Himachal Pradesh High Court
Reserved On: 23.06.2025 vs State Of Himachal Pradesh on 30 June, 2025
2025:HHC:20450 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. MP (M) No. 1073 of 2025 Reserved on: 23.06.2025 Date of Decision: 30.06.2025 Moksha Jetley ...Petitioner Versus State of Himachal Pradesh ...Respondent Coram Hon'ble Mr Justice Rakesh Kainthla, Judge. Whether approved for reporting?1 No. For the Petitioner : Mr. Anirudh Sharma, Advocate. For the Respondent/State : Mr. Prashant Sen, Deputy Advocate General.
Rakesh Kainthla, Judge The petitioner has filed the present petition for seeking regular bail in F.I.R. No. 30 of 2025, dated 13.04.2025, registered for the commission of an offence punishable under Section 20 of the Narcotic Drugs and Psychotropic Substances Act (in short 'NDPS Act') at Police Station Patlikuhal, District Kullu, H.P. 1 Whether reporters of Local Papers may be allowed to see the judgment? Yes. 2
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2. It has been asserted that a false case was registered against the petitioner. The petitioner is in judicial custody for the last two months. The investigation is complete, and the custody of the petitioner is not required. As per prosecution, the contraband was recovered from an open place accessible to all, kept under the tin sheets. There is a dispute between the petitioner and her brother, which is pending before the learned Civil Judge at Kullu. A false case was made against the petitioner due to animosity. The petitioner is aged 62 years, and she has no criminal antecedents. Her daughter is residing alone. The petitioner would abide by all the terms and conditions which the Court may impose. Hence, it was prayed that the present petition be allowed and the petitioner be released on bail.
3. The petition is opposed by filing a status report asserting that the police party had gone to execute the search warrant issued by the learned Judicial Magistrate, Kullu, District Kullu, H.P. The police associated Isha Kumari, Ward Panch and Mohan Lal, Pradhan as independent witnesses, went to the house of the petitioner. The petitioner was present in her home. The police searched the house after completing all the codal formalities and recovered a carry bag wrapped with cello tape 3 2025:HHC:20450 kept beneath the wooden planks near the apple plant. The police checked the bag and found 974 grams of cannabis kept in four packets. The police seized the charas and arrested the petitioner. The charas was sent to SFSL Junga for analysis, and as per the result, the exhibit is an extract of cannabis and a sample of charas. The petitioner had a dispute with her neighbours. She had filed a complaint, which is being investigated. An amount of ₹48,87,684,29 was deposited in the account of the petitioner between 1.04.2024 and 1.04.2025, and an amount of ₹48,86,400.22 was withdrawn. The police are checking for financial transactions. The statements of formal witnesses are yet to be recorded. Hence, the status report.
4. I have heard Mr. Anirudh Sharma, learned counsel for the petitioner and Mr. Prashant Sen, learned Deputy Advocate General for the respondent.
5. Mr. Anirudh Sharma, learned counsel for the petitioner, submitted that the petitioner is innocent and was falsely implicated. She has a dispute with her brother, and the case is pending before the learned Civil Judge, Kullu, H.P. The recovery of contraband was effected from an open space,beneath 4 2025:HHC:20450 the wooden planks near the apple plant. The possession of the petitioner has not been proved. The petitioner would abide by all the terms and conditions which the Court may impose. Therefore, he prayed that the present petition be allowed and the petitioner be released on bail.
6. Mr. Prashant Sen, learned Deputy Advocate General, submitted that the police had recovered 974 grams of charas, which is a huge quantity and could not have been meant for self- consumption. A huge money was deposited and withdrawn from the account of the petitioner, which shows her involvement in the commission of a crime. The police are carrying out the investigation into the complaint filed by the petitioner. Narcotics are affecting the young generation adversely, and no sympathy should be shown to the petitioner; therefore, he prayed that the present petition be dismissed.
