Himachal Pradesh High Court
Reserved On : 4Th January vs State Of Himachal Pradesh on 15 January, 2025
2025:HHC:3001 IN THE HIGH COURT OF HIMACHAL PRADESHAT SHIMLA Cr.MP(M) No. 2514 of 2024 Reserved on : 4th January, 2025 Announced on : 15th January, 2025 __________________________________________________________ Krishan Kumar Nayyer ......Petitioner Versus State of Himachal Pradesh ...Respondent Coram Hon'ble Mr. Justice Ranjan Sharma, Judge 1Whether approved for reporting? No For the petitioner: Mr. Ankit Dhiman, Advocate. For the respondent: Mr. Vishav Deep Sharma, Additional Advocate General.
Ranjan Sharma, Judge Bail petitioner, Krishan Kumar Nayyer, being in custody since 12.01.2024 has come up before this Court seeking regular bail under Section 483 of the Bharatiya Nagarik Suraksha Sanhita [hereinafter referred to as 'BNSS.'], originating from FIR No.16 of 2024, dated 11.01.2024, under Sections 21 & 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985, [hereinafter referred to as 'NDPS Act'] 1 Whether reporters of Local Papers may be allowed to see the judgment?
-2- 2025:HHC:3001 registered at Police Station [Sadar], Una, District Una, [H.P.].
FACTUAL MATRIX:
2. Case set up by Mr. Ankit Dhiman, Learned Counsel is that the bail petitioner has been falsely implicated and is innocent. It is averred that one Rajneesh Verma was detained by police on 11.01.2024 in relation to FIR No 16 of 2024 and based on the confessional statement, the present petitioner was arrested.
2(ii). It is averred that the petitioner had moved an application No. 55 of 2024 before Learned Special Judge-II, Una [referred to as "Trial Court"] which was dismissed on 06.03.2024, Annexure P-1. Thereafter, another bail application [Cr.MP (M) No. 596 of 2024], was withdrawn on 27.03.2024, Annexure P-2 and has again moved for bail before Learned Special Judge and this bail application was also rejected by the Learned Special Judge-II, Una, on 30.04.2024, Annexure
-3- 2025:HHC:3001 P-3 and another bail application i.e. Cr.MP(M) No. 1016 of 2024 was dismissed by this Court on 26.07.2024.
2(iii). It is averred that the brother of the bail petitioner is 80% disabled. Petitioner has referred to his past criminal antecedents in Para 8 of the bail application. It is further averred that no recovery has been made by police from the bail petitioner. The bail petitioner has given an undertaking that in case he is enlarged on bail he shall participate in trial and he will not tamper with evidence or the witness or persons connected with the case in any manner.
It is in this background, that the petitioner has come up before this Court seeking regular bail.
STAND OF STATE AUTHORITIES IN STATUS REPORT:
3. Pursuant to the issuance of notice on 12.11.2024 Respondent-State Authorities filed a Status Report dated 28.11.2024.
3(i). Perusal of Status Reports dated 28.11.2024
-4- 2025:HHC:3001 reveals that on 10.01.2024, the police patrolling party headed by ASI Ram Pal, were checking vehicles near Raizada Guest House, Lal Singhi, District Una, at about 11.20 p.m. During checking a vehicle No. HP-01M-2482, reached the spot and the person sitting next to the driver's seat namely, Rajneesh Verma, on noticing the police, threw out a transparent polythene pouch with interlocking seal containing Heroin- Chitta, and on weighing, the Chitta/Heroin came to be 6.13 grams. After completing the codal formalities Rukka was sent and FIR was registered against the accused Rajneesh Verma, from whom the recovery was affected and Rajneesh Verma was arrested by the police on 11.01.2024.
3(ii). During investigation the accused Rajneesh Verma revealed that he purchased Chitta/Heroin from the bail petitioner [Krishan Kumar Nayyer] from Ghoda Chowk at Hoshiarpur [Punjab] and accordingly the petitioner was arrested on 12.01.2024, by the
-5- 2025:HHC:3001 police party of Police Station [Sadar] Una. 3(iii). On arrest, on 12.01.2024, the bail petitioner [Krishan Kumar Nayyer], stated that he is a vegetable seller and his family ties have broken as a result of divorce three years back. Status Report reveals that the petitioner had sold the Heroin/Chitta to main accused, Rajneesh Verma for Rs 13,400/-. 3(iv). Status Reports indicates the criminal antecedents that seven criminal cases have been registered against the bail petitioner, out of which, in four cases, he has been convicted and in two cases he has been acquitted and one case is pending trial.
In view of the Status Reports, Learned State Counsel has prayed for the dismissal of the bail application, in the instant case.
4. Heard Mr. Ankit Dhiman, Learned Counsel for petitioner and Mr. Vishav Deep Sharma, Learned Additional Advocate General for the respondent-State.
-6- 2025:HHC:3001 STATUTORY PROVISIONS:
5. In order to test the claim for bail, it is necessary to have a recap of the statutory provisions of Section 21 and 29 of the NDPS Act, which reads as under :-
21. Punishment for contravention in relation to manufactured drugs and preparations-
Whoever, in contravention of any provision of this Act or any rule or order made or condition of licence granted thereunder, manufactures, possesses, sells, purchases, transports, imports inter-State, exports inter-State or uses any manufactured drug or any preparation containing any manufactured drug shall be punishable ,--
(a) where the contravention involves small quantity, with rigorous imprisonment for a term which may extend to one year, or with fine which may extend to ten thousand rupees, or with both;
(b) where the contravention involves quantity, lesser than commercial quantity but greater than small quantity, with rigorous imprisonment for a term which may extend to ten years and with fine which may extend to one lakh rupees;
(c) where the contravention involves commercial quantity, with rigorous imprisonment for a term which shall not be less than ten years but which may extend to twenty years and shall also be liable to fine which shall not
-7- 2025:HHC:3001 be less than one lakh rupees but which may extend to two lakh rupees:
Provided that the court may, for reasons to be recorded in the judgment, impose a fine exceeding two lakh rupees.
29. Punishment for abetment and criminal conspiracy.-
(1) Whoever abets or is a party to a criminal conspiracy to commit an offence punishable under this Chapter, shall, whether such offence be or be not committed in consequence of such abetment or in pursuance of such criminal conspiracy, and notwithstanding anything contained in section 116 of the Indian Penal Code (45 of 1860), be punishable with the punishment provided for the offence.
(2) A person abets, or is a party to a criminal conspiracy to commit, an offence, within the meaning of this section, who, in India abets or is a party to the criminal conspiracy to the commission of any act in a place without and beyond India which-
(a) would constitute an offence if committed within India; or
(b) under the laws of such place, is an offence relating to narcotic drugs or psychotropic substances having all the legal conditions required to constitute it such an offence the same as or analogous to the legal conditions required to constitute it an offence punishable under this Chapter, if committed within India.
