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2025 DIGILAW 854 (HP)

Amar Nath v. State of Himachal Pradesh

2025-04-30

RAKESH KAINTHLA

body2025
JUDGMENT : (Rakesh Kainthla, J.) Since all the bail petitions arise out of the same F.I.R.; therefore, these are taken up together for disposal by way of a common judgment. 2. The petitioners have filed the present petitions for seeking regular bail. It has been asserted that F.I.R. No. 15 of 2025, dated 08.02.2025, was registered at Police Station Chowari, District Chamba, H.P., for the commission of offences punishable under Sections 20 , 25 and 29 of Narcotic Drugs and Psychotropic Substances Act (for short ‘NDPS Act’) against the petitioners. The petitioners have been falsely implicated. There is nothing to connect the petitioners with the commission of a crime. The petitioners are the permanent residents of District Chamba, H.P., and they have roots in the society. The custody of the petitioners is not required, and they would abide by all the terms and conditions, which the Court may impose. Hence, the petitions. 3. The petitions are opposed by filing status reports asserting that the police party had set up a Nakka at Tunnuhatti on 08.02.2025, and they were checking the vehicles. A Pick-up bearing registration No. HP73A-6721 came from Bannikhet towards the police at 12:10 a.m. The police signalled the driver to stop the vehicle and asked him to get the vehicle checked. The driver and other occupants of the vehicle got frightened and started prevaricating. The police became suspicious. The police called Sanjeev Kumar, who was standing near the Excise barrier and in his presence asked for the names of the occupants of the vehicle. The driver identified himself as Munaver Ali. The person sitting beside the driver revealed his name as Amar Nath, and the other person revealed his name as Parveen Kumar. The police checked the vehicle and found a black backpack kept beneath the driver's seat. The police checked the backpack and found 986 grams of cannabis. The police seized the cannabis and arrested the occupants. The samples were sent to SFSL, and as per the report of the analysis, the exhibit is an extract of cannabis and sample of Charas. F.I.R. No. 80 of 2017 was registered against petitioner Parveen Kumar, but he was acquitted on 28.03.2025. The petitioners are involved in the commission of the heinous offence, which is adversely affecting the young generation, therefore, it was prayed that the present petitions be dismissed. 4 I have heard Mr. F.I.R. No. 80 of 2017 was registered against petitioner Parveen Kumar, but he was acquitted on 28.03.2025. The petitioners are involved in the commission of the heinous offence, which is adversely affecting the young generation, therefore, it was prayed that the present petitions be dismissed. 4 I have heard Mr. Kulbhushan Khajuria, learned counsel for the petitioners and Mr. Ajit Sharma, learned Deputy Advocate General for the respondent-State. 5. Mr. Kulbhushan Khajuria, learned counsel for the petitioners, submitted that the petitioners are innocent and they were falsely implicated. There is no legal evidence against them. The quantity of charas stated to have been recovered from the possession of the petitioners is an intermediate quantity, and the rigours of Section 37 of the NDPS Act do not apply to the present case. The petitioners would abide by all the terms and conditions which the Court may impose. Hence, he prayed that the present petitions be allowed and the petitioners be released on bail. 6. Mr. Ajit Sharma, learned Deputy Advocate General for the respondent/State, submitted that the petitioners were found in possession of 986 grams of charas, which is close to a commercial quantity; such a quantity could not have been meant for self-consumption. Petitioner-Parveen Kumar was earlier involved in the commission of a similar offence, and the possibility of his committing a similar crime cannot be ruled out. Therefore, he prayed that the present petitions be dismissed. 7. I have given considerable thought to the submissions made at the bar and have gone through the records carefully. 8. The parameters for granting bail were considered by the Hon’ble Supreme Court in Ajwar v. Waseem (2024) 10 SCC 768 : 2024 SCC OnLine SC 974, wherein it was observed at page 783: - “Relevant parameters for granting bail 26. I have given considerable thought to the submissions made at the bar and have gone through the records carefully. 