( 2025:HHC:2996 ) IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr.MP(M) No. 1462 of 2024 Reserved on: 4th January 2025 Announced on: 10th January, 2025 ____________________________________________________________ Tilak Raj .......Petitioner Versus State of Himachal Pradesh ......Respondent Coram Hon'ble Mr. Justice Ranjan Sharma, Judge 1 Whether approved for reporting? Yes For the petitioner: Mr. Vijender Katoch, Advocate. For the respondent: Mr. Pratyush Sharma, Addl. A.G. Ranjan Sharma, Judge Bail petitioner, Tilak Raj [being in custody 19.05.2023] has approached this Court, under Section 483 of the Bhartiya Nagarik Suraksha Sanhita, 2023 [hereinafter referred to as BNSS] seeking regular bail originating from the FIR No. 98 of 2023 dated 19.05.2023, registered with Police Station Baijnath, District Kangra [H.P.], under Sections 20 and 29 of the Narcotic Drugs and Psychotropic Substances Act (referred to as the NDPS Act ) and under Section 1 Whether reporters of Local Papers may be allowed to see the judgment?

2. Case set up by Mr. Vijender Katoch, Learned Counsel is that prosecution case is that on 18.5.2023 at around 09.45 p.m, while the Police Party headed by Inspector Gaurav Bhardwaj alongwith other Police Officials were on patrolling duty near GMS Kyori, a secret information was received that two persons were selling Charas near Jagarkot Ajay Pal Devta Temple. On receiving this information, Inspector Gaurav Bharadwaj and two Independent witnesses namely Pradhan Shiv Kumar and Up-Pradhan Rovan Lal reached village Sail and thereafter, IO Gaurav Bharadwaj in his private car left for Jagarkot Ajay Pal Devta Temple and the Independent witness also went to said temple spot in separate vehicle. On reaching Jagarkot Ajay Pal Devta Temple, at around 10.20 p.m, police party found one white Eon Car, without registration, occupied by three persons and one black pulsar motorcycle bearing No HP-33-7650 was found

-3- ( 2025:HHC:2996 ) parked. On inquiry, the person sitting on driver seat disclosed his name Tilak Raj, the person sitting on co-driver seat revealed his name as Mehar Singh and person sitting on rear seat disclosed his name as Missu Ram. On checking of Eon Car, the police found one carry bag printed with green and red flowers from underneath the drivers seat and after untying bag, the police recovered sticks like black substance i.e. Charas-Cannabis and upon weighing it came out to be 1.509 Kgs. The recovered Charas was kept in same carry bag and was sealed with eight seals and documents of Car and Motorcycle were also seized and after completing all the codal formalities, the rukka was sent leading to registration of FIR. 2(i). The matter was Investigated and the Challan was presented before the jurisdictional Court. It is averred that the allegations were totally false and the bail petitioner [Tilak Raj], was not connected with the alleged offence. It was stated that the petitioner

-4- ( 2025:HHC:2996 ) was falsely implicated. It is submitted that nothing is to be recovered from him and no fruitful purpose will be served by keeping him in judicial custody. 2(ii). Apart from this, the bail petitioner has given certain undertakings that he shall participate in the investigation and trial thereafter and shall not cause any inducement, threat or promise to any witness or person acquainted with the case and shall not tamper with the evidence in any manner. It is averred that in case of release, the bail petitioner shall abide by all other conditions which may be imposed by this Court.

2(iii). It is further averred that the bail petitioner earlier moved an application for bail before this Court [Cr.MP(M) No.729 of 2024], and on receipt of Status Report, the same was withdrawn by the bail petitioner on 22.04.2024 [Annexure P-1].

2(iv). After withdrawal of the bail on 22.04.2024 Annexure P-1], the bail petitioner came across Forensic

-5- ( 2025:HHC:2996 )

-Chemical Analysis Report and it is contented that entire contraband was not made homogenous as per Section 52-A of NDPS Act and therefore the petitioner could not be presumed or implicated for commercial quantity but could only be made to undergo accusation for 26.0 gms as per RFSL Report (Annexure P-4) i.e. Intermediate Quantity. It is averred that pendency of another F.I.R No. 59/2016 at Police Station Padhar District Mandi, under Section 147, 149,323, 341, 504, 506, 354-A cannot be the basis for prolonging the incarceration illegally. Bail petitioner has furnished 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, [Tilak Raj] through his wife, with the prayer for granting bail.

