Himachal Pradesh High Court
Vikram vs State Of Himachal Pradesh on 10 January, 2025
2025:HHC:2977
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
Cr.MP(M) No.2364 of 2024 a/w
Cr.MP(M) Nos.2427, 2553 and 2992 of 2024
Reserved on: 08.01.2025
Announced on: 10.01.2025
____________________________________________________________
1. Cr.MP(M) No.2364 of 2024
Vikram ……Petitioner
Versus
State of Himachal Pradesh ……Respondent
For the petitioner: Mr. Ravi Tanta, Advocate.
For the respondent: Mr. Vishav Deep Sharma, Additional
Advocate General.
2. Cr.MP(M) No.2427 of 2024
Rakshit Chauhan ……Petitioner
Versus
State of Himachal Pradesh ……Respondent
For the petitioner: Mr. Vikas Chauhan, Advocate.
For the respondent: Mr. Vishav Deep Sharma, Additional
Advocate General.
3. Cr.MP(M) No.2553 of 2024
Sahil Kumar ......Petitioner
Versus
State of Himachal Pradesh ......Respondent
For the petitioner: Mr. Jagjeet Singh Bagga, Advocate.
For the respondent: Mr. Vishav Deep Sharma, Additional
Advocate General.
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____________________________________________________________
4. Cr.MP(M) No.2992 of 2024
Rahul Sharma ……Petitioner
Versus
State of Himachal Pradesh ……Respondent
For the petitioner: Mr. Basant Pal Thakur, Advocate.
For the respondent: Mr. Vishav Deep Sharma, Additional
Advocate General.
____________________________________________________________
Coram
Hon’ble Mr. Justice Ranjan Sharma, Judge
1 Whether approved for reporting? Yes
Ranjan Sharma, Judge
Since bail petitioners-[Vikram, Rakshit
Chauhan, Sahil Kumar and Rahul Sharma], have been
implicated in the same FIR No.21 of 2024, dated
14.2.2024, under Sections 21 and 29 of the Narcotic
Drugs and Psychotropic Substances Act [hereinafter
referred to as NDPS Act], therefore, with the consent of
learned counsel for the petitioners and Learned State
Counsel, all four bail applications are taken up for
adjudication by common order.
1
Whether reporters of Local Papers may be allowed to see the judgment?
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2. Bail petitioners [Vikram],being in custody
26.07.2024, [in Cr.MP(M) No.2364 of 2024], Rakshit
Chauhan,being in custody since 26.7.2024, [in Cr.MP(M)
No. 2427 of 2024], Sahil Thakur, being in custody since
5.4.2024 [in Cr.MP(M) No. 2553 of 2024] and Rahul
Sharma, being in custody since 7.8.2024 [in Cr.MP(M)
No.2992 of 2024] have come up before this Court,
seeking regular bail, under Section 483 of Bharatiya
Nagarik Suraksha Sanhita [hereinafter referred to as
BNSS] origination from FIR No.21 of 2024, dated
14.2.2024, under Sections 21 and 29 of the Narcotic
Drugs and Psychotropic Substances Act [in short the
NDPS Act] registered at Police Station Theog, District
Shimla, Himachal Pradesh.
FACTUAL MATRIX IN CR.MPM NO.2364 OF 2024
[VIKRAM VERSUS STATE OF HIMACHAL PRADESH:
3. Case as set by Mr. Ravi Tanta, Learned Counsel
for bail petitioner [Vikram], who is in custody since
26.07.2024 is that he has been falsely implicated and
there is no evidence on record to connect the bail
-4-
2025:HHC:2977)petitioner with the accusation. It is submitted that bail
petitioner is a young man of 34 years and belongs
to a respectable family and is sole bread earner of the
family. It is further averred in bail application that the
investigation has been completed by police and Challan-
Final Police Report has been presented before
jurisdictional Court i.e. Learned Special Judge-II, Shimla.
It is averred that nothing is to be recovered from bail
petitioner by the Investigating Agency. It is averred that
rigours of Section 37 of the NDPS Act are not attracted
in instant case. It is averred that bail petitioner has no
criminal antecedents. It is stated that bail petitioner has
filed a Bail Application No.435 of 2024, before the
Learned Special Judge Rohru, which was rejected on
30.09.2024, Annexure P-1. It is averred that bail
petitioner is a shopkeeper, who earns his livelihood by
selling groceries for daily needs and the family of
bail petitioner has adversely suffered due to detention
which is prolonging, as on day. It is averred that bail
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petitioner has been arrested merely on the basis of call
details and monetary-bank transactions between him
and main accused [Prakshit Dhani]. Bail petitioner has
undertaken that he shall not cause any inducement,
threat or promise to any person acquainted with the facts
of the case, with further undertaking that he shall abide
by all the terms and conditions as may be imposed by
this Court.
In this background, bail petitioner has filed
the instant application for bail.
FACTUAL MATRIX IN CR.MPM NO.2427 OF 2024
[RAKSHIT CHAUHAN VERSUS STATE OF
HIMACHAL PRADESH]
4. Case as set by Mr. Vikas Chauhan, Learned
Counsel for bail petitioner [Rakshit Chauhan] who is
in custody since 26.07.2024 states that while the police
party was patrolling and checking drug menace on
14.2.2024 and reached Ekant Vatika near bye pass
road Theog, at about 2:30 PM, one vehicle bearing
Registration No.HP-63C-5463, was parked on the road
and two persons were standing adjacent to the car. In
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the meanwhile, one boy came on foot from Premghat
side towards bye pass road and after noticing the policy
party, aforesaid boy, who came out to be alleged main
accused [Prikshit Dhani] panicked and threw the packet
away. Consequently, on inquiry, aforesaid boy disclosed
his name as Prikshit Dhani. Thereafter, the packet was
picked by police, knot was untied and two polythene
pouches were recovered from Prikshit Dhani, which
contained 16 bundles (pudias), 12 other bundles (pudias)
wrapped in foil paper, which on weighing came out to
be 12.06 Grams. Thereafter sampling was done,
photographs were taken on the spot, Seizure Memo
was prepared Rukka was prepared and pursuant to
Rukka, FIR No. 21 of 2024 dated 14.2.2024 was
registered against main accused [Prikshit Dhani].
