2025:HHC:2998 IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr.MP(M) No:1737 of 2024 Decided On : 10th January, 2025 __________________________________________________________ Purba Sherpa ...Petitioner Versus State of Himachal Pradesh ...Respondents Coram Hon'ble Mr. Justice Ranjan Sharma, Judge 1 Whether approved for reporting? Yes For the petitioner : Mr. Kamal Kant Chandel, Advocate.

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

Ranjan Sharma, Judge [Oral] Bail petitioner, Purba Sherpa, who is in custody since 26.04.2023 has come up before this Court, seeking regular bail under Section 483 of the Bhartiya Nagarik Suraksha Sanhita, 2023 (hereinafter referred to as 'BNSS'), originating from FIR No.72 of 2023, dated 26.04.2023, under Section 20 of Narcotics Drugs & Psychotropic Substances, Act, 1985 [hereinafter referred to as ' NDPS Act '], registered at Police Station Bhunter, District Kullu [HP].

1 Whether reporters of Local Papers may be allowed to see the judgment? Yes

-2- 2025:HHC:2998 FACTUAL MATRIX:

2. Case as set-up by Mr. Kamal Kant Chandel, learned counsel for petitioner is that the police arrested the bail petitioner on 26.04.2023 for accusation under Section 20 of the NDPS Act. It is submitted that the petitioner is completely innocent and a false case has been registered at the instance of some interested persons. It is submitted that the petitioner has nothing to do with the alleged offence and he is completely innocent and nothing incriminating has been recovered from the bail petitioner. It is further averred that the petitioner is sole bread-earner in the family and has certain health issues. It is further averred that in case of release on bail shall not abscond or jump over the but shall participate in the trial and bail petitioner will not tamper with the evidence or cause any inducement, threat or promise to persons acquainted with the case.

It is averred that no further recovery is due from bail petitioner.

application i.e. Cr.MP No.4947 of 2024 for placing on record additional material to show that discrepancy in preparation of Inventory under Section 52 (A) of the NDPS Act, indicating the date of seizure as 19.12.2022, whereas, FIR was registered on 26.04.2023 and therefore, the Inventory is erroneous in law.

In above backdrop, the prayer for bail has been made through his father.

STAND OF STATE AUTHORITIES IN STATUS REPORT:

3(i). Perusal of the Status Report reveals that while the police party was patrolling in Kaleli, Bhuntar and Hathithan, for detecting illicit trade, transportation and sale-purchase of contraband on

-4- 2025:HHC:2998 26.04.2023, near Katoch Complex at 11:15 A.M. The police party received an information that the petitioner, Purba Sherpa, who is a resident of Khokhan near Bhuntar, shall be travelling and reaching Bhuin with a large quantity of Cannabis/Charas. Based on the information, the police party completed the formalities and after associating the witnesses, a Nakka was laid at about 12:10 p.m. and as soon as petitioner [Purba Sherpa] reached the spot, the police stopped him and inquired about his identity and whereabouts. The police party made enquiries whereafter the bail petitioner became perplexed. Before resorting to search of bail petitioner, an option as to whether the bail petitioner wanted to be searched before the Gazetted Officer or Police Officer was also conveyed to him.

3(ii). It is averred in Status Report that petitioner was searched in presence of witnesses. Pursuant to search the petitioner handed over a carry-bag, with inscription, of 'Shiv Shankar Cloth House' in which four polythene packets containing black substance was recovered, which on weighing was found to be

-5- 2025:HHC:2998 Cannabis/Charas, weighing 04.04 Kgs. Thereafter, the codal formalities were completed and Rukka was sent whereupon, FIR was registered. Pursuant to registration of FIR, the statement of witnesses was recorded under Section 161 of Cr.P.C. Bail petitioner was thereafter made to undergo medical examination in Civil Hospital Tehguwehad.

3(iii). Police filed an application before Learned Judicial Magistrate, Lahaul & Spiti at Kullu for preparing an Inventory under Section 52-A of the ND& PS Act . Status report further reveals that pursuant to the remand the bail petitioner admitted that he had purchased the contraband from an unknown person who is a resident of Titang [Nepal] near Parvati River as was inter se agreed between bail petitioner and said person. Bail petitioner was taken to the spot for tracing the alleged unknown person but he could be found.