3. Upon issuance of notice the State Authorities have filed the Status Report dated 01.08.2024 on instructions of SHO Police Station Baijnath, District Kangra, (HP) and the matter was adjourned either by Learned Counsel for petitioner and by the Learned State Counsel and the matter was finally heard on 4.1.2025.

3(i). Status Report narrates the prosecution story that on 18.05.2023, at around 09.45 p.m, the Police Party headed by Inspector Gaurav Bhardwaj received a secret information that a white Eon Car being occupied by two persons and one motorcycle was parked near Jagarkot Ajay Pal Devta Temple and they were selling Charas. After completing formalities under Section 42 (2) , Inspector Gaurav Bharadwaj reached village Sail, at 10.10 pm and two Independent witnesses namely Pradhan Shiv Kumar and Up-Pradhan Rovan Lal also reached there in pic up no HP-63-6112. Thereafter,

-7- ( 2025:HHC:2996 ) IO Gaurav Bharadwaj left for Jagarkot Ajay Pal Devta Temple in his private car and the Independent witness also went to the said temple spot in their separate vehicle. On reaching Jagarkot Ajay Pal Devta Temple, at around 10.20 p.m, the police party found the white Eon Car with three occupants and one black pulsar motorcycle bearing No. HP-33-7650 parked there. On inquiry, the person sitting on driver seat disclosed his name Tilak Raj, the person sitting on co-driver seat revealed his name as Mehar Singh and the person sitting on rear seat disclosed his name Missu Ram. On checking of Eon Car the police found one carry bag printed with green and red flowers from underneath the drivers seat. On untying the bag, the police recovered sticks like black substance and after smelling it appears to be Charas-Cannabis and on weighing, it came out to be 1.509 Kgs. The recovered Charas was kept in the same carry bag and was sealed and after completing codal formalities,

-8- ( 2025:HHC:2996 ) rukka was sent leading to registration of FIR. 3(ii). Pursuant to registration of FIR, petitioner was arrested on 19.5.2023 and bail petitioner was made to undergo medical examination. Status Report indicates that the magistrate allowed the police remand on 19.5.2023 for 4 days. It is averred that an inventory was prepared under Section 52-A of NDPS Act by magistrate after taking out two samples of 26 gms each and sealed with court seals, which were sent to SFSL at Junga for analysis. Status report indicates that statements of witnesses were recorded under Section 161 Cr.P.C. Status Report further indicates that Investigation is complete and the Challan-Final Police Report has been presented before the Learned ASJ Palampur on 8.8.2023 and out of 22 PWs and 7 PWs were examined at time of filing of bail, but 13 PWs stood examined upto the date of hearing of instant petition (4.1.2025} by Learned Trial Court.

In this background, Status Report, has been

-9- ( 2025:HHC:2996 ) filed by the State Authorities, with the prayer for dismissing the bail petition.

4. Heard, Mr. Vijender Katoch, Learned Counsel for the bail-petitioner and Mr. Pratyush Sharma, Learned Additional Advocate General for Respondent State.

STATUTORY PROVISIONS:

5. Before dealing with the claim for bail, it is necessary to have a recap of the statutory provisions of Sections 20 and 29 of the NDPS Act, which read as under:-

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

- 10 - ( 2025:HHC:2996 ) to ten thousand rupees, or with both; (B) and involves quantity lesser than commercial quantity but greater than small quantity, with rigorous imprisonment for a term which may extend to ten years, and with fine which may extend to one lakh rupees;

(C) and involves commercial quantity, with rigorous imprisonment for a term which shall not be less than ten years but which may extend to twenty years and shall also be liable to fine which shall not be less than one lakh rupees but which may extend to two lakh rupees:

(2) A person abets, or is a party to a criminal conspiracy to commit, an offence, within the meaning of this section, who, in India abets or is a party to the criminal conspiracy to the commission of any act in a place without and beyond India which-

(a) would constitute an offence if committed within India; or

(b) under the laws of such place, is an offence relating to narcotic drugs or psychotropic substances having all the legal conditions required to constitute it such an offence the same as or analogous to the legal conditions required to constitute it

- 11 - ( 2025:HHC:2996 ) an offence punishable under this Chapter, if committed within India."