4(i) In the above background, the case of bail
petitioner [Rakshit Chauhan] is that the main accused
[Prikshit Dhani] disclosed that he was residing in
Chandigarh alongwith his friend Ashutosh Sanolta,
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2025:HHC:2977)
who was dealing in Heroin. Based on disclosures made
by Prikshit Dhani, Police Authorities, started the
investigation. The CDRs and Bank Account details of
main accused Prikshit Dhani were collected by the
police. Based on the CDRs and Bank Statements of main
accused Prikshit Dhani, police authorities, implicated the
bail petitioner [Rakshit Chauhan] in aforesaid FIR.
4(ii) In above background, case of bail petitioner
is that investigation is complete, charge-sheet,
undertaking, Supplementary Charge sheet, invoking
Section 29 of Act has also been presented before
Competent Court. Pursuant to charge-sheet, the charge
has also been framed and matter is fixed for prosecution
evidence on 14.10.2024. It is averred in the bail petition
that bail petitioner [Rakshit Chauhan] has been falsely
implicated for the reason that notice under Section
179 BNSS, Annexure P-2 which is a notice sought to
be issued for witnesses was issued by police authorities
but in response to the said notice, bail petitioner
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was arrested as aforesaid. It is further averred that
rigours of Section 37 of the NDPS Act are not applicable in
the instant case. It is further averred that no recovery
has been affected from bail-petitioner [Rakshit Chauhan]
by the police. It is specifically averred that the bank
transactions and CDRs cannot be made basis for
inferring the accusation when there is no connection
that the aforesaid CDRs and bank transactions relate to
the act or omission as mandated in Section 21 of NDPS
Act. It is further averred that there are no past criminal
antecedents against him. Bail petitioner has furnished
undertaking before this Court, that he shall join the trial
and shall not abscond or jump over the bail, in case the
same is granted. The bail petitioner has furnished
undertaking that he shall not cause any threat,
inducement, promise to any person or persons
acquainted with the facts of the case. It is averred that
bail petitioner [Rakshit Chauhan] has filed a Bail
Application No.436 of 2024, before the Learned Special
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2025:HHC:2977)
Judge, Rohru, Camp at Theog, District Shimla, [H.P]. but
the same was dismissed on 19.10.2024, Annexure P-3.
In these circumstances, a prayer for grant
of bail has been made before this Court.
FACTUAL MATRIX IN CR.MPM NO.2553 OF 2024
[SAHIL KUMAR VERSUS STATE OF HIMACHAL
PRADESH]
5. Case as set by Mr. Jagjeet Singh Bagga,
Learned Counsel for the bail petitioner Sahil Kumar,
who is in custody since 05.04.2024 states that bail
petitioner is innocent and he has not committed any act
and he has falsely been implicated in the instant case. It
is further averred that investigation is complete and the
challan-police report stands presented before the
Jurisdictional Court. It is averred that no recovery of
alleged contraband has been made by the police from
bail petitioner. It is averred that bail petitioner is the only
bread earner of the family and has two children of
two years besides parents and there is none else to
lookafter them who are facing hardship. Petitioner has
furnished the undertakings that he shall join trial
– 10 –
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without fail and shall not jump over the bail, in case the
same is accorded and shall not cause any inducement,
threat or promise to any person acquainted with the facts
of the case. It is stated that bail petitioner has filed an
application for bail before the Learned Special Judge,
(CBI Court) Shimla, but the same was dismissed on
29.06.2024, Annexure P-1. It is further averred that no
recovery of contraband has been made by the police from
the bail petitioner. It is further averred that prolong
incarceration punitive and illegal.
In this background, the prayer for release of
bail petitioner has been made.
FACTUAL MATRIX IN CR.MPM NO.2992 OF 2024
[RAHUL SHARMA VERSUS STATE OF HIMACHAL
PRDESH:
6. Case as set by Mr. Basant Pal Thakur,
Learned counsel for bail petitioner [Rahul Sharma]
who is in custody since 7.8.2024, is that bail petitioner
reiterates the prosecution story dated 14.2.2024.
In addition, it is averred that wife of bail petitioner [Rahul
Sharma] give birth to daughter on 20.10.2023 and since
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then the child faced serious health issues, [kidney
problems] and was admitted in IGMC Shimla and then
referred to PGIMER, Chandigarh, succumbed on
01.11.2023. It is averred that in view of unexpected
ailment of bail petitioner’s child, he has borrowed an
amount of Rs.90,000/- in cash from the main accused
[Prikshit Dhani] and based on the aforesaid monetary
transaction and the call details, in the context of asking
for money and repayment of money, petitioner has falsely
been implicated in the instant case. It is further averred
that bail petitioner has no previous criminal history and
he has been falsely named in FIR. It is averred that bail
petitioner is 31 years of age and has to take care of
his old parents and a wife, who has suffered a trauma
post the demise of new born baby and also due to false
implication of bail petitioner. It is averred that
no recovery has been effected by the police, from the
bail petitioner. It is further averred that the bail petitioner
has filed an application for bail before Learned Additional
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Sessions Judge-II, Special Judge-II Shimla, but the
same was rejected on 22.4.2024, Annexure P-1, thereafter
the bail petitioner filed another application for bail before
this Court i.e. Cr.MP(M) No.951 of 2024, which was
dismissed by this Court on 31.07.2024, Annexure P-2.
After dismissal of bail by this Court, bail-petitioner again
filed bail application before Learned Special Judge
Rohru, Campt at Theog, District Shimla, H.P. which was
also dismissed on 30.09.2024, Annexure P-3.
In this background, it is averred that
bail petitioner has been unnecessarily implicated and
he has undertaken to join the trial and to abide by all
the conditions as may be imposed by this Court. It is
averred that bail petitioner shall not cause any
inducement, threat or promise to any person or persons
acquainted with the facts of the case.
In this background, the prayer for bail has been
made.
