Himachal Pradesh High Court
Reserved On : 01.05.2025 vs State Of Himachal Pradesh on 5 May, 2025
Author: Virender Singh
Bench: Virender Singh
2025:HHC:12313 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.MP(M) No.792 of 2025 Reserved on : 01.05.2025 Decided on : 05.05.2025 Jai Singh ...Applicant Versus State of Himachal Pradesh ...Respondent Coram The Hon'ble Mr. Justice Virender Singh, Judge. Whether approved for reporting?1 For the applicant : Mr. Harsh, Advocate vice Mr. Manoj Pathak, Advocate.
For the respondent : Mr. Rohit Sharma, Deputy Advocate General.
Virender Singh, Judge By way of the present application, filed under Section 483 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (hereinafter referred to as 'BNSS'), applicant-Jai Singh has sought his release, on bail, during the pendency of the trial, in case FIR No.217 of 2024, dated 13.09.2024, registered under Sections 21 and 29 of the Narcotic Drugs & Psychotropic Substances Act (hereinafter referred to as 1 Whether Reporters of local papers may be allowed to see the judgment? Yes. 2
2025:HHC:12313 the 'NDPS Act'), with Police Station Bhuntar, District Kullu, H.P.
2. According to the applicant, he is innocent person and has falsely been implicated, in this case and has nothing to do with the alleged crime.
3. As per applicant, the story of the prosecution is highly doubtful. The applicant has also pleaded the fact that except the present case, two other cases have been registered against him, being FIR No.27/2023, registered with Police Station Hindwada, Punjab, under Section 21 of the NDPS Act and FIR No.151/2024, registered with Police Station Bhuntar, District Kullu, H.P., under Sections 41 and 42 of the Indian Forest Act and Section 379 of the Indian Penal Code.
4. Investigation, in the present case, is stated to be completed.
5. According to the applicant, he had earlier tried his luck by moving similar application, before the Court of learned Special Judge-II, Kullu, District Kullu, Himachal Pradesh. However, the same was dismissed, vide order dated 26.11.2024.
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2025:HHC:12313 5.1. Thereafter, applicant had also tried his luck by moving similar applications, before the Court of learned Special Judge, District Kullu, H.P. However, the same were dismissed vide orders dated 24.12.2024 and 26.03.2025, respectively.
6. Apart from this, learned counsel, appearing for the applicant, has given certain undertakings, on behalf of the applicant, for which, the applicant is ready to abide by, in case, ordered to be released on bail, during the pendency of the trial.
7. On the basis of the above facts, a prayer has been made to allow the bail application.
8. When, put to notice, the police has filed the status report, disclosing therein, that on 13.09.2024, ASI Jagdish Chand, along with other police officials, was on patrolling duty and duty to detect the crime, relating to narcotics.
8.1. It is the case of the police that on the same day, at about 04:45 pm, when, IO was present, along with other police official, at a place known as Parla at Bhuntar near Gurudwara, then, he received a secret information 4 2025:HHC:12313 regarding the fact that near old bridge, in the house of Pankaj Sharma S/o Hari Prakash, one person from Punjab is coming, along with chitta, to deliver the same to Suman Kumar, who is tenant and Jai Singh (applicant) will come to purchase chitta.
8.2. As per the informant, if the ground floor of the house of said Pankaj Sharma is raided, then, large quantity of chitta could be recovered from there. The said information was found to be authentic and reliable and according to the IO, in case, he would have made efforts to obtain authorization letter of search warrant, in that eventuality, there were chances that the contraband could be removed from there. As such, he has complied with the provisions of Section 42(2) of the NDPS Act and submitted the report to the SDPO, Manali, through L. Ct. Dayawanti. 8.3. It is the further case of the police that thereafter, IO has proceeded towards the house of Pankaj Sharma. When, he reached near the old bridge, then, two persons met him, namely Jeevan Sharma, S/o Bale Ram and Pawan Kumar, S/o Dhale Ram, who were associated in the team as independent witnesses and in their 5 2025:HHC:12313 presence, room in the ground floor of the house of Pankaj Sharma was knocked. However, the door was found to be not locked from inside. When, no one responded, the IO opened the door and noticed that three persons were sitting on the bed and consuming chitta. On enquiry, they have disclosed their names as Suman Kumar, S/o Chabi Lal, R/o Rauli, PO Thela, Tehsil Bhuntar, District Kullu, Jai Singh, S/o Maan Singh, R/o Sharan PO Rella, Tehsil Sainj District Kullu (applicant) and Gurcharan Singh, S/o Labh Singh, R/o Nangli Tehsil and PS Kamboh, District Fatehgarh, Punjab.
