Himachal Pradesh High Court
Reserved On : 07.01.2025 vs State Of Himachal Pradesh & Anr on 8 January, 2025
Author: Virender Singh
Bench: Virender Singh
2025:HHC:1436 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
Cr.MP(M) No.27 of 2025
Reserved on : 07.01.2025
Decided on: 08.01.2025
Uved Khan ...Applicant
Versus
State of Himachal Pradesh & Anr. ...Respondents
Coram
The Hon'ble Mr. Justice Virender Singh, Judge. Whether approved for reporting?
For the applicant : Mr. Sunny Rawat, Advocate. For the respondent : Mr. Mohinder Zharaick and Mr. H.S. Rawat, Additional Advocates General, with Mr. Rohit Sharma, Deputy Advocate General, assisted by SI/SHO Bir Singh Negi, Police Station, Kandaghat, District Solan, H.P. 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-Uved Khan has sought his release, on bail, during the pendency 2 2025:HHC:1436 of the trial, in case FIR No.28 of 2024, dated 20.04.2024, registered under Sections 21 and 29 of the Narcotic Drugs & Psychotropic Substances Act (hereinafter referred to as the 'NDPS Act'), with Police Station Kandaghat, District Solan, H.P.
2. According to the applicant, he is innocent person and has falsely been implicated, in the present case. He has been arrested with allegedly possessing 12.26 gms of chitta/heroin.
3. It is the case of the applicant that the investigation, in the present case, is complete and police has submitted the charge-sheet and case is now fixed for prosecution evidence.
4. The applicant has further alleged that his co- accused Pooja Negi has already been released on bail, by the Court of learned Special Judge, Solan, H.P., vide order dated 04.05.2024.
5. The applicant has further pleaded that in addition to the present case, four other cases have been registered against him, the details of which have been given, 3 2025:HHC:1436 as under:-
"a. State Vs. Uved Khan, NDPS Act, 41/2018, pending before the learned Additional District & Sessions Judge, Solan, for prosecution evidence. b. State Vs. Uved Khan, NDPS Act, 38/2023, pending before the learned District & Sessions Judge, Shimla for prosecution evidence. c. State Vs. Mahesh Sharma & Ors, in the Court of learned Special Judge, Kinnaur, Sessions Division at Rampur Bushahr, H.P., NDPS Act, 01 of 2016 decided on 20.08.2019, wherein, applicant stands acquitted.
d. State Vs. Uved Khan, before learned Special Court, SAS Nagar (Mohali), NDPS Act, 10/2017 decided on 13.12.2017, in which, the applicant was convicted."
6. According to the applicant, he had earlier tried his luck by moving similar application, before the Court of learned Special Judge-II, Solan, District Solan, Himachal Pradesh. However, the same was dismissed vide order dated 28.06.2024.
7. Thereafter, the applicant had filed application, bearing CrMP(M) No.2232 of 2024, before this Court, which was dismissed as withdrawn, on 05.11.2024.
8. Apart from this, Mr. Sunny Rawat, Advocate, appearing for the applicant, has given certain undertakings, on behalf of the applicant, for which, the applicant is ready 4 2025:HHC:1436 to abide by, in case, ordered to be released on bail, during the pendency of the trial.
9. On the basis of the above facts, a prayer has been made to allow the bail application.
10. When, put to notice, the police has filed the status report, disclosing therein, that on 20.04.2024, HC Dinesh Kumar No.51 (IO), Detection Team, Solan, has submitted a ruqqa to Police Station, Kandaghat, mentioning therein that he, along with other police official, was on patrolling duty, as well as, the duty to detect the crime, relating to excise and narcotics, towards Kandaghat side.
11. It is the case of the police that when, the police party were present near Falcon Hotel, then, at about 01:15 pm, IO received a secret information, regarding the indulgence of Uved Khan (applicant) and Pooja Negi, who, as per the information, have stayed in Room No.105 of Hotel Ashish Inn and as per the information, both of them are doing the business of selling chitta/heroin and they are also indulge in the business of supplying the chitta/heroin. As per the said information, if the said room is searched, then, 5 2025:HHC:1436 large quantity of chitta/heroin could be recovered.
12. On the basis of above facts, after complying with the provisions of Section 42(2) of the NDPS Act, IO, along with other police official, reached at the spot i.e. Dehu Chowk in Hotel Ashish Inn, where, they had associated Sushil Thakur S/o Daya Krishan and after associating HC Ajay Pal as independent witness, they had reached at second floor, in front of Room No.105. When, the room was knocked, then, a young man opened the door. Along with him, one girl was also present there. Thereafter, IO had given his identification and identification of the police team and enquired from the said man, who, on enquiry, has disclosed his name as Uved Khan (applicant), aged about 29 years and the girl disclosed her name as Pooja Negi.
13. It is the further case of the police that thereafter, room was searched and from the said room, the chitta/heroin, weighing 12.36 gms, was found, which was taken into possession and other codal formalities were completed.
