2025:HHC:3000 IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr.MP (M) No. 1606 of 2024 Reserved on: 4th January, 2025 Announced on: 15th January, 2025 ____________________________________________________________ Kalu Ram ...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. Vinay Thakur and Mr. Maan Singh, Advocates.

For the respondent: Mr. Pratyush Sharma, Additional Advocate General.

Ranjan Sharma, Judge Bail petitioner [Kalu Ram], who is in custody since 14.02.2024 has come up before this Court, seeking regular bail, under Section 483 of the Bhartiya Nagrik Suraksha Sahinta, (hereinafter referred to as BNSS), originating from FIR No.33 of 2024 dated 14.02.2024, registered at Police Station, Kullu, District Kullu [H.P.], under Sections 21 and 29 of the Narcotic Drugs and Psychotropic Substances 1 Whether reporters of Local Papers may be allowed to see the judgment?

-2- 2025:HHC:3000 Act (referred to as the NDPS Act ).

FACTUAL MATRIX IN BAIL PETITION:

2. Case set up by Mr. Vinay Thakur and Mr. Maan Singh, Learned Counsels is that the bail petitioner has been falsely implicated in FIR No. 33 of 2024 dated 14.02.2024, registered at Police Station, Kullu, District Kullu [H.P.], under Sections 21 and 29 of the Narcotic Drugs and Psychotropic Substances Act (referred to as the NDPS Act ). It is averred that bail petitioner has not committed any offence and he is not connected with alleged recovery of contraband. Moreover, it is submitted that bail petitioner is an old man and nothing is recoverable from him and Investigation is complete and further detention will not serve any purpose. It is further averred that the rigors of Section 37 of NDPS Act are not attracted as police is alleged to have implicated the petitioner, of 27 gms of Heroin/Chitta, which comes within the ambit of Intermediate Quantity, which as per the bail

-3- 2025:HHC:3000 petitioner does not relate to him. 2(i). It is averred that the bail petitioner has moved an application for bail before Learned Special Judge, Kullu, which was dismissed on 19.03.2024, Annexure P-1 and then, 2nd bail petition before this Court, which was withdrawn on 13.04.2024, Annexure P-2, and thereafter, 3rd bail petition was also dismissed by the Learned Special Judge-II, Kullu, on 13.05.2024, Annexure P-3.

2(ii). It is further averred that there is no evidence to connect the bail petitioner with the accusation and he has been wrongly and falsely implicated with the alleged contraband. Bail petitioner has furnished an undertaking that he abide by all the terms and conditions as will be imposed by this Court. Bail petitioner has further averred that he shall not cause any inducement, threat or promise to any person or persons acquainted with the facts of the case and shall not flee away from investigation and trial.

-4- 2025:HHC:3000 It is averred that personal liberty of the bail petitioner under Article 21 of the Constitution of India could neither be curtailed or taken away by way of penalty, by prolonging the detention just by presuming the guilt against the bail petitioner. Instant bail petition has been filed by bail petitioner, through his son, with the prayer for releasing the petitioner on bail.

STAND OF STATE AUTHORITIES IN STATUS REPORTS:

3. Pursuant to the issuance of notice on 02.08.2024, the State Authorities have furnished the Status Report dated 08.08.2024 and thereafter 2nd Status Report dated 24.08.2024 and thereafter in-order to bring on record the criminal antecedents a Fresh Status Report dated 23.09.2024 was filed by State Authorities and the Last Status Report dated 28.11.2024 was filed by State Authorities, in order to show the stage and status of investigation and the trial originating from the FIR in instant case. Perusal of Status Reports reveal that they contain

-5- 2025:HHC:3000 pari-materia.

