Himachal Pradesh High Court
Decided On: 20Th March vs The State Of Himachal Pradesh on 20 March, 2025
Author: Jyotsna Rewal Dua
Bench: Jyotsna Rewal Dua
2025:HHC:6901 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.MP(M) No.30 of 2025 Decided on: 20th March, 2025
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Milap Singh .....Petitioner
Versus
The State of Himachal Pradesh .....Respondent
------------------------------------------------------------------------------------- Coram Ms. Justice Jyotsna Rewal Dua Whether approved for reporting? 1
------------------------------------------------------------------------------------- For the Petitioner: Mr. Suresh Kumar and Mr. Shivanshu Attri, Advocates.
For the Respondent: Mr. L.N. Sharma, Additional Advocate General.
------------------------------------------------------------------------------------- Jyotsna Rewal Dua, Judge The petitioner seeks regular bail in FIR No.69/2022, dated 09.04.2022, registered under Sections 20 & 29 of Narcotic Drugs and Psychotropic Substances Act, 1985 ('the Act' for short) at Police Station Baijnath, District Kangra, H.P. The petitioner is co-accused in the said FIR and was arrested on 09.04.2022.
2. The case of the prosecution is that:-
2(i). On 09.04.2022, a police party was patrolling the area within its jurisdiction. At around 12:20 a.m., it received a secret information that three persons sitting inside a Swift Dzire vehicle, bearing registration 1 Whether reporters of print and electronic media may be allowed to see the order? Yes.2
2025:HHC:6901 No.HP-65-9040, were carrying huge quantity of cannabis and intended to sell off the same. Their search at that time could result in recovery of large quantity of cannabis. The information was treated as reliable and accordingly, provisions of Section 42(2) of the Act were complied with.
2(ii). Being night time, no independent witness could be joined in the search team. The police officials reached the spot at Pantehar, which is around 200 meters from Tashi Jong towards Baijnath. The vehicle in question was found parked there. While the police officials were attempting to investigate its occupants, the vehicle driver suddenly locked the vehicle and closed the window pane of his side. Attempt was also made to inquire from the person on the seat next to the driver seat, but the said person also closed the window pane. In the said process, the police official's arm got struck in the window pane. Thereafter, another police official broke the window pane of the driver seat with the help of a stone.
2(iii). Inquiries were made from the vehicle's three occupants. All appeared perplexed. The vehicle driver disclosed his name as Ram Singh. The person sitting on the adjoining seat disclosed his name as Bablu and the person on the back seat disclosed his name as Milap Singh (petitioner). While these three persons were being 3 2025:HHC:6901 questioned, a Scooty came from Tashi Jong side. Its Driver & pillion rider were associated with the ongoing proceedings.
2(iv). Search of the vehicle was carried out in accordance with law. During the search, 3.110 Kg of cannabis was recovered concealed underneath the seat adjoining to the driver seat. The recovery of contraband led to registration of the FIR in question and arrest of the said three occupants of the vehicle.
2(v). According to the respondent, besides the above three accused persons, one Ram Chand alias Chandru was also found to be involved in the FIR in question. He had absconded and could not be arrested initially. His anticipatory bail application was dismissed on 08.07.2022 by the High Court, whereafter, investigation was carried out from this person-co accused Ram Chand. During investigation, it was revealed that accused Ram Chand alias Chandru had contacted accused Milap Singh (petitioner) on 08.04.2022 and requested him to carry 3.110 Kg of cannabis to Tashi Jong, Baijnath. Milap Singh (petitioner) refused to go all alone and desired a lift. Ram Chand alias Chandru told him that Ram Singh would take him to Tashi Jong, Baijnath in his car. The arrangements were made by Ram Chand. Milap Singh (petitioner) boarded Ram Singh's 4 2025:HHC:6901 car at Tikken alongwith contraband at the instance of accused Ram Chand. Bablu was also there in the said vehicle. The trio started from Tikken between 7/8:00 p.m. and reached Tashi Jong, Baijnath at around 10:30 p.m., where they were apprehended by the police.
2(vi). According to the status report, Call Detail Record obtained by the respondent shows that Ram Chand alias Chandru was in contact with accused Milap Singh (petitioner).