8. The parameters for granting bail were considered by the Hon’ble Supreme Court in Ajwar v. Waseem (2024) 10 SCC 768 : 2024 SCC OnLine SC 974, wherein it was observed at page 783: - “Relevant parameters for granting bail 26. While considering as to whether bail ought to be granted in a matter involving a serious criminal offence, the Court must consider relevant factors like the nature of the accusations made against the accused, how the crime is alleged to have been committed, the gravity of the offence, the role attributed to the accused, the criminal antecedents of the accused, the probability of tampering of the witnesses and repeating the offence, if the accused are released on bail, the likelihood of the accused being unavailable in the event bail is granted, the possibility of obstructing the proceedings and evading the courts of justice and the overall desirability of releasing the accused on bail. [Refer: Chaman Lal v. State of U.P. [ Chaman Lal v. State of U.P ., ( 2004) 7 SCC 525: 2004 SCC (Cri) 1974]; Kalyan Chandra Sarkar v. Rajesh Ranjan [Kalyan Chandra Sarkar v. Rajesh Ranjan, (2004) 7 SCC 528 : 2004 SCC (Cri) 1977]; Masroor v. State of U.P. [Masroor v. State of U.P., (2009) 14 SCC 286 : (2010) 1 SCC (Cri) 1368]; Prasanta Kumar Sarkar v. Ashis Chatterjee [Prasanta Kumar Sarkar v. Ashis Chatterjee, (2010) 14 SCC 496 : (2011) 3 SCC (Cri) 765]; Neeru Yadav v. State of U.P. [Neeru Yadav v. State of U.P., (2014) 16 SCC 508 : (2015) 3 SCC (Cri) 527]; Anil Kumar Yadav v. State (NCT of Delhi)[Anil Kumar Yadav v. State (NCT of Delhi), (2018) 12 SCC 129 : (2018) 3 SCC (Cri) 425]; Mahipal v. Rajesh Kumar [Mahipal v. Rajesh Kumar, (2020) 2 SCC 118 : (2020) 1 SCC (Cri) 558] . 9. This position was reiterated in Ramratan v. State of M.P. , 2024 SCC OnLine SC 3068 , wherein it was observed as under: - “12. The fundamental purpose of bail is to ensure the accused's presence during the investigation and trial. Any conditions imposed must be reasonable and directly related to this objective. 9. This position was reiterated in Ramratan v. State of M.P. , 2024 SCC OnLine SC 3068 , wherein it was observed as under: - “12. The fundamental purpose of bail is to ensure the accused's presence during the investigation and trial. Any conditions imposed must be reasonable and directly related to this objective. This Court in Parvez Noordin Lokhandwalla v. State of Maharastra (2020) 10 SCC 77 observed that though the competent court is empowered to exercise its discretion to impose “any condition” for the grant of bail under Sections 437(3) and 439(1)(a) CrPC, the discretion of the court has to be guided by the need to facilitate the administration of justice, secure the presence of the accused and ensure that the liberty of the accused is not misused to impede the investigation, overawe the witnesses or obstruct the course of justice. The relevant observations are extracted herein below: “14. The language of Section 437(3) CrPC, which uses the expression “any condition … otherwise in the interest of justice” has been construed in several decisions of this Court. Though the competent court is empowered to exercise its discretion to impose “any condition” for the grant of bail under Sections 437(3) and 439(1)(a) CrPC, the discretion of the court has to be guided by the need to facilitate the administration of justice, secure the presence of the accused and ensure that the liberty of the accused is not misused to impede the investigation, overawe the witnesses or obstruct the course of justice. Several decisions of this Court have dwelt on the nature of the conditions which can legitimately be imposed both in the context of bail and anticipatory bail.” (Emphasis supplied) 13. In Sumit Mehta v. State (NCT of Delhi) (2013) 15 SCC 570 , this Court discussed the scope of the discretion of the Court to impose “any condition” on the grant of bail and observed in the following terms:— “15. The words “any condition” used in the provision should not be regarded as conferring absolute power on a court of law to impose any condition that it chooses to impose. Any condition has to be interpreted as a reasonable condition acceptable in the facts permissible in the circumstance, and effective in the pragmatic sense, and should not defeat the order of grant of bail. Any condition has to be interpreted as a reasonable condition acceptable in the facts permissible in the circumstance, and effective in the pragmatic sense, and should not defeat the order of grant of bail. We are of the view that the present facts and circumstances of the case do not warrant such an extreme condition to be imposed.” (Emphasis supplied) 14. This Court, in Dilip Singh v. State of Madhya Pradesh (2021) 2 SCC 779 , laid down the factors to be taken into consideration while deciding the bail application and observed: “ 