2025:HHC:2991 IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr.MP (M) No. 2047 of 2024 Reserved on: 9th January, 2025 Announced on: 10th January, 2025 ____________________________________________________________ Om Prakash ...Petitioner Versus State of Himachal Pradesh ...Respondent Coram Hon'ble Mr. Justice Ranjan Sharma, Judge 1 Whether approved for reporting? No For the petitioner: Mr. Rakesh Kumar Chaudhary and Mr Panku Chaudhary Advocates.

For the respondent: Mr. Hemant K. Verma, Deputy Advocate General.

Ranjan Sharma, Judge Bail petitioner [Om Prakash], who is in custody since 05.05.2023 has come up before this Court, seeking regular bail, under Section 483 of the Bhartiya Nagrik Suraksha Sahinta, hereinafter (hereinafter referred to as BNSS), originating from the FIR No.57 of 2023 dated 05.05.2023, registered at Police Station Hatli, District Mandi, [H.P.], under 1 Whether reporters of Local Papers may be allowed to see the judgment?

-2- 2025:HHC:2991 Sections 15 , 18 and 20 of the Narcotic Drugs and Psychotropic Substances Act (referred to as the NDPS Act ).

FACTUAL MATRIX IN BAIL PETITION:

2. Case as set up by Mr. Rakesh Kumar Chaudhary and Mr. Panku Chaudhary, Learned Counsel (s) is that the petitioner has been falsely implicated and entire story has been fabricated and concocted. It is averred that bail petitioner is in detention, for the last more than one year and eight months now. It is averred that the Respondent intends to examine 25 PWs but only 4 witnesses have been examined on as on day. It is averred that despite the rigors of Section 37 (1) (b) of NDPS Act, petitioner cannot be made to undergo prolonged incarceration, which is violative of Article 21 of the Constitution of India when the trial is likely to take considerable time for its conclusion. It is averred that the bail petitioner has no previous criminal history. It is averred that the inventory has been

-3- 2025:HHC:2991 illegally prepared. It is further averred that the factum of recovery is un-true, having variations as mentioned in RFSL Report. It is further averred that right of speedy trial has been denied to the bail petitioner. It is averred that bail petitioner is a sole bread earner in the family and has dependency of father and mother also. It is averred that due to prolonged incarceration, the bail petitioner as well as family members have suffered mental pain and agony. It is averred that there are no chances of bail petitioner absconding from the Courts of justice. Bail petitioner has furnished the undertaking that he shall not cause any inducement, threat or promise to any person or persons acquainted with the facts of the case. It is averred that the petitioner shall not leave country without permission of this Court.

In above backdrop, the instant petition has been filed by the bail petitioner, through his

-4- 2025:HHC:2991 wife, Roshani Devi, with the prayer for granting bail.

STAND OF STATE AUTHORITIES IN STATUS REPORT:

3. Pursuant to the issuance of notice on 13.09.2024, the State Authorities have furnished the Status Report dated 26.09.2024, on Instructions of SHO, Police Station, Hatli, District Mandi [HP]. 3(i). Perusal of the Status Report, indicates that while the police party was on patrolling duty on 05.05.2023 and headed by ASI Jagesh Kumar, they received an information at about 01:20 p.m. that accused-bail petitioner has kept the contraband in his shop, house and cow-shed and in case, the raid was conducted the contraband may be recovered. Based on this information, the policy party, after associating the independent witnesses searched the shop and thereafter searched his house and then the cow shed in the presence of witnesses.

the first floor of his house, the police recovered the contraband kept in red plastic box, which turned out to be 7.5 gms. of Opium. Likewise, another green bag was searched by police which came out to be Cannabis [Charas] weighing 140 gms. Status Report indicates that the police searched cow shed, wherein, a brown powder, which was poppy straw [chura- post-bhukki] was found and a Home Guard personnel, who was accompanying the police party was sent to bring a weighing machine, which was brought from Dhrub Verma, a hardware shopkeeper and the poppy straw was weighed in presence of witness, which came out to be 54.760 Kgs. Status Report indicates that currency notes amounting to Rs. 2,08,600/- were recovered from a carry bag in bed box in his house. and after the completing all the codal formalities, rukka was sent and FIR was registered against the bail petitioner.