14. After registration of the FIR, the police has 6 2025:HHC:1436 arrested both the said persons.
15. The contraband, so recovered, was sent to FSL, Junga, after complying with the provisions of Section 52A of the NDPS Act and after receiving positive report from there, the police prepared the challan, in this case and submitted the same to the Court of learned Special Judge-II, Nahan, District Sirmaur, H.P. and the case is now stated to be listed on 11.04.2025 for prosecution evidence.
16. As per the status report, following cases are stated to have been registered, against the applicant:-
"(i) FIR No.67/15 dated 10.08.2015 u/s 20 of NDPS Act, PS Anni, District Kullu, H.P., in which, the applicant is stated to have been acquitted.
(ii) FIR No.193/16 dated 15.12.2016 u/s 21 and 29 of NDPS Act, PS Lalru, District Mohali, Punjab, in which, the applicant is stated to have been convicted and directed to pay a fine of Rs.5,000/-.
(iii) FIR No.228/17 dated 16.08.2017 u/s 22 of NDPS Act, PS Sadar, District Solan, H.P., which is stated to be pending, before the Court of learned Additional Sessions Judge, Solan and listed on 07.01.2025 for prosecution evidence.
(iv) FIR No.80/23 dated 31.03.2023 u/s 21 of NDPS Act, PS Boileuganj, District Shimla, H.P., which is stated to be listed on 20.02.2025 for the service of the applicant."
17. On the basis of the above facts, a prayer has been made to dismiss the bail application. 7
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18. The co-accused of the applicant, namely Pooja Negi, has been released on bail, by the Court of learned Special Judge, Solan, vide order dated 04.05.2024.
19. As per status report, there are two cases, mentioned at Sr. No.(iii) and (iv), under the provisions of NDPS Act, which are found to have been registered, against the applicant and admittedly, in both the cases, the applicant has not been convicted, by the competent Court of law and in one case, mentioned at Sr. No.(i), the applicant is stated to have been acquitted, by the competent Court of law.
20. So far as the conviction of the applicant in the case, registered with Police Station Lalru, District Mohali, Punjab, mentioned at Sr. No.(ii), as referred to above, is concerned, that conviction is too short to bring the applicant, within the ambit of 'habitual offender'.
21. 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 8 2025:HHC:1436 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 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."
22. 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 9 2025:HHC:1436 criminal disposition of mind, that makes him dangerous to the society in general. In strengthen language the word 'habitually' means 'by force of habit'."
23. 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 applicant does not fall, within the definition of 'habitual offender'.
24. Moreover, the applicant is in judicial custody, from the date of his arrest i.e. 20.04.2024. The period of almost 7 months has already elapsed and the applicant cannot be kept in the judicial custody, that too, for the indefinite period, as a matter of punishment, as, the punishment can only be inflicted, after the conclusion of trial, as pre-trial punishment is prohibited, under the law.
25. Keeping in view the pace of the trial, this Court is of the view that the conclusion of trial, against the applicant, will take sufficient long time and as such, no useful purpose would be served by keeping the applicant in judicial custody, that too, for the indefinite period.
26. Even otherwise, the contraband, allegedly 10 2025:HHC:1436 involved in the present case, does not fall within the definition of 'commercial quantity'. As such, rigors of Section 37 of the NDPS Act are not applicable to the present case.
27. Mere registration of two other cases, against the applicant, under the provisions of Sections 21 and 22 of the NDPS Act, is also not sufficient to take away the presumption of innocence, which is still available to the applicant.
28. At the time of deciding the bail application, a delicate balance has to be maintained, as, detailed discussions about the case of the prosecution would cause prejudice to the prosecution's case, as well as, to the case of the accused.
29. Moreover, the applicant is the permanent resident of Kandaghat, District Solan and as such, it cannot be apprehended that in case, he is ordered to be released on bail, he may not be available for the trial.
30. Considering all these facts, this Court is of the view that the bail application is liable to be allowed and is accordingly allowed.
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31. Consequently, the applicant is ordered to be released, on bail, in case FIR No.28 of 2024, dated 20.04.2024, registered under Sections 21 and 29 of the NDPS Act, with Police Station Kandaghat, District Solan, H.P., on his furnishing personal bonds in the sum of Rs.50,000/-, with two sureties of the like amount, to the satisfaction of the learned trial Court.
32. 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.
33. Any of the observations, made hereinabove, shall not be taken, as an expression of opinion, on the merits of 12 2025:HHC:1436 the case, as these observations are confined, only to the disposal of the present bail application.
34. It is made clear that respondent-State is at liberty to move an appropriate application, in case, any of the bail conditions is found violated by the applicant.
35. The Registry is directed to forward a soft copy of the bail order to the Superintendent of Jail, District Jail, Solan, through e-mail, with a direction to enter the date of grant of bail in the e-prison software.
36. In case, applicant is not released within a period of seven days, from the date of grant of bail, the Superintendent of Jail, District Jail, Solan, is directed to inform this fact to the Secretary, DLSA, Solan. The Superintendent of Jail, District Jail, Solan, 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.
(Virender Singh) Judge January 08, 2025 (Gaurav Thakur) Digitally signed by RAJNI Date: 2025.01.08 15:11:43 IST