7. I have given considerable thought to the submissions made at the bar and have gone through the records carefully.
8. The parameters for granting bail were considered by the Hon'ble Supreme Court in Ajwar v. Waseem (2024) 10 SCC 768: 5
2025:HHC:20450 2024 SCC OnLine SC 974, wherein it was observed as under at page 783: -
"Relevant parameters for granting bail
26. While considering as to whether bail ought to be granted in a matter involving a serious criminal offence, the Court must consider relevant factors like the nature of the accusations made against the accused, the manner in which the crime is alleged to have been committed, the gravity of the offence, the role attributed to the accused, the criminal antecedents of the accused, the probability of tampering of the witnesses and repeating the offence, if the accused are released on bail, the likelihood of the accused being unavailable in the event bail is granted, the possibility of obstructing the proceedings and evading the courts of justice and the overall desirability of releasing the accused on bail. [Refer: Chaman Lal v. State of U.P. [Chaman Lal v. State of U.P., (2004) 7 SCC 525: 2004 SCC (Cri) 1974]; Kalyan Chandra Sarkar v. Rajesh Ranjan [Kalyan Chandra Sarkar v. Rajesh Ranjan, (2004) 7 SCC 528: 2004 SCC (Cri) 1977]; Masroor v. State of U.P. [Masroor v. State of U.P., (2009) 14 SCC 286 : (2010) 1 SCC (Cri) 1368]; Prasanta Kumar Sarkar v. Ashis Chatterjee [Prasanta Kumar Sarkar v. Ashis Chatterjee, (2010) 14 SCC 496 : (2011) 3 SCC (Cri) 765]; Neeru Yadav v. State of U.P. [Neeru Yadav v. State of U.P., (2014) 16 SCC 508 : (2015) 3 SCC (Cri) 527]; Anil Kumar Yadav v. State (NCT of Delhi)[Anil Kumar Yadav v. State (NCT of Delhi), (2018) 12 SCC 129 : (2018) 3 SCC (Cri) 425]; Mahipal v. Rajesh Kumar [Mahipal v. Rajesh Kumar, (2020) 2 SCC 118 : (2020) 1 SCC (Cri) 558] .]
9. This position was reiterated in Ramratan v. State of M.P., 2024 SCC OnLine SC 3068, wherein it was observed as under:-
"12. The fundamental purpose of bail is to ensure the accused's presence during the investigation and trial. Any 6 2025:HHC:20450 conditions imposed must be reasonable and directly related to this objective. This Court in Parvez Noordin Lokhandwalla v. State of Maharastra (2020) 10 SCC 77 observed that though the competent court is empowered to exercise its discretion to impose "any condition" for the grant of bail under Sections 437(3) and 439(1)(a) CrPC, the discretion of the court has to be guided by the need to facilitate the administration of justice, secure the presence of the accused and ensure that the liberty of the accused is not misused to impede the investigation, overawe the witnesses or obstruct the course of justice. The relevant observations are extracted herein below:
"14. The language of Section 437(3) CrPC, which uses the expression "any condition ... otherwise in the interest of justice" has been construed in several decisions of this Court. Though the competent court is empowered to exercise its discretion to impose "any condition" for the grant of bail under Sections 437(3) and 439(1)(a) CrPC, the discretion of the court has to be guided by the need to facilitate the administration of justice, secure the presence of the accused and ensure that the liberty of the accused is not misused to impede the investigation, overawe the witnesses or obstruct the course of justice. Several decisions of this Court have dwelt on the nature of the conditions which can legitimately be imposed both in the context of bail and anticipatory bail." (Emphasis supplied)
13. In Sumit Mehta v. State (NCT of Delhi) (2013) 15 SCC 570, this Court discussed the scope of the discretion of the Court to impose "any condition" on the grant of bail and observed in the following terms: --
"15. The words "any condition" used in the provision should not be regarded as conferring absolute power on a court of law to impose any condition that it chooses to impose. Any condition has to be interpreted as a reasonable condition acceptable in the facts permissible in the circumstance, and effective in the pragmatic sense, and 7 2025:HHC:20450 should not defeat the order of grant of bail. We are of the view that the present facts and circumstances of the case do not warrant such an extreme condition to be imposed." (Emphasis supplied)
14. This Court, in Dilip Singh v. State of Madhya Pradesh (2021) 2 SCC 779, laid down the factors to be taken into consideration while deciding the bail application and observed:
"4. It is well settled by a plethora of decisions of this Court that criminal proceedings are not for the realisation of disputed dues. It is open to a court to grant or refuse the prayer for anticipatory bail, depending on the facts and circumstances of the particular case. The factors to be taken into consideration while considering an application for bail are the nature of the accusation and the severity of the punishment in the case of conviction and the nature of the materials relied upon by the prosecution; reasonable apprehension of tampering with the witnesses or apprehension of threat to the complainant or the witnesses; the reasonable possibility of securing the presence of the accused at the time of trial or the likelihood of his abscondence; character, behaviour and standing of the accused; and the circumstances which are peculiar or the accused and larger interest of the public or the State and similar other considerations. A criminal court, exercising jurisdiction to grant bail/anticipatory bail, is not expected to act as a recovery agent to realise the dues of the complainant, and that too, without any trial." (Emphasis supplied)
