2025:HHC:3001 IN THE HIGH COURT OF HIMACHAL PRADESHAT SHIMLA Cr.MP(M) No. 2514 of 2024 Reserved on : 4th January, 2025 Announced on : 15th January, 2025 __________________________________________________________ Krishan Kumar Nayyer ......Petitioner Versus State of Himachal Pradesh ...Respondent Coram Hon'ble Mr. Justice Ranjan Sharma, Judge 1Whether approved for reporting? No For the petitioner: Mr. Ankit Dhiman, Advocate. For the respondent: Mr. Vishav Deep Sharma, Additional Advocate General.

Ranjan Sharma, Judge Bail petitioner, Krishan Kumar Nayyer, being in custody since 12.01.2024 has come up before this Court seeking regular bail under Section 483 of the Bharatiya Nagarik Suraksha Sanhita [hereinafter referred to as 'BNSS.'], originating from FIR No.16 of 2024, dated 11.01.2024, under Sections 21 & 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985, [hereinafter referred to as ' NDPS Act '] 1 Whether reporters of Local Papers may be allowed to see the judgment?

-2- 2025:HHC:3001 registered at Police Station [Sadar], Una, District Una, [H.P.].

FACTUAL MATRIX:

2(ii). It is averred that the petitioner had moved an application No. 55 of 2024 before Learned Special Judge-II, Una [referred to as "Trial Court"] which was dismissed on 06.03.2024, Annexure P-1. Thereafter, another bail application [Cr.MP (M) No. 596 of 2024], was withdrawn on 27.03.2024, Annexure P-2 and has again moved for bail before Learned Special Judge and this bail application was also rejected by the Learned Special Judge-II, Una, on 30.04.2024, Annexure

-3- 2025:HHC:3001 P-3 and another bail application i.e. Cr.MP(M) No. 1016 of 2024 was dismissed by this Court on 26.07.2024.

2(iii). It is averred that the brother of the bail petitioner is 80% disabled. Petitioner has referred to his past criminal antecedents in Para 8 of the bail application. It is further averred that no recovery has been made by police from the bail petitioner. The bail petitioner has given an undertaking that in case he is enlarged on bail he shall participate in trial and he will not tamper with evidence or the witness or persons connected with the case in any manner.

It is in this background, that the petitioner has come up before this Court seeking regular bail.

STAND OF STATE AUTHORITIES IN STATUS REPORT:

3(i). Perusal of Status Reports dated 28.11.2024

-4- 2025:HHC:3001 reveals that on 10.01.2024, the police patrolling party headed by ASI Ram Pal, were checking vehicles near Raizada Guest House, Lal Singhi, District Una, at about 11.20 p.m. During checking a vehicle No. HP-01M-2482, reached the spot and the person sitting next to the driver's seat namely, Rajneesh Verma, on noticing the police, threw out a transparent polythene pouch with interlocking seal containing Heroin- Chitta, and on weighing, the Chitta/Heroin came to be 6.13 grams. After completing the codal formalities Rukka was sent and FIR was registered against the accused Rajneesh Verma, from whom the recovery was affected and Rajneesh Verma was arrested by the police on 11.01.2024.

3(ii). During investigation the accused Rajneesh Verma revealed that he purchased Chitta/Heroin from the bail petitioner [Krishan Kumar Nayyer] from Ghoda Chowk at Hoshiarpur [Punjab] and accordingly the petitioner was arrested on 12.01.2024, by the

-5- 2025:HHC:3001 police party of Police Station [Sadar] Una. 3(iii). On arrest, on 12.01.2024, the bail petitioner [Krishan Kumar Nayyer], stated that he is a vegetable seller and his family ties have broken as a result of divorce three years back. Status Report reveals that the petitioner had sold the Heroin/Chitta to main accused, Rajneesh Verma for Rs 13,400/-. 3(iv). Status Reports indicates the criminal antecedents that seven criminal cases have been registered against the bail petitioner, out of which, in four cases, he has been convicted and in two cases he has been acquitted and one case is pending trial.