MANDATE OF LAW ON BAILS:
6. Broad parameters have been mandated by
-8- 2025:HHC:3001 the Hon'ble Supreme Court, regulating the bail in the cases of Gurbaksh Singh Sibbia versus State of Punjab (1980) 2 SCC 565, Ram Govind Upadhyay versus Sudarshan Singh (2002) 3 SCC 598; Kalyan Chandra Sarkar versus Rajesh Ranjan, (2004) 7 SCC 528; Prasanta Kumar Sarkar versus Ashish Chatterjee, (2010) 14 SCC 496; reiterated in P. Chidambaram versus Directorate of Enforcement, (2019) 9 SCC 24, that bail is to be granted where the allegation is frivolous or groundless and incase neither any prima facie case nor reasonable grounds exists to believe or point towards the accusation. However, depending upon the facts of each case, the bail can be refused in case, the prima facie case or reasonable grounds exits and the offence is serious, severity of punishment, reasonable apprehension of fleeing away from investigation and the trial, and the Character, including past antecedents, behavior, means, position and standing of the accused; likelihood
-9- 2025:HHC:3001 of offence being repeated; reasonable apprehension of witnesses being influenced and danger of justice being thwarted by grant of bail etc; and then in Sushila Aggarwal versus State-NCT Delhi, (2020) 5 SCC 01; CBI versus Santosh Karnani (2023) 6 SCALE 250; have been reiterated by the Honble Supreme Court in the case of State of Haryana versus Dharamraj, 2023 SCC Online SC 1085, as under:
"(i) Whether there is any prima facie or reasonable ground to believe that the accused had committed the offence;
(ii) nature and gravity of the accusation;
(iii) severity of the punishment in the event of conviction;
(iv) danger of the accused absconding or fleeing, if released on bail;
(v) Character, behaviour, means, position and standing of the accused;
(vi) Likelihood of the offence being repeated;
(vii) Reasonable apprehension of the witnesses being influenced and
(viii). Danger, of course, of justice being thwarted by grant of bail."
6(i). In normal parlance, the principle of law is that bail is a rule and jail is an exception.
- 10 - 2025:HHC:3001 However, this Court is conscious of the fact that the power to grant or refuse bail is an extraordinary power, which has to be sparingly exercised subject to the anvil of the time tested parameters and restrictions imposed in law. It is trite law that while considering prayer for bail {pre-arrest bail or regular bail], the factum of prolonged pre-conviction incarceration and the right of speedy trial has to be taken into account, in the background of the fact as to whether delay in trial was attributable to an accused or not. Another added factor and not the sole factor of past criminal antecedents; and the factum as to whether an accused has misused concession-liberty granted earlier. While considering the prayer for bail, the balance has to be carved out between the liberty of an accused vis-à-vis the societal interests, including danger of justice being thwarted in case the bail is granted.
- 11 - 2025:HHC:3001 6(ii). This Court is also conscious of the fact
that as per the mandate of law, in Criminal Appeal No. 3840 of 2023, titled as Saumya Churasia versus Directorate of Enforcement, decided on 14.12.2023, while considering the prayer for bail, the Court is not required to weigh the evidence collected by the Investigating Agency meticulously, nonetheless, the Court should keep in mind the nature of accusation, the nature of evidence collected in support thereof, the severity of punishment prescribed for alleged offences, the character of accused, the circumstances which are peculiar to accused, reasonable possibility of securing the presence of accused during trial, reasonable apprehension of witnesses being tampered with and the larger public/state interests. It is in this background, that the claim for bail is to be examined by a Court without delving into the evidence on merits but by forming a prima-facie opinion on
- 12 - 2025:HHC:3001 totality of facts in light of broad-parameters referred to above.
6(iii). Even a suspect or an accused under the NDPS Act does not have any vested right or an automatic claim for bail, merely on the ground, that alleged quantity of contraband is either small or intermediate. While considering the prayer for bail, even in offences under the NDPS, relating to small or intermediate quantity, still the claim is required to be tested in the backdrop of broad parameters mandated by the Hon'ble Supreme Court, as referred to above.
The exception to this principle is that the enlargement on bail {be it relates to either small or intermediate quantity of contraband} can be extended depending on facts of each case, in case, the prima facie accusation does not points towards involvement and no reasonable grounds exit, when, no recovery was made by the police from the accused or when,
- 13 - 2025:HHC:3001 the alleged recovery by police appears to be highly doubtful without there being any connecting material to infer prima facie accusation and after taking into account other parameters mandated by the Honble Supreme Court as referred to above.
ANALYSIS:
7. Taking into account the entirety of the facts and circumstances, as borne out from the Status Report, this Court is of the considered view, that the bail petitioner [Krishan Kumar Nayyer], is entitled to be enlarged on bail, at this stage, for the following reasons:
NO PRIMA-FACIE ACCUSATION AGAINST THE BAIL PETITIONER:
7(i). Status Reports and the material on record do not point out any prima facie case or reasonable grounds to believe the accusation against the bail petitioner.
7(ii). Status Report indicates that the petitioner has been implicated on the behest of a confessional
- 14 - 2025:HHC:3001 statement made by main accused Rajneesh Verma, who was apprehended by the police on 11.01.2024, near Raizada Guest House, Lal Singhi, District Una, at about 11:20 p.m. and from whom the contraband {i.e. Heroin-Chitta, weighing 6.13 grams} was recovered.
Admittedly, since no recovery has either been made or is attributable by the police from the bail petitioner [Krishan Kumar Nayyer]. In absence of any recovery the petitioner is entitled to be enlarged on bail at this stage.
7(iii) While enlarging an accused on bail in relation to an Intermediate Quantity and from whom no recovery was made, the Hon'ble Supreme Court has held, in Sami Ullaha versus Superintendent, Narcotic Central Bureau, (2008) 16 SCC 471 as under:
3. Before, however, we advert to the said question, we may notice the factual matrix involved in the matter.
On or about 14.08.2004, the luggage of two persons, viz., Abdul Munaf and Zahid Hussain who were traveling in a bus were searched and allegedly contraband
- 15 - 2025:HHC:3001 weighing 2 kgs. was recovered. A purported statement was made by the said accused persons that the said contraband (heroin) was meant to be delivered to the appellant. Nothing was recovered from him. Apart from the said statements of the said accused persons, no other material is available on record to sustain a charge against him. On the basis of the said statement, the appellant was arrested on 15.08.2004. Allegedly, a statement was made by him in terms of Section 67 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short "the Act"). Appellant contends that he was tortured and the statement was obtained forcibly from him on some blank documents. He later on retracted there from. Indisputably, the seized articles were sent for chemical examination to the Government Opium and Alkaloid Works, Neemuch. A report was sent to the investigating officer on 23.09.2004 stating that the sample did not contain any contraband substance. Appellant thereafter filed an application for discharge. The prosecution moved the court for sending the substance 2 allegedly recovered from the co-accused persons for its examination by the Central Revenue Control Laboratory, New Delhi. It was rejected by the court opining that there was no provision in the Act for sending the sample to another laboratory. The court, however, did not pass an order of discharge in favour of the appellant but released him on bail, stating:
"Accordingly, as mentioned above, there is no ground that by accepting the application of the complainant and order be passed for sending the second sample for examination to another laboratory. If the investigating officer so desires, then in accordance with the ruling expounded as above, he is free to send the second sample to any of the laboratories for its examination at his own level. On the basis of the abovementioned
- 16 - 2025:HHC:3001 observations, the application of the complainant is rejected."
However, even a distinction is made as regards grant of bail in relation to a commercial quantity and a small quantity. Commercial quantity has been defined in Section 2(vii-a) of the Act to mean "any quantity greater than the quantity specified by the Central Government by notification in the Official Gazette".