8.4. It is the further case of the police that when, they were enquired about the substance, which they were consuming, the same was stated to be chitta, which, according to them, had been brought by Gurcharan Singh. When, the said substance was checked on Drug Detection Kit, the same was found to be heroin/chitta and on weighing the same, it was found to be 9 gms, which was taken into possession. Other codal formalities were completed.
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2025:HHC:12313 8.5. Thereafter, FIR in question was registered and accused persons were arrested.
8.6. Subsequently, the contraband, so recovered, was sent to SFSL Junga, for chemical analysis, after complying with the provisions of Section 52A of the NDPS Act and positive report has been received. Thereafter, the charge-sheet has been submitted before the competent Court of law.
8.7. As per status report, following two cases are stated to have been registered against the applicant:-
1. FIR No.27/23 dated 21.05.2023, under Section 21 of the NDPS Act, PS Hindwada, Punjab.
2. FIR No.151/24 dated 13.06.2024, under Sections 41 and 42 of the IF Act and Section 379 of IPC, PS Bhuntar.
8.8. The investigation, in the present case, is stated to be completed. As per the status report, charge-sheet has been submitted and the case is now stated to be listed before the learned Special Judge, Kullu, on 24.05.2025 for checking of copies.
8.9. It has also been mentioned in the status report that the bail application of applicant-Jai Singh has been rejected by the learned Special Judge, Kullu.7
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9. On the basis of above facts, it has been apprehended that the applicant is also involved in another case, registered under the provisions of NDPS Act and in case, he is ordered to be released on bail, he may indulge the youth in the vices of consuming drugs. Hence, a prayer has been made to dismiss the bail application.
10. In this case, learned counsel, appearing for the applicant, has also placed on record the copies of the orders, passed by the learned Special Judge, Kullu, dated 12.12.2024 and 26.12.2024, by virtue of which, the bail applications of the co-accused of the applicant were allowed.
11. The status report, which has been filed by the police, is totally silent about this material fact that the two co-accused of the applicant have already been released on bail by the Court of learned Special Judge, Kullu. Despite repeated directions, issued in this regard, it appears that the police is not yet ready to change its attitude and filing the status report in the Court in a slipshod manner, without even bothering to mention the material fact with 8 2025:HHC:12313 regard to the release of the co-accused of the applicant by the learned Special Judge, Kullu, in this case.
12. The applicant has also mentioned in the bail application that two other cases have been registered against him and the said fact has also been mentioned in the status report.
13. Now, the question arises as to whether on the basis of those two cases, the relief of bail can be declined to the applicant. Admittedly, in both the cases, the applicant has not been convicted by the competent Court of law and merely, on the basis of the registration of the two earlier cases, it cannot be said that the applicant falls within the definition of 'habitual offender'.
14. The Hon'ble Supreme Court in 'Dhanji Ram Sharma v. Superintendent of Police, North District Delhi Police', reported in 1966 AIR SC 1766, has considered the powers of the police officials to make entries in the surveillance register and also held, as under:-
"7. A habitual offender or a person habitually addicted to crime is one who is a criminal by habit or by disposition formed by repetition of crimes. Reasonable belief of the police officer that the suspect is a habitual offender or is a person habitually addicted to crime is sufficient to justify action under Rules 23.4(3)(b) and 9 2025:HHC:12313 23.9(2). Mere belief is not sufficient. The belief must be reasonable, it must be based on reasonable grounds. The suspect may or may not have been convicted of any crime. Even apart from any conviction, there may be reasonable grounds for believing that he is a habitual offender."
15. In this regard, it is further apt for this Court to rely upon the decision of the Hon'ble Supreme Court in 'Vijay Narain Singh v. State of Bihar', reported in 1984(3) SCC 14. Relevant paragraphs 11 and 12 of the said judgment are reproduced, as under:-
"11. According to its ordinary meaning, the word 'habitual' as given in Shorter Oxford English Dictionary, Vol. 1, P.910 is :
"A. adj (1) Belonging to the habit or inward disposition, inherent or latent in the mental constitution;
(2) of the nature of a habit; fixed by habit;
constantly repeated, customary.
B. A habitual criminal, drunkard, etc."
12. A person is a habitual criminal who by force of habit or inward disposition, inherent or latent in him, has grown accustomed to lead a life of crime. It is the force of habit inherent or latent in an individual with a criminal instinct, with a criminal disposition of mind, that makes him dangerous to the society in general. In strengthen language the word 'habitually' means 'by force of habit'."
16. Judging the facts and circumstances of the present case, in the light of the above two decisions of the Hon'ble Supreme Court, this Court is of the view that the 10 2025:HHC:12313 applicant does not fall, within the definition of 'habitual offender'.