STAND OF STATE AUTHORITIES IN STATUS
REPORT(S) in CRMPM No.2364 of 2024-VIKRAM
VERSUS STATE OF HIMACHAL PRADESH
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7. Pursuant to issuance of notice on 25.10.2024,
State Authorities have filed Status Report dated
14.11.2024 and then Status Report dated 08.01.2025.
Both the Status Reports contain pari materia averments.
Perusal of the Status Report indicates that
on 14.2.2024, while police party was on patrolling then,
at about 2:30 PM, a vehicle bearing No.HP-63C-5463
reached near Ekant Vatika, on the bye-pass, from
where two persons de-boarded the said vehicle. It is
averred that while police was inquiring about their
whereabouts at that time, one person, namely [Prikshit
Dhani] who turned out to be main accused, after noticing
the police party felt perplexed and on seeing police party,
the accused [Prikshit Dhani] threw the polythene from his
pocket which was taken into custody by police, opened
and the same was found to be containing 28 bundles
(pudia), wrapped in foil paper which on weighing, turned
out to be 12.06 Grams of Chitta/Heroin. Pursuant to
recovery, contraband was seized leading to arrest of main
– 14 –
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accused [Prikshit Dhani] on 14.02.2024.
7(i) Pursuant to registration of FIR, police started
the investigation and recorded statement under Section
161 Cr.P.C. Main accused [Priksht Dhani] was
interrogated by the police and he was made to undergo
the medical examination at Civil Hospital Theog. The
seized contraband recovered from Prikshit Dhani
weighing 12.06 grams of Chitta/Heroin was sent by
the police authority, for examination by RFSL. Status
Report reveals that on 19.2.2024, the inventory was
prepared under Section 52A of NDPS Act.
7(ii) Status Report further reveals that during
investigation, main accused [Prikshit Dhani], disclosed
that his friend Ashutosh Sanolta was residing in
Chandigarh with main accused Prikshit Dhani who
resort to sale and purchase of Chitta/Heroin.
On 17.4.2024, SFSL report was received whereby
recovered contraband from [Prikshit Dhani] was certified
to be Heroin/Chitta.
– 15 –
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7(iii) Status Report further indicates that CDRs
and bank transactions of main accused [Prikshit Dhani]
were scrutinized during the investigation by the police.
It is further averred that pursuant to the aforesaid
investigation, it has been found that bail petitioner
[Vikram] had resorted 199 calls and there was bank
transactions amounting to Rs.46,200/- between the
bail petitioner Vikram and Prikshit Dhani during the
period from October, 2023 to February, 2024.
7(iv) Status Report indicates that bail petitioner has
joined investigation and now the Challan-Final Police
Report has been presented before jurisdictional Court
and the matter is fixed for Prosecution Evidence
on 15.01.2025.
STAND OF STATE AUTHORITIES IN STATUS
REPORT in CRMPM No.2427 of 2024:RAKSHIT
CHAUHAN VERSUS STATE OF HIMACHAL
PRADESH
8. Pursuant to issuance of notice on 25.10.2024,
State Authorities have filed Status Report dated
08.01.2025.
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8(i) Perusal of Status Report indicates that on
14.2.2024, while police party was patrolling then, at
about 2:30 PM, a vehicle bearing No.HP-63C-5463
reached near Ekant Vatika, on the bye-pass, from where
two persons de-boarded the said vehicle. It is averred
that while police was inquiring about their whereabouts
at that time, one person, namely [Prikshit Dhani] who
turned out to be main accused, after noticing the
police party felt perplexed and on seeing police party,
[Prikshit Dhani] threw out the polythene from his pocket
which was taken into custody by police, opened and the
same was found to be containing 16+32 bundles (pudia)
wrapped in counter foils, which on weighing turned out
to be 12.06 Grams Heroin. Pursuant to the recovery,
contraband was seized leading to the arrest of main
accused [Prikshit Dhani] on 14.02.2024.
8(ii) Pursuant to registration of FIR, the police
started the investigation and recorded the statement
under Section 161 Cr.P.C. Main accused [Priksht Dhani]
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was interrogated by the police and he was made to
undergo the medical examination at Civil Hospital
Theog. The seized contraband recovered from Prikshit
Dhani weighing 12.06 grams of Chitta/Heroin was sent
by the police authority for examination by RFSL. Status
Report reveals that on 19.2.2024, the inventory was
prepared under Section 52A of the NDPS Act.
8(iii) Status Report further reveals that during
investigation, main accused [Prikshit Dhani], disclosed
that his friend Ashutosh Sanolta was residing in
Chandigarh with main accused Prikshit Dhani and
Ashutosh Sanolta used to resort to sale and purchase
of Chitta/Heroin. On 17.4.2024, SFSL report
was received whereby recovered contraband from
[Prikshit Dhani] was certified to be Heroin/Chitta.
8(iv) Status Report further indicates that CDRs
and bank transactions of main accused [Prikshit Dhani]
were scrutinized during the investigation by the police.
It is averred that pursuant to aforesaid investigation,
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it has been found that bail petitioner [Rakshit Chauhan]
had resorted 67 calls and there was a bank transaction of
total amounting to Rs.55,000/-, between bail petitioner
Rakshit Chauhan and Prikshit Dhani during the period
from October, 2023 to February, 2024.
8(v) Status Report indicates that bail petitioner
was arrested and thereafter the petitioner joined
investigation and now the Challan-Final Police Report
stands presented before jurisdictional Court and the
matter is fixed for Prosecution Evidence on 15.01.2025.
STAND OF STATE AUTHORITIES IN STATUS
REPORT in CRMPM No.2553 of 2024:SAHIL
KUMAR VERSUS STATE OF HIMACHAL PRADESH
9. Pursuant to issuance of notice on 25.10.2024,
State Authorities have filed the Status Report dated
04.12.2024 and dated 08.01.2025. Both the Status
Reports contain pari materia averments, as in cases of
other bail petitioners, Vikram and Rakshit Chauhan, as
referred to above.
9(i) Status Report further indicates that CDRs and
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Bank Transactions of main accused [Prikshit Dhani] were
scrutinized during investigation by police and pursuant
to aforesaid investigation, it has been found that bail
petitioner [Sahil Kumar] had resorted 469 calls and there
was a bank transaction of total amounting to
Rs.4,16,243/- with main accused Prikshit Dhani from
October, 2023 to February, 2024.