12. We will advert to the question of the definition of "Chemical Examiner" a little later. The question, however, as to whether the contraband found came within the purview of the commercial quantity within the meaning of Section 2(vii-a) or not is one of the factors which should be taken into consideration by the courts in the matter of grant or refusal to grant bail. Even, according to the Central Revenue Control Laboratory, New Delhi, only 2.6% of the sample sent was found to be containing heroin. Small quantity in terms of the notification issued under Sections 2(vii-a) and 2(xxiii-a) is as under:
___________________________________________________________ Sl. Name of Narcotic drug or Chemical Small Commercial No. psychotropic substance [International name quantity Non-proprietary Name (INN)] __________________________________________________________________________
77. Morphine Morphine 5 gm 250 gm __________________________________________________________________________ The quantity, thus, alleged to have been recovered from the co-accused persons could be said to be intermediate quantity and, thus, the rigours of the provisions of Section 37 of the Act relating to grant of bail may not be justified.
13. In Ouseph alias Thankachan v. State of Kerala [(2004) 4 SCC 446], this Court held:
"8. The question to be considered by us is whether the psychotropic substance was in a small quantity and if so, whether it was intended for personal
- 17 - 2025:HHC:3001 consumption. The words 'small quantity' have been specified by the Central Government by the notification dated 23-7-1996. Learned Counsel for the State has brought to our notice that as per the said notification small quantity has been specified as 1 gram. If so, the quantity recovered from the appellant is far below the limit of small quantity specified in the notification issued by the Central Government. It is admitted that each ampoule contained only 2 ml and each ml contains only 3 mg. This means the total quantity found in the possession of the appellant was only 66 mg. This is less than 1/10th of the limit of small quantity specified under the notification.
*** *** ***
11. On account of the aforesaid fact situation, we are inclined to believe that the small quantity of buprenorphine (Tidigesic) wasin the possession of the appellant for his personal consumption and, therefore, the offence committed by him would fall under Section 27 of the NDPS Act."
7(iv). While granting bail to an accused implicated in Intermediate Quantity, from whom no recovery was made, the Hon'ble Supreme Court, in State of West Bengal versus Rakesh Singh alias Rakesh Kumar Singh 2022 SCC Online SC 828, observed as under:
20. After having considered the rival submissions, the High Court formed the opinion that the restriction of Section 37 NDPS Act would not apply to this case and the respondent, who was in custody since 23.02.2021, qualified for grant of bail
- 18 - 2025:HHC:3001 with stringent conditions. Accordingly, the High Court ordered release of the accused-respondent on bail with heightened conditions like: (a) he would furnish a bond in the sum of rupees one lakh with four sureties of rupees fifty thousand each, two of whom must be local persons; (b) he shall report to the Officer-in Charge of the concerned police station once in a week; (c) he would not travel outside the State of West Bengal without prior leave of the Trial Court; and (d) he would surrender his passport before the Trial Court immediately. Having regard to the submissions made in this case, we may take note of the relevant part of the discussion and reasoning of the High Court as under: -
"4. We have considered the rival contentions of the parties. We have also perused the material in the memo of evidence filed on behalf of the State.
5. Certain things are clear.
Firstly, there was no recovery of contraband items from the physical possession of the petitioner. Nothing was recovered from the person of the petitioner or any place over which the petitioner had exclusive control. We are conscious that mere non-recovery of contraband from a person's possession may not per se dilute the rigours of Section 37 of the NDPS Act.
6. However, even assuming that the petitioner had dominion or control over the contraband in question, admittedly intermediate quantity (76 gms) of cocaine was seized. It was urged on behalf of the State that the statements of witnesses would indicate that the petitioner was a regular purchaser of contraband items. However, the fact remains that in the present case
- 19 - 2025:HHC:3001 only 76 gms of cocaine is involved. As observed by the Hon'ble Apex Court in the case of Sami Ullaha (Supra), where intermediate quantity of narcotics is involved, it may not be justified to apply the rigours of the provisions of Section 37 of the NDPS Act relating to grant of bail.
53. Once the veracity of prosecution case against the respondent is in serious doubt, further analysis on the other factors about financing the drug trafficking and harbouring of offender need not be undertaken because, when the story of planting of contraband is removed out of consideration, all other factors by which respondent is sought to be connected with such alleged planting could only be regarded as false and fanciful, at least at this stage.
54. Hence, suffice it to observe for the present purpose that in the given set of facts and circumstances, the High Court has rightly found that applicability of Section 27A NDPS Act is seriously questionable in this case. That being the position; and there being otherwise no recovery from the respondent and the quantity in question being also intermediate quantity, the rigours of Section 37 NDPS Act do not apply to the present case."
7(v). Granting bail to an accused from whom no recovery was made this Court, in Roshan Lal versus State of Himachal Pradesh, in Cr.MP (M) No. 307 of 2024 decided on 04.03.2024, held:
13(i). Admittedly, in the present case, as per the Status Report filed by the State Authorities, the alleged contraband was
- 20 - 2025:HHC:3001 recovered from Hem Raj-accused, who had kept it in his bag.
13(ii). No alleged recovery of contraband was made from the bail petitioner (Roshan Lal) herein and the bail petitioner was nowhere involved and had no connection with the alleged offence.
15. Even the status Report does not point out anything adverse regarding past conductor blemished criminal history/ records of the bail petitioner. While dealing with a matter, relating to an intermediate quantity of contraband coupled with the fact that the antecedents and past conduct was satisfactory the Coordinate Bench of this Court enlarged the accused on bail, in Hari versus State of Himachal Pradesh, 2023 SCC Online HP 142, decided on 21st February, 2023, this Court held as under:
8. It can also be noticed from the facts of the case that there is no allegation of petitioner involving himself in similar offences repeatedly.No criminal history has been attributed to him.
Petitioner is a young man of 25 years. His further pre-trial incarceration will not serve any fruitful purpose. 15(i). Likewise, in the case of Rohit Versus State of Himachal Pradesh, 2023 SCC Online HP 315, decided on 11.04.2023 while granting the bail, this Court has held as under:
4. This Court is of the considered view that as the alleged recovery from the petitioners is of the intermediate quantity and further taking into consideration the fact that the petitioners are stated to be having no previous criminal history of being
- 21 - 2025:HHC:3001 indulged in offences relatable to NDPS Act, it will be in the interest of justice in case the petitioners are allowed and the petitioners are ordered to be released on bail.
7(vi). This Court in Cr.MP(M) No.545 of 2024, Budh Bahadur Singh Versus State of Himachal Pradesh decided on 21.03.2024, granted the bail to the accused on account of prolonged incarceration and from whom no recovery was made, in similar circumstances as under:
13. In the entirety of the facts and circumstances referred to above, coupled with the statutory provisions of Section 438 and 18 of Narcotic Drugs and Psychotropic Substances Act, and the mandate of law, as referred to above, this Court is of the considered view, that the interim protection needs to be granted to the petitioner in the instant proceedings, for the following reasons:-
13(i). In the status report, the State Authorities /Police has failed to point out any prima facie case or reasonable grounds to believe that there is any accusation against the bail petitioner [Budh Bahadur Singh], in the FIR No.7 of 2024 [which was against Dinesh Shahi] as on day, as referred to above.
13(vii) In the status report, the State Authorities /police has come up with the plea that the police has only issued a notice directing the bail petitioner to join the investigation, and the apprehension of petitioner of
- 22 - 2025:HHC:3001 being arrested, is misconceived and the petition is premature.
In this context, this Court is of the considered view that there is neither any prima facie case nor any reasonable grounds to sustain the accusation. Moreover, the alleged contraband does not relate to the bail petitioner, in any manner. Further, no recovery has been made from the bail petitioner in relation to the alleged FIR which was registered against another accused, namely, Dinesh Shahi.
