Himachal Pradesh High Court
____________________________________________________________ vs State Of Himachal Pradesh on 4 July, 2025
( 2025:HHC:21380 ) IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr.MP(M) No.596 of 2025 Decided on: 4.7.2025 ____________________________________________________________ Pawan Kumar ...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. Pawan Gautam, Advocates. For the respondent: Mr. Pranay Pratap Singh, Additional Advocate General and Mr. Sidharth Jalta, Deputy Advocate General Ranjan Sharma, Judge Bail petitioner [Pawan Kumar], who is in custody since 06.03.2024 has come up before this Court, seeking regular bail, under Section 483 of the Bhartiya Nagrik Suraksha Sahinta, hereinafter (hereinafter referred to as BNSS), originating from the FIR No.33 of 2024 dated 06.03.2024, registered at Police Station Chowari, District Chamba, [H.P.], under 1 Whether reporters of Local Papers may be allowed to see the judgment?
-2- ( 2025:HHC:21380 ) Sections 20 and 29 of the Narcotic Drugs and Psychotropic Substances Act (referred to as the NDPS Act).
FACTUAL MATRIX IN BAIL PETITION:
2. Case of petitioner, as set up, by Learned Counsel, is that bail petitioner is a poor person aged about 52 years and he earns his livelihood by working as a labourer and he has a family with minor child. It is averred that one Shri Suraj Kumar, was travelling in Bus No. HP-73-2697 enroute Chamba- Pathankot and while he was sitting on seat No.41, and was carrying a bag, the Police Party intercepted and upon search, as per norms contraband i.e. charas, weighing 1.126 Kgs. was recovered from his bag. 2(i). It is averred that the bail petitioner had no knowledge about the contraband, being carried by co- accused Suraj Kumar. It is averred that nothing was recovered from the conscious possession of bail petitioner and bail petitioner has been falsely implicated in the case.
-3- ( 2025:HHC:21380 ) 2(ii). It is further averred that alleged contraband
was weighed alongwith the polyethene bag just to bring it within the parameters of commercial quantity. It is averred that co-accused, Jitender Kumar, was granted bail by this Court on 10.01.2025. 2(iii). It is averred that bail petitioner filed an application for bail on 09.04.2024, but the same was rejected by Learned Special Judge-II, Chamba, on 25.04.2024. It is averred that petitioner [Pawan Kumar] had filed two applications for regular bail before this Court Cr.MP(M) No. 1045 of 2024 and Cr.MP(M) No. 1843 of 2024, which were withdrawn on 16.05.2024 [Annexure P-4] and on 24.08.2024 [Annexure P-5]. 2(iv). It is averred that petitioner has participated in the investigation and investigation is complete and the police has presented the Challan-Final Police Report dated 26.06.2024 before the concerned Court and the trial has commenced but at a slow pace. It is averred that nothing is to be recovered from the
-4- ( 2025:HHC:21380 ) petitioner.
2(v). In instant bail petition, the bail petitioner has furnished undertakings that he shall abide by all such terms and conditions, as may be imposed by this Court and bail petitioner, shall furnish a surety bond and shall not leave the jurisdiction of this Court, without prior permission of the Trial Court or this Court, in case, the bail is granted. It is averred that the petitioner has no past criminal antecedents except in one case, where he was falsely implied. It is averred that petitioner is in custody, since 06.03.2024, and his personal liberty has been curtailed by prolonged detention coupled with the fact that trial is likely to take considerable time. In these circumstances, petitioner has approached this Court for grant of bail.
PROCEEDINGS IN INSTANT MATTER:
3. Pursuant to the issuance of notice on 20.03.2025, the State Authorities have furnished the
-5- ( 2025:HHC:21380 ) Status Report dated 01.04.2025 on Instructions of SHO, Police Station Chowari, Distirct Chamba pointing out the factual matrix, completion of investigation, filing of challan and the commencement of trial in which total 22 witnesses are to be examined.
3(i). As a sequel to order dated 06.06.2025 Learned State Counsel has filed a Fresh Status Report dated 20.06.2025, indicating that stage and status of trial intending to examine 20 PWs. In view of the discrepancy in the number of PW's on query by this Court, Mr. Pranay Pratap Singh, Learned State Counsel, on telephonic instructions states that 20 PWs are to be examined by the prosecution in instant case.