petitioner was arrested on the same day i.e. on 05.05.2023 and bail petitioner was made to undergo medical examination in Civil Hospital, Baldwara, District Mandi [HP]. Status Report indicates that an inventory was prepared under Section 52-A of NDPS Act by ACJM, Sarkaghat on 06.05.2023 and on 08.05.2023, the recovered contraband was sent to SFSL Junga, for analysis, which contained 7.5 gms. of Opium [Afeem] and 140 gms. of Cannabis [charas] and 54.760 Kgs. of poppy straw [churapost-bhukki]. Status report indicates that statements of witnesses were recorded under Section 161 Cr.P.C. It is averred that the SFSL report analyzed and confirmed samples of opium [mark-3], cannabis [mark-2] and poppy straw also. Status report spells out past criminal antecedents that the petitioner was involved in three criminal cases, out of which two pending cases relate to NDPS and in one case the petitioner stands acquitted by the Court.

is complete and out of total 25 PWs, only 4 PWs have been examined by Learned Trial Court .

In this background, Status Report, has been filed by the State Authorities, with the prayer for dismissing the bail petition.

4. Heard Mr. Rakesh Kumar Chaudhary, Learned Counsel for the bail petitioner and Mr. Hemant K. Verma, Learned Deputy Advocate General, for the respondent-State.

STATUTORY PROVISIONS:

5. Before dealing with the claim for bail, it is necessary to have a recap of statutory provisions of Sections 15 , 18 and 20 of the NDPS Act, which reads as under:-

(a) where the contravention involves small quantity, with rigorous imprisonment for a term which may extend to 2 [one year], or with fine which may extend to ten thousand rupees, or with both;

(b) 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 which may extend to two lakh rupees:

Whoever, in contravention of any provision of this 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

- 10 - 2025:HHC:2991 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:

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 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

- 11 - 2025:HHC:2991 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 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:

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 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.

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, 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,

- 14 - 2025:HHC:2991 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 .

ANLYSIS: CLAIM FOR BAIL IN INSTANT CASE:

churapost-bhukki] weighing 54.760 Kgs., therefore, in normal parlance, the rigors of Section 37 (1) (b) of NDPS Act are to be satisfied, before acceding to claim for bail, in terms of the mandate of law, laid down by the Hon'ble Supreme Court in Narcotics Control Bureau vs Mohit Aggarwal AIR 2022 SC 3444, followed in Union of India vs Ajay Kumar

- 15 - 2025:HHC:2991 Singh @ Pappu, SLP (Criminal) No.2351 of 2023, has been reiterated by 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 [Om Prakash], for bail, in view of the statutory mandate of Section 37 (1) (b) of NDPS Act and on other grounds carved by way of exceptions to the rigors of Section 37 of NDPS Act, in terms of the mandate of law of the Hon'ble Supreme Court, hereinbelow.

[A]. CLAIM FOR BAIL UNDER SECTION 37(1) (b) OF NDPS ACT:

9. Learned Counsel for bail petitioner, during the course of arguments, submits that recovery of [poppy straw-churapost-bhukki] weighing 54.760 Kgs. from cow-shed cannot form the basis for inferring the accusation and guilt against the bail petitioner when, the cow-shed did not belong to the petitioner.

- 16 - 2025:HHC:2991 Moreover, the deposition of PW-5 {HHC Vijay Kumar} made during trial [{on 2.1.2025} that no official was associated by police to ascertain the ownership and possession of the aforesaid cow-shed. material exists with the police that the cow-shed belongs to petitioner. PW-5 has further testified that alleged cow-shed was unlocked when, the police reached the spot. PW-5 deposed that the aforesaid cow-shed is located across the road and was accessible to by public. Even, the evidence available on record, as on day, at this stage, makes the prosecution story highly improbable for the reason, that on one hand PW-5 deposed that Investigating Offer associated Independent Witnesses, Vyasa Pradhan and Roop Lal, Ward Member who reached the spot but on the other hand, PW-6 {C Jagdish} deposed that Investigating Offer reached the spot at 1.35 and no Independent witness had reached the spot at that time, which makes the prosecution story

- 17 - 2025:HHC:2991 highly improbable, at this stage and therefore, in these circumstances, neither any accusation nor any guilty could be inferred against bail petitioner, at this stage.