4. It is well settled by a plethora of decisions of this Court that criminal proceedings are not for the realisation of disputed dues. It is open to a court to grant or refuse the prayer for anticipatory bail, depending on the facts and circumstances of the particular case. The factors to be taken into consideration while considering an application for bail are the nature of the accusation and the severity of the punishment in the case of conviction and the nature of the materials relied upon by the prosecution; reasonable apprehension of tampering with the witnesses or apprehension of threat to the complainant or the witnesses; the reasonable possibility of securing the presence of the accused at the time of trial or the likelihood of his abscondence; character, behaviour and standing of the accused; and the circumstances which are peculiar or the accused and larger interest of the public or the State and similar other considerations. A criminal court, exercising jurisdiction to grant bail/anticipatory bail, is not expected to act as a recovery agent to realise the dues of the complainant, and that too, without any trial.” (Emphasis supplied) 10. This position was reiterated in Shabeen Ahmed versus State of U.P., 2025 SCC Online SC 479. 11. The present petitions have to be decided as per the parameters laid down by the Hon’ble Supreme Court. 12. Perusal of the status report shows that the petitioners were found moving in the vehicle from which 986 grams of cannabis was recovered. In Madan Lal versus State of H.P. (2003) 7 SCC 465 : 2003 SCC (Cri) 1664: 2003 SCC OnLineSC 874 , the contraband was recovered from a vehicle, and it was held that all the occupants of the vehicle would be in conscious possession of the contraband. It was observed: “19. In Madan Lal versus State of H.P. (2003) 7 SCC 465 : 2003 SCC (Cri) 1664: 2003 SCC OnLineSC 874 , the contraband was recovered from a vehicle, and it was held that all the occupants of the vehicle would be in conscious possession of the contraband. It was observed: “19. Whether there was conscious possession has to be determined with reference to the factual backdrop. The facts which can be culled out from the evidence on record are that all the accused persons were travelling in a vehicle, and as noted by the trial court, they were known to each other, and it has not been explained or shown as to how they travelled together from the same destination in a vehicle which was not a public vehicle. 20. Section 20(b) makes possession of contraband articles an offence. Section 20 appears in Chapter IV of the Act, which relates to offences for possession of such articles. It is submitted that in order to make the possession illicit, there must be conscious possession. 21. It is highlighted that unless the possession was coupled with the requisite mental element, i.e. conscious possession and not mere custody without awareness of the nature of such possession, Section 20 is not attracted. 22. The expression “possession” is a polymorphous term which assumes different colours in different contexts. It may carry different meanings in contextually different backgrounds. It is impossible, as was observed in the Supdt. & Remembrancer of Legal Affairs, W.B. v. Anil Kumar Bhunja [(1979) 4 SCC 274: 1979 SCC (Cri) 1038: AIR 1980 SC 52 ] to work out a completely logical and precise definition of “possession” uniformly applicable to all situations in the context of all statutes. 23. The word “conscious” means awareness about a particular fact. It is a state of mind which is deliberate or intended. 24. As noted in Gunwantlal v. State of M.P. [(1972) 2 SCC 194: 1972 SCC (Cri) 678: AIR 1972 SC 1756 ], possession in a given case need not be physical possession but can be constructive, having power and control over the article in the case in question, while the person to whom physical possession is given holds it subject to that power or control. 25. 25. The word “possession” means the legal right to possession (see Heath v. Drown [(1972) 2 All ER 561: 1973 AC 498 : (1972) 2 WLR 1306 (HL)] ). In an interesting case, it was observed that where a person keeps his firearm in his mother's flat, which is safer than his own home, he must be considered to be in possession of the same. (See Sullivan v. Earl of Caithness [(1976) 1 All ER 844: 1976 QB 966 : (1976) 2 WLR 361 (QBD)] .) 26. Once possession is established, the person who claims that it was not a conscious possession has to establish it because how he came to be in possession is within his special knowledge. Section 35 of the Act gives a statutory recognition of this position because of the presumption available in law. Similar is the position in terms of Section 54, where also presumption is also available to be drawn from possession of illicit articles. 