3(i). Perusal of Status Reports, indicates that on 14.02.2024, while the police party headed by Head Constable Ram Chand No. 443, was patrolling towards Babeli, Raison, near JNV School Road at NH-03, at about 01:40 p.m., the police patrolling party noticed two persons coming on foot from Bandrol side, who came to be Sahil Thakur and Ronit Thakur, who on noticing the police, threw something behind them in the jungle and as soon as the police went to the jungle to trace the articles thrown by Sahil Thakur and Ronit Thakur, the police noticed two other persons in the jungle and on seeing the police these two persons namely Kalu Ram {bail petitioner} and co-accused Chandan, became perplexed and they threw a plastic envelope, which was seized by the police and the same came out to be containing contraband i.e. Heroin /Chitta of 27 Kgs and after completing all codal formalities, including filling of NCB forms etc., a rukka

-6- 2025:HHC:3000 was sent leading to registration of FIR on 14.02.2024.

3(ii). Pursuant to arrest of bail petitioner, police started the investigation. Both the bail petitioner and co-accused Chandan, were made to undergo medical examination at Regional Hospital, Kullu. It is averred that police remand was granted. Thereafter inventory under Section 52-A of NDPS Act was got prepared at the instance of police from the Magistrate on 16.02.2024 and samples were sent to RFSL and RFSL Report dated 08.03.2024, was received affirming alleged contraband to be heroin/chitta, weighing 27 gms. Status Reports indicate that in addition to the present case, bail petitioner has been involved in three other cases i.e. [i] FIR No. 282 of 2018, dated 11.11.2028, which is fixed for PWs evidence; [ii] FIR No.130 of 2021, dated 05.08.2021; and [iii] FIR No.67 of 2023, dated 07.06.2023, in which after the completing investigation, police reports stand filed

-7- 2025:HHC:3000 and the matter is fixed for consideration on charge before the Learned Special Judge.

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

4. Heard Mr. Vinay Thakur and Mr. Maan Singh, Learned Counsels for the bail petitioner and Mr. Pratyush Sharma, Learned Additional Advocate General, for the respondent-State.

STATUTORY PROVISIONS:

5. Before proceeding to analyse the claim for bail, it is necessary to have a recap of 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 BAIL:

6. Broad parameters have been mandated by 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

- 10 - 2025:HHC:3000 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 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 considering the prayer for bail, the balance has to be carved out between the liberty

- 12 - 2025:HHC:3000 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 this background, that the claim for bail is to be

- 13 - 2025:HHC:3000 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 .

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

- 14 - 2025:HHC:3000 and no reasonable grounds exit, when, no recovery was made by the police from the accused or when, 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 Hon'ble Supreme Court as referred to above .

ANALYSIS OF CLAIM FOR BAIL IN INSTANT CASE:

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:

BAIL TO ENSURE AND SAFEGUARD PERSONAL LIBERTY IN ARTICLE 21:

53. The Court further observed that, over a period of time, the trial courts and the High Courts have forgotten a very well- settled principle of law that bail is not to be withheld as a punishment. From our experience, we can say that it appears that the trial courts and the High Courts attempt to play safe in matters of grant of bail. The principle that bail is a rule and refusal is an exception is, at times, followed in breach. On account of non-grant of bail even in straight forward open and shut cases, this Court is flooded with huge number of bail petitions thereby adding to the huge pendency. It is high time that the trial courts and the High Courts should recognize the principle that "bail is rule and jail is exception".

55. As observed by this Court in the case of Gudikanti Narasimhulu (supra), the objective to keep a person in judicial custody pending trial or disposal of an appeal is to secure the attendance of the prisoner at trial.

56. In the present case, the appellant is having deep roots in the society. There is no possibility of him fleeing away from the country and not being available for facing the trial. In any case, conditions can be

- 25 - 2025:HHC:3000 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."