3(ii). Perusal of the Status Report(s), indicate the sequence of events, narrating that the police patrolling Party searched Bus No.HP-73-2697, in which petitioner and other co-accused were travelling. It is borne out from the Status Report that during search, police
-6- ( 2025:HHC:21380 ) patrolling party found that Suraj Kumar, co-accused, who was sitting at Seat No.41 in the bus and bag carrying the contraband was recovered from him and on weighing, it came to be 1.126 Kgs. of Charas. After completing all codal formalities, the police investigated the matter, in which the bail petitioner participated. Status Report further refers to SFSL Report dated 09.04.2024, which corroborates the recovery of charas. Status Report further indicates that prosecution intends to examine 20 witnesses, out of which 9 PWs have been examined, as on day. In this background, Status Report, has been filed by the State Authorities, with the prayer for dismissing of the bail petition.
4. Heard Mr. Pawan Gautam, Learned Counsel for the bail petitioner and Mr. Sidharth Jalta, Deputy Advocate General, for the respondent-State.
ANLYSIS: CLAIM FOR BAIL IN INSTANT CASE:
5. While examining the claim of the bail petitioner in the instant case, this Court is
-7- ( 2025:HHC:21380 ) conscious of the fact that, in case, a person who is alleged to have been accused in relation to commercial quantity of contraband [charas of 1.126 Kgs.], has to cross the rigours of Section 37 (1) (b) of NDPS Act and the claim for bail is to be tested in the light to 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 versus Ajay Kumar Singh @ Pappu, SLP (Criminal) No. 2351 of 2023 reiterated by the Hon'ble Supreme Court in State by the Inspector of Police vs B.Ramu, SLP (Criminal) No.8137 of 2022 decided on 12.02.2024 and Narcotics Control Bureau versus Kashif, Cr. Appeal No. 5544 of 2024 decided on 20.12.2024. Accordingly, in aforesaid background, this Court proceeds to examine the claim of the petitioner [Pawan Kumar] for bail, in view of the Statutory mandate of Section 37(1)(b) of NDPS Act and on other grounds available to the
-8- ( 2025:HHC:21380 ) petitioner, by way of exception to the rigors of Section 37 of NDPS Act, in terms of the mandate of law declared by the Hon'ble Supreme Court, here-in-below. [A]. CLAIM FOR BAIL UNDER SECTION 37(1) (b) OF NDPS ACT:
10. Perusal of Status Report admits in an unambiguous term that the police party recovered the bag containing 1.126 Kgs. of the contraband, i.e. charas from accused Suraj Kumar, who was travelling in Bus No.HP-73-2697 on 06.03.2024 and was occupying seat No. 41 in said bus. Status Report(s) corroborate that no contraband was recovered from the petitioner [Pawan Kumar] and even the prosecution has not been able to point out cogent and convincing material so as to justify the invocation of Section 37 (1) (b) of NDPS Act.
10(i). Case of bail petitioner is that he was not aware that accused, Suraj Kumar, was carrying the contraband in his bag. In these circumstances, once petitioner specifically denies the fact that he had
-9- ( 2025:HHC:21380 ) any knowledge of accused Suraj Kumar carrying the contraband and no material has been placed on record by State Authorities in the Status Report that the bail petitioner [Pawan Kumar], had knowledge of contraband, therefore, the bail petitioner appears to be not guilty of the offence, at this stage. 10(ii). Status Report(s) filed by State Authorities do not spell out any material to show that the petitioner has resorted to any activities, so as to invoke the provisions of Section 20 of NDPS Act against the bail petitioner. Nothing has been placed on record that the bail petitioner had produced, manufactured, possessed, sold, transported, imported, exported or used the contraband as alleged in the instant case. In these circumstances, the bail petitioner appears to be not guilty, at this stage, and therefore, the bail petitioner deserves to be extended the benefit of bail.
10(iii). Invocation of Section 29 of NDPS Act, alleging abatement and criminal conspiracy is a - 10 - ( 2025:HHC:21380 )
matter to be tested, examined and proved during trial. Accusation of abatement or criminal conspiracy cannot be attributed against the bail petitioner without any cogent material on record. In these circumstances, based on Status Report/material on record, this Court is of the considered view, that the bail petitioner is not guilty at this stage.