9(ii) Status Report indicates that after arrest, the
bail petitioner joined investigation and pursuant to the
Challan-Final Police Report filed before jurisdictional
Court, matter is fixed for Prosecution Evidence on
15.01.2025.
STAND OF STATE AUTHORITIES IN STATUS
REPORT in CRMPM No.2992 of 2024:RAHUL
SHARMA VERSUS STATE OF HIMACHAL PRADESH
10. Pursuant to issuance of notice on 31.12.2024
State Authorities have filed Status Report dated
08.01.2025. Both the Status Reports contain pari
materia averments, as in case of other bail petitioners,
namely Vikram, Rakshit Chauhan and Sahil Kumar, as
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2025:HHC:2977)
referred to above.
10(i) Status Report indicates that CDRs and bank
transactions of main accused [Prikshit Dhani] were
scrutinized during investigation by police. It is averred
that pursuant to aforesaid investigation, it has been
found that bail petitioner [Rahul Sharma] resorted to 2
calls and there was a bank transaction amounting to
Rs.2,08,000/- between the bail petitioner Arun Kumar
and Prikshit Dhani during the period from October, 2023
to February, 2024 and that the matter is fixed for
Prosecution Evidence on 15.10.2025.
In the background of the Status Report(s), the
Learned State Counsel has prayed for the dismissal of
the bail application(s).
REBUTTAL BY LEARNED COUNSELS FOR
PETITIONERS:
11. Stand of State Authorities in Status Report(s)
was rebutted, during arguments by Learned Counsel(s)
for bail petitioners, stating that bail petitioners are
suffering incarceration since long and prolonged
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incarceration has certainly violated the personal liberty
enshrined in Article 21 of the Constitution of India.
It is further submitted that once matter relates to chance
recovery, then, non-compliance of Section 50 is
writ large, which illegality may be considered for grant of
bail. It is contended that out of total 31 PW’s only 3 PW’s
have been examined up to 6.1.2025. It is averred
that though rigours of Section 37 of NDPS Act are not
attracted but the prolonged incarceration of bail
petitioners will not effectuate any cause when, no
recovery was made from bail petitioners and even
investigation is complete and trial is likely to take
considerable time for conclusion. It is reiterated that
mere CDRs and bank transactions, cannot form the
basis for prolonged incarceration by way of penalty when,
the fact as to whether the CDRs and bank transactions
were in fact relateable to alleged act or omissions qua
violation of Section 21 of NDPS Act is matter to be tested,
examined and proved during the trial and then, in these
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circumstances, the prayer for bail has been made.
12. Heard Mr. Ravi Tanta, Mr. Vikas Chauhan,
Mr. Jagjeet S. Bagga, and Mr. Basant Pal Thakur
with Mr. Shivam Sharma, learned counsel(s) for
petitioner(s) and Mr. Vishav Deep Sharma, Learned
Additional Advocate General for the Respondent-State.
STATUTORY PROVISIONS:
13. In order to test, the claim for enlargement
on bail, it is necessary to have a recap of the provisions
of Section 21 and 29 of the NDPS Act, which reads as
under :-
“Section 21 of the NDPS Act reads as under:
21. Punishment for contravention in relation
to manufactured drugs and preparations-
Whoever, in contravention of any provision of
this Act or any rule or order made or condition
of licence granted thereunder, manufactures,
possesses, sells, purchases, transports,
imports inter-State, exports inter-State or uses
any manufactured drug or any preparation
containing any manufactured drug shall be
punishable ,–
(a) where the contravention 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) where the contravention involves
quantity, lesser than commercial
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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) where the contravention 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.
29. Punishment for abetment and criminal
conspiracy.-
(1) Whoever abets or is a party to a criminal
conspiracy to commit an offence punishable
under this Chapter, shall, whether such
offence be or be not committed in
consequence of such abetment or in
pursuance of such criminal conspiracy, and
notwithstanding anything contained in section
116 of the Indian Penal Code (45 of 1860), be
punishable with the punishment provided for
the offence.
(2) A person abets, or is a party to a criminal
conspiracy to commit, an offence, within the
meaning of this section, who, in India abets
or is a party to the criminal conspiracy to
the commission of any act in a place without
and beyond India which-
(a) would constitute an offence if
committed within India; or
(b) under the laws of such place, is an
offence relating to narcotic drugs or
psychotropic substances having all the
legal conditions required to constitute it
such an offence the same as or analogous
to the legal conditions required to
– 24 –
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constitute it an offence punishable under
this Chapter, if committed within India.
MANDATE OF LAW ON BAILS:
14. In background of statutory provisions of
Sections 21 and 29 of the NDPS Act, as referred to
above, and the broad parameters mandated by the
Hon’ble Supreme Court, regulating 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 P. Chidambaram versus Directorate of
Enforcement, (2019) 9 SCC 24, mandating that the
bail is to be granted as an exception where the case
alleged is frivolous or groundless and incase the prima
facie or reasonable grounds lead to believe or point
towards accusation then, the refusal of regular bail does
not amounts to denial of Article 21 of the Constitution of
India ; Sushila Aggarwal versusState-NCT Delhi,
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(2020) 5 SCC 01 ; CBI versus Santosh Karnani (2023)
6 SCALE 250 ; which have been reiterated by the
Hon’ble Supreme Court in the case of State of Haryana
versus Dharamraj, 2023 SCC Online SC 1085, which
read 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.
14(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 under
Section 439 is an extraordinary power and the same
has to be exercised sparingly and is to be to be granted
in exceptional cases. It is trite law that regular bail is not
be granted as a rule and cannot be claimed as of right.
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It is trite law that while considering the prayer for bail
{pre-arrest bail or regular bail], factum of prolonged
pre-conviction incarceration is also to be taken into
account. While considering the prayer for bail, the
balance has to be carved out between the liberty of an
accused vis-à-vis the societal interest, including the
danger of the justice being thwarted in case the bail is
granted.