9(ii). 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 in Article 21 of the Constitution of India is superior to the statutory restrictions, in following terms :-

9(iv). Despite the statutory embargoes in Special Enactments, the bail was granted in case of prolonged incarceration with no likelihood of completion of trial, which makes the detention punitive, 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, has reiterated the paramount

- 31 - 2025:HHC:3000 importance of right to life and liberty under Article 21 of the Constitution of India, in the following terms:-

Keeping in view the factual matrix that neither any prima facie case nor any reasonable grounds exist against the bail petitioner coupled with the fact the bail petitioner has suffered incarceration for more than 11 months now [since 14.02.2024] and as per Status Report on date of hearing of instant case {i.e. 4.1.2024}, out of 20 PWs, no PW has been examined and the conclusion of trial is likely to take considerable time and once the Investigation is complete and the Challan-Final Police Report stands presented before the jurisdictional Court and the bail petitioner is not required for any further interrogation etc. therefore, in these circumstances, the action of State Authorities in prolonging the detention certainly amounts 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

- 33 - 2025:HHC:3000 the trial. Detention can neither be punitive nor preventative, so as to make the petitioner to taste imprisonment as a lesson. Denial of bail certainly violates the principle that "bail is rule and jail is an exception". State Authorities, have failed to ensure speedy trial which is still to take considerable time for its conclusion and therefore, on totality of the facts as referred to above 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 claim of the petitioner for bail carries weight and therefore, the petitioner deserves to be released on bail.

PAST CRIMINAL ANTECEDENTS:

2023, in which after completion of investigation, the challan- final police report stand filed and matter is fixed for consideration on charge before Learned Special Judge. Based on above criminal antecedents, the petition is opposed in instant case. 10(i). Before analyzing the contention of the Learned State Counsel it is necessary to have a recap of the mandate of law, in broader sense, as to whether the past criminal antecedents are relevant and in what circumstances and extent thereof and in what circumstances and to what extent past antecedents turn out to be irrelevant or not much relevant while considering the claim of an accused for bail, which are detailed here-in-below. 10(ii). While negativating the plea that the past criminal antecedents {i.e. 36 criminal cases of serious

- 35 - 2025:HHC:3000 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 placed on record revealing that during bail there is possibility of accused fleeing away from the trial or an accused is likely to threaten witnesses or is likely to thwart justice, has been outlined by the Honble Supreme Court in Maulana Mohammed Amir Rashidi versus State of Uttar Pradesh , (2012) 2 SCC 382, in the following terms;

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

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

- 36 - 2025:HHC:3000 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 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

- 37 - 2025:HHC:3000 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 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.

10(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

- 38 - 2025:HHC:3000 following terms:-

10(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

- 43 - 2025:HHC:3000 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 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." 10(v). While dealing with validity of bail order the Honble Supreme Court has mandated that the criminal antecedents were not much relevant in case, no prima facie case was made out and the

- 44 - 2025:HHC:3000 period of incarceration was prolonged, in Ayub Khan versus State of Rajasthan , 2024 SCC OnLine SC 3763, in the following terms:-

10(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:-

- 46 - 2025:HHC:3000 "46. The Investigating Agency have also referred to ECIR No. 4 as a criminal antecedent. A reference was made to ECIR No. 4 of 2022 pertaining to illegal Stone Mining and related activities in Saheb Ganj, Jharkhand, where the petitioner was arrested on 25.08.2022 and the prosecution complaint was filed on 16.09.2022. Insofar as the bail pertaining to ECIR No. 4 of 2022, which is pending in this Court in SLP (Criminal) No. 691 of 2023, at the after notice stage, the merits of the bail in that case will be independently examined. Having examined the facts of the present case arising out of ECIR No. 5 of 2023 and in view of the findings recorded hereinabove, we do not think that the appellant can be denied bail based on the pendency of the other matter. We say so in the facts and circumstances of the present case as we do not find any justification for his continued detention. The appellant has already been in custody for over one year. The Trial is yet to commence. There is a reference to one more ECIR which the Investigating Agency refers to in their counter, namely, ECIR /RNZO /18 / 2022 but nothing is available from the record as to whether any proceedings have been taken against the appellant.

