Himachal Pradesh High Court
Decided On : 10Th January vs State Of Himachal Pradesh on 10 January, 2025
2025:HHC:2998
IN THE HIGH COURT OF HIMACHAL PRADESH
AT SHIMLA
Cr.MP(M) No:1737 of 2024
Decided On : 10th January, 2025
__________________________________________________________
Purba Sherpa …Petitioner
Versus
State of Himachal Pradesh …Respondents
Coram
Hon’ble Mr. Justice Ranjan Sharma, Judge
1 Whether approved for reporting? Yes
For the petitioner : Mr. Kamal Kant Chandel,
Advocate.
For the respondents : Mr. Hemant K. Verma,
Deputy Advocate General.
Ranjan Sharma, Judge [Oral]
Bail petitioner, Purba Sherpa, who is in
custody since 26.04.2023 has come up before this
Court, seeking regular bail under Section 483 of
the Bhartiya Nagarik Suraksha Sanhita, 2023
(hereinafter referred to as ‘BNSS’), originating from FIR
No.72 of 2023, dated 26.04.2023, under Section 20 of
Narcotics Drugs & Psychotropic Substances, Act, 1985
[hereinafter referred to as ‘NDPS Act’], registered at
Police Station Bhunter, District Kullu [HP].
1 Whether reporters of Local Papers may be allowed to see the judgment? Yes
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FACTUAL MATRIX:
2. Case as set-up by Mr. Kamal Kant Chandel,
learned counsel for petitioner is that the police
arrested the bail petitioner on 26.04.2023 for
accusation under Section 20 of the NDPS Act. It is
submitted that the petitioner is completely innocent
and a false case has been registered at the instance of
some interested persons. It is submitted that the
petitioner has nothing to do with the alleged offence
and he is completely innocent and nothing
incriminating has been recovered from the bail
petitioner. It is further averred that the petitioner is
sole bread-earner in the family and has certain health
issues. It is further averred that in case of release on
bail shall not abscond or jump over the but shall
participate in the trial and bail petitioner will not
tamper with the evidence or cause any inducement,
threat or promise to persons acquainted with the case.
It is averred that no further recovery is due from bail
petitioner.
2(i). It is averred that after filing of bail
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application, the bail petitioner has moved an
application i.e. Cr.MP No.4947 of 2024 for placing on
record additional material to show that discrepancy in
preparation of Inventory under Section 52 (A) of the
NDPS Act, indicating the date of seizure as
19.12.2022, whereas, FIR was registered on
26.04.2023 and therefore, the Inventory is erroneous
in law.
In above backdrop, the prayer for bail has
been made through his father.
STAND OF STATE AUTHORITIES IN STATUS
REPORT:
3. Pursuant to the issuance of notice on
09.08.2024, the State Authorities have filed the Status
Report dated 19.08.2024 and thereafter fresh Status
Report dated 24.10.2024. Both the Status Reports
contain pari materia averments.
3(i). Perusal of the Status Report reveals that
while the police party was patrolling in Kaleli, Bhuntar
and Hathithan, for detecting illicit trade,
transportation and sale-purchase of contraband on
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26.04.2023, near Katoch Complex at 11:15 A.M. The
police party received an information that the petitioner,
Purba Sherpa, who is a resident of Khokhan near
Bhuntar, shall be travelling and reaching Bhuin with a
large quantity of Cannabis/Charas. Based on the
information, the police party completed the formalities
and after associating the witnesses, a Nakka was laid
at about 12:10 p.m. and as soon as petitioner [Purba
Sherpa] reached the spot, the police stopped him and
inquired about his identity and whereabouts. The
police party made enquiries whereafter the bail
petitioner became perplexed. Before resorting to search
of bail petitioner, an option as to whether the bail
petitioner wanted to be searched before the Gazetted
Officer or Police Officer was also conveyed to him.
3(ii). It is averred in Status Report that petitioner
was searched in presence of witnesses. Pursuant to
search the petitioner handed over a carry-bag, with
inscription, of ‘Shiv Shankar Cloth House’ in which
four polythene packets containing black substance
was recovered, which on weighing was found to be
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Cannabis/Charas, weighing 04.04 Kgs. Thereafter, the
codal formalities were completed and Rukka was sent
whereupon, FIR was registered. Pursuant to
registration of FIR, the statement of witnesses was
recorded under Section 161 of Cr.P.C. Bail petitioner
was thereafter made to undergo medical examination
in Civil Hospital Tehguwehad.
3(iii). Police filed an application before Learned
Judicial Magistrate, Lahaul & Spiti at Kullu for
preparing an Inventory under Section 52-A of the
ND&PS Act. Status report further reveals that
pursuant to the remand the bail petitioner admitted
that he had purchased the contraband from an
unknown person who is a resident of Titang [Nepal]
near Parvati River as was inter se agreed between bail
petitioner and said person. Bail petitioner was taken to
the spot for tracing the alleged unknown person but he
could be found.
3(iv). Status report indicates that the seized
contraband was sent to SFSL and the SFSL submitted
the report dated 11.05.2023, which confirmed the
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contraband to be Cannabis/Charas. Status report
further indicates that the investigation was completed
and the Challan/Final Police Report was presented
before the Jurisdictional Court i.e. District Judge,
Kullu on 28.07.2023. Status Report further reveals
that there are nineteen witnesses out of which
statements of six prosecution witnesses have been
examined and three prosecution witnesses are to be
examined on 28.09.2024.
In above backdrop, Learned State Counsel
has prayed for dismissal of the bail petition.
4. Heard Mr. Kamal Kant Chandel, learned
counsel for the petitioner as well as Mr. Hemant
K. Verma, Learned State Counsel and have gone
through the case records.
STATUTORY PROVISIONS:
5. Before dealing with the bail petition, it is
necessary to take note of the provisions of Section
20 of the ND&PS Act, which read as under:-
“20. Punishment for contravention in
relation to cannabis plant and
cannabis.–
Whoever, in contravention of any provision of this
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Act or any rule or order made or condition of
licence granted thereunder,–
(a) cultivates any cannabis plant; or
(b) produces, manufactures, possesses,
sells, purchases, transports, imports
inter-State, exports inter-State or uses
cannabis, shall be punishable,–
(i) where such contravention relates to clause
(a) with rigorous imprisonment for a term
which may extend to ten years, and shall
also be liable to fine which may extend to
one lakh rupees; and
(ii) where such contravention relates to sub-
clause (b),–
(A) and involves small quantity, with rigorous
imprisonment for a term which may extend
to [one year], or with fine which may extend
to ten thousand rupees, or with both;
(B) and involves quantity lesser than
commercial quantity but greater than small
quantity, with rigorous imprisonment for a
term which may extend to ten years, and
with fine which may extend to one lakh
rupees;
(C) and involves commercial quantity,
with rigorous imprisonment for a term
which shall not be less than ten years but
which may extend to twenty years and
shall also be liable to fine which shall not be
less than one lakh rupees but which may
extend to two lakh rupees:
Provided that the court may, for reasons to
be recorded in the judgment, impose a fine
exceeding two lakh rupees.
MANDATE OF LAW ON BAILS:
6. Notably, the claim of the suspect-accused
for regular bail is to be examined/tested in terms of
the parameters prescribed in Code of Criminal
Procedure {now BNSS} and also the broad para-meters
mandated by the Hon’ble Supreme Court for regulating
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grant of bail in Gurbaksh Singh Sibbia versus State
of Punjab (1980) 2 SCC 565 ; Ram Govind Upadhyay
versus Sudarshan Singh (2002) 3 SCC 598 ; Kalyan
Chandra Sarkar versus Rajesh Ranjan, (2004) 7 SCC
528; Prasanta Kumar Sarkar versus Ashish
Chatterjee, (2010) 14 SCC 496; reiterated in the case
of P. Chidambaram versus Directorate of
Enforcement, (2019) 9 SCC 24, that bail is to be
granted where the allegation is frivolous or groundless
and incase neither any prima facie case nor reasonable
grounds exists to believe or point towards the
accusation. However, depending upon the facts of each
case, the bail can be refused in case, the prima facie
case or reasonable grounds exits and offence is
serious, severity of punishment, reasonable
apprehension of fleeing away from the investigation
and the trial, and Character, including past
antecedents, behavior, means, position and standing
of the accused; likelihood of offence being repeated;
reasonable apprehension of witnesses being influenced
and danger of justice being thwarted by grant of bail
-9- 2025:HHC:2998
etc; and then in Sushila Aggarwal versus State-NCT
Delhi, (2020) 5 SCC 01; CBI versus Santosh Karnani
(2023) 6 SCALE 250; have been reiterated by the
Honble Supreme Court in State of Haryana versus
Dharamraj, 2023 SCC Online SC 1085, as under:
“(i). Whether there is any prima facie or
reasonable ground to believe that the
accused had committed the offence;
(ii). nature and gravity of the accusation;
(iii). severity of the punishment in the event
of conviction;
(iv). danger of the accused absconding or
fleeing, if released on bail;
(v). Character, behaviour, means, position
and standing of the accused;
(vi). Likelihood of the offence being
repeated;
(vii). Reasonable apprehension of the
witnesses being influenced and
(viii). Danger, of course, of justice being
thwarted by grant of bail.”