14(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, the nature
of evidence collected in support thereof, the severity of
punishment prescribed for alleged offences, the character
of the accused, the circumstances which are peculiar to
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the accused, reasonable possibility of securing the
presence of the accused during trial, reasonable
apprehension of the witnesses being tampered with and
the larger public/state interests.
In this background, while testing the claim
for bail, the Court is required to form a prima-facie
opinion in the context of the broad-parameters referred
to above, without delving into the evidence on merits,
as it may tend to prejudice the rights of the accused
as well as the prosecution.
14(iii). Even a suspect or an accused under NDPS
Act does not have any vested right or an automatic
claim for pre-arrest bail or regular bail, merely on
the ground, that the quantity of contraband, allegedly
involved, is either small or intermediate. However, while
considering the prayer for bail, even in offences under
the NDPS, relating to small or intermediate quantity,
still the claim is required to be tested in the backdrop
of Section(s) 438 or 439 of Code of Criminal Procedure
– 28 –
2025:HHC:2977)
{herein, Cr.P.C.}, and also in the context of the broad
parameters mandated by the Hon’ble Supreme Court,
as referred to above.
14(iv). In the above backdrop, the general principle
is that when, a bail petitioner approaches a Court for
bail {pre-arrest or regular bail} under NDPS Act and
a Court, forms a prima facie opinion on the basis of
available material, that there is a prima facie case
or reasonable grounds pointing towards the accusation of
an offence, be it relating to a small or intermediate
quantity of contraband therefore, such an accused has
neither any automatic right nor can the privilege of
bail be extended as a rule.
The exception to this principle is that the
enlargement on bail {be it relates to either small or
intermediate quantity of contraband} can be extended,
on case to case basis, after taking into account that the
prima facie accusation does not points out towards
involvement and the past conduct being unblemished
– 29 –
2025:HHC:2977)
coupled with the fact that such bail applicant fulfils
the broad parameters mandated by Hon’ble Supreme
Court referred to above.
CASES OF BAIL:INTERMEDIATE QUANTITY WHEN
NO RECOVERY FROM BAIL PETITIONERS AS IN
INSTNAT CASE:
14(v). While dealing with the issue relating to
an intermediate quantity of contraband of Heroin (charas),
which was not recovered from petitioner, Hon’ble
Supreme Court in Sami Ullaha versus Superintendent,
Narcotic Central Bureau, (2008) 16 SCC 471 has held
as under:
3. Before, however, we advert to the said question, we
may notice the factual matrix involved in the
matter.
On or about 14.08.2004, the luggage of two
persons, viz., Abdul Munaf and Zahid Hussain
who were traveling in a bus were searched
and allegedly contraband weighing 2 kgs. was
recovered. A purported statement was made by
the said accused persons that the said
contraband (heroin) was meant to be
delivered to the appellant. Nothing was
recovered from him. Apart from the said
statements of the said accused persons, no
other material is available on record to sustain a
charge against him. On the basis of the
said statement, the appellant was arrested on
15.08.2004. Allegedly, a statement was made
by him in terms of Section 67 of the
Narcotic Drugs and Psychotropic Substances
Act, 1985 (for short “the Act”). Appellant contends
that he was tortured and the statement
was obtained forcibly from him on some
– 30 –
2025:HHC:2977)
blank documents. He later on retracted there
from. Indisputably, the seized articles were sent
for chemical examination to the Government
Opium and Alkaloid Works, Neemuch. A report
was sent to the investigating officer on 23.09.2004
stating that the sample did not contain any
contraband substance. Appellant thereafter filed
an application for discharge. The prosecution
moved the court for sending the substance 2
allegedly recovered from the co-accused persons
for its examination by the Central Revenue
Control Laboratory, New Delhi. It was rejected
by the court opining that there was no provision
in the Act for sending the sample to another
laboratory. The court, however, did not pass
an order of discharge in favour of the appellant
but released him on bail, stating:
“Accordingly, as mentioned above, there is no
ground that by accepting the application of the
complainant and order be passed for sending the
second sample for examination to another
laboratory. If the investigating officer so desires,
then in accordance with the ruling expounded as
above, he is free to send the second sample to any
of the laboratories for its examination at his own
level. On the basis of the abovementioned
observations, the application of the complainant is
rejected.”
However, even a distinction is made as regards
grant of bail in relation to a commercial quantity
and a small quantity. Commercial quantity has
been defined in Section 2(vii-a) of the Act to mean
“any quantity greater than the quantity specified
by the Central Government by notification in the
Official Gazette”.
12. We will advert to the question of the definition of
“Chemical Examiner” a little later. The question,
however, as to whether the contraband found came
within the purview of the commercial quantity
within the meaning of Section 2(vii-a) or not is one
of the factors which should be taken into
consideration by the courts in the matter of grant
or refusal to grant bail. Even, according to the
Central Revenue Control Laboratory, New Delhi,
only 2.6% of the sample sent was found to be
containing heroin. Small quantity in terms of the
notification issued under Sections 2(vii-a) and
2(xxiii-a) is as under:
___________________________________________________________
Sl. Name of Narcotic drug or Chemical Small Commercial
– 31 –
2025:HHC:2977)
No. psychotropic substance [International name quantity quantity
Non-proprietary Name (INN)]
______________________________________________________________________
77. Morphine Morphine 5 gm 250 gm
The quantity, thus, alleged to have been
recovered from the co-accused persons could
be said to be intermediate quantity and,
thus, the rigours of the provisions of
Section 37 of the Act relating to grant
of bail may not be justified.
13. In Ouseph alias Thankachan v. State of
Kerala [(2004) 4 SCC 446], this Court held:
“8. The question to be considered by us is
whether the psychotropic substance was in
a small quantity and if so, whether it was
intended for personal consumption. The
words ‘small quantity’ have been specified
by the Central Government by the
notification dated 23-7-1996. Learned
Counsel for the State has brought to our
notice that as per the said notification small
quantity has been specified as 1 gram. If so,
the quantity recovered from the appellant is
far below the limit of small quantity
specified in the notification issued by the
Central Government. It is admitted that
each ampoule contained only 2 ml and each
ml contains only 3 mg. This means the total
quantity found in the possession of the
appellant was only 66 mg. This is less
than 1/10th of the limit of small
quantity specified under the
notification.