In peculiar facts of this case, keeping in view, the fact that the bail petitioner has already given an undertaking that the bail petitioner shall join the investigation, as and when called, therefore, the ends of justice once be served, in case, the bail petitioner is made to join the investigation as per his undertaking.
14. In these circumstances, the instant bail petition is allowed.
In above backdrop, once no recovery has been made from the petitioner and other accusations qua sale is yet to be examined, tested and proved during trial coupled with the fact that the petitioner has been roped in for Intermediate Quantity and is undergoing incarceration for last one year [since 12.1.2024] till day certainly amounts to depriving the petitioner of his personal liberty and right of
- 23 - 2025:HHC:3001 expeditious trial which has been denied in facts of this case and therefore, the petitioner deserves to be enlarged on bail.
BAIL PETITIONER IMPLICATED ON CONFESSIONAL STATEMENT OF MAIN ACCUSED RAJNEESH VERMA:
8. Status Report reveals that police arrested the main accused Rajneesh Verma while carrying on patrolling on 11.01.2024 alongwith contraband {i.e. Heroin-Chitta of 6.13 grams} while he was travelling in a Car bearing registration No. HP-01M-2482. Pursuant to the confessional statement made before police by main accused Rajneesh Verma, the present petitioner [Krishan Kumar Nayyer] was apprehended on 12.1.2024 and since then, the prolonged detention till day is contrary to the mandate of the Hon'ble Supreme Court in Tofan Singh versus State of Tamil Nadu, 2021 (4) SCC 1, in the following terms:
155. Thus, to arrive at the conclusion that a confessional statement made before an officer designated under Section 42 or Section 53 can be the basis to convict a person under the NDPS Act, without any non obstante clause doing away
- 24 - 2025:HHC:3001 with Section 25 of the Evidence Act and without any safeguards, would be a direct infringement of the constitutional guarantees contained in Articles 14, 20 (3) and 21 of the Constitution of India.
158.2 That a statement recorded under Section 67 of the NDPS Act cannot be used as a confessional statement in the trial of an offence under the NDPS Act.
8(i). Another Coordinate Bench of this Court, in Cr.MP (M) No. 916 of 2024, titled as Vijay Kumar versus State of Himachal Pradesh, decided on 10.06.2024, has enlarged the petitioner on bail, who was arrested on the basis of a confessional statement made by another accused and when, there was no other cogent material to point towards the prima-facie accusation. Since in the present case, the petitioner has been implicated on the confessional statement of main accused, Rajneesh Verma and nothing cogent exists to point towards the accusation therefore, the bail petitioner {Krishan Kumar Nayyar}, deserves to be enlarged on bail, as per mandate of law in case of Tofan Singh [supra].
8(ii). Taking into account the mandate of law
- 25 - 2025:HHC:3001
in the case of Tofan Singh and Vijay Kumar [supra], this Court is of the view that confessional statement of main accused Rajneesh Verma, cannot be the basis for arresting the petitioner when, neither any recovery nor any other cogent material exists to prima-facie connect petitioner with the accusation and therefore, the petitioner deserves to be enlarged on bail, in the instant case.
PRESEMPTION OF INNOCENCE: INCARCERATION BY PRESUMING GUILTY IMPERMISSIBLE:
9. While reiterating the principle that bail is a rule and jail is an exception coupled with the fact that an accused is presumed to be innocent unless proven guilty upon trial has been outlined by the Hon'ble Supreme Court in Guddan alias Roop Narayan Versus State of Rajasthan, 2023 SCC OnLine SC 1242, in the following terms:-
"11. In the case of Sanjay Chandra V. Central Bureau of Investigation, (2012) 1 SCC 40, while hearing a bail Application in a case of an alleged economic offence, this court held that the object of bail is neither punitive nor preventative. It was observed as under:
- 26 - 2025:HHC:3001 "21. In bail applications, generally, it has been laid down from the earliest times that the object of bail is to secure the appearance of the accused person at his trial by reasonable amount of bail. The object of bail is neither punitive nor preventative. Deprivation of liberty must be considered a punishment, unless it is required to ensure that an accused person will stand his trial when called upon. The courts owe more than verbal respect to the principle that punishment begins after conviction, and that every man is deemed to be innocent until duly tried and duly found guilty.
23. Apart from the question of prevention being the object of refusal of bail, one must not lose sight of the fact that any imprisonment before conviction has a substantial punitive content and it would be improper for any court to refuse bail as a mark of disapproval of former conduct whether the accused has been convicted for it or not or to refuse bail to an unconvicted person for the purpose of giving him a taste of imprisonment as a lesson.
25. The provisions of Cr PC confer discretionary jurisdiction on criminal courts to grant bail to the accused pending trial or in appeal against convictions; since the jurisdiction is discretionary, it has to be exercised with great care and caution by balancing the valuable right of liberty of an individual and the interest of the society
- 27 - 2025:HHC:3001 in general. In our view, the reasoning adopted by the learned District Judge, which is affirmed by the High Court, in our opinion, is a denial of the whole basis of our system of law and normal rule of bail system. It transcends respect for the requirement that a man shall be considered innocent until he is found guilty. If such power is recognised, then it may lead to chaotic situation and would jeopardise the personal liberty of an individual.
27. This Court, time and again, has stated that bail is the rule and committal to jail an exception. It has also observed that refusal of bail is a restriction on the personal liberty of the individual guaranteed under Article 21 of the Constitution."
12. Further, in the case of Sandeep Jain v.
National Capital Territory of Delhi, (2000) 2 SCC 66, this Court, while hearing a bail application held that conditions for grant of bail cannot become so onerous that their existence itself is tantamount to refusal of bail. This Court held as under:
"We are unable to appreciate even the first order passed by the Metropolitan Magistrate imposing the onerous condition that an accused at the FIR stage should pay a huge sum of Rs. 2 lakhs to be set at liberty. If he had paid it is a different matter. But the fact that he was not able to pay that amount and in default thereof he is to languish in jail for more
- 28 - 2025:HHC:3001 than 10 months now, is sufficient indication that he was unable to make up the amount. Can he be detained in custody endlessly for his inability to pay the amount in the range of Rs.2 lakhs? If the cheques issued by his surety were dishonoured, the Court could perhaps have taken it as a ground to suggest to the payee of the cheques to resort to the legal remedies provided by law.
Similarly if the Court was dissatisfied with the conduct of the surety as for his failure to raise funds for honouring the cheques issued by him, the Court could have directed the appellant to substitute him with another surety. But to keep him in prison for such a long period, that too in a case where bail would normally be granted for the offences alleged, is not only hard but improper. It must be remembered that the Court has not even come to the conclusion that the allegations made in the FIR are true. That can be decided only when the trial concludes, if the case is charge- sheeted by the police."
REFORMATIVE APPROACH IN BAIL:
10. In order to safeguard the personal liberty and to ensure speedy trial enshrined under Article 21 of the Constitution of India, the concept of bail has been outlined, despite the stringent penal laws by the Hon'ble Supreme Court, in Criminal Appeal
- 29 - 2025:HHC:3001 No. 2787 of 2024, titled as Javed Gulam Nabi Shaikh Versus State of Maharashtra and Another, in the following terms:-
"18 Criminals are not born out but made.