6(i). In normal parlance, the principle of law is
that bail is a rule and jail is an exception. However,
this Court is conscious of the fact that the power
to grant or refuse bail is an extraordinary power,
which has to be sparingly exercised subject to the
anvil of the time tested parameters and restrictions
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imposed in law. It is trite law that while considering
prayer for bail {pre-arrest bail or regular bail], the
factum of prolonged pre-conviction incarceration and
the right of speedy trial has to be taken into account,
in the background of the fact as to whether delay
in trial was attributable to an accused or not. Another
added factor and not the sole factor of past criminal
antecedents; and the factum as to whether an accused
has misused concession-liberty granted earlier. While
considering the prayer for bail, the balance has to
be carved out between the liberty of an accused
vis-à-vis the societal interests, including danger of
justice being thwarted in case the bail is granted.
6(ii). This Court is also conscious of the fact that
as per the mandate of law, in Criminal Appeal No.
3840 of 2023, titled as Saumya Churasia versus
Directorate of Enforcement, decided on 14.12.2023,
while considering the prayer for bail, the Court is
not required to weigh the evidence collected by the
Investigating Agency meticulously, nonetheless, the
Court should keep in mind the nature of accusation,
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the nature of evidence collected in support thereof,
the severity of punishment prescribed for alleged
offences, the character of accused, the circumstances
which are peculiar to accused, reasonable possibility
of securing the presence of accused during trial,
reasonable apprehension of witnesses being tampered
with and the larger public/state interests. It is in
this background, that the claim for bail is to be
examined by a Court without delving into the evidence
on merits but by forming a prima-facie opinion on
totality of facts in light of broad-parameters referred
to above.
ANALYSIS: CLAIM FOR BAIL IN INSTANT CASE:
7. While examining the claim for bail in the
instant case, this Court is conscious of the fact that,
once petitioner has been implicated with commercial
quantity of contraband i.e. [Cannabis-Charas]
weighing 4.04 Kgs therefore, in normal parlance, the
rigors of Section 37 (1) (b) of NDPS Act are to be
satisfied, before acceding to the claim for bail, in terms
of the mandate of law, laid down by the Hon’ble
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Supreme Court in Narcotics Control Bureau vs
Mohit Aggarwal AIR 2022 SC 3444, followed in Union
of India vs Ajay Kumar Singh @ Pappu, SLP
(Criminal) No. 2351 of 2023, which stands reiterated
by the Hon’ble Supreme Court, in State by the
Inspector of Police vs B. Ramu, SLP (Criminal)
No.8137 of 2022 decided on 12.02.2024.
8. In the aforesaid background, this Court
proceeds to examine the claim of the bail petitioner
[Purba Sherpa] for bail, in view of the statutory
mandate of Section 37 (1) (b) of NDPS Act and also,
by taking into account, the exceptions carved out by
the Honble Supreme Court to rigors of Section 37
(1) (b) of NDPS Act, hereinbelow.
[A]. CLAIM FOR BAIL UNDER SECTION 37(1) (b) OF
NDPS ACT:
9. This Court proceeds to examine the claim
for bail in view of the rigours in Section 37 of the NDPS
Act hereinunder;
9(i). Perusal of Status Report and the material
on record indicates that neither any prima facie case
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nor any reasonable grounds exist to believe that the
bail petitioner is guilty of the offence in the instant
case, at this stage.
9(ii). Status Report filed by the State Authorities
does not spell out any material to show that the
bail petitioner has resorted to any activities, so as
to invoke the provisions of Section 20 of NDPS
Act, against the petitioner, at this stage. In these
circumstances, the bail petitioner appears to be not
guilty, in view of inherent discrepancies and grave
contradictions in the statements of PWs, at this stage
and therefore, the bail petitioner deserves to be
granted concession of bail.
9(iii). Section 29 of NDPS Act, alleging abatement
and criminal conspiracy is a matter which is yet
to be tested, examined and proved during trial. The
accusation of abatement or criminal conspiracy cannot
be attributed against the bail petitioner without there
being any cogent and convincing material on record
and thus, this Court is of the considered view, that
the bail petitioner is not guilty of the offence, at this
– 14 – 2025:HHC:2998
stage.
[B]. NOTHING ADVERSARIAL REGARDING REPITITION
OF OFFENCE AFTER BAIL:
10. Status Reports filed by the State Authorities
have not expressed any apprehension of repetition of
offence after being enlarged on bail hereinafter.
Taking into account the entirety of facts
and circumstances, including the Status Reports, this
Court is of the considered view, that there are no
reasonable grounds to believe that the petitioner
is guilty and that the petitioner is likely to repeat
the offence after being released on bail and therefore,
by applying the twin-tests as mandated in Section
37 (1)(b) of the NDPS Act, the bail petitioner [Purba
Sherpa] deserves to be enlarged on bail.
[C] CLAIM FOR BAIL ON OTHER EXCEPTIONAL
GROUNDS AND CIRCUMSTANCES:
11. Notwithstanding, the rigours in Section 37
(1) (b) of NDPS Act [supra], yet in view of the
exceptions carved out by the Honble Supreme
Court as detailed hereinunder and other
circumstances, the bail petitioner is entitled to be
– 15 – 2025:HHC:2998
enlarged on bail for the following reasons:-
11(i). An FIR in instant case was registered
on 26.04.2023 and the petitioner has been in custody
[since 24.06.2023] i.e. for last more than 1 year and
8 month now. Even the Investigation is complete and
Challan-Final Police Report dated 28.07.2023 has been
presented before the jurisdictional Court and charge
stands framed. The prosecution intends to examine
19 PWs and on date of filing of bail petition 6 PWs
had been examined as on day by Learned Special
Judge, Mandi.
11(ii). The Hon’ble Supreme Court in Mukesh
Kumar versus State of Rajasthan and another,
2023 SCC OnLine SC 2025, granted bail to an
accused suffering incarceration for more than 1 year
and 11 months coupled with the fact that there
is no much progress in trial, in the following
terms:-
“2. The petitioner is accused of giving one blow
on the head of the deceased with a
danda (Bamboo). It may also be mentioned
that occurrence took place on 08-06-2020
and the deceased succumbed to his
injuries on 12-06-2020.
– 16 – 2025:HHC:2998
5. After cancellation of bail by the High Court,
the petitioner has again surrendered on
16-11-2022 and is in custody.
7. It may be seen that there are cross-
versions and both sides suffered injuries.
The question as to who was the
aggressor will depend upon the
appreciation of evidence and will be
decided by the Trial Court at an
appropriate stage. It is not expedient or
desirable for this Court to express any
opinion in relation thereto at this stage.
8. Suffice to say that the petitioner has
been in custody for more than 14
months, the crucial witnesses have since
been examined and there is no likelihood
of tampering with the evidence. Even
otherwise also, the witnesses are close
family members of both sides, hence there
is no likelihood of winning over the
witnesses.
9. Since conclusion of trial will take
considerable time, we deem it appropriate
to release the petitioner on bail.
11. Consequently, without expressing any
views on the merits of the case, the
petitioner is directed to be released on
bail, subject to his furnishing bail bonds to
the satisfaction of the Trial Court.
12. The petitioner and his family members as
well as Respondent No. 2 and his family
members will ensure that no untoward
incident takes place again.”
PROLONGED INCARCERATION AND INFRINGMENT
OF PERSONAL LIBERTY UNDER ARTICLE 21 OF THE
CONSTITUTION OF INDIA:
12. While reiterating the principle that bail is
a rule and jail is an exception and no accused can
be deprived of personal liberty on mere accusation
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and an accused is to be treated as innocent in the
eyes of law, the Hon’ble Supreme Court has outlined
the object of bail in Guddan alias Roop Narayan
versus State of Rajasthan, 2023 SCC OnLine SC
1242, in the following terms:-
“11. In the case of Sanjay Chandra V. Central
Bureau of Investigation, (2012) 1 SCC 40,
while hearing a bail Application in a case of
an alleged economic offence, this court held
that the object of bail is neither punitive
nor preventative. It was observed as under:
“21. In bail applications, generally, it
has been laid down from the
earliest times that the object of bail
is to secure the appearance of the
accused person at his trial by
reasonable amount of bail. The
object of bail is neither punitive
nor preventative. Deprivation of
liberty must be considered a
punishment, unless it is required
to ensure that an accused person
will stand his trial when called
upon. The courts owe more than
verbal respect to the principle that
punishment begins after
conviction, and that every
man is deemed to be innocent
until duly tried and duly found
guilty.