*** *** ***
11. On account of the aforesaid fact
situation, we are inclined to believe
that the small quantity of
buprenorphine (Tidigesic) wasin
the possession of the appellant
for his personal consumption
and, therefore, the offence
committed by him would fall under
Section 27 of the NDPS Act.”
– 32 –
2025:HHC:2977)
14(vi). In State of West Bengal versus Rakesh
Singh alias Rakesh Kumar Singh 2022 SCC Online SC
828, the Hon’ble Supreme Court, has observed asunder:
20. After having considered the rival submissions,
the High Court formed the opinion that
the restriction of Section 37 NDPS Act
would not apply to this case and the
respondent, who was in custody since
23.02.2021, qualified for grant of bail
with stringent conditions. Accordingly, the
High Court ordered release of the accused-
respondent on bail with heightened conditions
like: (a) he would furnish a bond in the sum
of rupees one lakh with four sureties of rupees
fifty thousand each, two of whom must be
local persons; (b) he shall report to the Officer-
in Charge of the concerned police station once
in a week; (c) he would not travel outside the
State of West Bengal without prior leave of
the Trial Court; and (d) he would surrender
his passport before the Trial Court immediately.
Having regard to the submissions made in
this case, we may take note of the relevant
part of the discussion and reasoning of the
High Court as under: –
“4. We have considered the rival contentions
of the parties. We have also perused the material
in the memo of evidence filed on behalf of the
State.
5. Certain things are clear. Firstly, there
was no recovery of contraband items from
the physical possession of the petitioner.
Nothing was recovered from the person of
the petitioner or any place over which
the petitioner had exclusive control. We
are conscious that mere non-recovery of
contraband from a person’s possession may not
per se dilute the rigours of Section 37 of the
NDPS Act.
6. However, even assuming that the
petitioner had dominion or control over
the contraband in question, admittedly
intermediate quantity (76 gms) of cocaine
was seized. It was urged on behalf of the
State that the statements of witnesses would
indicate that the petitioner was a regular
– 33 –
2025:HHC:2977)
purchaser of contraband items. However, the
fact remains that in the present case only
76 gms of cocaine is involved. As observed
by the Hon’ble Apex Court in the case
of Sami Ullaha (Supra), where intermediate
quantity of narcotics is involved, it may not
be justified to apply the rigours of the
provisions of Section 37 of the NDPS Act
relating to grant of bail.
53. Once the veracity of prosecution case against
the respondent is in serious doubt, further
analysis on the other factors about financing
the drug trafficking and harbouring of offender
need not be undertaken because, when the
story of planting of contraband is removed out
of consideration, all other factors by which
respondent is sought to be connected with
such alleged planting could only be regarded
as false and fanciful, at least at this stage.
54. Hence, suffice it to observe for the present
purpose that in the given set of facts and
circumstances, the High Court has rightly
found that applicability of Section 27A NDPS
Act is seriously questionable in this case.
That being the position; and there being
otherwise no recovery from the respondent
and the quantity in question being also
intermediate quantity, the rigours of Section
37 NDPS Act do not apply to the present
case.”
14(vii) Likewise, this Court, in case titled Roshan
Lal versus State of Himachal Pradesh in Cr.MP(M)
No.307 of 2024 decided on 04.03.2024, has held as
under:
13(i). Admittedly, in the present case, as per
the Status Report filed by the State Authorities,
the alleged contraband was recovered from Hem
Raj-accused, who had kept it in his bag.
13(ii). No alleged recovery of contraband was
made from the bail petitioner (Roshan Lal)
herein and the bail petitioner was nowhere
involved and had no connection with the
alleged offence.
– 34 –
2025:HHC:2977)
15. Even the status Report does not point out
anything adverse regarding past conductor
blemished criminal history/records of the bail
petitioner. While dealing with a matter, relating to
an intermediate quantity of contraband coupled
with the fact that the antecedents and past
conduct was satisfactory the Coordinate Bench of
this Court enlarged the accused on bail, in Hari
versus State of Himachal Pradesh, 2023 SCC
Online HP 142, decided on 21st February, 2023,
this Court held as under:
8. It can also be noticed from the facts of the
case that there is no allegation of petitioner
involving himself in similar offences
repeatedly. No criminal history has been
attributed to him. Petitioner is a young
man of 25 years. His further pre-trial
incarceration will not serve any fruitful
purpose.
15(i). Likewise, in the case of Rohit Versus State
of Himachal Pradesh, 2023 SCC Online HP 315,
decided on 11.04.2023 while granting the bail, this
Court has held as under:
4. This Court is of the considered view that as
the alleged recovery from the petitioners is
of the intermediate quantity and further
taking into consideration the fact that the
petitioners are stated to be having no
previous criminal history of being
indulged in offences relatable to NDPS
Act, it will be in the interest of justice in
case the petitioners are allowed and the
petitioners are ordered to be released on
bail.
ANALYSIS
15. Taking into account the entirety of facts
and circumstances and material on record as borne out
from Status Report(s), this Court is of the considered
view, that the bail petitioners [Vikram, Rakshit Chauhan,
– 35 –
2025:HHC:2977)
Sahil Kumar and Rahul Sharma], are entitled to be
enlarged on bail, for the following reasons:-
NO PRIMA-FACIE ACCUSATION AGAINST, BAIL
PETITIONERS:
15(i) Status Report(s) and the material on record
do not point out any prima-facie case or reasonable
grounds to believe the accusation against the bail
petitioner(s), as referred to above.
15(ii) Status Report(s) filed by State Authorities,
does not indicate anything to show that the
bail petitioners are involved in offenceunder Section 21
of the NDPS Act. Even Learned State Counsel has not
placed on record any material to show that bail
petitioners are involved in commission of offence under
Section 21 of NDPS Act. In these circumstances, plea of
the bail petitioners for bail has carries weight and the
same is accordingly accepted.
BAIL WHEN NO RECOVERY FROM BAIL
PETITIONERS:
- 36 -
2025:HHC:2977)
15(iii) Status Report(s) unambiguously admits that
contraband weighing 12.06 grams of Chitta/Herion was
recovered from the main accused [Prikshit Dhani].