9(i). Status Report filed by State Authorities do not spell out any material to show that the bail petitioner has resorted to any activities, so as to invoke the provisions of Sections 15 , 18 and 20 of NDPS Act against the bail petitioner. In these circumstances, the bail petitioner appears to be not guilty, at this stage, and therefore, the bail petitioner deserves to be extended the benefit of bail. [B]. NOTHING ADVERSARIAL REGARDING REPITITION OF OFFENCE AFTER BAIL:

10. Status Reports filed by State Authorities have not placed any cogent and convincing material on record revealing any apprehension of repetition of offence after being released on bail. However, still this Court, safeguards the interests of the State by

- 18 - 2025:HHC:2991 imposing stringent bail conditions in later part of this bail order.

Taking into account the entirety of the facts and circumstances, including the Status Report this Court is of the considered view, that there are no reasonable grounds to believe that the bail petitioner is guilty and nothing exists that the petitioner is likely to repeat the offence after release on bail and, therefore, even by applying the twin principles in Section 37(1) (b) of the NDPS Act, the bail petitioner [Om Prakash] is entitled to be enlarged on bail.

[C]. BAIL ON OTHER EXCEPTIONAL GROUNDS & CIRCUMSTANCES:

11. Notwithstanding, the discussion with respect to claim for bail under Section 37 (1) (b) of NDPS Act [supra], this Court proceeds to examine the claim of the petitioner, in view of the exceptional circumstances as carved out by the mandate of law enunciated by the Honble Supreme Court as detailed

- 19 - 2025:HHC:2991 hereinunder, entitling the petitioner to be enlarged on bail, for the following reasons:-

11(ii). While dealing with claim for bail, in case of an accused who suffered incarceration for more than one year and eight months, coupled with the fact that there is no much progress in the trial and such trail was to take considerable time, the Hon'ble Supreme Court in Mukesh Kumar versus State of Rajasthan and another , 2023 SCC OnLine SC 2025, granted bail to the accused therein, in the following terms:-

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 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:-

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:

REFORMATIVE APPROACH IN BAIL:

BAIL NOT TO BE WITHHELD BY WAY OF PENALTY:

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

- 28 - 2025:HHC:2991 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:-

RIGOURS IN SPECIAL ENACTMENTS [SECTION 37 OF NDPS] TO GIVE WAY FOR BAIL-PROLONGED INCARCERATION AND COMPLETION OF TRIAL TO TAKE CONSIDERABLE TIME:

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

- 34 - 2025:HHC:2991 (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 importance and action of prolonging the incarceration so as to make such incarceration punitive has been deprecated by granting bail, in the following terms:-

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 eight months [since 05.05.2023] and even trial is likely to take considerable time for the reason, that out of total 25 PWs, only 4 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

- 36 - 2025:HHC:2991 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, Javed Gulam Nabi Shaikh, Manish Sisodia, Kalvakuntla Kavitha, Senthil Balaji and Partha Chatterjee [supra], the petitioner deserves to be released on bail.

PAST CRIMINAL ANTECEDENTS:

16(i). Before analyzing the contention of the Learned State Counsel it is necessary to have a recap of the mandate of law, in broader sense, as to whether the past criminal antecedents are relevant and in what circumstances and extent thereof and in what circumstances and to what extent past antecedents turn out to be irrelevant or not much relevant while considering the claim of an accused for bail, which are detailed here-in-below. 16(ii). While negativating the plea that the past criminal antecedents {i.e. 36 criminal cases of serious nature} cannot solely be the ground for denying bail

- 38 - 2025:HHC:2991 or in interfering with the bail order granted by a Court when, an accused was undergoing incarceration coupled with the fact that no cogent material was placed on record revealing that during bail there is possibility of accused fleeing away from the trial or an accused is likely to threaten witnesses or is likely to thwart justice, has been outlined by the Honble Supreme Court in Maulana Mohammed Amir Rashidi versus State of Uttar Pradesh , (2012) 2 SCC 382, in the following terms;

4. On the basis of a written complaint in the Police Station, Phoolpur, FIR No 63 of 2009 under Sections 302 and 307 IPC was registered. The second respondent was arrested only on 24.08.2009. It was further stated by the appellant that the accused is a habitual criminal and has a criminal background having more than three dozen cases involving serious offences against him.