23. Apart from the question of
prevention being the object of
refusal of bail, one must not lose
sight of the fact that any
imprisonment before conviction
has a substantial punitive
content and it would be
improper for any court to refuse
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bail as a mark of disapproval of
former conduct whether the
accused has been convicted for it
or not or to refuse bail to an
unconvicted person for the
purpose of giving him a
taste of imprisonment as a
lesson.
25. The provisions of Cr PC confer
discretionary jurisdiction on
criminal courts to grant bail to the
accused pending trial or in appeal
against convictions; since the
jurisdiction is discretionary, it
has to be exercised with great
care and caution by balancing
the valuable right of liberty of an
individual and the interest of
the society in general. In our
view, the reasoning adopted
by the learned District Judge,
which is affirmed by the High
Court, in our opinion, is a denial of
the whole basis of our system of
law and normal rule of bail
system. It transcends respect for
the requirement that a man
shall be considered innocent
until he is found guilty. If such
power is recognised, then it may
lead to chaotic situation and
would jeopardise the personal
liberty of an individual.
27. This Court, time and again, has
stated that bail is the rule and
committal to jail an exception. It
has also observed that refusal of
bail is a restriction on the
personal liberty of the individual
guaranteed under Article 21 of
the Constitution”
12. Further, in the case of Sandeep Jain v.
National Capital Territory of Delhi, (2000)
2 SCC 66, this Court, while hearing a
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bail application held that conditions for
grant of bail cannot become so onerous
that their existence itself is tantamount
to refusal of bail. This Court held as
under:
“We are unable to appreciate even the
first order passed by the Metropolitan
Magistrate imposing the onerous
condition that an accused at the FIR
stage should pay a huge sum of Rs.
2 lakhs to be set at liberty. If he had
paid it is a different matter. But the
fact that he was not able to pay
that amount and in default thereof
he is to languish in jail for more
than 10 months now, is sufficient
indication that he was unable to make
up the amount. Can he be detained
in custody endlessly for his inability
to pay the amount in the range of
Rs.2 lakhs? If the cheques issued by
his surety were dishonoured, the Court
could perhaps have taken it as a
ground to suggest to the payee of
the cheques to resort to the legal
remedies provided by law.
Similarly if the Court was dissatisfied
with the conduct of the surety as for
his failure to raise funds for honouring
the cheques issued by him, the Court
could have directed the appellant to
substitute him with another surety.
But to keep him in prison for such
a long period, that too in a case
where bail would normally be
granted for the offences alleged, is
not only hard but improper. It must
be remembered that the Court has not
even come to the conclusion that the
allegations made in the FIR are true.
That can be decided only when the trial
concludes, if the case is charge-
sheeted by the police.”
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REFORMATIVE APPROACH IN BAIL:
13. While dealing with the concept of bail and
personal liberty of an accused under Article 21 of
the Constitution of India, the Hon’ble Supreme Court
in Criminal Appeal No. 2787 of 2024, titled as Javed
Gulam Nabi Shaikh Versus State of Maharashtra
and Another, as under:-
“18 Criminals are not born out but made.
The human potential in everyone is good
and so, never write off any criminal
as beyond redemption. This humanist
fundamental is often missed when
dealing with delinquents, juvenile and
adult. Indeed, every saint has a past and
every sinner a future. When a crime is
committed, a variety of factors is
responsible for making the offender
commit the crime. Those factors may be
social and economic, may be, the result of
value erosion or parental neglect; may be,
because of the stress of circumstances, or
the manifestation of temptations in a milieu
of affluence contrasted with indigence or
other privations.
19. If the State or any prosecuting agency
including the court concerned has no
wherewithal to provide or protect the
fundamental right of an accused to have
a speedy trial as enshrined under Article
21 of the Constitution then the State
or any other prosecuting agency should
not oppose the plea for bail on the
ground that the crime committed is
serious. Article 21 of the Constitution
applies irrespective of the nature of
the crime.
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20. We may hasten to add that the petitioner
is still an accused; not a convict. The
over-arching postulate of criminal
jurisprudence that an accused is
presumed to be innocent until proven
guilty cannot be brushed aside lightly,
howsoever stringent the penal law may
be.
21 We are convinced that the manner in which
the prosecuting agency as well as the
Court have proceeded, the right of the
accused to have a speedy trial could be
said to have been infringed thereby violating
Article 21 of the Constitution.
22 In view of the aforesaid, this appeal
succeeds and is hereby allowed. The
impugned order passed by the High Court is
set aside.”
BAIL NOT TO BE WITHHELD BY WAY OF PENALTY:
ARTICLE 21 OF CONSTITUTION OF INDIA:
14. While dealing with a matter relating to
prolonged incarceration and the right to speedy trial
and right of liberty to be sacrosanct right and while
deprecating that the bail is not to be withheld as
punishment so as to operate de hors the principle
that bail is rule and jail is an exception, the Hon’ble
Supreme Court, in Manish Sisodia vs Directorate
of Enforcement, SLP (Criminal) No.8781 of 2024,
decided on 09.08.2024, has held as under :-
“49. We find that, on account of a long
period of incarceration running for around
17 months and the trial even not having
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been commenced, the appellant has been
deprived of his right to speedy trial.
50. As observed by this Court, the right to
speedy trial and the right to liberty
are sacrosanct rights. On denial of these
rights, the trial court as well as the
High Court ought to have given due
weightage to this factor.
53. The Court further observed that, over a
period of time, the trial courts and the
High Courts have forgotten a very well-
settled principle of law that bail is not to
be withheld as a punishment. From our
experience, we can say that it appears that
the trial courts and the High Courts attempt
to play safe in matters of grant of bail.
The principle that bail is a rule and
refusal is an exception is, at times,
followed in breach. On account of non-
grant of bail even in straight forward open
and shut cases, this Court is flooded with
huge number of bail petitions thereby
adding to the huge pendency. It is high
time that the trial courts and the High
Courts should recognize the principle
that “bail is rule and jail is exception”.
55. As observed by this Court in the case of
Gudikanti Narasimhulu (supra), the
objective to keep a person in judicial
custody pending trial or disposal of an
appeal is to secure the attendance of the
prisoner at trial.
56. In the present case, the appellant is having
deep roots in the society. There is no
possibility of him fleeing away from the
country and not being available for facing
the trial. In any case, conditions can be
imposed to address the concern of the
State.
57. Insofar as the apprehension given by the
learned ASG regarding the possibility of
tampering the evidence is concerned, it is
to be noted that the case largely depends
on documentary evidence which is already
seized by the prosecution. As such, there is
no possibility of tampering with the
evidence. Insofar as the concern with
regard to influencing the witnesses is
concerned, the said concern can be
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addressed by imposing stringent
conditions upon the appellant.”
14(i). While adjudicating the claim for bail, even
under Special Enactments, like PMLA [akin to NDPS
Act], the Hon’ble Apex Court in Criminal Appeal
No._____of 2024 [Arising out of SLP (Criminal)
No. 10778 of 2024], titled as Kalvakuntla
Kavitha Versus Directorate of Enforcement and
connected matter has mandated that fundamental
right of liberty provided under Article 21 of the
Constitution of India is superior to the statutory
restrictions, in the following terms:-
“13. We had also reiterated the well-established
principle that “bail is the rule and refusal
is an exception”. We had further observed
that the fundamental right of liberty
provided under Article 21 of the Constitution
is superior to the statutory restrictions.”
RIGOURS IN SPECIAL ENACTMENTS [SECTION 37
OF NDPS] TO GIVE WAY FOR BAIL-PROLONGED
INCARCERATION AND COMPLETION OF TRIAL TO
TAKE CONSIDERABLE TIME:
15. While dealing with the claim for bail under
Special Enactments and rigors of Section 45 (1) (ii) of
MPLA and proviso to Section 43-D (5) of the Unlawful
Activities [Prevention] Act, 1967 and Section 37 of
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NDPS Act, the Hon’ble Supreme Court in Criminal
Appeal No.4011 of 2024, in re: V. Senthil
Balaji Versus The Deputy Director, Directorate
of Enforcement, has mandated that rigors in Special
Enactments, including Section 37 of NDPS Act, will
melt down when, there is no likelihood of the trial
being completed in a reasonable time and in view
of prolonged incarceration, so as to prevent deprivation
of curtailment of personal liberty and right to speedy
trial in terms of Article 21 of Constitution of India,
in the following terms:-
“24. There are a few penal statutes that make a
departure from the provisions of Sections
437, 438, and 439 of the Code of Criminal
Procedure, 1973. A higher threshold is
provided in these statutes for the grant
of bail. By way of illustration, we may
refer to Section 45(1)(ii) of PMLA,
proviso to Section 43D(5) of the
Unlawful Activities (Prevention) Act,
1967 and Section 37 of the Narcotic
Drugs and Psychotropic Substances Act,
1985 (for short, ‘NDPS Act’). The
provisions regarding bail in some
of such statutes start with a non obstante
clause for overriding the provisions of
Sections 437 to 439 of the CrPC. The
legislature has done so to secure the object
of making the penal provisions in such
enactments. For example, the PMLA
provides for Section 45(1)(ii) as money
laundering poses a serious threat not only
– 25 – 2025:HHC:2998
to the country’s financial system but also
to its integrity and sovereignty.