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

and 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 material on record

- 48 - 2025:HHC:3000 to 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 ; and ninthly, the State Authorities have not placed anything on record to show that the petitioner has misused the liberty granted to him earlier; and lastly, once the State Authorities have adequate safeguards by moving the Courts for cancellation of bail in-case of violation of any concession-liberty granted earlier and 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, the claim of bail petitioner, carries weight and is granted,

- 49 - 2025:HHC:3000 in peculiar facts of this case.

MANDATE OF HON'BLE SUPREME COURT GRANTING BAIL DUE TO PROLONGED INCARCENATION AND WHEN THERE WAS NO LIKELIHOOD OF COMPLETION OF TRIAL :

11(i). In Petition(s) for Special Leave to Appeal (Crl.) No(s).4648/2024, titled as Ankur Chaudhary

- 50 - 2025:HHC:3000 Versus State of Madhya Pradesh, decided on 28.05.2024, Hon'ble Supreme Court extended benefit of bail by invoking Article 21 of Constitution of India as prolonged incarceration defeats the precious fundamental rights and such fundamental rights have to override the statutory embargo in Section 37 (1) (b) of NDPS Act in the following terms:-

11(ii). In Petition(s) for Special Leave to Appeal (Crl.) No(s).7115/2024, titled as Sohrab Khan Versus

- 51 - 2025:HHC:3000 The State of Madhya Pradesh, decided on 13.08.2024, the Hon'ble Supreme Court has extended the benefit of concession of bail to an accused, who was facing incarceration of one year and four months in the following terms:-

11(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

- 52 - 2025:HHC:3000 incarceration was prolonged, in the following terms:-

MANDATE OF THIS COURT GRANTING BAIL IN CASES WHERE INCARCENATION PROLONGED AND NO LIKELIHOOD OF COMPLETION OF TRIAL:

5(iv). ......A previous bail petition bearing Cr.MP (M) No.1458/2022 instituted by the petitioner was dismissed on merit on 02.09.2022. While deciding the aforesaid bail petition, considering the fact that FIR in question pertained to the year 2020, it was hoped and expected that the learned Trial Court would make endeavour to expedite 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

- 57 - 2025:HHC:3000 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....."

12(i). While dealing with claim for bail in a case commercial quantity of 1.004 Kgs. charas and taking into account the prolonged incarceration for about 13 months, the Co-ordinate Bench of this Court, has extended the concession of bail to the accused, in Cr.MP(M) No.1003 of 2024, titled as Vijay Singh

- 58 - 2025:HHC:3000 Versus State of Himachal Pradesh, decided on 24.05.2024, in the following terms:-

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

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.

- 60 - 2025:HHC:3000

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

"2. .......Allegedly, police recovered one rucksack (pithu bag) from the vehicle containing huge quantity of contraband. On weighing, police found that 1.209 Kgs. of charas / sulfa was being transported by the occupants in the vehicle, as detailed hereinabove. Since, no plausible explanation ever came to be rendered on record qua possession of aforesaid commercial quantity of contraband.........."

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

- 61 - 2025:HHC:3000 ABOVE BROADER PRINCIPLES OF BAIL APPLIED IN GRAVER OFFENCES APPLIED TO LESSER GRAVER ACCUSATION:

NOTHING ADVERSARIAL REGARDING TAMPERING WITH EVIDENCE OR WITNESSES ETC:

NOTHING ADVERSARIAL REGARDING OBSTRUCTING OR ATTEMPTING TO THWARTING JUSTICE:

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

CONCLUSION AND DIRECTIONS :

18. 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.

19. Petitioner is permitted to produce/use copy of this order, downloaded from the web-page of the High Court of Himachal Pradesh, before the authorities concerned, and the said authorities shall not insist for production of a certified copy, but if required, may verify about the passing of this order from the Website of this Court.

- 66 - 2025:HHC:3000

20. Registry is directed to forward a copy of this order to Superintendent of Police, Kullu, District Kullu, 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 15, 2025 [Bhardwaj]