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2025 DIGILAW 902 (HP)

Kuldeep Kumar v. State of Himachal Pradesh

2025-05-05

RAKESH KAINTHLA

body2025
JUDGMENT : Rakesh Kainthla, J. The petitioner has filed the present petition for seeking regular bail. It has been asserted that the petitioner was arrested vide FIR No. 23 of 2025, dated 2.3.2025, registered at Police Station, Solan, District Solan, H.P., for the commission of offences punishable under Sections 21 and 29 of the Narcotic Drugs and Psychotropic Substances Act (in short ‘the ND&PS Act’). He is a permanent resident of Village Bharandi, Post Office Tehsil Junga, District Shimla, H.P. As per the prosecution, 14.44 grams of heroin was recovered from the possession of the petitioner. The police have completed the investigation, and custody of the petitioner is not required. The quantity of the heroin stated to have been recovered from the possession of the petitioner is intermediate, and the rigours of Section 37 of the ND&PS Act do not apply to the present case. The petitioner has roots in society, and there is no chance of his absconding. Hence, it was prayed that the present petition be allowed and the petitioner be released on bail. 2. The petition is opposed by filing a status report asserting that the police party was on patrolling duty on 2.3.2025. They received information at 6.00 PM that a vehicle bearing registration No. HP-63D-9903 was transporting heroin, and in the case of a search of the vehicle, a huge quantity of heroin could be recovered. The police reduced the information to writing and sent it to the Supervisory OfÏcer. The police associated Dinesh Kumar and intercepted the vehicle at 6.35 PM. The driver identified himself as Kuldeep Kumar (present petitioner), and the person sitting beside him identified himself as Palvinder Singh. The police searched the vehicle and recovered a polythene packet containing 14.44 grams of heroin. The police seized the heroin and arrested the occupants of the vehicle. The heroin was sent to FSL, and as per the report, it was found to be a sample of Diacetylmorphine. The challan is yet to be prepared in the present matter. Hence, the status report. 3. I have heard Mr. Kush Sharma, learned counsel for the petitioner and Mr. Lokender Kutlehria, learned Additional Advocate General, for the respondent-State. 4. Mr. Kush Sharma, learned counsel for the petitioner, submitted that the petitioner is innocent and he was falsely implicated. The challan is yet to be prepared in the present matter. Hence, the status report. 3. I have heard Mr. Kush Sharma, learned counsel for the petitioner and Mr. Lokender Kutlehria, learned Additional Advocate General, for the respondent-State. 4. Mr. Kush Sharma, learned counsel for the petitioner, submitted that the petitioner is innocent and he was falsely implicated. The quantity of heroin stated to have been found in the possession of the petitioner is intermediate, and the rigours of Section 37 of the ND&PS Act do not apply to the present case. Hence, he prayed that the present petition be allowed and the petitioner be released on bail. 5. Mr. Lokender Kutlehria, learned Additional Advocate General for the respondent-State, submitted that the petitioner is involved in the commission of the heinous offence. The consumption of heroin is affecting the younger generation adversely, and as such, the offence should not be viewed lightly. Hence, he prayed that the present petition be dismissed. 6. I have given considerable thought to the submissions made at the bar and have gone through the records carefully. 7. The parameters for granting bail were considered by the Hon’ble Supreme Court 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 ac- cused'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 ob- served 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 pres- ence of the accused and ensure that the liberty of the accused is not misused to impede the investigation, over- awe 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 in- terest of justice” has been construed in several deci- sions of this Court. The relevant observations are extracted herein below: “14. The language of Section 437(3) CrPC, which uses the expression “any condition … otherwise in the in- terest of justice” has been construed in several deci- sions of this Court. Though the competent court is em- powered to exercise its discretion to impose “any condi- tion” for the grant of bail under Sec- tions 437(3) and 439(1)(a) CrPC, the discretion of the court has to be guided by the need to facilitate the admin- istration of justice, secure the presence of the accused and ensure that the liberty of the accused is not misused to im- pede 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 legiti- mately be imposed both in the context of bail and an-ticipatory 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. 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 ob-served: “ 4. It is well settled by a plethora of decisions of this Court that criminal proceedings are not for the reali- sation 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. It is well settled by a plethora of decisions of this Court that criminal proceedings are not for the reali- sation 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 convic- tion and the nature of the materials relied upon by the prosecution; reasonable apprehension of tampering with the witnesses or apprehension of threat to the com- plainant or the witnesses; the reasonable possibility of se- curing 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 re- alise the dues of the complainant, and that too, with-out any trial.” (Emphasis supplied) 8. The present petition has to be decided as per the parameters laid down by the Hon’ble Supreme Court. 9. A perusal of the status report shows that the petitioner was found driving a car from which 14.44 grams of heroin 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. Whether there was conscious possession has to be determined regarding 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. 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 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 of 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. 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. 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 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.” 10. The petitioner was present in the vehicle from which recovery was made; hence, the petitioner was prima facie in possession of cannabis. 11. The petitioner is a first-time offender and is entitled to reform himself. In case of his continuous detention, he will come in contact with hardened criminals, and the chance of his reformation would become bleak. Therefore, the petitioner is entitled to bail on this consideration. 12. The status report shows that the police are in the process of preparing the challan. It means that it will take some time to prepare the challan, and thereafter the time shall be consumed in the filing of the charge sheet and conducting the trial. The petitioner cannot be kept behind the bars indefinitely, hoping for an early filing of the charge sheet and conclusion of the trial. 13. The petitioner asserted that he is a permanent resident of District Shimla. This is not stated to be incorrect. Therefore, the plea of the petitioner that he has roots in the society and there is no chance of his absconding has to be accepted as correct. 14. The petitioner stated that he does not have any criminal antecedents. This was not stated to be incorrect in the status report. Therefore, there is no impediment to granting bail to the petitioner. 15. It was submitted that the petitioner will intimidate the witnesses, and he can abscond in case of release on bail. This is a mere apprehension and is not sufÏcient to keep the petitioner inside the bars, as the apprehension can be removed by imposing conditions. Therefore, there is no impediment to granting bail to the petitioner. 15. It was submitted that the petitioner will intimidate the witnesses, and he can abscond in case of release on bail. This is a mere apprehension and is not sufÏcient to keep the petitioner inside the bars, as the apprehension can be removed by imposing conditions. The prosecution has a right to approach the Court in case of a violation of the conditions by the petitioner. 16. Consequently, the present petition is allowed, and the petitioner is ordered to be released on bail in the sum of ?1,00,000/- with one surety of the like amount to the satisfaction of the learned Trial Court. While on bail, the petitioner will abide by the following terms and conditions: - (I) The petitioner will not intimidate the witnesses, nor will he influence any evidence in any manner whatsoever; (II) The petitioner shall attend the trial on each and every hearing and will not seek unnecessary adjournments; (III) The petitioner will not leave the present address for a continuous period of seven days without furnishing the address of the intended visit to the SHO concerned, the Police Station concerned and the Trial Court; (IV) The petitioner will surrender his passport, if any, to the Court; and (V) The petitioner will furnish his 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. 17. It is expressly made clear that in case of violation of any of these conditions, the prosecution will have the right to file a petition for cancellation of the bail. 18. The petition stands accordingly disposed of. A copy of this order be sent to the Superintendent of District Jail, Solan District Solan, H.P. and the learned Trial Court by FASTER. 19. The observation made herein before shall remain confined to the disposal of the instant petition and will have no bearing, whatsoever, on the merits of the case.