The human potential in everyone is good and so, never write off any criminal as beyond redemption. This humanist fundamental is often missed when dealing with delinquents, juvenile and adult. Indeed, every saint has a past and every sinner a future. When a crime is committed, a variety of factors is responsible for making the offender commit the crime. Those factors may be social and economic, may be, the result of value erosion or parental neglect; may be, because of the stress of circumstances, or the manifestation of temptations in a milieu of affluence contrasted with indigence or other privations.
19. If the State or any prosecuting agency including the court concerned has no wherewithal to provide or protect the fundamental right of an accused to have a speedy trial as enshrined under Article 21 of the Constitution then the State or any other prosecuting agency should not oppose the plea for bail on the ground that the crime committed is serious. Article 21 of the Constitution applies irrespective of the nature of the crime.
20. We may hasten to add that the petitioner is still an accused; not a convict. The over arching postulate of criminal jurisprudence that an accused is presumed to be innocent until proven guilty cannot be brushed aside lightly, howsoever stringent the penal law may be.
- 30 - 2025:HHC:3001
21 We are convinced that the manner in which
the prosecuting agency as well as the Court have proceeded, the right of the accused to have a speedy trial could be said to have been infringed thereby violating Article 21 of the Constitution.
22 In view of the aforesaid, this appeal succeeds and is hereby allowed. The impugned order passed by the High Court is set aside."
BAIL NOT TO BE DENIED BY WAY OF PENALTY :
11. While deprecating the action of the State Authorities in denying the bail to an accused who has suffered prolonged incarceration, by depriving him of the speedy trial amounts to curtailing and violating the sacrosanct rights of personal liberty dehors the principle that bail is rule and jail is an exception, in Manish Sisodia vs Directorate of Enforcement, SLP (Criminal) No. 8781 of 2024, decided on 9.8.2024, in following terms:-
"49. We find that, on account of a long period of incarceration running for around 17 months and the trial even not having been commenced, the appellant has been deprived of his right to speedy trial.
50. As observed by this Court, the right to speedy trial and the right to liberty are sacrosanct rights. On denial of these rights, the trial court as well as the High
- 31 - 2025:HHC:3001 Court ought to have given due weightage to this factor.
52. The Court also reproduced the observations made in Gudikanti Narasimhulu (supra), which read thus:
"10. In the aforesaid context, we may remind the trial courts and the High Courts of what came to be observed by this Court in Gudikanti Narasimhulu v. Public Prosecutor, High Court reported in (1978) 1 SCC 240. We quote:
"What is often forgotten, and therefore warrants reminder, is the object to keep a person in judicial custody pending trial or disposal of an appeal. Lord Russel, C.J., said [R v. Rose, (1898) 18 Cox]:
"I observe that in this case bail was refused for the prisoner. It cannot be too strongly impressed on the, magistracy of the country that bail is not to be withheld as a punishment, but that the requirements as to bail are merely to secure the attendance of the prisoner at trial""
53. The Court further observed that, over a period of time, the trial courts and the High Courts have forgotten a very well- settled principle of law that bail is not to be withheld as a punishment. From our experience, we can say that it appears that the trial courts and the High Courts attempt to play safe in matters of grant of bail. The principle that bail is a rule and refusal is an exception is, at times, followed in breach. On account of non-grant of bail even in straight forward open and shut cases, this Court is flooded with huge number of bail petitions thereby adding to the huge pendency. It is high time that the trial courts and the High Courts should recognize the principle that "bail is rule and jail is exception".
- 32 - 2025:HHC:3001
55. As observed by this Court in the case of Gudikanti Narasimhulu (supra), the objective to keep a person in judicial custody pending trial or disposal of an appeal is to secure the attendance of the prisoner at trial.
56. In the present case, the appellant is having deep roots in the society. There is no possibility of him fleeing away from the country and not being available for facing the trial. In any case, conditions can be imposed to address the concern of the State.
57. Insofar as the apprehension given by the learned ASG regarding the possibility of tampering the evidence is concerned, it is to be noted that the case largely depends on documentary evidence which is already seized by the prosecution. As such, there is no possibility of tampering with the evidence. Insofar as the concern with regard to influencing the witnesses is concerned, the said concern can be addressed by imposing stringent conditions upon the appellant."
11(i). While adjudicating the claim for bail, even under Special Enactments, like PMLA [akin to NDPS Act], the Hon'ble Apex Court in Criminal Appeal No._______of 2024 [Arising out of SLP (Criminal) No. 10778 of 2024], titled as Kalvakuntla Kavitha Versus Directorate of Enforcement and connected matter has mandated that the fundamental right of liberty provided under Article 21 of the Constitution
- 33 - 2025:HHC:3001 of India is superior to the statutory restrictions, in the following terms:-
"13. We had also reiterated the well-established principle that "bail is the rule and refusal is an exception". We had further observed that the fundamental right of liberty provided under Article 21 of the Constitution is superior to the statutory restrictions."
RIGOURS IN SPECIAL ENACTMENTS [SECTION 37 OF NDPS] GIVE WAY FOR BAIL BASED ON PROLONGED INCARCERATION & TRIAL TO TAKE CONSIDERABLE TIME:
12. While dealing with the claim for bail under Special Enactments and rigors of Section 45 (1) (ii) of MPLA and proviso to Section 43-D (5) of Unlawful Activities [Prevention] Act, 1967 and Section 37 of NDPS Act, the Hon'ble Supreme Court in Criminal Appeal No. 4011 of 2024, in V. Senthil Balaji versus The Deputy Director, Directorate of Enforcement, has mandated that rigors in Special 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
- 34 - 2025:HHC:3001 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 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
- 35 - 2025:HHC:3001 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.
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
- 36 - 2025:HHC:3001 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 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
- 37 - 2025:HHC:3001 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 .........".
12(i). Reiterating that statutory embargoes in Special Enactments have to yield in case of prolonged incarceration when, weighed against the paramount importance of the right to life and liberty under
- 38 - 2025:HHC:3001 Article 21 of the Constitution of India, by the Hon'ble Supreme Court in Criminal Appeal No. 5266 of 2024 (Arising out of SLP (CRL.) No. 13870 of 2024, titled as Partha Chatterjee Versus Directorate of Enforcement, decided on 13.12.2024, 2024 SCC Online SC 3729, by granting bail in the following terms:-
"13. We have considered the rival submissions and carefully examined the material on record. At the outset, it is worth reiterating that this Court, through a catena of decisions, has consistently emphasized that prolonged incarceration of an accused awaiting trial unjustly deprives them of their right to personal liberty. Even statutory embargoes on the grant of bail must yield when weighed against the paramount importance of the right to life and liberty under Article 21 of the Constitution, particularly in cases where such incarceration extends over an unreasonably long period without conclusion of trial.
17. We, however, cannot be oblivious to the settled principles that a suspect cannot be held in custody indefinitely and that undertrial incarceration should not amount to punitive detention. The Court would, nevertheless, ensure that affluent or influential accused do not obstruct the ongoing investigation, tamper with evidence, or influence witnesses, namely, actions that
- 39 - 2025:HHC:3001 undermine the fundamental doctrine of a fair trial.
18. Striking a balance between these considerations and without expressing any opinion on the merits of the allegations, we deem it appropriate to dispose of this appeal with the following directions :
a to e ...................................................
f. The Petitioner shall thereafter be released on bail on 01.02.2025, subject to his furnishing bail bonds to the satisfaction of the Trial Court....."