10(iv). Moreover, the prosecution story appears to be doubtful in terms of the Status Reports dated 01.04.2025 and the Status Report dated 20.06.2025 [taken on record] filed by State Authorities. Mere factum of the petitioner [Pawan Kumar] traveling together does not indicate that reasonable grounds exist for believing the accusation and therefore, the petitioner is not guilty.
NOTHING ADVERSARIAL REGARDING REPITITION OF OFFENCE AFTER BAIL:
11. Status Reports filed by the State Authorities do not express any apprehension of repetition of offence by petitioner after release on bail. As per
- 11 - ( 2025:HHC:21380 ) the material on record, no reasonable grounds exist to believe that the bail petitioner is guilty and nothing exists that bail petitioner is likely to repeat the offence after release on bail and, therefore, even by applying the twin principles in Section 37(1) (b) of the NDPS Act, the bail petitioner [Pawan Kumar] is entitled to be enlarged on bail.
[B]. CLAIM FOR BAIL ON OTHER EXCEPTIONAL GROUNDS: CIRCUMSTANCES:
12. Notwithstanding, the discussion with respect to claim for bail under Section 37 (1) (b) of NDPS Act [supra], this Court is of the considered view, that bail petitioner is entitled to be enlarged on bail for the following reasons:-
12(i). Learned counsel for the bail petitioner, submits that FIR in the instant case was registered on 06.03.2024 and the petitioner is in custody for more than one year and four months now. It is further submitted that investigation is complete and challan-
police report stands filed on 26.06.2024 and even the
- 12 - ( 2025:HHC:21380 ) charges have been framed, which are sought to be proved by examining 20 PWs.
REFORMATIVE APPROACH IN BAIL:
12(ii). The Hon'ble Supreme Court, in Criminal Appeal No.2787 of 2024, titled as Javed Gulam Nabi Shaikh Versus State of Maharashtra and Another enlarged the accused on bail outlining that the personal liberty of an accused under Article 21 of the Constitution of India cannot be curtailed due to prolonged incarceration.
12(iii). Acceding to the prayer for bail in a matter relating to the prolonged incarceration and the right to speedy trial and right of liberty to be sacrosanct right and while deprecating that the bail is not to be withheld as punishment so as to operate dehors the principle that bail is rule and jail is an exception, the Hon'ble Supreme Court, in Manish Sisodia vs Directorate of Enforcement, SLP (Criminal) No.8781 of 2024.
- 13 - ( 2025:HHC:21380 ) 12(iv). While adjudicating the claim for bail, even
under Special Enactments, like PMLA [akin to NDPS Act], the Hon'ble Apex Court in Kalvakuntla Kavitha Versus Directorate of Enforcement and connected matter, 2024 SCC OnLine SC 2269 has mandated that fundamental right of liberty provided under Article 21 of the Constitution of India is superior to statutory restrictions.
RIGORS OF STRINTENGENT PROVISIONS IN SPECIAL ENACTMENTS [SECTION 37 OF NDPS] TO GIVE WAY FOR BAIL BASED ON PROLONGED INCARCERATION AND NOT LIKELY TO COMPLETE TRIAL IN A CONSIDERABLE TIME :
13. While dealing with the claim for bail under Special Enactments and rigors of Section 45 (1) (ii) of PMLA and proviso to Section 43-D (5) of Unlawful Activities [Prevention] Act, 1967 and Section 37 of NDPS Act, the Hon'ble Supreme Court following the dictum in K.A.Najeeb as has held in Criminal Appeal No.4011 of 2024, In re: V. Senthil Balaji Versus The Deputy Director, Directorate of Enforcement, has mandated that rigors in Special
- 14 - ( 2025:HHC:21380 ) Enactments, including Section 37 of NDPS Act, will melt down where there is no likelihood of trial being completed in a reasonable time and prolonged incarceration so as to prevent the deprivation of curtailment of personal liberty and right to speedy trial in terms of Article 21 of Constitution of India, in the following terms:-
"24. There are a few penal statutes that make a departure from the provisions of Sections 437, 438, and 439 of the Code of Criminal Procedure, 1973. A higher threshold is provided in these statutes for the grant of bail. By way of illustration, we may refer to Section 45(1)(ii) of PMLA, proviso to Section 43D(5) of the Unlawful Activities (Prevention) Act, 1967 and Section 37 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short, 'NDPS Act'). The provisions regarding bail in some of such statutes start with a non obstante clause for overriding the provisions of Sections 437 to 439 of the CrPC. The legislature has done so to secure the object of making the penal provisions in such enactments. For example, the PMLA provides for Section 45(1)(ii) as money laundering poses a serious threat not only to the country's financial system but also to its integrity and sovereignty.