25. Considering the gravity of the offences
in such statutes, expeditious disposal
of trials for the crimes under these
statutes is contemplated. Moreover,
such statutes contain provisions laying
down higher threshold for the grant of
bail. The expeditious disposal of the
trial is also warranted considering the
higher threshold set for the grant of bail.
Hence, the requirement of expeditious
disposal of cases must be read into these
statutes. Inordinate delay in the
conclusion of the trial and the higher
threshold for the grant of bail cannot
go together. It is a well settled principle
of our criminal jurisprudence that “bail
is the rule, and jail is the exception.”
These stringent provisions regarding
the grant of bail, such as Section
45(1)(iii) of the PMLA, cannot become a
tool which can be used to incarcerate
the accused without trial for an
unreasonably long time.
25. Considering the gravity of the offences
in such statutes, expeditious disposal
of trials for the crimes under these
statutes is contemplated. Moreover,
such statutes contain provisions laying
down higher threshold for the grant of
bail. The expeditious disposal of the
trial is also warranted considering the
higher threshold set for the grant of bail.
Hence, the requirement of expeditious
disposal of cases must be read into these
statutes. Inordinate delay in the
conclusion of the trial and the higher
threshold for the grant of bail cannot
go together. It is a well settled principle
of our criminal jurisprudence that “bail
is the rule, and jail is the exception.”
These stringent provisions regarding
the grant of bail, such as Section 45(1)
(iii) of the PMLA, cannot become a tool
– 26 – 2025:HHC:2998
which can be used to incarcerate the
accused without trial for an
unreasonably long time.
26. There are a series of decisions of this
Court starting from the decision in the
case of K.A. Najeeb, which hold that
such stringent provisions for the grant
of bail do not take away the power of
Constitutional Courts to grant bail on
the grounds of violation of Part III of
the Constitution of India. We have
already referred to paragraph 17 of
the said decision, which lays down that
the rigours of such provisions will melt
down where there is no likelihood of
trial being completed in a reasonable
time and the period of incarceration
already undergone has exceeded a
substantial part of the prescribed
sentence. One of the reasons is that if,
because of such provisions,
incarceration of an under-trial accused
is continued for an unreasonably long
time, the provisions may be exposed to
the vice of being violative of Article
21 of the Constitution of India.
27. Under the Statutes like PMLA, the
minimum sentence is three years, and the
maximum is seven years. The minimum
sentence is higher when the scheduled
offence is under the NDPS Act. When the
trial of the complaint under PMLA is likely
to prolong beyond reasonable limits, the
Constitutional Courts will have to consider
exercising their powers to grant bail. The
reason is that Section 45(1)(ii) does not
confer power on the State to detain an
accused for an unreasonably long time,
especially when there is no possibility of
trial concluding within a reasonable
time. What a reasonable time is will
depend on the provisions under which the
accused is being tried and other factors.
One of the most relevant factor is the
duration of the minimum and maximum
– 27 – 2025:HHC:2998
sentence for the offence. Another important
consideration is the higher threshold or
stringent conditions which a statute
provides for the grant of bail. Even an outer
limit provided by the relevant law for
the completion of the trial, if any, is
also a factor to be considered. The
extraordinary powers, as held in
the case of K.A. Najeeb, can only be
exercised by the Constitutional Courts.
The Judges of the Constitutional Courts
have vast experience. Based on the
facts on record, if the Judges conclude
that there is no possibility of a trial
concluding in a reasonable time, the
power of granting bail can always be
exercised by the Constitutional Courts
on the grounds of violation of Part III
of the Constitution of India
notwithstanding the statutory
provisions. The Constitutional Courts
can always exercise its jurisdiction
under Article 32 or Article 226, as the
case may be. The Constitutional Courts
have to bear in mind while dealing with
the cases under the PMLA that, except
in a few exceptional cases, the
maximum sentence can be of seven
years. The Constitutional Courts cannot
allow provisions like Section 45 (1)
(ii) to become instruments in the hands
of the ED to continue incarceration for
a long time when there is no possibility
of a trial of the scheduled offence and
the PMLA offence concluding within a
reasonable time. If the Constitutional
Courts do not exercise their jurisdiction
in such cases, the rights of the
undertrials under Article 21 of the
Constitution of India will be defeated.
In a given case, if an undue delay in
the disposal of the trial of scheduled
offences or disposal of trial under the
PMLA can be substantially attributed
to the accused, the Constitutional
Courts can always decline to exercise
– 28 – 2025:HHC:2998
jurisdiction to issue prerogative writs.
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.
29. As stated earlier, the appellant has
been incarcerated for 15 months or
more for the offence punishable under
the PMLA. In the facts of the case, the
trial of the scheduled offences and,
consequently, the PMLA offence is not
likely to be completed in three to four
years or even more. If the appellant’s
detention is continued, it will amount
to an infringement of his fundamenttal
right under Article 21 of the
Constitution of India of speedy trial.
31. Therefore, the appeal is allowed, and
the appellant shall be enlarged on bail
till the final disposal of CC No. 9 of
2023 pending before the Principal Session
Judge, Chennai …..”
15(i). While reiterating the grant of bail, despite
statutory embargoes in Special Enactments, Hon’ble
Supreme Court in Criminal Appeal No. 5266 of
2024 (Arising out of SLP (CRL.) No. 13870 of
2024, titled as Partha Chatterjee Versus
Directorate of Enforcement, decided on 13.12.2024,
2024 SCC Online SC 3729, has been reiterated, by
treating the right to life and liberty under Article 21 of
the Constitution of India to be of paramount
– 29 – 2025:HHC:2998
importance and action of prolonging the incarceration
so as to make such incarceration punitive has been
deprecated by granting bail, in the following terms:-
“13. We have considered the rival submissions
and carefully examined the material on
record. At the outset, it is worth reiterating
that this Court, through a catena of
decisions, has consistently emphasized
that prolonged incarceration of an accused
awaiting trial unjustly deprives them of
their right to personal liberty. Even
statutory embargoes on the grant of
bail must yield when weighed against
the paramount importance of the right
to life and liberty under Article 21 of
the Constitution, particularly in cases
where such incarceration extends over
an unreasonably long period without
conclusion of trial.
17. We, however, cannot be oblivious to the
settled principles that a suspect cannot
be held in custody indefinitely and that
undertrial incarceration should not
amount to punitive detention. The Court
would, nevertheless, ensure that affluent or
influential accused do not obstruct the
ongoing investigation, tamper with
evidence, or influence witnesses, namely,
actions that undermine the fundamental
doctrine of a fair trial.
18. Striking a balance between these
considerations and without expressing any
opinion on the merits of the allegations, we
deem it appropriate to dispose of this
appeal with the following directions:
f. The Petitioner shall thereafter be
released on bail on 01.02.2025, subject
to his furnishing bail bonds to the
satisfaction of the Trial Court; ……”
– 30 – 2025:HHC:2998
Keeping in view the factual matrix that
no reasonable grounds exist against the bail petitioner,
as referred to above, coupled with the fact the bail
petitioner has suffered incarceration for more than
one year and seven months [since 26.04.2023] and
even trial is likely to take considerable time for
the reason, that out of total 19 PWs, only 6 PWs
have been examined as yet, and therefore, further
detention shall certainly amount to depriving and
curtailing the personal liberty of the petitioner on
mere accusation or conjectures or surmises, which
are yet to be tested, examined and proved during
the trial. Detention of the petitioner can neither
be punitive nor preventative, so as to make the
petitioner to taste imprisonment as a lesson. Denial
of bail shall certainly violates the principle that “bail
is rule and jail is an exception”. Even, the State
Authorities, have failed to ensure speedy trial and
still considerable time is likely to be taken for
conclusion of trial, then, in view of mandate of
law in the cases of Guddan alias Roop Narayan,
– 31 – 2025:HHC:2998
Javed Gulam Nabi Shaikh, Manish Sisodia,
Kalvakuntla Kavitha, Senthil Balaji and Partha
Chatterjee [supra], the petitioner deserves to be
released on bail.
NO PAST CRIMINAL ANTECEDENTS:
16. The Status Reports do not indicate any past
criminal incident against the bail petitioner and once
no cogent reasons-material and evidence exists against
him, at this stage, therefore, prolonging the detention
shall certainly violate the personal liberty of the
petitioner mandated under Article 21 of the
Constitution of India.