ABOVE BROADER PRINCIPLES APPLIED IN GRAVER OFFENCES IN BAIL UNDER NDPS TO APPLY TO LESSER GRAVER ACCUSATION:
13. In backdrop of the mandate of law supra, once the concession of bail has been granted by taking into account the prolonged incarceration and the fact that conclusion of the trial was likely to take considerable time in cases of commercial quantity under NDPS Act then, on the same anology and by applying the same broader principles, to the facts of instant case, where the accusation against the petitioner relates to lesser graver accusation of Intermediate Quantity which of course, is yet to be tested, examined and proved during the trial
- 40 - 2025:HHC:3001 and therefore, this Court accedes to the prayer for bail, to the petitioner in facts of instant case.
Keeping in view the entirety of the facts and circumstances as detailed hereinabove, once neither any prima facie case nor any reasonable grounds exists against the bail petitioner and the material on record, the bail petitioner appears to be not guilty at this stage, coupled with the fact the bail petitioner has suffered incarceration for almost one year now [since 12.1.2024] and even trial is likely to take considerable time for the reason, that out of a total 21 PWs, 12 PWs, who are material witnesses have been examined therefore, in facts of instant case, any further detention shall certainly amount to depriving and curtailing the personal liberty of the petitioner and that too on mere conjectures or surmises, which are yet to be tested, examined and proved during the trial. Detention of the petitioner can neither be punitive
- 41 - 2025:HHC:3001 nor preventative, so as to make the petitioner to taste imprisonment as a lesson. Continued detention certainly violates the principle of "bail is a rule and jail is an exception". Even the State Authorities, have failed to ensure speedy trial and considerable time is likely to be taken for conclusion of trial and therefore, on totality of circumstances and the mandate of law in the cases of Guddan alias Roop Narayan, Javed Gulam Nabi Shaikh, Manish Sisodia, Kalvakuntla Kavitha, Senthil Balaji and Partha Chatterjee [supra], the petitioner deserves to be released on bail.
PAST CRIMINAL ANTECEDENTS:
14. Learned State Counsel has opposed the bail on the ground that the bail petitioner has been involved in seven criminal cases i.e. Sr. F.I.R Date FIR registered under Sections Status No. No. & Police Station
1. 130/21 21.09.2021 382, 489 read with section Acquitted 354 IPC, PS City Hoshiarpur
2. 51/18 19.03.2018 21, 61 and 85 of NDPS Act, Convicted PS Modal Town Hoshirpur. As pleaded guilty and sentence undergone
3. 25/12 16.03.2012 341, 379, 427 IPC, PS City Acquitted Hoshirpur.
- 42 - 2025:HHC:3001 4. 6/19 08.01.2019 21,61 & 85 of NDPS Act, PS Convicted Modal Town, Hoshiarpur. As pleaded guilty and sentence undergone 5. 345/19 05.12.2019 21,61 & 85 of NDPS Act, PS Convicted Modal Town, Hoshiarpur. As pleaded guilty and sentence undergone 6. 4/18 06.01.2018 Gambling Act, PS Modal Convicted Town, Hoshiarpur. As pleaded guilty and sentence undergone 7. 52/53 5.6.2023 21,61 & 85 of NDPS Act, PS Pending. Modal Town, Hoshiarpur. 14(i). Before analyzing the contention of the
Learned State Counsel it is necessary to have a recap of the mandate of law, in broader sense, as to whether the past criminal antecedents are relevant and in what circumstances and extent thereof and in what circumstances and to what extent past antecedents turn out to be irrelevant or not much relevant while considering the claim of an accused for bail, which are detailed here-in-below.
14(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 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
- 43 - 2025:HHC:3001 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, in the following terms;
4. On the basis of a written complaint in the Police Station, Phoolpur, FIR No 63 of 2009 under Sections 302 and 307 IPC was registered. The second respondent was arrested only on 24.08.2009. It was further stated by the appellant that the accused is a habitual criminal and has a criminal background having more than three dozen cases involving serious offences against him.
10. It is not in dispute and highlighted that the second respondent is a sitting Member of Parliament facing several criminal cases. It is also not in dispute that most of the cases ended in acquittal for want of proper witnesses or pending trial. As observed by the High Court, merely on the basis of criminal antecedents, the claim of the second respondent cannot be rejected. In other words, it is the duty of the Court to find out the role of the accused in the case in which he has been charged and other circumstances such as possibility of fleeing away from
- 44 - 2025:HHC:3001 the jurisdiction of the Court etc.
11. In the case relating to FIR No. 63 of 2009, he was arrested and in jail since 24.08.2009. Another important aspect is that after filing of charge-sheet on 15.07.2010, prosecution examined two important witnesses as PWs 1 and 2. This was the position prevailing on 26.07.2010. Even thereafter, now more than a year has rolled. Counsel appearing for the State assured that the trial will not be prolonged at the instance of the prosecution and ready to complete the evidence within a period to be directed by this Court. The other objection of the appellant for grant of bail is that he had received threats from the second respondent and his supporters warning him not to pursue the case against him. It is brought to our notice that based on the representations of the appellant, adequate protection had already been provided to him.
13. Taking note of all these aspects, particularly, the fact that the second respondent was in jail since 24.08.2009, the trial has commenced by examining the two witnesses on the side of the prosecution and the assurance by the State that trial will not be prolonged and conclude within a reasonable time and also of the fact that the High Court while granting bail has imposed several conditions for strict adherence during the period of bail, we are not inclined to interfere with the order of the High Court. In fact, in the impugned order itself, the High Court has made it clear that in case of breach of any of the
- 45 - 2025:HHC:3001 conditions, the trial Court will have liberty to take steps to send the applicant to jail again. In addition to the same, it is further made clear that if the appellant receives any fresh threat from the second respondent or from his supporters, he is free to inform the trial Court and in such event the trial Court is free to take appropriate steps as observed by the High Court. We also direct the Trial Court to complete the trial within a period of four months from the date of the receipt of copy of this order without unnecessary adjournments.
14. With the above observation, finding no merit for interference with the order of the High Court, the appeal is dismissed.
14(iii). While granting bail to an accused having criminal antecedents and was facing incarceration for 7 months and when, no prima-facie accusation or reasonable grounds existed, by the Hon'ble Supreme Court in Prabhakar Tewari Versus State of Uttar Pradesh and another, (2020) 11 SCC 648, in the following terms:-
"4. Learned counsel for the appellant has submitted that the accused Vikram Singh is involved in at least five other criminal cases under the same Police Station, Jagdishpur. He has also brought to our
- 46 - 2025:HHC:3001 notice the witness statement of one Narendra Dev Upadhyay. This statement was recorded on 29th March 2019. The part of his statement to which our attention has been drawn by learned counsel for the appellant records that the said witness saw Vikram Singh standing near National Highway 56 Flyover on the date of occurrence of the incident in Warisganj with 6 or 7 accomplices and all of them were talking about plans of killing the victim.
5. We have considered the respective submissions. The facts highlighted by the appellant are that the case involves offence under Section 302 read with Sections 120-B / 34, 147, 148 and 149 of the Indian Penal Code, 1860. The accused has several criminal cases pending against him and has been named in the statement forming the basis of the FIR on the date of occurrence itself. Two individuals, Rahul Tiwari and Narendra Dev Upadhyay, whose statements have been recorded under Section 161 of the 1973 Code also refer to involvement of the accused Vikram Singh.