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
- 15 - ( 2025:HHC:21380 ) 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 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.
- 16 - ( 2025:HHC:21380 )
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 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
- 17 - ( 2025:HHC:21380 ) 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 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 fundamental 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, on the following conditions:
- 18 - ( 2025:HHC:21380 ) a. The appellant shall furnish bail bonds in the sum of Rs.25,00,000/ (Rupees twenty five lakhs only) with two sureties in the like amount;
b. The appellant shall not directly or indirectly attempt to contact or communicate with the prosecution witnesses and victims of the three scheduled offences in any manner. If it is found that the appellant directly or indirectly made even an attempt to contact any prosecution witness or victim in the scheduled as well as offences under the PMLA, it will be a ground to cancel the bail granted to the appellant;
c. The appellant shall mark his attendance every Monday and Friday between 11 am and 12 noon in the office of the Deputy Director, the Directorate of Enforcement at Chennai. He shall also appear on the first Saturday of every calendar month before the investigating officers of the three scheduled offences; d. Before the appellant is enlarged on bail, he shall surrender his passport to the Special Court under the PMLA at Chennai;
e. The appellant shall regularly and punctually remain present before the Courts dealing with scheduled offences as well as the Special Court and shall cooperate with the Courts for early disposal of cases; and f. If the appellant seeks adjournments on non- existing or frivolous grounds or creates hurdles in the early disposal of the cases mentioned above, the bail granted to him shall be liable to be cancelled.
32. The appeal is allowed on the above terms." MANDATE OF HON'BLE SUPREME COURT IN GRANTING BAIL IN CASES RELATING TO COMMERCIAL QUANTITY WHERE THERE WAS
- 19 - ( 2025:HHC:21380 ) NO LIKELIHOOD OF CONCLUSION OF TRIAL:
14. In similar facts situation, while dealing the claim for bail by a person involved in commercial quantity of contraband, Hon'ble Supreme Court has extended the benefit of bail in Petition(s) for Special Leave to Appeal (Crl.) No(s).1904/2023, titled as Sunil Kumar Versus The State of Himachal Pradesh, decided on 29.03.2023, in the following terms:-
"It is noted that the petitioner has been in custody for more that one and a half years and the trial is yet to conclude. Earlier, the petitioner had been granted interim bail on two occasions and has not misused the liberty of interim bail or violated any of the bail conditions imposed upon him but has thereafter, surrendered back.
Therefore, keeping all these aspects in view, the petitioner is ordered to be released on bail subject to appropriate conditions being imposed by the Trial Court including the condition that the petitioner shall diligently participate in the trial. Ordered accordingly."
14(i). Accepting the prayer for bail by accused of commercial quantity in Petition(s) for Special Leave to Appeal (Crl.) No(s).4648/2024, titled
- 20 - ( 2025:HHC:21380 ) as Ankur Chaudhary Versus State of Madhya Pradesh, decided on 28.05.2024, the Hon'ble Supreme Court extended benefit of bail, in a case, where the trial was not concluded within reasonable time having been elapsed and also by invoking Article 21 of Constitution of India which mandates that the prolonged incarceration, defeats the precious fundamental rights; and fundamental rights override the statutory embargo in Section 37 (1) (b) of NDPS Act in the following terms:-
"Now, on examination, the panch witnesses have not supported the case of prosecution. On facts, we are not inclined to consider the Investigation Officer as a panch witness. It is to observe that failure to conclude the trial within a reasonable time resulting in prolonged incarceration militates against the precious fundamental right guaranteed under Article 21 of the Constitution of India, and as such, conditional liberty overriding the statutory embargo created under Section 37(1)(b) of the NDPS Act may, in such circumstances, be considered.
In view of the above, we are inclined to allow this petition and direct to enlarge the petitioner on bail on furnishing the suitable bail bonds and sureties and on such other
- 21 - ( 2025:HHC:21380 ) terms and conditions as may be deemed fit by the trial Court."
14(ii). The Hon'ble Supreme Court has extended the concession of bail to an accused allegedly involved in commercial quantity, who was facing incarceration of one year and four months and 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, in the following terms:-
"The petitioner is an accused for the alleged offences punishable under Sections 8/22 and 29 of the Narcotic Drugs and Psychotropic Substances Act. His bail application was dismissed by the High Court. He has already undergone about one year and four months in jail. The petitioner and com accused were found in possession of 80 grams of MD powder each of which commercial quantity is 50 grams.