MANDATE OF HON’BLE SUPREME COURT IN
BAIL IN COMMERCIAL QUANTITY: PROLONGED
INCARCENATION AND COMPLETION OF TRIAL
TO TAKE CONSIDERABLE TIME:
17. While dealing with similar situation dealing
with involvement of accused in commercial quantity
of contraband, Hon’ble Supreme Court has extended
benefit of bail to the bail petitioner in Petition(s)
for Special Leave to Appeal (Crl.) No(s). 1904 /
2023, titled as Sunil Kumar Versus The State of
Himachal Pradesh, decided on 29.03.2023, in the
– 32 – 2025:HHC:2998
following terms:-
“It is noted that the petitioner has been
in custody for more that one and a
half years and the trial is yet to
conclude. Earlier, the petitioner had been
granted interim bail on two occasions and
has not misused the liberty of interim bail
or violated any of the bail conditions
imposed upon him but has thereafter,
surrendered back.
Therefore, keeping all these aspects in
view, the petitioner is ordered to be
released on bail subject to appropriate
conditions being imposed by the Trial
Court including the condition that the
petitioner shall diligently participate in the
trial. Ordered accordingly.”
17(i). In Petition(s) for Special Leave to Appeal
(Crl.) No (s). 4648/2024, titled as Ankur Chaudhary
Versus State of Madhya Pradesh, decided on
28.05.2024, Hon’ble Supreme Court granted bail by
invoking Article 21 of Constitution of India as the
prolonged incarceration defeats precious fundamental
rights and such fundamental rights have to override
the statutory embargo in Section 37 (1) (b) of NDPS
Act in the following terms:-
“Now, on examination, the panch witnesses
have not supported the case of
prosecution. On facts, we are not inclined
to consider the Investigation Officer as a
panch witness. It is to observe that failure
– 33 – 2025:HHC:2998
to conclude the trial within a
reasonable time resulting in prolonged
incarceration militates against the
precious fundamental right guaranteed
under Article 21 of the Constitution of
India, and as such, conditional liberty
overriding the statutory embargo
created under Section 37(1) (b) of the
NDPS Act may, in such circumstances,
be considered.
In view of the above, we are inclined to
allow this petition and direct to enlarge the
petitioner on bail on furnishing the suitable
bail bonds and sureties and on such
other terms and conditions as may be
deemed fit by the trial Court.”
17(ii). In Petition(s) for Special Leave to Appeal
(Crl.) No(s). 7115 /2024, titled as Sohrab Khan
versus The State of Madhya Pradesh, decided on
13.08.2024, the Hon’ble Supreme Court has extended
benefit of concession of bail to an accused, who was
facing incarceration of one year and four months in
the following terms:-
“The petitioner is an accused for the alleged
offences punishable under Sections 8/22
and 29 of the Narcotic Drugs and
Psychotropic Substances Act. His bail
application was dismissed by the High
Court. He has already undergone about
one year and four months in jail. The
petitioner and com accused were found in
possession of 80 grams of MD powder each
of which commercial quantity is 50 grams.
Considering the fact that the petitioner
criminal antecedents and the entire
– 34 – 2025:HHC:2998
facts and circumstances has no of this
case, we are of the opinion that a case of
bail is made out for the petitioner and
therefore, the prayer of the petitioner is
allowed.
Accordingly, the petitioner is directed to be
released on bail forthwith on the usual
terms and conditions to be decided by the
concerned Court.”
17(iii). In Petition(s) for Special Leave to Appeal
(Crl.) No(s). 9510/2024, titled as Ram Lal Versus
The State of Rajasthan, decided on 17.09.2024,
similar benefit of bail was extended where the
incarceration was prolonged, as in this case, in the
following terms:-
“The petitioner and the other accused
persons are accused for the offences
punishable under Sections 8/21 & 8/29 of
the Narcotic Drugs and Psychotropic
Substances Act and allegation is that 450
gm of smack has been recovered from
them. The bail application of the petitioner
was dismissed by the High Court. Hence,
he approached this Court. He has already
undergone about 1 year and 6 months in
jail.
Heard learned counsel for the petitioner.
As per office report Rated 13.09.2924,
the service is deemed complete on the
sole respondent-State but no one has
appeared for the state.
Considering the period of incarceration
of the petitioner and the fact that the
petitioner has no criminal antecedents,
we are of the opinion that a case of
bail is made out for the petitioner.
– 35 – 2025:HHC:2998
Accordingly, the petitioner is directed to
be released on bail forthwith on the usual
terms and conditions to be decided by the
concerned Court.”
17(iv). Recently, the Hon’ble Supreme Court in
Criminal Appeal No.______/2024 [@SLP (CRL.)
No.13428/2024), titled as Merina Bibi versus The
State of West Bengal, decided on 19.11.2024, has
enlarged the petitioner therein on bail who was
suffering incarceration for about one year and seven
months and there was no likelihood of the trial for
completion of trial in a considerable time in the
following terms:-
“The appellant herein has been booked for the
crime registered pursuant to FIR/Case
No.162/2023, dated 12.03.2023 lodged with
Police Station Domkal, Mushidabad, West Bengal,
with respect to offences punishable under
Sections 21(C)/29 of Narcotics Drugs and
Psychotropic Substances Act, 1985 (for short
“NDPS Act”).
….
Heard learned counsel for the appellant in
support of the appeal and learned counsel for the
State and perused the material on record. The
appellant has been in custody for approximately
one year and seven months.
….
Considering the facts on record, in our view, the
case for bail is made out.
We, therefore, allow this appeal and direct
as under:
– 36 – 2025:HHC:2998
“The appellant shall be produced before
the concerned Trial Court as early as
possible and the Trial Court shall release
her on bail, subject to such conditions as
it may deem appropriate to impose to
ensure her presence in the proceedings
arising out of FIR/Case No.162/2023
mentioned above.”
It is directed that the appellant shall extend
complete cooperation in the trial of the instant
case. The appellant shall not misuse her liberty in
any manner.”
17(v). The Hon’ble Supreme Court in Special Leave
to Appeal [Crl.) No(s).11582/2024, titled as Gurdev
Singh versus State of Himachal Pradesh, decided on
22.11.2024, has granted regular bail to the petitioner
therein, who was involved in commercial quantity of
contraband under ND&PS Act, in view of the period of
incarceration and the fact that the trial may taken
considerable time to conclude in the following terms:-
“2. After hearing learned counsel for the parties
and from the fact it reveals that out of 29
witnesses, 8 have already been examined and
8 have been given up by the prosecution. 13
witnesses are yet to be examined. Looking to
the period of incarceration and the fact that
the trial may take some time to conclude, in
the facts of this case, we are of the view that
the petitioner is entitled to regular bail.
Accordingly, we direct to release the
petitioner on bail on furnished the suitable
bail bonds and sureties and on such other
terms and conditions as may be deemed fit by
the trial court.
– 37 – 2025:HHC:2998
3. Petitioner to abide by all the conditions as
imposed and shall regularly attend the trial
until exempted by the Court. Violation, if any,
may give a cause to take recourse as
permissible and the trial court is at liberty to
do the needful.”
MANDATE OF THIS COURT GRANTING BAIL IN
COMMERCIAL QUANTITY DUE TO PROLONGED
INCARCENATION AND COMPLETION OF TRIAL
TO TAKE CONSIDERABLE TIME:
18. While dealing with the claim for bail in
a case, a Co-ordinate Bench of this Court, in Cr. MP
(M) No. 2618 of 2023, Jasbir Singh versus State
of Himachal Pradesh, decided on 4.11.2023, affirmed
the right to bail in view of prolonged detention of the
accused therein, in the following terms:-
“5(ii). ….. In 2021 (3) SCC, 713, Union of India
Versus K.A. Najeeb, Hon’ble Apex Court
considered various judicial precedents
where Article 21 of the Constitution of
India was invoked in case of gross delay
in disposal of cases of under- trials and
consequential necessity to release them
on bail. The earlier decisions were
reiterated that liberty granted by Part-III of
the Constitution, would cover within its
protective ambit not only due procedure
and fairness, but also access to justice and
speedy trial. It was held that once it is
obvious that a timely trial would not be
possible and the accused have suffered
incarceration for a significant period of
time, the Courts would ordinarily be
obligated to enlarge them on bail. Some
relevant paras from the judgments are
extracted hereinafter:-
– 38 – 2025:HHC:2998
“10. It is a fact that the High Court in
the instant case has not determined
the likelihood of the respondent being
guilty or not, or whether rigours of Section
43D(5) of UAPA are alien to him. The High
Court instead appears to have exercised
its power to grant bail owing to the long
period of incarceration and the
unlikelihood of the trial being completed
anytime in the near future. The reasons
assigned by the High Court are apparently
traceable back to Article 21 of our
Constitution, of course without addressing
the statutory embargo created by Section
43D (5) of UAPA.