7. On considering the submissions of the learned counsel for the parties. Having regard to the circumstances of this case, in our opinion, there has been no wrong or improper exercise of discretion on the part of the High Court in granting bail to the accused. The factors outlined in the case of Mahipal (supra) for testing the legality of an order granting bail are absent in the order impugned. The materials available do not justify arriving at the conclusion that the order impugned suffers from non-application of mind or the reason for granting bail is not borne out from a prima-facie view of the evidence
- 47 - 2025:HHC:3001 on record. The offence alleged no doubt is grave and serious and there are several criminal cases pending against the accused. These factors by themselves cannot be the basis for refusal of prayer for bail. The High Court has exercised its discretion in granting bail to the accused Vikram Singh upon considering relevant materials. No ex-facie error in the order has been shown by the appellant which would establish exercise of such discretion to be improper. We accordingly sustain the order of the High Court granting bail. This appeal is dismissed.
Criminal Appeal No.153 of 2020 [arising out of SLP (Crl) No.9209 of 2019].
9. The accused is Malkhan Singh in this appeal. He was named in the FIR by the appellant Prabhakar Tewari as one of the five persons who had intercepted the motorcycle on which the deceased victim was riding, in front of Warisganj Railway Station (Halt) on the highway. All the five accused persons, including Malkhan Singh, as per the F.I.R. and majority of the witness statements, had fired several rounds upon the deceased victim. The statement of Rahul Tewari recorded on 15th March, 2019, Shubham Tewari recorded on 12th April, 2019 and Mahipam Mishra recorded on 20th April 2019 giving description of the offending incident has been relied upon by the appellant. It is also submitted that there are other criminal cases pending against him. Learned counsel for the accused- respondent no.2 has however pointed out the delay in recording the witness statements. The accused has been in custody for about seven months. In this case also, we find no error or impropriety in exercise of
- 48 - 2025:HHC:3001 discretion by the High Court in granting bail to the accused Malkhan Singh. The reason why we come to this conclusion is broadly the same as in the previous appeal. This appeal is also dismissed and the order of the High Court is affirmed."
14(iv). While extending the concession of bail despite past criminal antecedents, on principle that 'bail is rule and jail is an exception', benefit of bail, and an accused is presumed to be innocent and in the guise of pending cases, the presumption of guilt could not be inferred as has been outlined by the Hon'ble Supreme Court in Union of India versus Mrityunjay Kumar Singh, 2024 SCC OnLine SC 852, in the following terms:-
"9. He would contend that there are other three (3) cases registered against the respondent which would suffice to reject the bail in the instant case relying upon the letter dated 15.12.2023 written by the father of the complainant in the case No.225 of 2023 addressed to the State Police alleging that the respondent and his associates are threatening the life of the complainant and pressurizing him to withdraw the case and hence there is every likelihood of the witnesses in the instant case also being threatened therefore he seeks for allowing of the appeal and setting aside the order of the High Court.
- 49 - 2025:HHC:3001 He would further contend that the respondent is an influential person and would make all attempts to threaten or influence witnesses and there is every likelihood that he may succeed in his attempts if he continues to have the benefit of the bail. He would also submit that respondent is an influential and a person with criminal history and having close ties with many gangsters and criminals apart from the top cadres CPI-Maoist, as such there is every likelihood for the respondent to tamper with the evidence and influence the witnesses. Hence, he prays for the appeal being allowed and impugned order being set aside.
10. Shri Siddharth Luthra, learned Senior Counsel appearing for the respondent, by supporting the impugned order contends that the High Court has rightly set aside the order of the Special Judge by granting bail to the respondent conditionally way back on 30.01.2023 and even after lapse of more than 1 year and 3 months, there being no allegation on the conditions of bail having been violated, itself is a good ground for non-interference with the order of bail granted by the High Court. Elaborating his submissions, he would contend that the prosecution is seeking for the impugned order being set aside essentially on the ground that respondent is involved in three (3) cases apart from the case registered by NIA. He would further submit that the case registered by Chandwa PS in Case No.99 of 2014 has resulted in acquittal and in the case No.108 of 2015, the respondent has been enlarged on bail by the High Court of Jharkhand. Lastly, in the case No.4 of 2020, the respondent has been granted anticipatory bail by the High Court of
- 50 - 2025:HHC:3001 Jharkhand and as such the purported criminal antecedent did not sway in the mind of High Court while considering the prayer for grant of bail. Even otherwise the pendency of three (3) other cases would have no bearing for the continuation of the order of bail granted in favour of the respondent. Hence, he has prayed for rejection of the appeal.
15. As rightly contended by Shri Siddharth Luthra, learned Senior Counsel appearing for respondent, in the first case afore- mentioned the respondent has been acquitted by judgment dated 07.09.2015 (Annexure R-11). In so far as the cases at Serial No.2 and 3 (supra), the respondent has been enlarged on bail vide orders dated 10.07.2020 (Annexure R-12) and order dated 10.07.2020. In yet another case registered by Chandwa PS Case No. 225 of 2023 the respondent has been enlarged on anticipatory bail in ABP No. 426 of 2023.
16. The afore-stated facts when seen cumulatively, it would reflect that respondent having been enlarged on bail conditionally and the conditions so stipulated having not been violated and undisputedly the appellant-state having not sought for cancellation of the bail till date would be the prime reason for us not to entertain this appeal. In fact, the apprehension of the Union of India that respondent is likely to pose threat to the witnesses and there was a threat posed to the complainant, Mr. Sanjay Kumar Tiwari, would not be a ground to set aside the impugned order enlarging the respondent on bail in as much in the case referred against the respondent for the said offence he has been granted bail. That apart we are of
- 51 - 2025:HHC:3001 the considered view that there are no other overwhelming material on record to set aside the order granting bail which out weighs the liberty granted by the High Court under the impugned order.
17. Hence, we are of the considered view that interference is not warranted. However, to allay the apprehension of the prosecution it would suffice to observe that the prosecution would be at liberty to seek for cancellation of the bail in the event any of the conditions being violated by the respondent and in the event of such an application being filed we see no reason as to why said application would not be considered on its own merits by the jurisdictional court independently and without being influenced by its earlier observations. We also make it expressly clear that the observations made under the impugned order would be restricted to the consideration of the prayer for bail and the jurisdictional court without being influenced by any of the observation shall proceed to adjudicate the case on merits after trial. Subject to the above observations, the appeal stands dismissed." 14(v). While dealing with validity of bail order the Hon'ble Supreme Court has mandated that the criminal antecedents were not much relevant in case, no prima facie case was made out and the period of incarceration was prolonged, in Ayub Khan versus State of Rajasthan, 2024 SCC OnLine SC
- 52 - 2025:HHC:3001 3763, in the following terms:-
"9. The principles to be followed while deciding on a bail application are well settled. If Trial Courts commit errors while deciding bail applications, the same can always be corrected on the judicial side by the Courts, which are higher in the judicial hierarchy. The Constitutional Courts can lay down the principles governing the grant of bail or anticipatory bail. However, the Constitutional Courts cannot interfere with the discretion of our Trial Courts by laying down the form in which an order should be passed while deciding bail applications. What the High Court has done in paragraph 9 in the decision in the case of Jugal Kishore is that it has made it mandatory for the Trial Courts to incorporate a chart containing details of the antecedents of the accused who applies for bail.