Considering the fact that the petitioner criminal antecedents and the entire facts and circumstances has no of this case, we are of the opinion that a case of bail is made out for the petitioner and therefore, the prayer of the petitioner is allowed.
Accordingly, the petitioner is directed to be released on bail forthwith on the usual terms and conditions to be decided by the concerned Court."
- 22 - ( 2025:HHC:21380 ) 14(iii). While dealing with the claim for bail where the incarceration was prolonged and the
accused had no criminal antecedents 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, as in this case, in the following terms:-
"The petitioner and the other accused persons are accused for the offences punishable under Sections 8/21 & 8/29 of the Narcotic Drugs and Psychotropic Substances Act and allegation is that 450 gm of smack has been recovered from them. The bail application of the petitioner was dismissed by the High Court. Hence, he approached this Court. He has already undergone about 1 year and 6 months in jail.
Heard learned counsel for the petitioner. As per office report Rated 13.09.2924, the service is deemed complete on the sole respondent- State but no one has appeared for the state.
Considering the period of incarceration of the petitioner and the fact that the petitioner has no criminal antecedents, we are of the opinion that a case of bail is made out for the petitioner.
Accordingly, the petitioner is directed to be released on bail forthwith on the usual terms and conditions to be decided by the concerned Court."
MANDATE OF THIS COURT IN GRANTING BAIL IN CASES OF COMMERCIAL QUANTITY WHERE TRIAL
- 23 - ( 2025:HHC:21380 ) WAS PROLONGED AND THERE WAS NO LIKELIHOOD OF ITS COMPLETION:
15. While dealing with the claim for bail in a case, a Co-ordinate Bench of this Court, in Cr.
MP (M) No. 2618 of 2023, Jasbir Singh versus State of Himachal Pradesh, decided on 4.11.2023 has affirmed the right to bail in view of the prolonged detention of the accused therein, in the following terms:-
"5(ii). ..... In 2021 (3) SCC, 713, Union of India Versus K.A. Najeeb, Hon'ble Apex Court considered various judicial precedents where Article 21 of the Constitution of India was invoked in case of gross delay in disposal of cases of under- trials and consequential necessity to release them on bail. The earlier decisions were reiterated that liberty granted by Part-III of the Constitution, would cover within its protective ambit not only due procedure and fairness, but also access to justice and speedy trial. It was held that once it is obvious that a timely trial would not be possible and the accused have suffered incarceration for a significant period of time, the Courts would ordinarily be obligated to enlarge them on bail. Some relevant paras from the judgments are extracted hereinafter:-
"10. It is a fact that the High Court in the instant case has not determined the likelihood of the respondent being guilty or not, or whether rigours of Section
- 24 - ( 2025:HHC:21380 ) 43D(5) of UAPA are alien to him. The High Court instead appears to have exercised its power to grant bail owing to the long period of incarceration and the unlikelihood of the trial being completed anytime in the near future. The reasons assigned by the High Court are apparently traceable back to Article 21 of our Constitution, of course without addressing the statutory embargo created by Section 43D (5) of UAPA.
11. The High Court's view draws support from a batch of decisions of this Court, including in Shaheen Welfare Assn, laying down that gross delay in disposal of such cases would justify the invocation of Article 21 of the Constitution and consequential necessity to release the undertrial on bail. It would be useful to quote the following observations from the cited case:
"10. Bearing in mind the nature of the crime and the need to protect the society and the nation, TADA has prescribed in Section 20(8) stringent provisions for granting bail. Such stringent provisions can be justified looking to the nature of the crime, as was held in Kartar Singh case, on the presumption that the trial of the accused will take place without undue delay. No one can justify gross delay in disposal of cases when undertrials perforce remain in jail, giving rise to possible situations that may justify invocation of Article 21." ...