10. It is not in dispute and highlighted that the second respondent is a sitting Member of Parliament facing several criminal cases. It is also not in dispute that most of the cases ended in acquittal for want of proper witnesses or pending trial. As observed by the High Court, merely on the basis of criminal antecedents, the claim of

- 39 - 2025:HHC:2991 the second respondent cannot be rejected. In other words, it is the duty of the Court to find out the role of the accused in the case in which he has been charged and other circumstances such as possibility of fleeing away from the jurisdiction of the Court etc.

11. In the case relating to FIR No. 63 of 2009, he was arrested and in jail since 24.08.2009. Another important aspect is that after filing of charge-sheet on 15.07.2010, prosecution examined two important witnesses as PWs 1 and 2. This was the position prevailing on 26.07.2010. Even thereafter, now more than a year has rolled. Counsel appearing for the State assured that the trial will not be prolonged at the instance of the prosecution and ready to complete the evidence within a period to be directed by this Court. The other objection of the appellant for grant of bail is that he had received threats from the second respondent and his supporters warning him not to pursue the case against him. It is brought to our notice that based on the representations of the appellant, adequate protection had already been provided to him.

13. Taking note of all these aspects, particularly, the fact that the second respondent was in jail since 24.08.2009, the trial has commenced by examining the two witnesses on the side of the prosecution and the assurance by the State that trial will not be prolonged and conclude within a reasonable time and also of the fact that the High Court while granting bail has imposed several

- 40 - 2025:HHC:2991 conditions for strict adherence during the period of bail, we are not inclined to interfere with the order of the High Court. In fact, in the impugned order itself, the High Court has made it clear that in case of breach of any of the conditions, the trial Court will have liberty to take steps to send the applicant to jail again. In addition to the same, it is further made clear that if the appellant receives any fresh threat from the second respondent or from his supporters, he is free to inform the trial Court and in such event the trial Court is free to take appropriate steps as observed by the High Court. We also direct the Trial Court to complete the trial within a period of four months from the date of the receipt of copy of this order without unnecessary adjournments.

14. With the above observation, finding no merit for interference with the order of the High Court, the appeal is dismissed.

16(iii). While granting bail to an accused having criminal antecedents and was facing incarceration for 7 months and when, no prima-facie accusation or reasonable grounds existed, by the Hon'ble Supreme Court in Prabhakar Tewari Versus State of Uttar Pradesh and another, (2020) 11 SCC 648, in the following terms:-

- 41 - 2025:HHC:2991 "4. Learned counsel for the appellant has submitted that the accused Vikram Singh is involved in at least five other criminal cases under the same Police Station, Jagdishpur. He has also brought to our notice the witness statement of one Narendra Dev Upadhyay. This statement was recorded on 29th March 2019. The part of his statement to which our attention has been drawn by learned counsel for the appellant records that the said witness saw Vikram Singh standing near National Highway 56 Flyover on the date of occurrence of the incident in Warisganj with 6 or 7 accomplices and all of them were talking about plans of killing the victim.

5. We have considered the respective submissions. The facts highlighted by the appellant are that the case involves offence under Section 302 read with Sections 120-B / 34 , 147 , 148 and 149 of the Indian Penal Code, 1860. The accused has several criminal cases pending against him and has been named in the statement forming the basis of the FIR on the date of occurrence itself. Two individuals, Rahul Tiwari and Narendra Dev Upadhyay, whose statements have been recorded under Section 161 of the 1973 Code also refer to involvement of the accused Vikram Singh.