27. In the factual scenario of the present case, not only possession but conscious possession has been established. It has not been shown by the accused-appellants that the possession was not conscious in the logical background of Sections 35 and 54 of the Act.” 13. Therefore, in view of the binding precedent of the Hon’ble Supreme Court, the petitioners have to be treated to be in possession of the charas. 14. It was submitted that F.I.R. No.80 of 2017, dated 03.05.2017, was registered against petitioner Parveen Kumar, however, the status report shows that he was acquitted of the commission of the offence by the competent Court on 28.03.2025. Hence, the registration of the F.I.R. No. 80 of 2017 dated 03.05.2017 will not affect the present case. 15. The petitioners were arrested on 08.02.2025. The status report shows that the police have not filed a charge sheet, which means that it will take some time to file a charge sheet and thereafter to conclude the trial. The petitioners cannot be kept behind the bars indefinitely, hoping for an early filing of the charge-sheet and conclusion of the trial. 16. It was submitted that 986 grams of charas could not have been meant for self-consumption. The recovery of the huge amount of charas shows that the petitioners are drug peddlers. This submission cannot be accepted. The petitioners cannot be kept behind the bars indefinitely, hoping for an early filing of the charge-sheet and conclusion of the trial. 16. It was submitted that 986 grams of charas could not have been meant for self-consumption. The recovery of the huge amount of charas shows that the petitioners are drug peddlers. This submission cannot be accepted. The police have not brought any material on record to show that the petitioners were involved in the commission of a similar offence earlier. The police have not recorded the statement of any person to whom the charas was sold; therefore, submission of learned Deputy Advocate General that the petitioners are drug peddlers cannot be accepted. Hence, bail cannot be denied on the ground that the petitioners are drug peddlers. 17. The petitioners asserted that they are residents of Chamba, which was not stated to be incorrect. It means that petitioners have the roots in the society and there are no chances of their absconding. 18. In view of the above, the present petitions are allowed, and the petitioners are ordered to be released on bail subject to their furnishing bail bonds in the sum of ?1,00,000/- each with one surety each in the like amount, to the satisfaction of the learned Trial Court. While on bail, the petitioners will abide by the following conditions: (i) The petitioners will not intimidate the witnesses, nor will they influence any evidence in any manner whatsoever. (ii) The petitioners shall attend the Court on every date of hearing and will not seek unnecessary adjournments. (iii) The petitioners will not leave their present addresses for a continuous period of seven days without furnishing the address of the intended visit to the concerned Police Station and the Court. (iv) The petitioner will surrender his passport, if any, to the Court; and (v) The petitioners will furnish their mobile number and social media contact to the Police and the Court and will abide by the summons/notices received from the Police/Court through SMS/WhatsApp/Social Media Account. In case of any change in the mobile number or social media accounts, the same will be intimated to the Police/Court within five days from the date of the change. 19. In case of any change in the mobile number or social media accounts, the same will be intimated to the Police/Court within five days from the date of the change. 19. It is clarified that if the petitioners misuses the liberty or violates any of the conditions imposed upon them, the investigating agency shall be free to move the Court for cancellation of the bail. 20. The observations made hereinabove are regarding the disposal of this petitions and will have no bearing, whatsoever, on the case's merits. 21. The petitions stand accordingly disposed of. A copy of this order be sent to the Superintendent District Jail Rajpura Chamba H.P., and the learned Trial Court by FASTER. 22. A downloaded copy of this order shall be accepted by the learned Trial Court while accepting the bail bonds from the petitioners, and in case said Court intends to ascertain the veracity of the downloaded copy of the order presented to it, the same may be ascertained from the official website of this Court.