MANDATE OF LAW ON BAILS:

6. Notably, the claim of the suspect-accused for regular bail is to be examined/tested in terms of the parameters prescribed in Code of Criminal Procedure {now BNSS} and also the broad para-meters mandated by the Hon'ble Supreme Court for regulating grant of bail in Gurbaksh Singh Sibbia versus State of Punjab (1980) 2 SCC 565 ; Ram Govind Upadhyay versus Sudarshan Singh (2002) 3 SCC 598 ; Kalyan Chandra Sarkar versus Rajesh Ranjan , (2004) 7 SCC 528; Prasanta Kumar Sarkar versus Ashish Chatterjee , (2010) 14 SCC 496; reiterated in the case of P. Chidambaram versus Directorate of Enforcement , (2019) 9 SCC 24, that bail is to be granted where the allegation is frivolous or groundless and incase neither any prima facie case nor reasonable grounds exists to believe or point towards the accusation. However, depending upon the facts of each case, the

- 12 - ( 2025:HHC:2996 ) 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. 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

- 14 - ( 2025:HHC:2996 ) 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, reasonable apprehension of witnesses being tampered with and the larger public/state interests. It is in

- 15 - ( 2025:HHC:2996 ) this background, that the claim for bail is to be examined by a Court without delving into the evidence on merits but by forming a prima-facie opinion on totality of facts in light of broad-parameters referred to above .

ANALYSIS: CLAIM FOR BAIL IN INSTANT CASE:

7. While examining the claim for bail in the instant case, this Court is conscious of the fact that, once petitioner has been implicated with commercial quantity of contraband i.e. [Cannabis-Charas] weighing 1.509 Kgs therefore, in normal parlance, the rigors of Section 37 (1) (b) of NDPS Act are to be satisfied, before acceding to the claim for bail, in terms of the mandate of law, laid down by the Hon'ble Supreme Court in Narcotics Control Bureau vs Mohit Aggarwal AIR 2022 SC 3444, followed in Union of India vs Ajay Kumar Singh @ Pappu, SLP (Criminal) No. 2351 of 2023, which stands reiterated by the Hon'ble Supreme Court, in State by the Inspector of Police

- 16 - ( 2025:HHC:2996 ) 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 [Tilak Raj] for bail, in view of the statutory mandate of Section 37 (1) (b) of NDPS Act and also, by taking into account, the exceptions carved out by the Honble Supreme Court to rigors of Section 37 (1) (b) of NDPS Act, hereinbelow.

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

9. This Court proceeds to examine the claim for bail in view of the rigours in Section 37 of the NDPS Act hereinunder;

9(i). Perusal of Status Report and the material on record indicates that neither any prima facie case nor any reasonable grounds exist to believe that the bail petitioner is guilty of the offence in the instant case, at this stage.

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 stage.

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

- 18 - ( 2025:HHC:2996 )

10. Status Reports filed by the State Authorities have not expressed any apprehension of repetition of offence after being enlarged on bail hereinafter.

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

- 21 - ( 2025:HHC:2996 )

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:

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.

- 27 - ( 2025:HHC:2996 )

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."

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:

The expeditious disposal of the trial is also warranted considering the higher threshold set for the grant of bail. Hence, the requirement of expeditious disposal of cases must be read into these statutes. Inordinate delay in the conclusion of the trial and the higher threshold for the grant of bail cannot go together. It is a well settled principle of our criminal jurisprudence that "bail is the rule, and jail is the exception." These stringent provisions regarding the grant of bail, such as Section 45(1)(iii) of the PMLA, cannot become a tool which can

- 30 - ( 2025:HHC:2996 ) 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 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

- 31 - ( 2025:HHC:2996 ) substantial part of the prescribed sentence. One of the reasons is that if, because of such provisions, incarceration of an under-trial accused is continued for an unreasonably long time, the provisions may be exposed to the vice of being violative of Article 21 of the Constitution of India.