(emphasis supplied)
12. Even in the case of special legislations like the Terrorist and Disruptive Activities (Prevention) Act, 1987 or the Narcotic Drugs and Psychotropic Substances Act, 1985 (" the NDPS Act") which too have
- 25 - ( 2025:HHC:21380 ) somewhat rigorous conditions for grant of bail, this Court in Paramjit Singh v. State (NCT of Delhi), Babba v. State of Maharashtra and Umarmia alias Mamumia v. State of Gujarat enlarged the accused on bail when they had been in jail for an extended period of time with little possibility of early completion of trial. The constitutionality of harsh conditions for bail in such special enactments, has thus been primarily justified on the touchstone of speedy trials to ensure the protection of innocent civilians.
13. We may also refer to the orders enlarging similarly situated accused under the UAPA passed by this Court in Angela Harish Sontakke v. State of Maharashtra. That was also a case under Sections 10, 13, 17, 18, 18A, 18B, 20, 21, 38, 39 and 40(2) of the UAPA. This Court in its earnest effort to draw balance between the seriousness of the charges with the period of custody suffered and the likely period within which the trial could be expected to be completed took note of the five years' incarceration and over 200 witnesses left to be examined, and thus granted bail to the accused notwithstanding Section 43D(5) of UAPA. 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
- 26 - ( 2025:HHC:21380 ) (Representing Under-trial Prisoners) v. Union of India, it 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."
- 27 - ( 2025:HHC:21380 )
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 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....."
15(i). While dealing with claim for bail in
- 28 - ( 2025:HHC:21380 )
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 Versus State of Himachal Pradesh, decided on 24.05.2024, in the following terms:-
"10. Though, the case at hand is to be decided by learned trial Court, in the totality of evidence collected on record by the investigating agency, but having noticed aforesaid glaring aspects of the matter, there appears to be no justification for this Court to let the bail petitioner incarcerate in jail, for an indefinite period during trial, especially when rigours of S.37 of the Act are not attracted on account of recovery of small quantity.
11. Learned counsel for the petitioner while inviting attention of this court to judgments dated 4.3.2023 and 15.3.2023 passed in Cr.MP(M) No. 62 and 570 of 2023, titled Puran Chand v. State of HP and Prem chand v. State of HP., submitted that in similar facts and circumstances, coordinate Bench of this Court as well as this Court enlarged the accused on bail on the ground of inordinate delay. Having perused aforesaid judgments passed by the coordinate Bench of this Court, this Court finds that in both the cases, commercial quantity of contraband was recovered from the accused, but yet court having taken note of the fact
- 29 - ( 2025:HHC:21380 ) that they were behind the bars for more than three years, proceeded to enlarge them on bail.
12. Hon'ble Apex Court having taken note of inordinate delay in conclusion of trial in similar facts ordered for enlargement of accused on bail in Nitish Adhikary @ Bapan v. The State of West Bengal, Special Leave to Appeal (Crl.) No. 5769 of 2022 decided on 1.8.2022 and in Abdul Majeed Lone v. Union Territory of Jammu and Kashmir, Special Leave to Appeal (Crl) No. 3961 of 2022, decided on 1.8.2022, who were also framed under Narcotic Drugs and Psychotropic Substances Act and were behind the bars for approximately two years and there was no likelihood of conclusion of trial in near future, subject to certain conditions.
13. Learned Counsel appearing for the petitioner, to substantiate his plea for enlarging the petitioner on bail, has referred order dated 12.10.2020 passed by a three judges Bench of the Supreme Court, in Criminal Appeal No. 668 of 2020, titled Amrit Singh Moni v. State of Himachal Pradesh, whereby petitioner therein, facing trial for recovery of 3.285 kilograms charas from a vehicle, alongwith four other persons, was enlarged on bail, for having been in detention for 2 years and 7 months, as till then out of 14 witnesses, 7 witnesses were yet to be examined and last witness was examined in February, 2020 and, thereafter, there was no further progress in the trial.
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
- 30 - ( 2025:HHC:21380 ) 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.
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."
15(ii). Another 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
- 31 - ( 2025:HHC:21380 ) 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.............."
15(iii). This Court in Cr.MP(M) No. 443 of 2025 titled as Mehar Singh Versus State of Himachal Pradesh decided on 28th March, 2025 has accepted the plea for bail relating to commercial quantity of contraband i.e. [Cannabis-Charas] weighing 1.509 Kgs. after taking into account the prolonged incarceration of 12 months.
15(iv). In similar facts-situation, the claim for bail was accepted, in case of an accused, from whom commercial quantity of contraband was recovered, this Court in Missu Ram Versus State of Himachal Pradesh, Cr.MP(M) No. 130 of 2025 decided on 11th April, 2025 on the ground of prolonged incarceration, for about one year and ten months.