3(iv). Status report indicates that the seized contraband was sent to SFSL and the SFSL submitted the report dated 11.05.2023, which confirmed the

-6- 2025:HHC:2998 contraband to be Cannabis/Charas. Status report further indicates that the investigation was completed and the Challan/Final Police Report was presented before the Jurisdictional Court i.e. District Judge, Kullu on 28.07.2023. Status Report further reveals that there are nineteen witnesses out of which statements of six prosecution witnesses have been examined and three prosecution witnesses are to be examined on 28.09.2024.

In above backdrop, Learned State Counsel has prayed for dismissal of the bail petition.

4. Heard Mr. Kamal Kant Chandel, learned counsel for the petitioner as well as Mr. Hemant K. Verma, Learned State Counsel and have gone through the case records.

STATUTORY PROVISIONS:

5. Before dealing with the bail petition, it is necessary to take note of the provisions of Section 20 of the ND& PS Act , which read as under:-

reasonable apprehension of witnesses being influenced and danger of justice being thwarted by grant of bail

-9- 2025:HHC:2998 etc; and then in Sushila Aggarwal versus State-NCT Delhi , (2020) 5 SCC 01; CBI versus Santosh Karnani (2023) 6 SCALE 250; have been reiterated by the Honble Supreme Court in State of Haryana versus Dharamraj , 2023 SCC Online SC 1085, as under:

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

- 10 - 2025:HHC:2998 imposed in law. It is trite law that while considering prayer for bail {pre-arrest bail or regular bail], the factum of prolonged pre-conviction incarceration and the right of speedy trial has to be taken into account, in the background of the fact as to whether delay in trial was attributable to an accused or not. Another added factor and not the sole factor of past criminal antecedents; and the factum as to whether an accused has misused concession-liberty granted earlier. While considering the prayer for bail, the balance has to be carved out between the liberty of an accused vis-à-vis the societal interests, including danger of justice being thwarted in case the bail is granted.

6(ii). This Court is also conscious of the fact that as per the mandate of law, in Criminal Appeal No. 3840 of 2023, titled as Saumya Churasia versus Directorate of Enforcement , decided on 14.12.2023, while considering the prayer for bail, the Court is not required to weigh the evidence collected by the Investigating Agency meticulously, nonetheless, the Court should keep in mind the nature of accusation,

- 11 - 2025:HHC:2998 the nature of evidence collected in support thereof, the severity of punishment prescribed for alleged offences, the character of accused, the circumstances which are peculiar to accused, reasonable possibility of securing the presence of accused during trial, reasonable apprehension of witnesses being tampered with and the larger public/state interests. It is in this background, that the claim for bail is to be examined by a Court without delving into the evidence on merits but by forming a prima-facie opinion on totality of facts in light of broad-parameters referred to above .

ANALYSIS: CLAIM FOR BAIL IN INSTANT CASE:

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

9(i). Perusal of Status Report and the material on record indicates that neither any prima facie case

- 13 - 2025:HHC:2998 nor any reasonable grounds exist to believe that the bail petitioner is guilty of the offence in the instant case, at this stage.

9(ii). Status Report filed by the State Authorities does not spell out any material to show that the bail petitioner has resorted to any activities, so as to invoke the provisions of Section 20 of NDPS Act, against the petitioner, at this stage. In these circumstances, the bail petitioner appears to be not guilty, in view of inherent discrepancies and grave contradictions in the statements of PWs, at this stage and therefore, the bail petitioner deserves to be granted concession of bail.

9(iii). Section 29 of NDPS Act, alleging abatement and criminal conspiracy is a matter which is yet to be tested, examined and proved during trial. The accusation of abatement or criminal conspiracy cannot be attributed against the bail petitioner without there being any cogent and convincing material on record and thus, this Court is of the considered view, that the bail petitioner is not guilty of the offence, at this

- 14 - 2025:HHC:2998 stage.