11. The High Court’s view draws support
from a batch of decisions of this Court,
including in Shaheen Welfare Assn, laying
down that gross delay in disposal of
such cases would justify the invocation
of Article 21 of the Constitution and
consequential necessity to release the
undertrial on bail. It would be useful to
quote the following observations from the
cited case:
“10. Bearing in mind the nature
of the crime and the need to protect
the society and the nation, TADA
has prescribed in Section 20(8)
stringent provisions for granting
bail. Such stringent provisions can
be justified looking to the nature of
the crime, as was held in Kartar
Singh case, on the presumption that
the trial of the accused will take
place without undue delay. No one
can justify gross delay in disposal of
cases when undertrials perforce
remain in jail, giving rise to possible
situations that may justify
invocation of Article 21.” …
(emphasis supplied)
– 39 – 2025:HHC:2998
12. Even in the case of special legislations
like the Terrorist and Disruptive Activities
(Prevention) Act, 1987 or the Narcotic
Drugs and Psychotropic Substances Act,
1985 (” the NDPS Act”) which too have
somewhat rigorous conditions for grant of
bail, this Court in Paramjit Singh v.
State (NCT of Delhi), Babba v. State of
Maharashtra and Umarmia alias
Mamumia v. State of Gujarat enlarged
the accused on bail when they had been
in jail for an extended period of time
with little possibility of early completion
of trial. The constitutionality of harsh
conditions for bail in such special
enactments, has thus been primarily
justified on the touchstone of speedy trials
to ensure the protection of innocent
civilians.
13. We may also refer to the orders
enlarging similarly situated accused under
the UAPA passed by this Court in Angela
Harish Sontakke v. State of Maharashtra.
That was also a case under Sections 10,
13, 17, 18, 18A, 18B, 20, 21, 38, 39 and
40(2) of the UAPA. This Court in its earnest
effort to draw balance between the
seriousness of the charges with the period
of custody suffered and the likely period
within which the trial could be expected to
be completed took note of the five years’
incarceration and over 200 witnesses left
to be examined, and thus granted bail to
the accused notwithstanding Section
43D(5) of UAPA. Similarly, in Sagar
Tatyaram Gorkhe v. State of Maharashtra,
an accused under the UAPA was enlarged
for he had been in jail for four years and
there were over 147 witnesses still
unexamined.
15. This Court has clarified in numerous
judgments that the liberty guaranteed
by Part III of the Constitution would
cover within its protective ambit not only
due procedure and fairness but also access
– 40 – 2025:HHC:2998
to justice and a speedy trial. In Supreme
Court Legal Aid Committee (Representing
Under-trial Prisoners) v. Union of India, it
was held that undertrials cannot
indefinitely be detained pending trial.
Ideally, no person ought to suffer
adverse consequences of his acts unless
the same is established before a neutral
arbiter. However, owing to the
practicalities of real life where to
secure an effective trial and to ameliorate
the risk to society in case a potential
criminal is left at large pending trial,
Courts are tasked with deciding whether
an individual ought to be released pending
trial or not. Once it is obvious that a
timely trial would not be possible and
the accused has suffered incarceration
for a significant period of time, Courts
would ordinarily be obligated to enlarge
them on bail.
17. It is thus clear to us that the presence
of statutory restrictions like Section 43D
(5) of UAPA per se does not oust the
ability of Constitutional Courts to grant
bail on grounds of violation of Part III
of the Constitution. Indeed, both the
restrictions under a Statue as well as
the powers exercisable under
Constitutional Jurisdiction can be well
harmonised. Whereas at commencement of
proceedings, Courts are expected to
appreciate the legislative policy against
grant of bail but the rigours of such
provisions will melt down where
there is no likelihood of trial being
completed within a reasonable time and
the period of incarceration already
undergone has exceeded a substantial part
of the prescribed sentence. Such an
approach would safeguard against the
possibility of provisions like Section 43-D
(5) of UAPA being used as the sole metric
for denial of bail or for wholesale breach of
constitutional right to speedy trial.”
- 41 - 2025:HHC:2998
5(iv). ......A previous bail petition bearing Cr.MP
(M) No.1458/2022 instituted by the
petitioner was dismissed on merit on
02.09.2022. While deciding the aforesaid
bail petition, considering the fact that FIR
in question pertained to the year 2020, it
was hoped and expected that the learned
Trial Court would make endeavour to
expedite the trial. We are now at the fag end
of 2023. In terms of the status report
filed by the respondent, the prosecution
has examined 16 witnesses thus far.
Statements of 23 prosecution witnesses
still remain to be recorded. The zimni
orders placed on record reflect that the
trial has been deferred time and again
for want of presence of prosecution
witnesses. Considering the fact that at
this stage 23 witnesses remain to be
recorded, it is apparent that the trial is
not going to be concluded in near
future. The petitioner, who has already
spent about three years and five months
in custody, in my considered opinion
has made out a case for his enlargement
on regular bail at this stage. There is
no criminal history of the petitioner.
The apprehension expressed by the
prosecution about the likelihood of
petitioner’s tampering with the evidence or
winning over remaining witnesses, can be
taken care of by imposing stringent
conditions and also granting liberty to the
respondent/State to seek cancellation of
the bail in case the conditions are violated
by the petitioner. In view of all the
aforesaid reasons and without expressing
any opinion on the merits of the case, the
present petition is allowed. Petitioner is
ordered to be released on bail in the
aforesaid FIR…”
18(i). The Co-ordinate Bench of this Court in
Cr.MP(M) No.536 of 2024, titled as Kailash Singh
– 42 – 2025:HHC:2998
versus State of Himachal Pradesh, decided on
22.04.2024, has granted bail in view of the prolonged
incarceration and the fact that the trial is not likely
to conclude in the near future and no delay in trial
was attributable to the petitioner therein, in the
following terms by observing that the constitutional
guarantee of liberty and expeditious trial cannot be
diluted by the rigours of Section 37 of ND&Ps Act, in
the following terms:-
4. Petitioner has now prayed for grant of bail on
the ground that his constitutional right of
expeditious disposal of trial has been
infringed. As per petitioner, he is in custody
for more than one year and seven months and
the trial has not concluded, rather, it is
progressing at snail’s pace.
5. It has been revealed from records that out of
sixteen cited witnesses only five witnesses
have been examined till date.
6. Learned Additional Advocate General has
opposed the prayer of the petitioner, on the
ground that Section 37 of ND&PS Act, has
application in the facts of the case and merely,
on the ground of delay in conclusion of trial,
petitioner cannot be released on bail.
7. I have heard learned counsel for the petitioner
as well as learned Additional Advocate General
and have also gone through the status report.
8. The fetters placed by Section 37 of ND&PS Act,
evidently have been instrumental in denial of
right of bail to the petitioner in the instant
– 43 – 2025:HHC:2998
case till date. The question that arises for
consideration is, can the provision of Section
37 of the Act, be construed to have same
efficacy throughout the pendency of trial,
notwithstanding, the period of custody of the
accused, especially, when it is weighed against
his fundamental right to have expeditious
disposal of trial.
9. As is suggested by the contents of status
report, recording of prosecution evidence is
still in progress despite the fact that petitioner
is in custody since 06.09.2022. In the
considered view of this Court, the
Constitutional guarantee of expeditious trial
cannot be diluted by applying the rigors of
Section 37 of ND&Ps Act in perpetuity. In Rabi
Prakash Vs. The State of Odisha, (2023)
LiveLaw (SC) 533, Special Leave to Appeal
(Crl.) No.(s) 4169 of 2023, decided on
13.07.2023, Hon’ble Supreme Court has
observed as under:-
“4. As regard to the twin conditions
contained in Section 37 of the NDPS
Act, learned counsel for the respondent-
State has been duly heard. Thus, the
1st condition stands complied with. So
far as the 2nd condition re: formation of
opinion as to whether there are
reasonable grounds to believe that the
petitioner is not guilty, the same may
not be formed at this stage when he has
already spent more than three and a
half years in custody. The prolonged
incarceration, generally militates
against the most precious fundamental
right guaranteed under Article 21 of the
Constitution and in such a situation,
the conditional liberty must override the
statutory embargo created under
Section 37(1)(b)(ii) of the NDPS Act.”
10. Recently, in a number of cases, under-trials
for offences involving commercial quantity of
contraband under ND&PS Act have been
– 44 – 2025:HHC:2998
allowed the liberty of bail by Hon’ble
Supreme Court only on the ground that they
have been incarcerated for prolonged
durations.
11. In Mahmood Kurdeya Vs. Narcotic Control
Bureau (2022) 3 RCR (Criminal) 906,
Hon’ble Supreme Court has held as under:-
“6. What persuades us to pass an order in
favour of the appellant is the fact that
despite the rigors of Section 37 of the
said Act, in the present case though
charge sheet was filed on 23.09.2018
even the charges have not been framed
nor trial has commenced.”
12. In Nitish Adhikary @ Bapan Vs.The State
of West Bengal (Special Leave to Appeal
(Cr.L.) No (s). 5769 of 2022, decided on
01.08.2022, Hon’ble Supreme Court has
held as under:-
“During the course of the hearing, we are
informed that the petitioner has
undergone custody for a period of 01
year and 07 months as on 09.06.2022.