In view of the Status Reports, Learned State Counsel has prayed for the dismissal of the bail application, in the instant case.

4. Heard Mr. Ankit Dhiman, Learned Counsel for petitioner and Mr. Vishav Deep Sharma, Learned Additional Advocate General for the respondent-State.

-6- 2025:HHC:3001 STATUTORY PROVISIONS:

5. In order to test the claim for bail, it is necessary to have a recap of the statutory provisions of Section 21 and 29 of the NDPS Act, which reads as under :-

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 ,--

MANDATE OF LAW ON BAILS:

6. Broad parameters have been mandated by

-8- 2025:HHC:3001 the Hon'ble Supreme Court, regulating the bail in the cases of 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, that bail is to be granted where the allegation is frivolous or groundless and incase neither any prima facie case nor reasonable grounds exists to believe or point towards the accusation. However, depending upon the facts of each case, the bail can be refused in case, the prima facie case or reasonable grounds exits and the offence is serious, severity of punishment, reasonable apprehension of fleeing away from investigation and the trial, and the Character, including past antecedents, behavior, means, position and standing of the accused; likelihood

-9- 2025:HHC:3001 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 the case of 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.

- 10 - 2025:HHC:3001 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. Another added factor and not the sole factor of past criminal antecedents; and the factum as to whether an accused has misused concession-liberty granted earlier. While considering the prayer for bail, the balance has to be carved out between the liberty of an accused vis-à-vis the societal interests, including danger of justice being thwarted in case the bail is granted.

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, 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

- 12 - 2025:HHC:3001 totality of facts in light of broad-parameters referred to above .

6(iii). Even a suspect or an accused under the NDPS Act does not have any vested right or an automatic claim for bail, merely on the ground, that alleged quantity of contraband is either small or intermediate. 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 broad parameters mandated by the Hon'ble Supreme Court, as referred to above .

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 depending on facts of each case, in case, the prima facie accusation does not points towards involvement and no reasonable grounds exit, when, no recovery was made by the police from the accused or when,

- 13 - 2025:HHC:3001 the alleged recovery by police appears to be highly doubtful without there being any connecting material to infer prima facie accusation and after taking into account other parameters mandated by the Honble Supreme Court as referred to above .

7. Taking into account the entirety of the facts and circumstances, as borne out from the Status Report, this Court is of the considered view, that the bail petitioner [Krishan Kumar Nayyer], is entitled to be enlarged on bail, at this stage, for the following reasons:

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

- 15 - 2025:HHC:3001 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 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:

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:

13. In Ouseph alias Thankachan v. State of Kerala [(2004) 4 SCC 446], this Court held:

7(iv). While granting bail to an accused implicated in Intermediate Quantity, from whom no recovery was made, the Hon'ble Supreme Court, in State of West Bengal versus Rakesh Singh alias Rakesh Kumar Singh 2022 SCC Online SC 828, observed as under:

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."

7(v). Granting bail to an accused from whom no recovery was made this Court, in Roshan Lal versus State of Himachal Pradesh, in Cr.MP (M) No. 307 of 2024 decided on 04.03.2024, held:

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:

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:

7(vi). This Court in Cr.MP(M) No.545 of 2024, Budh Bahadur Singh Versus State of Himachal Pradesh decided on 21.03.2024, granted the bail to the accused on account of prolonged incarceration and from whom no recovery was made, in similar circumstances as under:

In above backdrop, once no recovery has been made from the petitioner and other accusations qua sale is yet to be examined, tested and proved during trial coupled with the fact that the petitioner has been roped in for Intermediate Quantity and is undergoing incarceration for last one year [since 12.1.2024] till day certainly amounts to depriving the petitioner of his personal liberty and right of

- 23 - 2025:HHC:3001 expeditious trial which has been denied in facts of this case and therefore, the petitioner deserves to be enlarged on bail.