[B]. NOTHING ADVERSARIAL REGARDING REPITITION OF OFFENCE AFTER BAIL:

Taking into account the entirety of facts and circumstances, including the Status Reports, this Court is of the considered view, that there are no reasonable grounds to believe that the petitioner is guilty and that the petitioner is likely to repeat the offence after being released on bail and therefore, by applying the twin-tests as mandated in Section 37 (1)(b) of the NDPS Act, the bail petitioner [Purba Sherpa] deserves to be enlarged on bail.

[C] CLAIM FOR BAIL ON OTHER EXCEPTIONAL GROUNDS AND CIRCUMSTANCES:

11(ii). The Hon'ble Supreme Court in Mukesh Kumar versus State of Rajasthan and another , 2023 SCC OnLine SC 2025, granted bail to an accused suffering incarceration for more than 1 year and 11 months coupled with the fact that there is no much progress in trial, in the following terms:-

PROLONGED INCARCERATION AND INFRINGMENT OF PERSONAL LIBERTY UNDER ARTICLE 21 OF THE CONSTITUTION OF INDIA:

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

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

- 19 - 2025:HHC:2998 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:

BAIL NOT TO BE WITHHELD BY WAY OF PENALTY:

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

- 23 - 2025:HHC:2998 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:

These stringent provisions regarding the grant of bail, such as Section 45(1)(iii) of the PMLA, cannot become a tool which can be used to incarcerate the accused without trial for an unreasonably long time.

25. Considering the gravity of the offences in such statutes, expeditious disposal of trials for the crimes under these statutes is contemplated. Moreover, such statutes contain provisions laying down higher threshold for the grant of bail. The expeditious disposal of the trial is also warranted considering the higher threshold set for the grant of bail. Hence, the requirement of expeditious disposal of cases must be read into these statutes. Inordinate delay in the conclusion of the trial and the higher threshold for the grant of bail cannot go together. It is a well settled principle of our criminal jurisprudence that "bail is the rule, and jail is the exception." These stringent provisions regarding the grant of bail, such as Section 45(1)

(iii) of the PMLA, cannot become a tool

- 26 - 2025:HHC:2998 which can be used to incarcerate the accused without trial for an unreasonably long time.

26. There are a series of decisions of this Court starting from the decision in the case of K.A. Najeeb, which hold that such stringent provisions for the grant of bail do not take away the power of Constitutional Courts to grant bail on the grounds of violation of Part III of the Constitution of India. We have already referred to paragraph 17 of the said decision, which lays down that the rigours of such provisions will melt down where there is no likelihood of trial being completed in a reasonable time and the period of incarceration already undergone has exceeded a substantial part of the prescribed sentence. One of the reasons is that if, because of such provisions, incarceration of an under-trial accused is continued for an unreasonably long time, the provisions may be exposed to the vice of being violative of Article 21 of the Constitution of India.

27. Under the Statutes like PMLA, the minimum sentence is three years, and the maximum is seven years. The minimum sentence is higher when the scheduled offence is under the NDPS Act . When the trial of the complaint under PMLA is likely to prolong beyond reasonable limits, the Constitutional Courts will have to consider exercising their powers to grant bail. The reason is that Section 45(1)(ii) does not confer power on the State to detain an accused for an unreasonably long time, especially when there is no possibility of trial concluding within a reasonable time. What a reasonable time is will depend on the provisions under which the accused is being tried and other factors. One of the most relevant factor is the duration of the minimum and maximum

- 27 - 2025:HHC:2998 sentence for the offence. Another important consideration is the higher threshold or stringent conditions which a statute provides for the grant of bail. Even an outer limit provided by the relevant law for the completion of the trial, if any, is also a factor to be considered. The extraordinary powers, as held in the case of K.A. Najeeb, can only be exercised by the Constitutional Courts. The Judges of the Constitutional Courts have vast experience. Based on the facts on record, if the Judges conclude that there is no possibility of a trial concluding in a reasonable time, the power of granting bail can always be exercised by the Constitutional Courts on the grounds of violation of Part III of the Constitution of India notwithstanding the statutory provisions. The Constitutional Courts can always exercise its jurisdiction under Article 32 or Article 226 , as the case may be. The Constitutional Courts have to bear in mind while dealing with the cases under the PMLA that, except in a few exceptional cases, the maximum sentence can be of seven years. The Constitutional Courts cannot allow provisions like Section 45 (1)