2(vii). On 01.10.2022, learned Additional Sessions Judge-III Dharamshala, discharged co-accused Bablu. Co-accused Ram Chand alias Chandru died on 20.09.2022. Co-accused Ram Singh was enlarged on regular bail in terms of the order passed on 21.03.2023 in Cr.MP(M) No.321/2023.
3. Learned counsel for the petitioner argued that the petitioner is an innocent person. He has been falsely implicated in the FIR. Petitioner is in custody w.e.f. 09.04.2022. Trial is nowhere near conclusion. Petitioner is entitled to be enlarged on bail at this stage on account of delay in trial. The contraband was recovered from the vehicle in question and not from the conscious possession of the petitioner. Learned counsel further submitted that the petitioner will abide by all the conditions, which may be 5 2025:HHC:6901 imposed upon him in case of his enlargement on bail and that he will not influence the witnesses or tamper the with the prosecution evidence in any manner.
Learned Additional Advocate General opposed the bail petition and submitted that there is enough evidence with the Investigating Agency to prove the recovery of the contraband from the vehicle being driven by co- accused-Ram Singh. Petitioner was travelling in the vehicle and was actively involved with the offences alleged in the crime. At this stage, it cannot be said that the petitioner was not involved in the FIR in question. The innocence of the petitioner can only be adjudicated by the learned Trial Court after appreciating the evidence to be adduced by the parties. It was argued that commercial quantity of the contraband was recovered from the vehicle, therefore, rigors of Section 37 of the NDPS Act are attracted and that the petitioner has not been able to satisfy the conditions imposed in the Section. Learned Additional Advocate General further submitted that in case of petitioner's enlargement on bail, he can influence the prosecution witnesses. Prayer was accordingly made to dismiss the petition.
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4. I have heard learned counsel for the parties at length and gone through the status report filed by the respondent. My observations are as under:-
4(i). According to the status report, cannabis weighing 3.110 Kgs was recovered from the vehicle in question on 09.04.2022. This quantity falls under the 'commercial quantity' notified under the NDPS Act.
Therefore, rigors of Section 37 of the NDPS Act get attracted, wherein ordinarily, for release on bail, petitioner will have to satisfy the following twin conditions imposed in the aforesaid section:-
"(i) Court should be satisfied that there are reasonable grounds for believing that the petitioner is not guilty of such offence; and
(ii) Petitioner is not likely to commit any offence while on bail."
4(ii). Petitioner, however, seeks bail on ground of delay in trial. In Union of India Versus K.A. Najeeb2, 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 2 (2021) 3 SCC 713 7 2025:HHC:6901 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 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 somewhat rigorous conditions for grant of bail, this Court in Paramjit Singh v. State (NCT of Delhi), Babba v. State of 8 2025:HHC:6901 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 (Representing Undertrial 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 9 2025:HHC:6901 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." In Mohd Muslim @ Hussain Vs. State (NCT of Delhi)3, the petitioner therein facing charge under Section 29 of the Act and suffering incarceration for over seven years, was granted bail on account of delay in trial. Hon'ble Court, inter alia, reiterated that when stringent provisions are enacted, curtailing the provisions of bail and restraining judicial discretion, it is on the basis that investigation and trials would be concluded swiftly. Pronouncements in Union of India V. K.A. Najeeb2 and Vijay Madan Lal Chaudhary Vs Union of India4 were also observed, wherein, it was concluded that statutory restrictions like "section 43-D(5) of UAPA cannot fetter a constitutional Court's ability to grant bail on ground of violation of fundamental right" ..... "If the Parliament provides for stringent provision of no bail unless the stringent conditions are fulfilled, it is the bounden duty of the State 3 AIR 2023 SC 1648 4 (2022) 6 SLR 382 10 2025:HHC:6901 to ensure that such trials get precedence and are concluded within a reasonable time at least before the accused undergoes detention for a period extending up to one and half of the maximum period of imprisonment specified for the concerned offence by law. Satender Kumar Antil vs. CBI5, was also considered, where prolonged incarceration and inordinate delay engaged the attention of Court vis-à-vis several enactments including Section 37 of NDPS Act. In Mohd. Muslim's3 case, it was held as under with reference to expression "not guilty of such offence":-