- 32 - ( 2025:HHC:21380 ) NOTHING ADVERSE REGARDING TAMPERING WITH EVIDENCE OR WITNESSES ETC:
16. The Status Reports filed by State Authorities have neither pointed out any adversarial circumstances nor placed any material on record, at this stage to infer that after release on bail, the petitioner is likely to tamper with evidence or may cause any inducement, threat or promise to any person or persons acquainted with the facts of the case. However, the apprehension if any, of the State Authorities can be safeguarded, at this stage, by imposing stringent conditions, in this bail order.
NOTHING ADVERSE REGARDING OBSTRUCTING OR ATTEMPTING TO THWART JUSTICE:
17. Status Reports filed by State Authorities have neither pointed out any adversarial circumstances nor placed any material on record, to infer that after release on bail, the petitioner may obstruct or thwart the cause of justice in any manner. However, the apprehension if any, of the State Authorities
- 33 - ( 2025:HHC:21380 ) are taken care of, by imposing stringent bail conditions as mandated herein, in the instant case.
PAST CRIMINAL ANTECEDENTS:
18. Learned State Counsel has opposed the bail, on the ground that the petitioner is involved in one another N D P S Act of having registered an F.I.R No. 214 of 2021 dated 24.10.2021 under Section 20 of the Act at Police Station Mukerian [Punjab].
18(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 and while considering the claim of an accused for bail, which are detailed here-in-below. 18(ii). While negativating the plea that the past criminal antecedents {i.e. 36 criminal cases of serious nature} cannot solely be the ground for denying bail
- 34 - ( 2025:HHC:21380 ) 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 Hon'ble Supreme Court, in Maulana Mohammed Amir Rashidi versus State of Uttar Pradesh, (2012) 2 SCC 382.
18(iii). While granting bail to an accused having criminal antecedents, who was facing incarceration for 7 months and when, no prima-facie accusation or reasonable grounds existed, the Hon'ble Supreme Court in Prabhakar Tewari Versus State of Uttar Pradesh and another, (2020) 11 SCC 648. Further despite the past criminal antecedents, benefit of bail, was granted by applying the principle that accused is presumed to be innocent and merely in the guise
- 35 - ( 2025:HHC:21380 ) of pending cases, the presumption of guilt could not be inferred and when, the accused is facing incarceration for long, as has been outlined by the Hon'ble Supreme Court in Union of India vs Mrityunjay Kumar Singh, 2024 SCC OnLine SC 852. This principle has been reiterated in Ayub Khan versus State of Rajasthan, 2024 SCC OnLine SC 3763. Moreover, the pendency of other criminal cases cannot be invoked for denying bail, when, no prima facie case exists and prolonged incarceration was writ large, in Prem Prakash versus Union of India through Directorate of Enforcement, 2024 SCC OnLine SC 2270.
PARITY BETWEEN CO-DELINQUENTS:
19. As an offshoot of the F.I.R No.33 of 2024 dated 06.03.2024, registered at Police Station Chowari, District Chamba, [H.P.], under Sections 20 and 29 of the Narcotic Drugs and Psychotropic Substances Act, though three accused, were alleged
- 36 - ( 2025:HHC:21380 ) to have been involved, out of which one of the co-accused, Jitender Kumar was granted bail by this Court Cr.M.P.(M) No.2304 of 2024 on 10.01.2025, who had set up a plea, which is pari materia to the fact situation, of this case that the main accused Suraj Kumar was carrying contraband Charas weighing 1.126 Kgs, which was recovered from him. Once another co-accused who was similarly placed has been extended the concession of bail, therefore, the present bail petitioner, Pawan Kumar, deserves concession of bail on the principle of parity.