(ii) to become instruments in the hands of the ED to continue incarceration for a long time when there is no possibility of a trial of the scheduled offence and the PMLA offence concluding within a reasonable time. If the Constitutional Courts do not exercise their jurisdiction in such cases, the rights of the undertrials under Article 21 of the Constitution of India will be defeated. In a given case, if an undue delay in the disposal of the trial of scheduled offences or disposal of trial under the PMLA can be substantially attributed to the accused, the Constitutional Courts can always decline to exercise

- 28 - 2025:HHC:2998 jurisdiction to issue prerogative writs. An exception will also be in a case where, considering the antecedents of the accused, there is every possibility of the accused becoming a real threat to society if enlarged on bail. The jurisdiction to issue prerogative writs is always discretionary.

29. As stated earlier, the appellant has been incarcerated for 15 months or more for the offence punishable under the PMLA. In the facts of the case, the trial of the scheduled offences and, consequently, the PMLA offence is not likely to be completed in three to four years or even more. If the appellant's detention is continued, it will amount to an infringement of his fundamenttal right under Article 21 of the Constitution of India of speedy trial.

31. Therefore, the appeal is allowed, and the appellant shall be enlarged on bail till the final disposal of CC No. 9 of 2023 pending before the Principal Session Judge, Chennai ....."

15(i). While reiterating the grant of bail, despite statutory embargoes in Special Enactments, Hon'ble Supreme Court in Criminal Appeal No. 5266 of 2024 (Arising out of SLP (CRL.) No. 13870 of 2024, titled as Partha Chatterjee Versus Directorate of Enforcement, decided on 13.12.2024, 2024 SCC Online SC 3729, has been reiterated, by treating the right to life and liberty under Article 21 of the Constitution of India to be of paramount

- 29 - 2025:HHC:2998 importance and action of prolonging the incarceration so as to make such incarceration punitive has been deprecated by granting bail, in the following terms:-

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 granted bail by invoking Article 21 of Constitution of India as the prolonged incarceration defeats precious fundamental rights and such fundamental rights have to override the statutory embargo in Section 37 (1) (b) of NDPS Act in the following terms:-

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:-

17(iii). In Petition(s) for Special Leave to Appeal (Crl.) No(s). 9510/2024, titled as Ram Lal Versus The State of Rajasthan, decided on 17.09.2024, similar benefit of bail was extended where the incarceration was prolonged, as in this case, in the following terms:-

17(iv). Recently, the Hon'ble Supreme Court in Criminal Appeal No.______/2024 [@SLP (CRL.) No.13428/2024), titled as Merina Bibi versus The State of West Bengal , decided on 19.11.2024, has enlarged the petitioner therein on bail who was suffering incarceration for about one year and seven months and there was no likelihood of the trial for completion of trial in a considerable time in the following terms:-

It is directed that the appellant shall extend complete cooperation in the trial of the instant case. The appellant shall not misuse her liberty in any manner."

17(v). The Hon'ble Supreme Court in Special Leave to Appeal [Crl.) No(s).11582/2024, titled as Gurdev Singh versus State of Himachal Pradesh , decided on 22.11.2024, has granted regular bail to the petitioner therein, who was involved in commercial quantity of contraband under ND& PS Act , in view of the period of incarceration and the fact that the trial may taken considerable time to conclude in the following terms:-

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

Statements of 23 prosecution witnesses still remain to be recorded. The zimni orders placed on record reflect that the trial has been deferred time and again for want of presence of prosecution witnesses. Considering the fact that at this stage 23 witnesses remain to be recorded, it is apparent that the trial is not going to be concluded in near future. The petitioner, who has already spent about three years and five months in custody, in my considered opinion has made out a case for his enlargement on regular bail at this stage. There is no criminal history of the petitioner. The apprehension expressed by the prosecution about the likelihood of petitioner's tampering with the evidence or winning over remaining witnesses, can be taken care of by imposing stringent conditions and also granting liberty to the respondent/State to seek cancellation of the bail in case the conditions are violated by the petitioner. In view of all the aforesaid reasons and without expressing any opinion on the merits of the case, the present petition is allowed. Petitioner is ordered to be released on bail in the aforesaid FIR..."