"18. The conditions which courts have to be cognizant of are that there are reasonable grounds for believing that the accused is "not guilty of such offence" and that he is not likely to commit any offence while on bail. What is meant by "not guilty" when all the evidence is not before the court? It can only be a prima facie determination. That places the court's discretion within a very narrow margin. Given the mandate of the general law on bails (Sections 436, 437 and 439, Cr.PC) which classify offences based on their gravity, and instruct that certain serious crimes have to be dealt with differently while considering bail applications, the additional condition that the court should be satisfied that the accused (who is in law presumed to be innocent) is not guilty, has to be interpreted reasonably. Further the classification of offences under Special Acts (NDPS Act, etc.), which apply over and above the ordinary bail conditions required to be assessed by courts, require that the court records its satisfaction that the accused might not be guilty of the offence and that upon release, they are not likely to commit any offence. These two conditions have the effect of overshadowing other conditions. In cases where bail is sought, the court assesses the material on record such as the nature of the offence, likelihood of the accused cooperating with the investigation, not fleeing from justice: even in serious offences like murder, kidnapping, rape, etc. On 5 (2022) 10 SCC 51 11 2025:HHC:6901 the other hand, the court in these cases under such special Acts, have to address itself principally on two facts: likely guilt of the accused and the likelihood of them not committing any offence upon release. This court has generally upheld such conditions on the ground that liberty of such citizens have to - in cases when accused of offences enacted under special laws -
be balanced against the public interest.
19. A plain and literal interpretation of the conditions under Section 37 (i.e., that Court should be satisfied that the accused is not guilty and would not commit any offence) would effectively exclude grant of bail altogether, resulting in punitive detention and unsanctioned preventive detention as well. Therefore, the only manner in which such special conditions as enacted under Section 37 can be considered within constitutional parameters is where the court is reasonably satisfied on a prima facie look at the material on record (whenever the bail application is made) that the accused is not guilty. Any other interpretation, would result in complete denial of the bail to a person accused of offences such as those enacted under Section 37 of the NDPS Act.
20. The standard to be considered therefore, is one, where the court would look at the material in a broad manner, and reasonably see whether the accused's guilt may be proved. The judgments of this court have, therefore, emphasized that the satisfaction which courts are expected to record, i.e., that the accused may not be guilty, is only prima facie, based on a reasonable reading, which does not call for meticulous examination of the materials collected during investigation (as held in Union of India v. Rattan Malik19). Grant of bail on ground of undue delay in trial, cannot be said to be fettered by Section 37 of the Act, given the imperative of Section 436A which is applicable to offences under the NDPS Act too (ref. Satender Kumar Antil supra). Having regard to these factors the court is of the opinion that in the facts of this case, the appellant deserves to be enlarged on bail."
While deciding Rabi Prakash Vs. The State of Odisha6, the Hon'ble Apex Court held that prolonged incarceration generally militates against the most precious 6 Special Leave to Appeal (Crl.) No(s).4169/2023, decided on 13.07.2023 12 2025:HHC:6901 fundamental right guaranteed under Article 21 of the Constitution and in such a situation, the conditional liberty must override the statutory embargo created under Section 37(1)(b)(ii) of the NDPS Act.
The above legal position has been reiterated in Ankur Chaudhary Versus State of Madhya Pradesh7 and several other pronouncements.
In Javed Gulam Nabi Shaikh vs. The State of Maharashtra8, the Hon'ble Apex Court while considering the case, where the High Court declined to release the appellant (therein) on bail in connection with his prosecution under the provisions of the Unlawful Activities (Prevention) Act, 1967, reiterated that bail is not to be withheld as a punishment. Howsoever, serious a crime may be, an accused has a right to speedy trial as enshrined under the Constitution of India. The discretion for granting the bail was exercised in favour of the appellant, inter alia, keeping in view the fact that he was in jail as an under-trial prisoner for the last four years; the charge had not been framed against him and the prosecution intended to examination 18 witnesses. Relevant paras from the judgment read as under:-
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Petition(s) for Special Leave to Appeal (Crl.) No.4648/2024, decided on 28.05.2024 8 (2024) 9 SCC 813 13 2025:HHC:6901 "15. In the recent decision, Satender Kumar Antil v. CBI14, prolonged incarceration and inordinate delay engaged the attention of the Court, which considered the correct approach towards bail, with respect to several enactments, including Section 37 of the NDPS Act. The Court expressed the opinion that Section 436-A (which requires inter alia the accused to be enlarged on bail if the trial is not concluded within specified periods) of the Criminal Procedure Code, 1973 would apply: (SCC p. 127, para 86) "86. ... We do not wish to deal with individual enactments as each special Act has got an objective behind it, followed by the rigour imposed. The general principle governing delay would apply to these categories also. To make it clear, the provision contained in Section 436-A of the Code would apply to the Special Acts also in the absence of any specific provision. For example, the rigour as provided under Section 37 of the NDPS Act would not come in the way in such a case as we are dealing with the liberty of a person. We do feel that more the rigour, the quicker the adjudication ought to be. After all, in these types of cases number of witnesses would be very less and there may not be any justification for prolonging the trial. Perhaps there is a need to comply with the directions of this Court to expedite the process and also a stricter compliance of Section 309 of the Code."