10. The presence of the antecedents of the accused is only one of the several considerations for deciding the prayer for bail made by him. In a given case, if the accused makes out a strong prima facie case, depending upon the fact situation and period of incarceration, the presence of antecedents may not be a ground to deny bail. There may be a case where a Court can grant bail only on the grounds of long incarceration. The presence of antecedents may not be relevant in such a case. In a given case, the Court may grant default bail. Again, the antecedents of the accused are irrelevant in such a case. Thus, depending upon the peculiar facts, the Court can grant bail notwithstanding the existence of the antecedents. In such cases, the question of incorporating
- 53 - 2025:HHC:3001 details of antecedents in a tabular form does not arise. If the directions in the case of Jugal Kishore are to be strictly implemented, the Court may have to adjourn the hearing of the bail applications to enable the prosecutor to submit the details in the prescribed tabular format.
11. When the prosecution places on record material showing antecedents of the accused, and if the Court concludes that looking at the facts of the case and the nature of antecedents, the accused should be denied bail on the ground of antecedents, it is not necessary for the Court to incorporate all the details of the antecedents as required by paragraph 9 of the decision in the case of Jugal Kishore. The Court may only refer to the nature of the offences registered against the accused by referring to penal provisions under which the accused has been charged."
14(vi). Pendency of other criminal cases cannot be invoked for denying bail, when, no prima facie case exists and prolonged incarceration was writ large, has been mandated by the Hon'ble Supreme Court in Prem Prakash versus Union of India through Directorate of Enforcement, 2024 SCC OnLine SC 2270, in the following terms:-
"46. The Investigating Agency have also referred to ECIR No. 4 as a criminal antecedent. A reference was made to ECIR No. 4 of
- 54 - 2025:HHC:3001 2022 pertaining to illegal Stone Mining and related activities in Saheb Ganj, Jharkhand, where the petitioner was arrested on 25.08.2022 and the prosecution complaint was filed on 16.09.2022. Insofar as the bail pertaining to ECIR No. 4 of 2022, which is pending in this Court in SLP (Criminal) No. 691 of 2023, at the after notice stage, the merits of the bail in that case will be independently examined. Having examined the facts of the present case arising out of ECIR No. 5 of 2023 and in view of the findings recorded hereinabove, we do not think that the appellant can be denied bail based on the pendency of the other matter. We say so in the facts and circumstances of the present case as we do not find any justification for his continued detention. The appellant has already been in custody for over one year. The Trial is yet to commence. There is a reference to one more ECIR which the Investigating Agency refers to in their counter, namely, ECIR /RNZO /18 / 2022 but nothing is available from the record as to whether any proceedings have been taken against the appellant.
49. In the result, we pass the following order:-
(i) The appeal is allowed and impugned order dated 22.03.2024 is quashed and set-aside.
(ii) The Trial Court is directed to release the appellant on bail in connection with ED case No. ECIR No. 5 of 2023 on furnishing bail bonds for a sum of Rs.5 lakh with 2 sureties of the like amount."
In facts of instant case, the plea of
- 55 - 2025:HHC:3001 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 Report reveals that bail petitioner is in custody since 12.1.2024 and is undergoing incarceration for almost 1 year; and thirdly, conclusion of trial is likely to take considerable time when out of a total of 21 PWs only 12 PWs, have been examined as yet ; 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
- 56 - 2025:HHC:3001 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 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, therefore, on totality of circumstances, the claim of
- 57 - 2025:HHC:3001 petitioner for bail carries weight and is granted, in peculiar facts of this case.
BAIL PETITIONER HAS ALREADY UNDERGONE PUNISHMENT :
15. Status Report reveals that contraband has been recovered from Rajneesh Verma, on 11.01.2024 weighing Heroin-Chitta of 6.13 grams, while he was travelling in a Car bearing registration HP-01M-2482.
Moreover, the case of petitioner is that he had been consuming Heroin/Chitta, for which no punishment has been prescribed under the NDPS Act and any such offence is punishable with imprisonment for a term may extend to six months or with fine or with both as per Section 32 of the NDPS Act and since the petitioner has suffered incarceration for about 12 months therefore, in this backdrop, the bail petitioner having undergone more than maximum punishment is entitled to be released on bail at this stage.
TRIAL TO TAKE CONSIDERABLE TIME:
- 58 - 2025:HHC:3001 16. Status Report suggest that prosecution
intends to examine 12 PWs and 12 PWs including material witnesses have been examined but the trial is likely to take considerable time for its conclusion, therefore, this Court feels it appropriate not to detain the petitioner any longer [who has been implicated for Intermediate Quantity, which was never recovered from him and when, the bail petitioner was never travelling with the main accused and therefore, the prayer of petitioner for bail is accepted.
PARITY FOR BAIL WHEN CO-ACCUSED RAJNEESH VERMA ENLARGED ON BAIL:
17. Material on record suggest that the main accused Rajneesh Verma, who was apprehended by police with contraband on 11.1.2024 near Raizada Guest House, Lal Singhi, District Una, while travelling in a Car bearing registration No. HP-01M-2482 has been enlarged on bail by Learned Special Judge-II, Una on 29.02.2024 [Annexure P-7] i.e. within two months of arrest then, the bail petitioner, Krishan
- 59 - 2025:HHC:3001 Kumar Nayyer, who was neither travelling with Rajneesh Verma nor any recovery of contraband was made from him cannot be made to undergo detention for last one year now [since 12.01.2024] and therefore, on principle of parity, the bail petitioner deserves to be enlarged on bail.
NOTHING ADVERSARIAL REGARDING TAMPERING WITH EVIDENCE OR WITNESSES:
18. Status Reports filed by State Authorities have neither pointed out any adversarial circumstances nor placed on record any cogent and convincing material 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. In these circumstances, plea for bail carries weight and is accepted.
NOTHING ADVERSARIAL QUA OBSTRUCTING OR ATTEMPTING TO THWARTING JUSTICE:
19. Status Reports filed by State Authorities have neither pointed out any adversarial circumstances
- 60 - 2025:HHC:3001 nor placed any cogent material, to show that after release on bail, the petitioner may obstruct or thwart the cause of justice in any manner and in absence thereof the plea for bail has merit in this bail order.
NOTHING ADVERSIAL REGARDING FLEEING AWAY FROM TRIAL OR COURT:
20. In order to safeguard the rights of bail petitioner and to take care of apprehensions of State [despite the fact that nothing has been placed on record that petitioner may flee away], yet, in peculiar facts of this case, this Court imposes stringent conditions in later part of this order.
CONCLUSION AND DIRECTIONS:
21. Taking into account the entirety of the facts and the material on record and the mandate of 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
- 61 - 2025:HHC:3001 petitioner [Krishan Kumar Nayyer] on bail, subject to observance of the following conditions:-
(i). Respondent- State Authorities shall release bail petitioner [Krishan Kumar Nayyer] on furnishing personal bond of Rs. 50,000/-
{Rs Fifty Thousand} with two sureties on furnishing similar bond amount each, to the satisfaction of 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, on 2nd Sunday of every month at 11 A.M., only for having an update on good conduct and behaviour ;
(vii). Petitioner shall not jump over the bail and also shall not leave the country without prior permission of this 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
- 62 - 2025:HHC:3001 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.;
22. 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.
23. 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
- 63 - 2025:HHC:3001 for production of a certified copy, but if required, may verify about the passing of this order from the Website of this Court.
24. The Registry is directed to forward a copy of this order to Superintendent of Police, Hoshiarpur, Punjab for information and necessary action in terms of this order.
Pending miscellaneous application(s), if any, shall also stand disposed of.
(Ranjan Sharma) Judge January 15, 2025 (tm)