10. This position was reiterated in Shabeen Ahmed versus State of U.P., 2025 SCC Online SC 479.
11. The present petition has to be decided as per the parameters laid down by the Hon'ble Supreme Court. 8
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12. Perusal of the status report shows that the recovery was effected from a heap of wood covered by a tin sheet kept near the apple tree in front of the store. Thus, the recovery was effected from the land owned by the petitioner. It was submitted that the possession of the petitioner has not been proved. This submission is not acceptable. It was laid down by the Hon'ble Supreme Court in Union of India v. Mohd. Nawaz Khan, (2021) 10 SCC 100: (2021) 3 SCC (Cri) 721: 2021 SCC OnLine SC 1237, that a person is in possession if he is in a position to exercise control over the article. It was observed at page 111:
25. We shall deal with each of these circumstances in turn.
The respondent has been accused of an offence under Section 8 of the NDPS Act, which is punishable under Sections 21, 27-A, 29, 60(3) of the said Act. Section 8 of the Act prohibits a person from possessing any narcotic drug or psychotropic substance. The concept of possession recurs in Sections 20 to 22, which provide for punishment for offences under the Act. In Madan Lal v. State of H.P. [Madan Lal v. State of H.P., (2003) 7 SCC 465: 2003 SCC (Cri) 1664] this Court held that : (SCC p. 472, paras 19-23 &
26) "19. Whether there was conscious possession has to be determined with reference to the factual backdrop. The facts which can be culled out from the evidence on record are that all the accused persons were travelling in a vehicle, and as noted by the trial court, they were known to each other, and it has not been explained or 9 2025:HHC:20450 shown as to how they travelled together from the same destination in a vehicle which was not a public vehicle.
20. Section 20(b) makes possession of contraband articles an offence. Section 20 appears in Chapter IV of the Act, which relates to offences for possession of such articles. It is submitted that in order to make the possession illicit, there must be a conscious possession.
21. It is highlighted that unless the possession was coupled with the requisite mental element, i.e. conscious possession and not mere custody without awareness of the nature of such possession, Section 20 is not attracted.
22. The expression "possession" is a polymorphous term which assumes different colours in different contexts. It may carry different meanings in contextually different backgrounds. It is impossible, as was observed in Supt. & Remembrancer of Legal Affairs, W.B. v. Anil Kumar Bhunja [Supt. & Remembrancer of Legal Affairs, W.B. v. Anil Kumar Bhunja, (1979) 4 SCC 274: 1979 SCC (Cri) 1038] to work out a completely logical and precise definition of "possession" uniform[ly] applicable to all situations in the context of all statutes.
23. The word "conscious" means awareness about a particular fact. It is a state of mind which is deliberate or intended.
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26. Once possession is established, the person who claims that it was not a conscious possession has to establish it because how he came to be in possession is within his special knowledge. Section 35 of the Act gives a statutory recognition of this position because of the presumption available in law. Similar is the position in terms of Section 54, where also a 10 2025:HHC:20450 presumption is available to be drawn from possession of illicit articles."
26. What amounts to "conscious possession" was also considered in Dharampal Singh v. State of Punjab [Dharampal Singh v. State of Punjab, (2010) 9 SCC 608 :
(2010) 3 SCC (Cri) 1431], where it was held that the knowledge of possession of contraband has to be gleaned from the facts and circumstances of a case. The standard of conscious possession would be different in the case of a public transport vehicle with several persons as opposed to a private vehicle with a few persons known to one another. In Mohan Lal v. State of Rajasthan [Mohan Lal v. State of Rajasthan, (2015) 6 SCC 222: (2015) 3 SCC (Cri) 881], this Court also observed that the term "possession"
could mean physical possession with animus; custody over the prohibited substances with animus; exercise of dominion and control as a result of concealment; or personal knowledge as to the existence of the contraband and the intention based on this knowledge.
13. Therefore, the petitioner cannot claim that she was not in possession when she was able to exercise control over the articles kept on her land. Further, a presumption arises regarding the possession under Sections 35 and 54 of the NDPS Act, and the burden is upon the accused to rebut this presumption. Therefore, prima facie, the prosecution's version that the petitioner was found in possession of the 974 grams of charas has to be accepted as correct.