BAIL PETITIONER IMPLICATED ON CONFESSIONAL STATEMENT OF MAIN ACCUSED RAJNEESH VERMA:

158.2 That a statement recorded under Section 67 of the NDPS Act cannot be used as a confessional statement in the trial of an offence under the NDPS Act .

8(i). Another Coordinate Bench of this Court, in Cr.MP (M) No. 916 of 2024, titled as Vijay Kumar versus State of Himachal Pradesh , decided on 10.06.2024, has enlarged the petitioner on bail, who was arrested on the basis of a confessional statement made by another accused and when, there was no other cogent material to point towards the prima-facie accusation. Since in the present case, the petitioner has been implicated on the confessional statement of main accused, Rajneesh Verma and nothing cogent exists to point towards the accusation therefore, the bail petitioner {Krishan Kumar Nayyar}, deserves to be enlarged on bail, as per mandate of law in case of Tofan Singh [supra].

in the case of Tofan Singh and Vijay Kumar [supra], this Court is of the view that confessional statement of main accused Rajneesh Verma, cannot be the basis for arresting the petitioner when, neither any recovery nor any other cogent material exists to prima-facie connect petitioner with the accusation and therefore, the petitioner deserves to be enlarged on bail, in the instant case.

PRESEMPTION OF INNOCENCE: INCARCERATION BY PRESUMING GUILTY IMPERMISSIBLE:

"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:

- 26 - 2025:HHC:3001 "21. In bail applications, generally, it has been laid down from the earliest times that the object of bail is to secure the appearance of the accused person at his trial by reasonable amount of bail. The object of bail is neither punitive nor preventative. Deprivation of liberty must be considered a punishment, unless it is required to ensure that an accused person will stand his trial when called upon. The courts owe more than verbal respect to the principle that punishment begins after conviction, and that every man is deemed to be innocent until duly tried and duly found guilty.

23. Apart from the question of prevention being the object of refusal of bail, one must not lose sight of the fact that any imprisonment before conviction has a substantial punitive content and it would be improper for any court to refuse 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

- 27 - 2025:HHC:3001 in general. In our view, the reasoning adopted by the learned District Judge, which is affirmed by the High Court, in our opinion, is a denial of the whole basis of our system of law and normal rule of bail system. It transcends respect for the requirement that a man shall be considered innocent until he is found guilty. If such power is recognised, then it may lead to chaotic situation and would jeopardise the personal liberty of an individual.

27. This Court, time and again, has stated that bail is the rule and committal to jail an exception. It has also observed that refusal of bail is a restriction on the personal liberty of the individual guaranteed under Article 21 of the Constitution."

12. Further, in the case of Sandeep Jain v.

National Capital Territory of Delhi, (2000) 2 SCC 66, this Court, while hearing a 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 DENIED 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".

- 32 - 2025:HHC:3001

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 addressed by imposing stringent conditions upon the appellant."

11(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 the fundamental right of liberty provided under Article 21 of the Constitution

- 33 - 2025:HHC:3001 of India is superior to the statutory restrictions, in the following terms:-

RIGOURS IN SPECIAL ENACTMENTS [SECTION 37 OF NDPS] GIVE WAY FOR BAIL BASED ON PROLONGED INCARCERATION & TRIAL TO TAKE CONSIDERABLE TIME:

12(i). Reiterating that statutory embargoes in Special Enactments have to yield in case of prolonged incarceration when, weighed against the paramount importance of the right to life and liberty under

- 38 - 2025:HHC:3001 Article 21 of the Constitution of India, by the 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, by granting bail in the following terms:-

ABOVE BROADER PRINCIPLES APPLIED IN GRAVER OFFENCES IN BAIL UNDER NDPS TO APPLY TO LESSER GRAVER ACCUSATION:

Keeping in view the entirety of the facts and circumstances as detailed hereinabove, once neither any prima facie case nor any reasonable grounds exists against the bail petitioner and the material on record, the bail petitioner appears to be not guilty at this stage, coupled with the fact the bail petitioner has suffered incarceration for almost one year now [since 12.1.2024] and even trial is likely to take considerable time for the reason, that out of a total 21 PWs, 12 PWs, who are material witnesses have been examined therefore, in facts of instant case, any further detention shall certainly amount to depriving and curtailing the personal liberty of the petitioner and that too on mere conjectures or surmises, which are yet to be tested, examined and proved during the trial. Detention of the petitioner can neither be punitive

- 41 - 2025:HHC:3001 nor preventative, so as to make the petitioner to taste imprisonment as a lesson. Continued detention certainly violates the principle of "bail is a rule and jail is an exception". Even the State Authorities, have failed to ensure speedy trial and considerable time is likely to be taken for conclusion of trial and therefore, on totality of circumstances and the 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:

14(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 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

- 43 - 2025:HHC:3001 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 Hon'ble 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 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

- 44 - 2025:HHC:3001 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 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

- 45 - 2025:HHC:3001 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.

14(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:-

14(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:-

15. As rightly contended by Shri Siddharth Luthra, learned Senior Counsel appearing for respondent, in the first case afore- mentioned the respondent has been acquitted by judgment dated 07.09.2015 (Annexure R-11). In so far as the cases at Serial No.2 and 3 (supra), the respondent has been enlarged on bail vide orders dated 10.07.2020 (Annexure R-12) and order dated 10.07.2020. In yet another case registered by Chandwa PS Case No. 225 of 2023 the respondent has been enlarged on anticipatory bail in ABP No. 426 of 2023.

16. The afore-stated facts when seen cumulatively, it would reflect that respondent having been enlarged on bail conditionally and the conditions so stipulated having not been violated and undisputedly the appellant-state having not sought for cancellation of the bail till date would be the prime reason for us not to entertain this appeal. In fact, the apprehension of the Union of India that respondent is likely to pose threat to the witnesses and there was a threat posed to the complainant, Mr. Sanjay Kumar Tiwari, would not be a ground to set aside the impugned order enlarging the respondent on bail in as much in the case referred against the respondent for the said offence he has been granted bail. That apart we are of

- 51 - 2025:HHC:3001 the considered view that there are no other overwhelming material on record to set aside the order granting bail which out weighs the liberty granted by the High Court under the impugned order.

17. Hence, we are of the considered view that interference is not warranted. However, to allay the apprehension of the prosecution it would suffice to observe that the prosecution would be at liberty to seek for cancellation of the bail in the event any of the conditions being violated by the respondent and in the event of such an application being filed we see no reason as to why said application would not be considered on its own merits by the jurisdictional court independently and without being influenced by its earlier observations. We also make it expressly clear that the observations made under the impugned order would be restricted to the consideration of the prayer for bail and the jurisdictional court without being influenced by any of the observation shall proceed to adjudicate the case on merits after trial. Subject to the above observations, the appeal stands dismissed." 14(v). While dealing with validity of bail order the Hon'ble Supreme Court has mandated that the criminal antecedents were not much relevant in case, no prima facie case was made out and the period of incarceration was prolonged, in Ayub Khan versus State of Rajasthan , 2024 SCC OnLine SC

- 52 - 2025:HHC:3001 3763, in the following terms:-

14(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:-

In facts of instant case, the plea of

- 55 - 2025:HHC:3001 Learned State Counsel is examined and the plea is devoid of any merit, for the reason, that firstly, neither any prima facie case nor reasonable grounds exist and prosecution story appears to be highly doubtful and improbable at this stage as discussed hereinabove; and secondly, the Status Report reveals that bail petitioner is in custody since 12.1.2024 and is undergoing incarceration for almost 1 year; and thirdly, conclusion of trial is likely to take considerable time when out of a total of 21 PWs only 12 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 guilt cannot be permitted; and eighthly, even the State Authorities have not placed any cogent and

- 56 - 2025:HHC:3001 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 Article 21 of the Constitution of India and, therefore, on totality of circumstances, the claim of

- 57 - 2025:HHC:3001 petitioner for bail carries weight and is granted, in peculiar facts of this case.

