping him behind bars would adversely affect his studies.

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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 one surety

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in the like amount to the satisfaction of the learned Trial Court. While on bail, the petitioner will abide by the following 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 on each and every hearing 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 SHO concerned, the Police Station concerned and the Trial Court.

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

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(V) 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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