27. Under the Statutes like PMLA, the minimum sentence is three years, and the maximum is seven years. The minimum sentence is higher when the scheduled offence is under the NDPS Act . When the trial of the complaint under PMLA is likely to prolong beyond reasonable limits, the Constitutional Courts will have to consider exercising their powers to grant bail. The reason is that Section 45(1)(ii) does not confer power on the State to detain an accused for an unreasonably long time, especially when there is no possibility of trial concluding within a reasonable time. What a reasonable time is will depend on the provisions under which the accused is being tried and other factors. One of the most relevant factor is the duration of the minimum and maximum sentence for the offence. Another important consideration is the higher threshold or stringent conditions which a statute provides for the grant of bail. Even an outer limit provided by the relevant law for the completion of the trial, if any, is also a factor to be considered. The extraordinary powers, 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

- 32 - ( 2025:HHC:2996 ) exercised by the Constitutional Courts on the grounds of violation of Part III of the Constitution of India notwithstanding the statutory provisions. The Constitutional Courts can always exercise its jurisdiction under Article 32 or Article 226 , as the case may be. The Constitutional Courts have to bear in mind while dealing with the cases under the PMLA that, except in a few exceptional cases, the maximum sentence can be of seven years. The Constitutional Courts cannot allow provisions like Section 45 (1) (ii) to become instruments in the hands of the ED to continue incarceration for a long time when there is no possibility of a trial of the scheduled offence and the PMLA offence concluding within a reasonable time. If the Constitutional Courts do not exercise their jurisdiction in such cases, the rights of the undertrials under Article 21 of the Constitution of India will be defeated. In a given case, if an undue delay in the disposal of the trial of scheduled offences or disposal of trial under the PMLA can be substantially attributed to the accused, the Constitutional Courts can always decline to exercise jurisdiction to issue prerogative writs. An exception will also be in a case where, considering the antecedents of the accused, there is every possibility of the accused becoming a real threat to society if enlarged on bail. The 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

- 33 - ( 2025:HHC:2996 ) 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 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

- 35 - ( 2025:HHC:2996 ) one year and eight months [since 19.05.2023] and even trial is likely to take considerable time for the reason, that out of total 22 PWs, only 13 PWs have been examined as yet, and therefore, further detention shall certainly amount to depriving and curtailing the personal liberty of the petitioner on mere accusation or conjectures or surmises, which are yet to be tested, examined and proved during the trial. Detention of the petitioner can neither be punitive nor preventative, so as to make the petitioner to taste imprisonment as a lesson. Denial of bail shall certainly violates the principle that "bail is rule and jail is an exception". Even, the State Authorities, have failed to ensure speedy trial and still considerable time is likely to be taken for conclusion of trial, then, in view of mandate of law in the cases of Guddan alias Roop Narayan, Javed Gulam Nabi Shaikh, Manish Sisodia, Kalvakuntla Kavitha, Senthil Balaji and Partha

- 36 - ( 2025: HHC:2996 ) Chatterjee [supra], the petitioner deserves to be released on bail.

PAST CRIMINAL ANTECEDENTS:

The above plea of the Learned State Counsel is misconceived when, as per the mandate of law of the Honble Supreme Court in Maulana Mohammed Amir Rashidi versus State of Uttar Pradesh , (2012) 2 SCC 382 ; and in Prabhakar Tewari Versus State of Uttar Pradesh and another, (2020) 11 SCC 648, and in Union of India versus Mrityunjay Kumar Singh , 2024 SCC OnLine SC 852, and in Ayub Khan versus State of Rajasthan , 2024 SCC OnLine SC 3763; and in Prem Prakash versus Union

- 37 - ( 2025:HHC:2996 ) India through Directorate of Enforcement, 2024 SCC OnLine SC 2270 that pendency of other criminal cases cannot solely be invoked for denying the bail, when, prolonged incarceration is writ large.