The trial is at a preliminary stage, as
only one witness has been examined.
The petitioner does not have any
criminal antecedents. Taking into
consideration the period of sentence
undergone by the petitioner and all the
attending circumstances but without
expressing any views in the merits of
the case, we are inclined to grant bail to
the petitioner.”
13. In Gopal Krishna Patra @ Gopalrusma Vs.
Union of India (Cr. Appeal No. 1169 of
2022), decided on 05.08.2022, Hon’ble
Supreme Court has held as under:-
“The appellant is in custody since
18.06.2020 in connection with crime
registered as NCB Crime No. 02/2020
– 45 – 2025:HHC:2998
in respect of offences punishable under
Sections 8,20,27-AA, 28 read with 29 of
the Narcotic Drugs and Psychotropic
Substances Act, 1098.
The application seeking relief of bail
having been rejected, the instant appeal
has been fled.
We have heard Mr. Ashok Kumar
Panda, learned Senior Advocate in
support of the appeal and Mr. Sanjay
Jain, learned Additional Solicitor
General for the respondent.
Considering the fact and circumstances
on record and the length of custody
undergone by the appellant, in our view
the case for bail is made out.”
14. In Chitta Biswas @ Subhas Vs. The State
of West Bengal, (Criminal Appeal No.(s)
245 of 2020, decided on 07.02.2020, it has
been held as under:-
“The appellant was arrested on
21.07.2018 and continues to be
custody. It appears that out of 10
witnesses cited to be examined in
support of the case of prosecution four
witnesses have already been examined
in the trial. Without expressing any
opinion on the merits or demerits of the
rival submission and considering the
facts and circumstances on record, in
our view, case for bail is made out.”
15. In Abdul Majeed Lone Vs. Union Territory
of Jammu and Kashmir( Special Leave to
Appeal (Cr.L.) No. 3961 of 2022, decided
on 01.08.2022, it has been held as under:-
“Having regard to the fact that the
petitioner is reported to be in jail since
1-3-2020 and has suffered
incarceration for over 2 years and 5
– 46 – 2025:HHC:2998
months and there being no likelihood of
completion of trial in the near future,
which fact cannot be controverted by
the learned counsel appearing for the
UT, we are inclined to enlarge the
petitioner on bail.”.
16. In addition, different Co-ordinate Benches of
this Court have also followed precedent to
grant bail to the accused in ND&PS Act, on
the ground of prolonged pre-trial
incarceration. Reference can be made to
order dated 28.07.2022, passed in Cr.MP(M)
No. 1255 of 2022, order dated 01.12.2022,
passed in Cr.MP(M) No. 2271 of 2022 and
order dated 04.11.2022, passed in Cr.MP(M)
No. 2273 of 2022.
17. Recently in Criminal Appeal No. 943 of
2023 titled as Mohd Muslim @ Hussain Vs.
State (NCT of Delhi), Hon’ble Supreme
Court, vide its judgment dated 28.03.2023,
has held as under:-
“21. Before parting, it would be
important to reflect that laws which
impose stringent conditions for
grant of bail, may be necessary in
public interest; yet, if trials are not
concluded in time, the injustice
wrecked on the individual is
immeasurable. Jails are
overcrowded and their living
conditions, more often than not,
appalling. According to the Union
Home Ministry’s response to
Parliament, the National Crime
Records Bureau had recorded that
as on 31 st December 2021, over
5,54,034 prisoners were lodged in
jails against total capacity of
4,25,069 lakhs in the country20. Of
these 122,852 were convicts; the
rest 4,27,165 were undertrials.
– 47 – 2025:HHC:2998
22. The danger of unjust imprisonment,
is that inmates are at risk of
“prisonisation” a term described by
the Kerala High Court in A Convict
Prisoner v. State21 as”a radical
transformation” whereby the
prisoner: “loses his identity. He is
known by a number. He loses
personal possessions. He has no
personal relationships. Psychological
problems result from loss of
freedom, status, possessions, dignity
any autonomy of personal life. The
inmate culture of prison turns out to
be dreadful. The prisoner becomes
hostile by ordinary standards. Self-
perception changes.”
23. There is a further danger of the
prisoner turning to crime, “as crime
not only turns admirable, but the
more professional the crime, more
honour is paid to the criminal”22
(also see Donald Clemmer’s ‘The
Prison Community’ 20 National
Crime Records Bureau, Prison
Statistics in India https://ncrb.
gov.in/sites/default/files/ PSI
2021/Executive_ncrb_Summary-
2021.pdf 21 1993 Cri LJ 3242 22
Working Papers – Group on Prisons
& Borstals – 1966 U.K. published in
194023). Incarceration has further
deleterious effects – where the
accused belongs to the weakest
economic strata: immediate loss of
livelihood, and in several cases,
scattering of families as well as loss
of family bonds and alienation from
society. The courts therefore, have to
be sensitive to these aspects
(because in the event of an acquittal,
the loss to the accused is
irreparable), and ensure that trials –
especially in cases, where special
– 48 – 2025:HHC:2998
laws enact stringent provisions, are
taken up and concluded speedily.”
18. Reverting to the facts of the case, the
petitioner is in custody since 06.09.2022 and
the facts suggest that the trial is not likely to
be concluded in near future. There is nothing
on record to suggest that delay in trial is
attributable to the petitioner. The
independent witnesses cited by the
prosecution have already been examined. No
criminal history has been attributed to the
petitioner. He is permanent resident of
District Kullu, Himachal Pradesh.
19. Keeping in view the facts of the case and also
the above noted precedents, the bail petition
is allowed and petitioner is ordered to be
released on bail in case FIR No. 193 of 2022,
dated 06.09.2022, registered under Sections
20 and 29 of ND&PS Act, at Police Station
Bhuntar, District Kullu, H.P., on his
furnishing personal bond in the sum of
Rs. 1,00,000/- with one surety in the like
amount to the satisfaction of learned trial
court.”
18(ii). While dealing with the claim for bail in
commercial quantity of poppy straw [churapost-bhukki]
of 54.760 Kgs. and taking into account the prolonged
incarceration for about one year and eight months,
the Co-ordinate Bench of this Court, has extended
concession of bail to an accused, in Cr.MP (M) No.
1003 of 2024, titled as Vijay Singh Versus State
of Himachal Pradesh, decided on 24.05.2024, in the
following terms:-
– 49 – 2025:HHC:2998
“10. Though, the case at hand is to be decided
by learned trial Court, in the totality of
evidence collected on record by the
investigating agency, but having noticed
aforesaid glaring aspects of the matter,
there appears to be no justification for this
Court to let the bail petitioner incarcerate
in jail, for an indefinite period during trial,
especially when rigours of S.37 of the Act
are not attracted on account of recovery of
small quantity.
11. Learned counsel for the petitioner while
inviting attention of this court to
judgments dated 4.3.2023 and 15.3.2023
passed in Cr.MP(M) No. 62 and 570 of
2023, titled Puran Chand v. State of HP
and Prem Chand v. State of HP.,
submitted that in similar facts and
circumstances, coordinate Bench of this
Court as well as this Court enlarged the
accused on bail on the ground of inordinate
delay. Having perused aforesaid judgments
passed by the coordinate Bench of this
Court, this Court finds that in both the
cases, commercial quantity of contraband
was recovered from the accused, but yet
court having taken note of the fact that
they were behind the bars for
more than three years, proceeded to
enlarge them on bail.
12. Hon’ble Apex Court having taken note of
inordinate delay in conclusion of trial in
similar facts ordered for enlargement of
accused on bail in Nitish Adhikary @
Bapan v. The State of West Bengal,
Special Leave to Appeal (Crl.) No. 5769
of 2022 decided on 1.8.2022 and in Abdul
Majeed Lone v. Union Territory of
Jammu and Kashmir, Special Leave to
Appeal (Crl) No. 3961 of 2022, decided on
1.8.2022, who were also framed under
Narcotic Drugs and Psychotropic
Substances Act and were behind the bars
for approximately two years and there
– 50 – 2025:HHC:2998
was no likelihood of conclusion of trial in
near future, subject to certain conditions.
13. Learned Counsel appearing for the
petitioner, to substantiate his plea for
enlarging the petitioner on bail, has
referred order dated 12.10.2020 passed by
a three judges Bench of the Supreme
Court, in Criminal Appeal No. 668 of 2020,
titled Amrit Singh Moni v. State of
Himachal Pradesh, whereby petitioner
therein, facing trial for recovery of 3.285
kilograms charas from a vehicle, alongwith
four other persons, was enlarged on bail,
for having been in detention for 2 years
and 7 months, as till then out of 14
witnesses, 7 witnesses were yet to be
examined and last witness was examined
in February, 2020 and, thereafter, there
was no further progress in the trial.