16. 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."
4(iii). Allegations against the petitioner are that he was transporting the contraband in the vehicle at the behest of co-accused Ram Chand alias Chandru. The Driver 14 2025:HHC:6901 of the vehicle-Ram Singh has been enlarged on regular bail. Bablu, a co-passenger in the vehicle and previously made a co-accused, has been discharged. Ram Chand alias Chandru has died.
4(iv). Petitioner is seeking bail on ground of delay in trial. He was arrested on 09.04.2022 and by now has completed about three years in custody. Petitioner's previous bail petitions, bearing Cr.MP(M) Nos.2717 of 2023 and 1055 of 2024, were dismissed as withdrawn on 10.11.2023 and 17.05.2024, respectively. Status report filed by the respondents reveal that out of total 21 prosecution witnesses, only four (04) have been examined thus far including the independent witnesses. Trial is now statedly fixed from 23.06.2025 to 25.06.2025, when nine (09) witnesses are scheduled for examination. It is, thus, evident that trial is progressing at snail's pace. It is nowhere near conclusion. Trial will take long time to conclude. The status report does not indicate any previous criminal antecedents of the petitioner. 4(v). The apprehension of learned Additional Advocate General about the possibility of petitioner's influencing material witnesses is misplaced as independent witnesses have already been examined by the State. The witnesses, who are yet to be examined, are all police 15 2025:HHC:6901 officials. Even otherwise, this aspect can be taken care of by imposing stringent conditions upon the petitioner.
5. In view of above, this petition is allowed. Petitioner is ordered to be released on bail in the aforesaid FIR on his furnishing personal bond in the sum of Rs.1,00,000/- (Rupees One Lakh only) with two local sureties each in the like amount to the satisfaction of the learned trial Court/competent authority having jurisdiction over the concerned Police Station, subject to the following conditions:-
(i). Petitioner shall not tamper with the evidence or hamper the investigation in any manner whatsoever.
(ii). Petitioner will not leave India without prior permission of the Court.
(iii). Petitioner shall not make any inducement, threat or promise, directly or indirectly, to the Investigating Officer or any person acquainted with the facts of the case to dissuade him/her from disclosing such facts to the Court or any Police Officer.
(iv). Petitioner shall attend the trial on every hearing, unless exempted in accordance with law.
(v). Petitioner shall inform the Station House Officer of the concerned police station about his place of residence during bail and trial. Any change in the same shall also be communicated within two weeks thereafter. Petitioner shall furnish details of his Aadhar Card, Telephone Number, E-mail, PAN Card, Bank Account Number, if any.16
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(vi). It is made clear that in case petitioner is arraigned as an accused, in future, in any FIR under NDPS Act, then his bail is liable to be cancelled. It is open for the Investigating Agency to move appropriate application in that regard.
In case of violation of any of the terms & conditions of the bail, respondent-State shall be at liberty to move appropriate application for cancellation of the bail. It is made clear that observations made above are only for the purpose of adjudication of instant bail petition and shall not be construed as an opinion on the merits of the matter. Learned Trial Court shall decide the matter without being influenced by any of the observations made hereinabove.
With the aforesaid observations, the present petition stands disposed of, so also the pending miscellaneous application(s), if any.
Jyotsna Rewal Dua
March 20, 2025 Judge
Mukesh
Digitally signed by PRAVEEN KAUSHAL
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