Once even as per the Status Report(s) neither any
recovery was affected from bail petitioners nor any
material has been placed on record to reveal that the bail
petitioners have indulged in acts or omissions under
Section 21 of NDPS Act, therefore, the plea for bail has
merit and the same is accordingly accepted.
CDR’S AND BTRS CANNOT FORM BASIS
OF PROLONGING INCARCERATION WHEN
INVESTIGATION COMPLETE AND CHALLAN FILED
AND RECORDING OF PROSECUTION EVIDENCE
COMMENCED:
15(iv) CDRs and Bank Transactions as indicated in
Status Report(s), cannot form the basis for prolonged
incarceration or to involve accusation under Section
21 or Section 29 of NDPS Act which is to be tested,
examined and proved during the trial. Thus, the
CDRs and Bank Transactions, cannot be made basis for
prolonging incarceration by detaining the bail petitioners
– 37 –
2025:HHC:2977)
despite the fact, that the investigation is complete,
Challan-Final Police Report has been presented and
trial has commenced, which in facts of instant case, is
likely to take considerable time for its conclusion. Since
the prolongation of the detention, shall not serve any
fruitful purpose but, the same shall certainly amount to
violating the personal liberty of bail petitioners as
mandated in Article 21 of the Constitution of India,
therefore in facts of this case, the further detention
cannot be permitted to be prolonged and the plea for bail
needs to be accepted and is ordered accordingly.
15(v) So far as accusation under Section 29 of
NDPS Act is concerned, the Status Report(s) do not point
out any material, to suggest, the abatement or criminal
conspiracy which in considered view of this Court,
is to be tested, examined and proved on the basis of
evidence led during trial. Detention, alleging, abatement
or criminal conspiracy on mere conjectures, without any
material on record certainly amount to incarcerating
– 38 –
2025:HHC:2977)
the petitioner by way punishment is impermissible and
therefore, the prayer for bail has merit and same is
accordingly accepted.
PROLONGED INCARCERATION AND INFRINGMENT
OF PERSONAL LIBERTY UNDER ARTICLE 21 OF
THE CONSTITUTION OF INDIA:
16. 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 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
– 39 –
2025:HHC:2977)
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
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
– 40 –
2025:HHC:2977)
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
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
– 41 –
2025:HHC:2977)
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.”
BAIL TO ENSURE AND SAFEGUARD PERSONAL
LIBERTY IN ARTICLE 21:
16(i). 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
– 42 –
2025:HHC:2977)
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.
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
– 43 –
2025:HHC:2977)
order passed by the High Court is set
aside.”
16(ii). While dealing with a matter relating to
the 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
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.
52. The Court also reproduced the observations
made in Gudikanti Narasimhulu (supra),
which read thus:
“10. In the aforesaid context, we may
remind the trial courts and the High
Courts of what came to be observed
by this Court in Gudikanti Narasimhulu
v. Public Prosecutor, High Court
– 44 –
2025:HHC:2977)
reported in (1978) 1 SCC 240. We
quote:
“What is often forgotten, and therefore
warrants reminder, is the object to
keep a person in judicial custody
pending trial or disposal of an
appeal. Lord Russel, C.J., said [R
v. Rose, (1898) 18 Cox]:
“I observe that in this case bail
was refused for the prisoner. It
cannot be too strongly impressed
on the, magistracy of the country
that bail is not to be withheld
as a punishment, but that the
requirements as to bail are merely
to secure the attendance of the
prisoner at trial””
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
– 45 –
2025:HHC:2977)
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
addressed by imposing stringent conditions
upon the appellant.”
16(iii). 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
– 46 –
2025:HHC:2977)
provided under Article 21 of the Constitution
is superior to the statutory restrictions.”
16(iv). 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
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 where there is no likelihood of trial being
completed in a reasonable time and period of
incarceration already undergone has prolonged in trial,
may be exposed to vice of being violative 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
– 47 –
2025:HHC:2977)
(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 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.
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
– 48 –
2025:HHC:2977)
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 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,
– 49 –
2025:HHC:2977)
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 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
– 50 –
2025:HHC:2977)
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
fundamental 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,
on the following conditions:
a. The appellant shall furnish bail bonds in
the sum of Rs.25,00,000/ (Rupees twenty five
lakhs only) with two sureties in the like
amount;
b. The appellant shall not directly or indirectly
attempt to contact or communicate with the
prosecution witnesses and victims of the three
scheduled offences in any manner. If it is
found that the appellant directly or indirectly
made even an attempt to contact any
prosecution witness or victim in the scheduled
as well as offences under the PMLA, it will be
a ground to cancel the bail granted to the
appellant;
c. The appellant shall mark his attendance
every Monday and Friday between 11 am and
12 noon in the office of the Deputy Director,
the Directorate of Enforcement at Chennai. He
shall also appear on the first Saturday of every
calendar month before the investigating
officers of the three scheduled offences;
– 51 –
2025:HHC:2977)
d. Before the appellant is enlarged on bail, he
shall surrender his passport to the Special
Court under the PMLA at Chennai;
e. The appellant shall regularly and
punctually remain present before the Courts
dealing with scheduled offences as well as the
Special Court and shall cooperate with the
Courts for early disposal of cases; and
f. If the appellant seeks adjournments on non-
existing or frivolous grounds or creates
hurdles in the early disposal of the cases
mentioned above, the bail granted to him shall
be liable to be cancelled.
32. The appeal is allowed on the above terms.”
16(v). 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 it to be of
paramount importance of right to life and liberty
under Article 21 of the Constitution of India, that the
incarceration is unreasonably prolonged for conclusion
of trial, such incarceration amounts to punitive detention
and by granting bail in the following terms:-
– 52 –
2025:HHC:2977)
“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:
a to e ……………………………………………
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;
g to i…………………………………..”