7. On considering the submissions of the learned counsel for the parties. Having regard to the circumstances of this case, in our opinion, there has been no wrong or improper exercise of discretion on the part of the High Court in granting bail to the accused. The factors outlined in the case of Mahipal (supra) for testing the legality of an order granting bail are absent in the order impugned. The materials

- 42 - 2025:HHC:2991 available do not justify arriving at the conclusion that the order impugned suffers from non-application of mind or the reason for granting bail is not borne out from a prima-facie view of the evidence on record. The offence alleged no doubt is grave and serious and there are several criminal cases pending against the accused. These factors by themselves cannot be the basis for refusal of prayer for bail. The High Court has exercised its discretion in granting bail to the accused Vikram Singh upon considering relevant materials. No ex-facie error in the order has been shown by the appellant which would establish exercise of such discretion to be improper. We accordingly sustain the order of the High Court granting bail. This appeal is dismissed. Criminal Appeal No.153 of 2020 [arising out of SLP (Crl) No.9209 of 2019].

9. The accused is Malkhan Singh in this appeal. He was named in the FIR by the appellant Prabhakar Tewari as one of the five persons who had intercepted the motorcycle on which the deceased victim was riding, in front of Warisganj Railway Station (Halt) on the highway. All the five accused persons, including Malkhan Singh, as per the F.I.R. and majority of the witness statements, had fired several rounds upon the deceased victim. The statement of Rahul Tewari recorded on 15th March, 2019, Shubham Tewari recorded on 12th April, 2019 and Mahipam Mishra recorded on 20th April 2019 giving description of the offending incident has been relied upon by the appellant. It is also submitted that there are other criminal cases pending against him. Learned counsel for the accused- respondent

- 43 - 2025:HHC:2991 no.2 has however pointed out the delay in recording the witness statements. The accused has been in custody for about seven months. In this case also, we find no error or impropriety in exercise of discretion by the High Court in granting bail to the accused Malkhan Singh. The reason why we come to this conclusion is broadly the same as in the previous appeal. This appeal is also dismissed and the order of the High Court is affirmed." 16(iv). While extending the concession of bail despite past criminal antecedents, on principle that 'bail is rule and jail is an exception', benefit of bail, and an accused is presumed to be innocent and in the guise of pending cases, the presumption of guilt could not be inferred as has been outlined by the Hon'ble Supreme Court in Union of India versus Mrityunjay Kumar Singh , 2024 SCC OnLine SC 852, in the following terms:-

16(v). While dealing with validity of bail order the Honble Supreme Court has mandated that the criminal antecedents were not much relevant in case, no prima facie case was made out and the

- 47 - 2025:HHC:2991 period of incarceration was prolonged, in Ayub Khan versus State of Rajasthan , 2024 SCC OnLine SC 3763, in the following terms:-

16(vi). Pendency of other criminal cases cannot be invoked for denying bail, when, no prima facie case exists and prolonged incarceration was writ large, has been mandated by the Hon'ble Supreme Court in Prem Prakash versus Union of India through Directorate of Enforcement, 2024 SCC OnLine SC 2270, in the following terms:-

- 49 - 2025:HHC:2991 "46. The Investigating Agency have also referred to ECIR No. 4 as a criminal antecedent. A reference was made to ECIR No. 4 of 2022 pertaining to illegal Stone Mining and related activities in Saheb Ganj, Jharkhand, where the petitioner was arrested on 25.08.2022 and the prosecution complaint was filed on 16.09.2022. Insofar as the bail pertaining to ECIR No. 4 of 2022, which is pending in this Court in SLP (Criminal) No. 691 of 2023, at the after notice stage, the merits of the bail in that case will be independently examined. Having examined the facts of the present case arising out of ECIR No. 5 of 2023 and in view of the findings recorded hereinabove, we do not think that the appellant can be denied bail based on the pendency of the other matter. We say so in the facts and circumstances of the present case as we do not find any justification for his continued detention. The appellant has already been in custody for over one year. The Trial is yet to commence. There is a reference to one more ECIR which the Investigating Agency refers to in their counter, namely, ECIR /RNZO /18 / 2022 but nothing is available from the record as to whether any proceedings have been taken against the appellant.