18(i). The Co-ordinate Bench of this Court in Cr.MP(M) No.536 of 2024, titled as Kailash Singh

- 42 - 2025: HHC:2998 versus State of Himachal Pradesh , decided on 22.04.2024, has granted bail in view of the prolonged incarceration and the fact that the trial is not likely to conclude in the near future and no delay in trial was attributable to the petitioner therein, in the following terms by observing that the constitutional guarantee of liberty and expeditious trial cannot be diluted by the rigours of Section 37 of ND& Ps Act , in the following terms:-

10. Recently, in a number of cases, under-trials for offences involving commercial quantity of contraband under ND& PS Act have been

- 44 - 2025:HHC:2998 allowed the liberty of bail by Hon'ble Supreme Court only on the ground that they have been incarcerated for prolonged durations.

11. In Mahmood Kurdeya Vs. Narcotic Control Bureau (2022) 3 RCR (Criminal) 906, Hon'ble Supreme Court has held as under:-

12. In Nitish Adhikary @ Bapan Vs.The State of West Bengal (Special Leave to Appeal (Cr.L.) No (s). 5769 of 2022, decided on 01.08.2022, Hon'ble Supreme Court has held as under:-

13. In Gopal Krishna Patra @ Gopalrusma Vs. Union of India (Cr. Appeal No. 1169 of 2022), decided on 05.08.2022, Hon'ble Supreme Court has held as under:-

14. In Chitta Biswas @ Subhas Vs. The State of West Bengal, (Criminal Appeal No.(s) 245 of 2020, decided on 07.02.2020, it has been held as under:-

"The appellant was arrested on 21.07.2018 and continues to be custody. It appears that out of 10 witnesses cited to be examined in support of the case of prosecution four witnesses have already been examined in the trial. Without expressing any opinion on the merits or demerits of the rival submission and considering the facts and circumstances on record, in our view, case for bail is made out."

15. In Abdul Majeed Lone Vs. Union Territory of Jammu and Kashmir( Special Leave to Appeal (Cr.L.) No. 3961 of 2022, decided on 01.08.2022, it has been held as under:-

16. In addition, different Co-ordinate Benches of this Court have also followed precedent to grant bail to the accused in ND& PS Act , on the ground of prolonged pre-trial incarceration. Reference can be made to order dated 28.07.2022, passed in Cr.MP(M) No. 1255 of 2022, order dated 01.12.2022, passed in Cr.MP(M) No. 2271 of 2022 and order dated 04.11.2022, passed in Cr.MP(M) No. 2273 of 2022.

17. Recently in Criminal Appeal No. 943 of 2023 titled as Mohd Muslim @ Hussain Vs. State (NCT of Delhi ), Hon'ble Supreme Court, vide its judgment dated 28.03.2023, has held as under:-

23. There is a further danger of the prisoner turning to crime, "as crime not only turns admirable, but the more professional the crime, more honour is paid to the criminal"22 (also see Donald Clemmer's 'The Prison Community' 20 National Crime Records Bureau, Prison Statistics in India https://ncrb. gov.in/sites/default/files/ PSI 2021/Executive_ncrb_Summary- 2021.pdf 21 1993 Cri LJ 3242 22 Working Papers - Group on Prisons & Borstals - 1966 U.K. published in 194023). Incarceration has further deleterious effects - where the accused belongs to the weakest economic strata: immediate loss of livelihood, and in several cases, scattering of families as well as loss of family bonds and alienation from society. The courts therefore, have to be sensitive to these aspects (because in the event of an acquittal, the loss to the accused is irreparable), and ensure that trials - especially in cases, where special

- 48 - 2025:HHC:2998 laws enact stringent provisions, are taken up and concluded speedily."

18. Reverting to the facts of the case, the petitioner is in custody since 06.09.2022 and the facts suggest that the trial is not likely to be concluded in near future. There is nothing on record to suggest that delay in trial is attributable to the petitioner. The independent witnesses cited by the prosecution have already been examined. No criminal history has been attributed to the petitioner. He is permanent resident of District Kullu, Himachal Pradesh.