17. Merely, registration of the cases, one under the provisions of NDPS Act and other under the provisions of IF Act and IPC, is too short to take away the presumption of innocence, which is still available to the applicant, as, no conviction has been recorded by the competent Court of law in those cases.
18. In this case, admittedly, the contraband, allegedly stated to have been recovered, does not fall, within the definition of 'commercial quantity'. As such, the rigors of Section 37 of the NDPS Act are not applicable, in this case.
19. Once, it has been held that the rigors of Section 37 of the NDPS Act are not applicable, then, there should be some plausible reasons for declining the relief to the applicant, viz, he will not be available for the trial or he will coerce the witnesses not to depose against him. When, the police is not coming forward with such apprehensions, then, on the basis of the assumptions, relief of bail cannot be declined to the applicant.
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20. Moreover, the role, allegedly attributed to the applicant, is the similar to the role, which has been alleged against his two other co-accused, namely Suman Kumar and Gurcharan Singh, who have already been released on bail by the learned Special Judge, Kullu.
21. Even otherwise, the chances of conclusion of trial against the applicant, in near future, are not so bright. As such, no useful purpose would be served by keeping the applicant in the judicial custody, that too, for the indefinite period, as, pre-trial punishment is prohibited under the law.
22. Furthermore, the applicant is also entitled for grant of bail on the basis of parity, as, his co-accused, namely Suman Kumar and Gurcharan Singh, have already been released on bail, by the Court of learned Special Judge, Kullu, H.P.
23. Considering all these facts, this Court is of the view that the bail application is liable to be allowed and is accordingly allowed.
24. Consequently, the applicant is ordered to be released, on bail, in case FIR No.217 of 2024, dated 12 2025:HHC:12313 13.09.2024, registered under Sections 21 and 29 of the NDPS Act, with Police Station Bhuntar, District Kullu, H.P., on his furnishing personal bonds in the sum of Rs.50,000/-, with one surety of the like amount, to the satisfaction of the learned trial Court.
25. This order, however, shall be subject to the following conditions:-
a) The applicant shall make himself available for the purpose of interrogation, if so required and regularly attend the trial Court on each and every date of hearing and if prevented by any reason to do so, seek exemption from appearance by filing the appropriate application;
b) The applicant shall not tamper with the prosecution evidence nor hamper the investigation of the case in any manner whatsoever;
c) The applicant shall not make any inducement, threat or promises to any person acquainted with the facts of the case so as to dissuade them from disclosing such facts to the Court or the Police Officer, and
d) The applicant shall not leave the territory of India without the prior permission of the Court.
26. Any of the observations, made hereinabove, shall not be taken, as an expression of opinion, on the merits of the case, as these observations are confined, only to the disposal of the present bail application. 13
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27. It is made clear that the respondent-State is at liberty to move an appropriate application, in case, any of the bail conditions, is found to be violated by the applicant.
28. The Registry is directed to forward a soft copy of the bail order to the Superintendent of Jail, District Jail, Hamirpur, Himachal Pradesh, through e-mail, with a direction to enter the date of grant of bail in the e-prison software.
29. In case, the applicant is not released within a period of seven days from the date of grant of bail, the Superintendent of Jail, District Jail, Hamirpur, Himachal Pradesh, is directed to inform this fact to the Secretary, DLSA, Hamirpur. The Superintendent of Jail, District Jail, Hamirpur, Himachal Pradesh, is further directed that if the applicant fails to furnish the bail bonds, as per the order passed by this Court, within a period of one month from today, then, the said fact be submitted to this Court.
30. As stated above, Investigating Officer of the present case has not bothered to mention the material fact with regard to the release of the other two co-accused, namely Gurcharan Singh and Suman Kumar, by the Court 14 2025:HHC:12313 of learned Special Judge, Kullu, vide orders dated 12.12.2024 and 26.12.2024, respectively. As such, a show cause notice be issued to the SHO, Police Station Bhuntar, District Kullu, H.P., for 26.05.2025, to explain his position with regard to his futile attempt to conceal the material fact from the scrutiny of this Court, as, admittedly, the learned Special Judge, Kullu, has allowed the bail applications of the other two co-accused, namely Gurcharan Singh and Suman Kumar, after issuing notice to the Special Public Prosecutor. As such, it cannot be assumed that the IO/SHO was not having the knowledge of the material fact i.e. release of the co-accused of the applicant on bail, by the learned Special Judge, Kullu.
( Virender Singh ) Judge May 05, 2025 ( Gaurav Thakur ) Digitally signed by RAJNI Date: 2025.05.05 14:02:41 IST