49. In the result, we pass the following order:-

and thirdly, conclusion of trial is likely to take considerable time when out of total 25 PWs only 4 PWs have been examined as yet ; and fourthly, delay in trial is not attributable to the petitioner ; and fifthly, an accused is presumed to be innocent unless proven guilty ; and sixthly, the continued detention can neither be punitive nor preventative and seventhly, the continued detention in guise of penalizing the petitioner by presuming

- 51 - 2025:HHC:2991 guilt cannot be permitted; and eighthly, even the State Authorities have not placed any cogent and convincing material that after release on bail there is possibility of accused fleeing away from the trial or an accused is likely to threaten witnesses or is likely to thwart justice ; and ninthly, even the State Authorities have not placed anything on record to show that the petitioner has misused the liberty granted to him earlier; and lastly, the State Authorities have adequate safeguards by moving the Courts for cancellation of bail in case there was any violation of or misuse of the concession-liberty and once the accusation is yet to be tested, examined and proved during the trial therefore, in these circumstances, the past criminal antecedents or pendency of other cases as discussed above cannot be the sole basis for denying bail, so as to deprive and curtail the sacrosanct fundamental rights of personal liberty and right of speedy trial under

- 52 - 2025:HHC:2991 Article 21 of the Constitution of India and, therefore, on totality of circumstances, the claim of petitioner for bail carries weight and is granted, in peculiar facts of this case.

MANDATE OF HON'BLE SUPREME COURT IN BAIL IN COMMERCIAL QUANTITY: PROLONGED INCARCENATION AND COMPLETION OF TRIAL TO TAKE CONSIDERABLE TIME:

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 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:-

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:-

MANDATE OF THIS COURT GRANTING BAIL IN COMMERCIAL QUANTITY DUE TO PROLONGED INCARCENATION AND COMPLETION OF TRIAL TO TAKE CONSIDERABLE TIME:

- 56 - 2025:HHC:2991

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 has affirmed the right to bail in view of the prolonged detention of the accused therein, in the following terms:-

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

- 60 - 2025:HHC:2991 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). 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,

- 61 - 2025:HHC:2991 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:-

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.

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(ii). 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:-

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....."

BROADER PRINCIPLES APPLIED IN GRAVER OFFENCES {COMMERCIAL QTY} APPLICABLE IN LESSER GRAVER OFFENCES {INTERMEDIATE QTY} :

NOTHING ADVERSARIAL REGARDING TAMPERING WITH EVIDENCE OR WITNESSES ETC:

NOTHING ADVERSARIAL REGARDING OBSTRUCTING OR ATTEMPTING TO THWARTLING JUSTICE :

NOTHING ADVERSARIAL LIKELIHOOD OF FLEEING AWAY FROM TRIAL OR JURISDICTION OF COURT:

22. In order to safeguard the rights of bail petitioner and to take care of apprehensions of State that bail petitioner may flee away [notwithstanding the fact that no such apprehension has been pointed out in Status Report] yet, in peculiar facts of this case, this Court stringent conditions in the bail orders, 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 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 [Om Parkash] on bail, subject to observance of the following conditions:-

bail petitioner [Om Prakash] 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 the 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. Narola, Tehsil Baldwara, District Mandi [HP] on 2nd Sunday of every month at 11.00 a.m., only for having an update on good conduct and behaviour;

(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;

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 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 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

- 69 - 2025:HHC:2991 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, Mandi, District Mandi, 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 [Bhardwaj] Digitally signed by TARUN MAHAJAN TARUN DN: C=IN, O=HIGH COURT OF HIMACHAL PRADESH, OU=HIGH COURT OF HIMACHAL PRADESH SHIMLA, Phone= 887aba774dfe8f4f3e95a41c7aa2abacb4ecee8f82efd8f56ec39f8e6b 442b68, PostalCode=171001, S=Himachal Pradesh, SERIALNUMBER= 3ff6ebe501e8d7c8d73d0e5a5294bacca3f198d7d66b105bbf507179 MAHAJAN 673109f5, CN=TARUN MAHAJAN Reason: I am the author of this document Location: 12345678 Date: 2025.01.13 17:42:42+05'30' Foxit PDF Reader Version: 2023.2.0