19. Keeping in view the facts of the case and also the above noted precedents, the bail petition is allowed and petitioner is ordered to be released on bail in case FIR No. 193 of 2022, dated 06.09.2022, registered under Sections 20 and 29 of ND& PS Act , at Police Station Bhuntar, District Kullu, H.P., on his furnishing personal bond in the sum of Rs. 1,00,000/- with one surety in the like amount to the satisfaction of learned trial court."

18(ii). While dealing with the claim for bail in commercial quantity of poppy straw [churapost-bhukki] of 54.760 Kgs. and taking into account the prolonged incarceration for about one year and eight months, the Co-ordinate Bench of this Court, has extended concession of bail to an accused, in Cr.MP (M) No. 1003 of 2024, titled as Vijay Singh Versus State of Himachal Pradesh, decided on 24.05.2024, in the following terms:-

- 49 - 2025:HHC:2998 "10. Though, the case at hand is to be decided by learned trial Court, in the totality of evidence collected on record by the investigating agency, but having noticed aforesaid glaring aspects of the matter, there appears to be no justification for this Court to let the bail petitioner incarcerate in jail, for an indefinite period during trial, especially when rigours of S.37 of the Act are not attracted on account of recovery of small quantity.

11. Learned counsel for the petitioner while inviting attention of this court to judgments dated 4.3.2023 and 15.3.2023 passed in Cr.MP(M) No. 62 and 570 of 2023, titled Puran Chand v. State of HP and Prem Chand v. State of HP. , submitted that in similar facts and circumstances, coordinate Bench of this Court as well as this Court enlarged the accused on bail on the ground of inordinate delay. Having perused aforesaid judgments passed by the coordinate Bench of this Court, this Court finds that in both the cases, commercial quantity of contraband was recovered from the accused, but yet court having taken note of the fact that they were behind the bars for more than three years, proceeded to enlarge them on bail.

12. Hon'ble Apex Court having taken note of inordinate delay in conclusion of trial in similar facts ordered for enlargement of accused on bail in Nitish Adhikary @ Bapan v. The State of West Bengal, Special Leave to Appeal (Crl.) No. 5769 of 2022 decided on 1.8.2022 and in Abdul Majeed Lone v. Union Territory of Jammu and Kashmir, Special Leave to Appeal (Crl) No. 3961 of 2022, decided on 1.8.2022, who were also framed under Narcotic Drugs and Psychotropic Substances Act and were behind the bars for approximately two years and there

- 50 - 2025:HHC:2998 was no likelihood of conclusion of trial in near future, subject to certain conditions.

13. Learned Counsel appearing for the petitioner, to substantiate his plea for enlarging the petitioner on bail, has referred order dated 12.10.2020 passed by a three judges Bench of the Supreme Court, in Criminal Appeal No. 668 of 2020, titled Amrit Singh Moni v. State of Himachal Pradesh , whereby petitioner therein, facing trial for recovery of 3.285 kilograms charas from a vehicle, alongwith four other persons, was enlarged on bail, for having been in detention for 2 years and 7 months, as till then out of 14 witnesses, 7 witnesses were yet to be examined and last witness was examined in February, 2020 and, thereafter, there was no further progress in the trial.

14. Recently, Hon'ble Apex Court in SLP(Crl) No. 1904 of 2023 titled Sunil Kumar v. The State of Himachal Pradesh , decided on 29.3.2023, has ordered enlargement of petitioner therein, who was behind bars for one and half years, on the ground of delay in trial and conduct of the petitioner.

15. Learned Additional Advocate General, referring to judgment of a three Judges Bench of Supreme Court, passed on 19.7.2022 in Narcotics Control Bureau v. Mohit Aggarwal contends that period of detention cannot be a ground for enlarging the petitioner on bail, especially in the cases where rigors of Section 37 are attracted.

16. In the instant case, bail petitioner is behind bars for more than 13 months and till date trial has not been completed and there are very bleak chances of conclusion of the same in near future, as such, there appears to be no justification to keep the bail petitioner behind the bars for an indefinite period, during trial."