CONCLUSION:
20. In facts of instant case, the plea of Learned State Counsel is examined and the plea is devoid of any merit, for the reason, that firstly, neither any prima facie case nor reasonable grounds exist and prosecution story appears to be highly doubtful and improbable at this stage as discussed hereinabove; and secondly, the Status
- 37 - ( 2025:HHC:21380 ) Report(s) reveals that bail petitioner is in custody since 06.03.2024 and is undergoing incarceration for almost 1 year and 4 months; and thirdly, the conclusion of trial is likely to take considerable time, when, out of a total of 20 PWs only 9 PWs, have been examined as yet [as per instructions of Learned State Counsel]; and fourthly, delay in trial is not attributable to the petitioner; 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 cogent and convincing material that after release on 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, even the State Authorities have not
- 38 - ( 2025:HHC:21380 )
placed anything on record to show that the petitioner has misused the liberty granted to him earlier; and lastly, 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 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, lastly, even on facts of instant case, the rigours of Section 37(1)(b) of NDPS Act are not attracted; when, no recovery was made from the bail petitioner and further the accusation against the petitioner is not made out and prolonging of incarceration for the last 1 year and 4 months and the fact that another co-accused has been
- 39 - ( 2025:HHC:21380 ) enlarged on bail on 10.01.2025 [Annexure P-3] and the fact that in terms of the mandate of the Hon'ble Supreme Court in K.A. Najeeb, Javed Gulam, Kalvakuntla Kavitha, V. Senthil Balaji, Sunil Kumar, Ankur Chaudhary, Sohrab Khan, Ram Lal and the mandate of this Court in Jasbir Singh, Vijay Singh, Kamal Singh, Mehar Singh and Missu Ram, the plea of the bail petitioner [Pawan Kumar] for bail, carries weight, and the prayer for bail is accepted, in peculiar facts, of this case.
21. In order to safeguard the rights of bail petitioner and to take care of apprehensions of State that bail petitioner, may flee away [notwithstanding the fact that no such apprehension has been pointed out in Status Report] yet, in peculiar facts of this case, this Court stringent conditions in the bail orders, in later part of this order.
22. Taking into account the entirety of the facts and the material on record and the mandate of
- 40 - ( 2025:HHC:21380 ) law, as referred to above, and in the peculiar facts of this case, the instant petition is allowed, and the State Authorities are directed to release the petitioner [Pawan Kumar] on bail, subject to observance of the following conditions:-
(i) Respondent-State Authorities shall release bail petitioner [Pawan Kumar] on furnishing personal bond of Rs.75,000/- {Rs Seventy Five Thousand} with two sureties on furnishing similar bond amount each, to the satisfaction of the Learned Trial Court concerned;
(ii) Petitioner shall undertake and shall also appear on every date of trial hereinafter;
(iii) Petitioner shall abide by all or any other condition(s), which may be imposed by the Learned Trial Court, in view of this order;
(iv) Petitioner shall neither involve himself nor shall abet the commission of any offence hereinafter. Involvement in any offence whatsoever or abetting thereof shall entail automatic cancellation of bail granted in terms of this order ;
(v) Petitioner shall disclose his functional E-Mail IDs/ WhatsApp number and that of his surety to the Learned Trial Court;
(vi) Petitioner after release, shall report to the Investigating Officer or SHO of Police Station concerned, nearest to his native place, i.e. Ward No.6, Mukerian, Tehsil Mukerian, Hoshiarpur [Punjab], on 2nd Sunday of every month at 08.00 a.m., only for having an update on good conduct and behaviour;
- 41 - ( 2025:HHC:21380 )
(vii) Petitioner shall not jump over the bail and
also shall not leave the country without the prior information of the Court;
(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 the 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.;
23. 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.
- 42 - ( 2025:HHC:21380 )
24. 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.
25. The Registry is directed to forward a copy of this order to Superintendent of Police, Chamba, District Chamba, [H. P.], as well as Superintendent of Police, Hoshiarpur, District Hoshiarpur [Punjab], for information and necessary action in terms of this order.
In the aforesaid terms, the instant petition and all pending miscellaneous application(s), if any, shall also stand disposed of.
(Ranjan Sharma) Judge 4th July, 2025 [tm] Digitally signed by TARUN MAHAJAN DN: C=IN, O=HIGH COURT OF HIMACHAL PRADESH, OU TARUN =HIGH COURT OF HIMACHAL PRADESH SHIMLA, Phone= 887aba774dfe8f4f3e95a41c7aa2abacb4ecee8f82efd8f56ec3 9f8e6b442b68, PostalCode=171001, S=Himachal Pradesh, SERIALNUMBER= 3ff6ebe501e8d7c8d73d0e5a5294bacca3f198d7d66b105bbf5 MAHAJAN 07179673109f5, CN=TARUN MAHAJAN Reason: I am the author of this document Location: 12345678 Date: 2025.07.04 17:58:57+05'30' Foxit PDF Reader Version: 2023.2.0