In facts of instant case, the plea of the Learned State Counsel is devoid of any merit, for the reason, that firstly, as per the Status Report, the petitioner is in custody since 19.5.2023 and is undergoing incarceration for about 1 year and 8 months now ; and secondly, conclusion of trial is likely to take considerable time when out of total 22 PWs only 13 PWs have been examined as yet {as on date of decision of this bail petition} ; and thirdly, the delay in trial is not attributable to the petitioner ; and fourthly, when, an accused is presumed to be innocent unless proven guilty ; and fifthly, the continued detention can neither be punitive nor preventative ; and sixthly, even the continued detention in the guise of penalizing the

- 38 - ( 2025:HHC:2996 ) petitioner by presuming guilt cannot be permitted; and seventhly, even the State Authorities have not placed any cogent and convincing material that after release on bail there is possibility of the accused fleeing away from the trial or an accused is likely to threaten witnesses or to thwart justice ; and eighthly, even State Authorities have not placed anything on record to show that the petitioner has misused the liberty granted to him earlier; and ninthly, when, 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 trial and 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

- 39 - ( 2025:HHC:2996 ) the Constitution of India and, therefore, on totality of circumstances, the claim of the petitioner for bail carries weight and is accordingly 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 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:-

Similarly, in Sagar Tatyaram Gorkhe v. State of Maharashtra , an accused under the UAPA was enlarged for he had been in jail for four years and there were over 147 witnesses still unexamined.

15. This Court has clarified in numerous judgments that the liberty guaranteed by Part III of the Constitution would cover within its protective ambit not only due procedure and fairness but also access to justice and a speedy trial. In Supreme Court Legal Aid Committee (Representing Under-trial Prisoners) v. Union of India , it

- 46 - ( 2025:HHC:2996 ) was held that undertrials cannot indefinitely be detained pending trial. Ideally, no person ought to suffer adverse consequences of his acts unless the same is established before a neutral arbiter. However, owing to the practicalities of real life where to secure an effective trial and to ameliorate the risk to society in case a potential criminal is left at large pending trial, Courts are tasked with deciding whether an individual ought to be released pending trial or not. Once it is obvious that a timely trial would not be possible and the accused has suffered incarceration for a significant period of time, Courts would ordinarily be obligated to enlarge them on bail.

17. It is thus clear to us that the presence of statutory restrictions like Section 43D (5) of UAPA per se does not oust the ability of Constitutional Courts to grant bail on grounds of violation of Part III of the Constitution. Indeed, both the restrictions under a Statue as well as the powers exercisable under Constitutional Jurisdiction can be well harmonised. Whereas at commencement of proceedings, Courts are expected to appreciate the legislative policy against grant of bail but the rigours of such provisions will melt down where there is no likelihood of trial being completed within a reasonable time and the period of incarceration already undergone has exceeded a substantial part of the prescribed sentence. Such an approach would safeguard against the possibility of provisions like Section 43-D (5) of UAPA being used as the sole metric for denial of bail or for wholesale breach of constitutional right to speedy trial."

5(iv). ......A previous bail petition bearing Cr.MP (M) No.1458/2022 instituted by the petitioner

- 47 - ( 2025:HHC:2996 ) was dismissed on merit on 02.09.2022. While deciding the aforesaid bail petition, considering the fact that FIR in question pertained to the year 2020, it was hoped and expected that the learned Trial Court would make endeavour to expedite the trial. We are now at the fag end of 2023. In terms of the status report filed by the respondent, the prosecution has examined 16 witnesses thus far. Statements of 23 prosecution witnesses still remain to be recorded. The zimni orders placed on record reflect that the trial has been deferred time and again for want of presence of prosecution witnesses. Considering the fact that at this stage 23 witnesses remain to be recorded, it is apparent that the trial is not going to be concluded in near future. The petitioner, who has already spent about three years and five months in custody, in my considered opinion has made out a case for his enlargement on regular bail at this stage. There is no criminal history of the petitioner. The apprehension expressed by the prosecution about the likelihood of petitioner's tampering with the evidence or winning over remaining witnesses, can be taken care of by imposing stringent conditions and also granting liberty to the respondent/State to seek cancellation of the bail in case the conditions are violated by the petitioner. In view of all the aforesaid reasons and without expressing any opinion on the merits of the case, the present petition is allowed. Petitioner is ordered to be released on bail in the aforesaid FIR..." 18(i). While dealing with the claim for bail in commercial quantity of poppy straw [churapost-bhukki]

- 48 - ( 2025:HHC:2996 ) 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:-

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} :

CONTENTION THAT RECOVERED CONTRABAND NOT MADE HOMOGENOUS REPRESENTATIVE IS GROUND FOR BAIL- IS MICONCEIVED:

Above contention of Learned Counsel for the petitioner is misconceived, for the reason, firstly, as per Section 69 of the NDPS Act, all or any of the powers, functions or duties performed by any

- 53 - ( 2025:HHC:2996 ) officer or any other person under the Act (including Magistrate under Section 52-A is intended to be done in good faith under the Act/Rules and performance of functions has immunity from any suit, prosecution or legal proceedings; and secondly, the sampling and preparation of Inventory under Section 52-A of NDPS Act is a part of primary evidence under Section 52-A(4) of the Act and such an evidence carries with it a presumption under Section 80 of the Indian Evidence Act that a document is genuine, and the circumstances under which a statement was taken or purported to be done are true and such evidence was duly taken ; and thirdly, the fact as to whether the substance was made homogenous representative is presumed to be validly done by the Magistrate in the teeth of Section 52A -A(4) and the the NDPS (Seizure, Storage, sampling and Disposal) Rules dated 23.12.2022 read with Section 80 of Indian Evidence Act; and fourthly, presumption that sampling was as per Section 52-A

- 54 - ( 2025:HHC:2996 ) of NDPS Act /Rules is a matter to be tested, examined and proved by the police personnel and the panch witness during the trial ; fifthly, once the prosecution discharges its obligation by leading evidence thereto then, the burden shifts on accused to rebut such presumption; and sixthly, contention regarding non- compliance of Section 52-A at the stage of bail shall certainly take away or diminish the sanctity of trial; and seventhly, permitting an accused to resort to or invoke such plea at stage of bail shall tantamount to invoking mini-trial which is impermissible in criminal jurisprudence and eighthly, an lapse or delay in compliance of Section 52-A in conducting search and seizure during the course of investigation or thereafter would by itself not make the entire evidence collected during investigation inadmissible and such a plea cannot be permitted to be a ground for bail, when, the trial was yet to begin or was underway in terms of mandate of the Honble Supreme Court

- 55 - ( 2025:HHC:2996 ) in Criminal Appeal No. 5544 of 2024, Narcotics Control Bureau versus Kashif, decided on 20.12.2024.

Now, coming to facts of the instant case, a perusal of the order dated 19.5.2023 (Annexure P-3) passed by Learned Magistrate under Section 52-A of NDPS Act states that samples presented by police were opened, weighed and then two of 26 gms each were drawn and substances was stitched and re-sealed and then handed over to police negates the contention on facts. Moreover, once the Magistrate has seen and weighed entire substance and taken two representative samples of 26 gms each and then it re-sealed it and handed over to police for Chemical Analysis, and upon analysis, the substance in representative sample was certified to be Cannabis- Charas weighing 26 grms, then, certification of representative sample by SFSL is a facsimile of larger seized quantity {for 1.509 kgs of Cannabis-Charas} as per Section 54 of the NDPS Act. Thus, the plea of learned Counsel for petitioner

- 56 - ( 2025:HHC:2996 ) for treating the accusation to be for Intermediate Quantity, 26 gms, is misconceived at this stage, and that too in bail proceedings, when, the rights and claims are yet to be tested, examined and proved during trial, is underway, in the instant case.

NOTHING ADVERSARIAL REGARDING TAMPERING WITH EVIDENCE OR WITNESSES ETC:

NOTHING ADVERSARIAL REGARDING OBSTRUCTING OR ATTEMPTING TO THWARTLING JUSTICE :

22. Status Reports filed by State Authorities have neither pointed out any adversarial circumstances nor placed on record any cogent and convincing

- 57 - ( 2025:HHC:2996 ) 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:

23. 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 :

24. 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

- 58 - ( 2025:HHC:2996 ) the State Authorities are directed to release the petitioner [Tilak Raj] on bail, subject to observance of the following conditions:-

(vii). Petitioner shall not jump over the bail and also shall not leave the country without the prior information of the Court;

- 59 - ( 2025:HHC:2996 )

(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.

25. 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.

26. 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

- 60 - ( 2025:HHC:2996 ) 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.

27. The Registry is directed to forward a copy of this order to Superintendent of Police, Mandi, District Mandi and to Superintendent of Police, Kangra at Dharamshala 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.