BAIL PETITIONER HAS ALREADY UNDERGONE PUNISHMENT :

Moreover, the case of petitioner is that he had been consuming Heroin/Chitta, for which no punishment has been prescribed under the NDPS Act and any such offence is punishable with imprisonment for a term may extend to six months or with fine or with both as per Section 32 of the NDPS Act and since the petitioner has suffered incarceration for about 12 months therefore, in this backdrop, the bail petitioner having undergone more than maximum punishment is entitled to be released on bail at this stage.

TRIAL TO TAKE CONSIDERABLE TIME:

intends to examine 12 PWs and 12 PWs including material witnesses have been examined but the trial is likely to take considerable time for its conclusion, therefore, this Court feels it appropriate not to detain the petitioner any longer [who has been implicated for Intermediate Quantity, which was never recovered from him and when, the bail petitioner was never travelling with the main accused and therefore, the prayer of petitioner for bail is accepted.

PARITY FOR BAIL WHEN CO-ACCUSED RAJNEESH VERMA ENLARGED ON BAIL:

NOTHING ADVERSARIAL REGARDING TAMPERING WITH EVIDENCE OR WITNESSES:

18. Status Reports filed by State Authorities have neither pointed out any adversarial circumstances nor placed on record any cogent and convincing material to infer that after release on bail, the petitioner is likely to tamper with evidence or may cause any inducement, threat or promise to any person or persons acquainted with the facts of the case. In these circumstances, plea for bail carries weight and is accepted.

NOTHING ADVERSARIAL QUA OBSTRUCTING OR ATTEMPTING TO THWARTING JUSTICE:

19. Status Reports filed by State Authorities have neither pointed out any adversarial circumstances

- 60 - 2025:HHC:3001 nor placed any cogent material, to show that after release on bail, the petitioner may obstruct or thwart the cause of justice in any manner and in absence thereof the plea for bail has merit in this bail order.

NOTHING ADVERSIAL REGARDING FLEEING AWAY FROM TRIAL OR COURT:

20. In order to safeguard the rights of bail petitioner and to take care of apprehensions of State [despite the fact that nothing has been placed on record that petitioner may flee away], yet, in peculiar facts of this case, this Court imposes stringent conditions in later part of this order.

CONCLUSION AND DIRECTIONS:

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 this case, the instant petition is allowed, and the State Authorities are directed to release the

- 61 - 2025:HHC:3001 petitioner [Krishan Kumar Nayyer] on bail, subject to observance of the following conditions:-

{Rs Fifty Thousand} with two sureties on furnishing similar bond amount each, to the satisfaction of Learned Trial Court concerned;

(ii). Petitioner shall undertake and shall also appear on every date of trial hereinafter;

(iii). Petitioner shall abide by all or any other condition(s), which may be imposed by the Learned Trial Court, in view of this order;

(iv). Petitioner shall neither involve himself nor shall abet the commission of any offence hereinafter. Involvement in any offence whatsoever or abetting thereof shall entail automatic cancellation of bail granted in terms of this order ;

(v). Petitioner shall disclose his functional E-Mail IDs/ WhatsApp number and that of his surety to the Learned Trial Court;

(vi). Petitioner after release, shall report to the Investigating Officer or SHO of Police Station concerned, nearest to his native place, on 2nd Sunday of every month at 11 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 prior permission of this 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

- 62 - 2025:HHC:3001 witnesses of any other person acquainted with the case;

(x). Petitioner is free to seek modification of any condition contained hereinabove, if need arises;

(xi). State Authorities are free to move this Court for seeking alteration/modification of any of the condition contained in this order or any condition imposed by 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.;

22. 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.

23. 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

- 63 - 2025:HHC:3001 for production of a certified copy, but if required, may verify about the passing of this order from the Website of this Court.

24. The Registry is directed to forward a copy of this order to Superintendent of Police, Hoshiarpur, Punjab 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 15, 2025 (tm)