– 53 –
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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
11 months [since 06.03.2024] and even trial is likely
to take considerable time for the reason that out of total
22 PWs only 2 PWs have been examined as yet,
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
– 54 –
2025:HHC:2977)
Roop Narayan, 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:
17. Status Reports do not indicate any past
criminal incident against the bail petitioners 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
GRANTING BAIL IN CASES OF COMMERCIAL
QUANTITY WHERE THERE WAS NO LIKELIHOOD
OF ITS COMPLETION:
18. Narration hereinbelow, would reveal, that
the Hon’ble Supreme Court has enlarged accused bail
even in cases of accusation relating to commercial
quantity then, once in facts of this case, the bail petitioners
[Vikram, Rakshit Chauhan, Sahil Kumar and Rahul
– 55 –
2025:HHC:2977)
Sharma] are alleged to be implicated in Intermediate
Quantity, which was even not recovered from the bail
petitioners herein, then, the prolongation of detention and
deprivation of speedy trial results in curtailing the
Fundamental Rights of bail petitioners [Vikram, Rakshil
Chauhan, Sahil Kumar and Rahul Sharma] who are
allegedly implicated in contraband relating to
Intermediate Quantity need to be enlarged on bail, by
applying principles as enunciated by the Hon’ble Supreme
Court, which are reproduced hereinbelow.
18(i). While dealing the involvement of accused of
commercial quantity of contraband, Hon’ble Supreme
Court has extended the 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 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
– 56 –
2025:HHC:2977)
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.”
18(ii). 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 extended benefit
of bail by invoking Article 21 of Constitution of India
as prolonged incarceration defeats the 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 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
– 57 –
2025:HHC:2977)
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.”
18(iii). 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 the benefit
of concession of bail to an accused, who was facing
incarceration of one year and four months and had
no criminal antecedents as in this case, 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 facts
and circumstances has no of this case, we
– 58 –
2025:HHC:2977)
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.”
18(iv). 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 and the accused had
no criminal antecedents, 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
– 59 –
2025:HHC:2977)
petitioner has no criminal antecedents, we
are of the opinion that a case of bail is
made out for the petitioner.
Accordingly, the petitioner is directed to
be released on bail forthwith on the usual
terms and conditions to be decided by the
concerned Court.”
MANDATE OF THIS COURT IN GRANTING BAIL IN
CASES OF COMMERCIAL QUANTITY WHERE TRIAL
WAS PROLONGED AND THERE WAS NO
LIKELIHOOD OF ITS COMPLETION IN
REASONABLE PERIOD:
18(v). While dealing with claim for bail in commercial
quantity of 1.004 Kgs. charas and taking into account
prolonged incarceration for about 13 months, the Co-
ordinate Bench of this Court, has extended the
concession of bail to the 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:-
“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
– 60 –
2025:HHC:2977)
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 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.
– 61 –
2025:HHC:2977)
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.”
18(vi). Recently, the Co-ordinate 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 even
– 62 –
2025:HHC:2977)
in case relating to commercial quantity of charas,
i.e. 1.209 Kgs. where the accused 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…………..”
19 Status Report(s) does not reveal or points out
any adversarial circumstance, reflecting that there
is likely of the bail petitioners fleeing from limits of police
station or the State. Status Report(s) does not point out
any apprehension or material, reflecting likelihood of the
bail petitioners tampering with the evidence or the
witnesses.
– 63 –
2025:HHC:2977)
20. Once neither any prima facie case nor any
reasonable grounds to sustain the accusation and the
alleged contraband has not been recovered from
bail petitioners and there is no material to connect the
bail petitioners with the accusation, which is not made
out coupled with the fact that the bail petitioners have
already given an undertaking that the bail petitioners
shall participate in trial, therefore, in order to carve out a
balance between the personal liberty and speedy trial
vis-à-vis the societal interests, the claim for bail in facts
of instant cases is accepted and the ends of justice would
be served, in case, the bail petitioners are enlarged on
bail as per undertaking(s) furnished to this Court.
21. Taking into account the entirety of the facts
and the material on record and the mandate of law,
as referred to above and in the peculiar facts of the
instant matters, the instant petitions are allowed,
and the State Authorities are directed to release the
petitioners [Vikram, Rakshit Chauhan, Sahil Kumar
– 64 –
2025:HHC:2977)
and Rahul Sharma] on bail, subject to observance of
the following conditions:-
(i) Respondent-State Authorities shall release
bail petitioners [Vikram, Rakshit Chauhan, Sahil
Kumar and Rahul Sharma] on furnishing personal
bond of Rs.75,000/- {Rs Seventy Five Thousand}
with two sureties on furnishing similar bond
amount each, to the satisfaction of Learned Trial
Court concerned;
(ii) Petitioners shall undertake and shall also appear
on every date of trial hereinafter;
(iii) Petitioners shall abide by all or any other
condition(s), which may be imposed by the
Learned Trial Court, in view of this order;
(iv) Petitioners 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) Petitioners shall disclose his functional E-Mail
IDs/ WhatsApp number and that of his surety
to the Learned Trial Court;
(vi) Petitioners after release, shall report to the
Investigating Officer or SHO of Police Station
concerned, nearest to his native place, i.e. Theog
[Shimla], on 2nd Sunday of every month at 08.00
a.m., only for having an update on good conduct
and behaviour;
(vii) Petitioners shall not jump over the bail and
also shall not leave the country without the
prior information of the Court;
(viii) Petitioners shall not tamper with the evidence
in any manner;
(ix) Petitioners shall not cause any inducement,
threat or promise {directly or indirectly} to
– 65 –
2025:HHC:2977)
witnesses of any other person acquainted with
the case;
(x) Petitioners 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 the 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 petitioners violates any of
the conditions contained in this order.;
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.
22. Petitioners are permitted to produce/use copy
of this order, downloaded from the web-page of the
High Court of Himachal Pradesh, before the authorities
concerned, and the said authorities shall not insist for
– 66 –
2025:HHC:2977)
production of a certified copy, but if required, may
verify about the passing of this order from the Website
of this Court.
23. The Registry is directed to forward a copy
of this order to Superintendent of Police, Shimla, District
Shimla, Himachal Pradesh, for information and
necessary action in terms of this order.
Pending miscellaneous application(s), if any,
shall also stand disposed of.
(Ranjan Sharma)
Judge
January 10, 2025
(himani)