14. Recently, Hon’ble Apex Court in SLP(Crl)
No. 1904 of 2023 titled Sunil Kumar v.
The State of Himachal Pradesh, decided
on 29.3.2023, has ordered enlargement of
petitioner therein, who was behind bars for
one and half years, on the ground of delay
in trial and conduct of the petitioner.
15. Learned Additional Advocate General,
referring to judgment of a three Judges
Bench of Supreme Court, passed on
19.7.2022 in Narcotics Control Bureau v.
Mohit Aggarwal contends that period of
detention cannot be a ground for enlarging
the petitioner on bail, especially in the
cases where rigors of Section 37 are
attracted.
16. In the instant case, bail petitioner is
behind bars for more than 13 months
and till date trial has not been completed
and there are very bleak chances of
conclusion of the same in near future, as
such, there appears to be no justification
to keep the bail petitioner behind the bars
for an indefinite period, during trial.”
– 51 – 2025:HHC:2998
18(iii). Recently, the Coordinate Bench of this
Court in Cr.MP(M) No. 2656 of 2024, titled as Kamal
Singh Versus State of Himachal Pradesh, decided
on 11.12.2024, has enlarged the accused on bail in
case relating to commercial quantity of charas, i.e.
1.209 Kgs. who was facing incarceration for about
12 months, in the following terms:-
“2. ……..Allegedly, police recovered one
rucksack (pithu bag) from the vehicle
containing huge quantity of
contraband. On weighing, police found
that 1.209 Kgs. of charas / sulfa was
being transported by the occupants in
the vehicle, as detailed hereinabove.
Since, no plausible explanation ever
came to be rendered on record qua
possession of aforesaid commercial
quantity of contraband……..”
21. In view of the aforesaid discussion as
well as law laid down by the Hon’ble
Apex Court, petitioner has carved out a
case for grant of bail, accordingly, the
petition is allowed and the petitioner
is ordered to be enlarged on bail in
aforesaid FIR…..”
CONTENTION THAT INVENTORY UNDER
SECTION 52-A OF ND&PS ACT, CONTAINS
IRREGULARITIES:
19. Learned counsel for the petitioner has
contended that after the seizure the seized contraband
was presented before the Magistrate for preparing an
– 52 – 2025:HHC:2998
Inventory by the police, in which the date of seizure
was reflected as 19.02.2022 [based on additional
documents filed with the application by petitioner],
whereas FIR was registered on 26.04.2023. The above
contention of learned counsel for the petitioner, is
without merit for the reason that firstly, the
Investigating Officer/In-Charge Police Station Bhuntar,
had submitted an application for preparing an
Inventory on 27.04.2023, mentioning the date of
seizure as 19.12.2022 has filed a Status Report saying
that the incorrect description of the date of seizure on
19.12.2023 was due to typographical error and
secondly, even the Magistrate, i.e. Chief Judicial
Magistrate, Lahaul & Spiti, who had prepared the
Inventory on 27.04.2003 had certified that Station
House Officer, Bhuntar has produced Cannabis/
Charas, which at the time of seizure was 4.04 Kgs. but
at the time of preparing the Inventory it came out to be
4.03 Kgs. as per the Inventory dated 27.04.2023.
Moreover, mere description of an incorrect
date of seizure in the application for Inventory will not
– 53 – 2025:HHC:2998
confer a right for bail when, such irregularity being
due to typographical error in the application for
Inventory, does not goes to the root of the matter and
further the fact as to whether the contraband as
reflected in the application for Inventory and the
contraband in this case was same or not is a matter to
be tested and examined during the trial.
NOTHING ADVERSARIAL REGARDING
TAMPERING WITH EVIDENCE OR WITNESSES
ETC:
20. Status Reports filed by the State Authorities
have neither pointed out cogent and convincing
material revealing adversarial circumstances that after
release on bail, the petitioner is likely to tamper with
evidence or may cause inducement, threat or promise
to any person or persons acquainted with the facts of
the case. However, the apprehension, if any, of State
Authorities are being safeguarded, by imposing
stringent conditions in this bail order.
NOTHING ADVERSARIAL REGARDING
OBSTRUCTING OR ATTEMPTING TO
THWARTLING JUSTICE:
– 54 – 2025:HHC:2998
21. Status Reports filed by State Authorities
have neither pointed out any adversarial
circumstances nor placed on record any cogent and
convincing material on record to infer that after release
on bail, the petitioner may obstruct or thwart the
cause of justice in any manner. In absence of any
material, the plea for bail deserves to be granted to the
petitioner in the instant case.
NOTHING ADVERSARIAL LIKELIHOOD OF
FLEEING AWAY FROM TRIAL OR JURISDICTION
OF COURT:
22. In order to safeguard the rights of the
bail petitioner and to take care of the apprehensions
of the State, if any, that the bail petitioner may flee
away [notwithstanding that no such apprehension
has been pointed out in Status Report] yet, in the
peculiar facts of this case, this Court imposes stringent
conditions in later part of this order.
CONCLUSION AND DIRECTIONS:
23. Taking into account the entirety of the
facts, the material on record and the mandate of
law and in view of the discussion made and the
– 55 – 2025:HHC:2998
reasons recorded hereinabove and in the peculiar
facts of case, the instant petition is allowed, and
the State Authorities are directed to release the
petitioner [Purba Sherpa] on bail, subject to observance
of the following conditions:-
(i). Respondent-State Authorities shall release
bail petitioner [Purba Sherpa] on furnishing
a personal bond of Rs.1,00,000/- {Rs. One
Lakh} with two sureties on furnishing
similar bond amount each, to the
satisfaction of Learned Trial Court
concerned;
(ii). Petitioner shall undertake and shall also
appear on every date of trial hereinafter;
(iii). Petitioner shall abide by all or any other
condition(s), which may be imposed by the
Learned Trial Court, in view of this
order;
(iv). Petitioner shall neither involve himself nor
shall abet the commission of any offence
hereinafter. Involvement in any offence
whatsoever or abetting thereof shall entail
automatic cancellation of bail granted in
terms of this order;
(v). Petitioner shall disclose his functional
E-Mail IDs/ WhatsApp number and that of
his surety to the Learned Trial Court;
(vi). Petitioner after release, shall report to the
Investigating Officer or SHO of Police
Station concerned, nearest to his native
place, i.e. R/o House No.328, Near Mela
Ground Bhuntar, Tehsil Bhuntar, District
Kullu [HP] on 2nd Sunday of every month at
11.00 a.m., only for having an update on
good conduct and behaviour ;
– 56 – 2025:HHC:2998
(vii). Petitioner shall not jump over the bail and
also shall not leave the country without
the prior information of the Court;
(viii). Petitioner shall not tamper with the
evidence in any manner;
(ix). Petitioner shall not cause any inducement,
threat or promise {directly or indirectly}
to witnesses of any other person
acquainted with the case;
(x). Petitioner is free to seek modification of
any condition contained hereinabove, if
need arises;
(xi) State Authorities are free to move this
Court for seeking alteration /modification
of any of the condition contained in this
order or any condition imposed by Learned
Trial Court as a sequel to this order, in fact
situation of instant case or circumstances
so necessitate, at any time herein-after;
(xii). State Authorities are free to move this
Court for seeking cancellation of the
concession of bail, in case, the petitioner
violates any of the conditions contained in
this order.
24. Observations made in this judgment shall
not be construed in any manner as an indictive of
findings, for or against the parties herein, either for
the purpose of investigation or for trial, which shall
proceed in-accordance with law, irrespective of any of
the observations contained hereinabove.
25. Petitioner is permitted to produce/use copy
of this order, downloaded from the web-page of the
– 57 – 2025:HHC:2998
High Court of Himachal Pradesh, before the authorities
concerned, and the said authorities shall not insist for
production of a certified copy, but if required, may
verify about the passing of this order from the Website
of this Court.
26. The Registry is directed to forward a copy
of this order to Superintendent of Police, Kullu, District
Kullu [HP] and Superintendent Sub-Jail Kullu, District
Kullu [HP] for information and necessary action in
terms of this order.
Pending miscellaneous application(s), if any,
shall also stand disposed of.
(Ranjan Sharma)
January 10, 2025 Judge
(Shivender)
Digitally signed by TARUN MAHAJAN
DN: C=IN, O=HIGH COURT OF HIMACHAL PRADESH,
TARUN
OU=HIGH COURT OF HIMACHAL PRADESH SHIMLA,
Phone=
887aba774dfe8f4f3e95a41c7aa2abacb4ecee8f82efd8f56e
c39f8e6b442b68, PostalCode=171001, S=Himachal
Pradesh, SERIALNUMBER=
3ff6ebe501e8d7c8d73d0e5a5294bacca3f198d7d66b105b
MAHAJAN bf507179673109f5, CN=TARUN MAHAJAN
Reason: I am the author of this document
Location: 12345678
Date: 2025.01.14 19:58:29+05’30’
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