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14. The petitioner is a woman. Section 480 of Bhartiya Nagrik Surkasha Sanhita (BNSS) provides that the Court may direct a person accused of or suspected of commission of any non-bailable offence be released on bail if such person is a child or a woman, or is sick or infirm. This provision applies to a person brought before the Court other than the High Court or Court of Sessions, but the Courts have to keep this special provision in mind while considering the bail application of the persons falling in the categories mentioned in Section 480 of BNSS. It was laid down by the Karnataka High Court in Nethra vs State of Karnataka (12.05.2022 - KARHC): MANU/KA/2055/2022 that a woman can be released on bail even in case of murder because of special provisions under Section 437 of CrPC. It was observed:
"In terms of Section 437 of the Cr.P.C., bail can be granted in a non-bailable offence in three circumstances as depicted in the proviso: (i) being a person below 16 years of age, (ii) a woman, and (iii) sick or infirm. The petitioner is a woman. She is entitled to consideration under Section 437 of the Cr.P.C. Before applying the aforesaid provision to the facts of the case and considering the case of the petitioner for enlargement on bail, it is germane to notice the application of the said provision by coordinate 12 2025:HHC:20450 Benches of this Court all in the case of offences punishable under Section 302 of the IPC and they being women. xxxxxxx All the afore-quoted judgments rendered by the coordinate Benches of this Court were considering the purport of Section 437 of the Cr.P.C. and were cases where the accused No. 1 therein were women, and all of them were alleged to have committed an offence punishable under Section 302 of the IPC for the commission of murder. It is also a matter of record that the alleged accomplice in the act of murder, Vijay Kumar, was granted bail on 13-04-2022 by the learned Sessions Judge. For the aforesaid facts, the statute, i.e., Section 437 of the Cr.P.C. and its application in the judgments of three coordinate Benches all would enure to the benefit of the petitioner to be enlarged on bail notwithstanding the fact that the offence alleged is under Section 302 of the IPC. It is not the law that bail should always be denied in a case where the offence punishable is death or life imprisonment. In exceptional cases, if the statute permits and the facts are not being so gory and grave criminal antecedents shrouding the culprit, the consideration in such cases would be different."
15. The petitioner stated that she has no criminal antecedents. This was not stated to be incorrect in the status report filed by the State.
16. It was claimed that an amount of ₹49,87,684.29 was deposited in the account of the petitioner. The petitioner has given the details of the amount received by her from various persons. These details are yet to be verified; however, in the absence of any previous F.I.R. registered against the petitioner 13 2025:HHC:20450 makes the prosecution's case doubtful that the petitioner is a drug peddler.
17. The petitioner is aged 62 years, and no fruitful purpose would be served by keeping her behind the bars. The status report shows that the petitioner is in judicial custody, and the statements of formal witnesses are yet to be recorded; therefore, the custodial interrogation of the petitioner is not required.
18. In view of the above, the present petition is allowed, and the petitioner is ordered to be released on bail subject to her furnishing of bail bonds in the sum of ₹1,00,000/- with one surety in the like amount to the satisfaction of the learned Trial Court. While on bail, the petitioner will abide by the following terms and conditions:
(i) The petitioner will not intimidate the witnesses, nor will she influence any evidence in any manner whatsoever.
(ii) The petitioner shall attend the trial and will not seek unnecessary adjournments.
(iii) The petitioner will not leave the present address for a continuous period of seven days without furnishing the address of the intended visit to the concerned Police Station and the Court.14
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(iv) The petitioner will surrender her passport, if any, to the Court; and
(v) The petitioner will furnish her mobile number and social media contact to the Police and the Court and will abide by the summons/notices received from the Police/Court through SMS/WhatsApp/Social Media Account. In case of any change in the mobile number or social media accounts, the same will be intimated to the Police/Court within five days from the date of the change.
19. It is clarified that if the petitioner misuses the liberty or violates any of the conditions imposed upon her, the investigating agency shall be free to move the Court for cancellation of the bail.
20. The petition stands accordingly disposed of. A copy of this order be sent to the Jail Superintendent, Sub Jail Kullu, District Kullu, H.P. and the learned Trial Court by FASTER.
21. The observations made hereinabove are regarding the disposal of the petition and will have no bearing, whatsoever ,on the case's merits.
(Rakesh Kainthla) Judge 30th June, 2025 (ravinder) Digitally signed by KARAN SINGH GULERIA Date: 2025.06.30 14:14:31 IST