- 51 - 2025:HHC:2998 18(iii). Recently, the Coordinate Bench of this Court in Cr.MP(M) No. 2656 of 2024, titled as Kamal Singh Versus State of Himachal Pradesh, decided on 11.12.2024, has enlarged the accused on bail in case relating to commercial quantity of charas, i.e. 1.209 Kgs. who was facing incarceration for about 12 months, in the following terms:-

21. In view of the aforesaid discussion as well as law laid down by the Hon'ble Apex Court, petitioner has carved out a case for grant of bail, accordingly, the petition is allowed and the petitioner is ordered to be enlarged on bail in aforesaid FIR....."

CONTENTION THAT INVENTORY UNDER SECTION 52-A OF ND&PS ACT, CONTAINS IRREGULARITIES:

Moreover, mere description of an incorrect date of seizure in the application for Inventory will not

- 53 - 2025:HHC:2998 confer a right for bail when, such irregularity being due to typographical error in the application for Inventory, does not goes to the root of the matter and further the fact as to whether the contraband as reflected in the application for Inventory and the contraband in this case was same or not is a matter to be tested and examined during the trial.

NOTHING ADVERSARIAL REGARDING TAMPERING WITH EVIDENCE OR WITNESSES ETC:

NOTHING ADVERSARIAL REGARDING OBSTRUCTING OR ATTEMPTING TO THWARTLING JUSTICE:

- 54 - 2025:HHC:2998

21. Status Reports filed by State Authorities have neither pointed out any adversarial circumstances nor placed on record any cogent and convincing material on record to infer that after release on bail, the petitioner may obstruct or thwart the cause of justice in any manner. In absence of any material, the plea for bail deserves to be granted to the petitioner in the instant case.

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

22. In order to safeguard the rights of the bail petitioner and to take care of the apprehensions of the State, if any, that the bail petitioner may flee away [notwithstanding that no such apprehension has been pointed out in Status Report] yet, in the peculiar facts of this case, this Court imposes stringent conditions in later part of this order.

CONCLUSION AND DIRECTIONS:

23. Taking into account the entirety of the facts, the material on record and the mandate of law and in view of the discussion made and the

- 55 - 2025:HHC:2998 reasons recorded hereinabove and in the peculiar facts of case, the instant petition is allowed, and the State Authorities are directed to release the petitioner [Purba Sherpa] on bail, subject to observance of the following conditions:-

(viii). Petitioner shall not tamper with the evidence in any manner;

(ix). Petitioner shall not cause any inducement, threat or promise {directly or indirectly} to witnesses of any other person acquainted with the case;

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

(xi) State Authorities are free to move this Court for seeking alteration /modification of any of the condition contained in this order or any condition imposed by Learned Trial Court as a sequel to this order, in fact situation of instant case or circumstances so necessitate, at any time herein-after;

(xii). State Authorities are free to move this Court for seeking cancellation of the concession of bail, in case, the petitioner violates any of the conditions contained in this order.

24. Observations made in this judgment shall not be construed in any manner as an indictive of findings, for or against the parties herein, either for the purpose of investigation or for trial, which shall proceed in-accordance with law, irrespective of any of the observations contained hereinabove.

25. Petitioner is permitted to produce/use copy of this order, downloaded from the web-page of the

- 57 - 2025:HHC:2998 High Court of Himachal Pradesh, before the authorities concerned, and the said authorities shall not insist for production of a certified copy, but if required, may verify about the passing of this order from the Website of this Court.

26. The Registry is directed to forward a copy of this order to Superintendent of Police, Kullu, District Kullu [HP] and Superintendent Sub-Jail Kullu, District Kullu [HP] for information and necessary action in terms of this order.

Pending miscellaneous application(s), if any, shall also stand disposed of.

DN: C=IN, O=HIGH COURT OF HIMACHAL PRADESH, TARUN OU=HIGH COURT OF HIMACHAL PRADESH SHIMLA, Phone= 887aba774dfe8f4f3e95a41c7aa2abacb4ecee8f82efd8f56e c39f8e6b442b68, PostalCode=171001, S=Himachal Pradesh, SERIALNUMBER= 3ff6ebe501e8d7c8d73d0e5a5294bacca3f198d7d66b105b MAHAJAN bf507179673109f5, CN=TARUN MAHAJAN Reason: I am the author of this document Location: 12345678 Date: 2025.01.14 19:58:29+05'30' Foxit PDF Reader Version: 2023.2.0