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2025 DIGILAW 992 (HP)

Manish Kashyap v. State of Himachal Pradesh

2025-05-13

VIRENDER SINGH

body2025
JUDGMENT : Virender Singh, J. 1. By way of the present application, filed under Section 483 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (hereinafter referred to as ‘BNSS’), applicant-Manish Kashyap has sought his release, on bail, during the pendency of the trial, in Case FIR No. 130 of 2024, dated 20.11.2024, registered under Sections 21 and 29 of the Narcotic Drugs & Psychotropic Substances Act (hereinafter referred to as the ‘NDPS Act’), with Police Station Theog, District Shimla, H.P. 2. According to the applicant, he is innocent person and has falsely been implicated, in the present case and has been arrested by the police. 3. As per applicant, investigation, in the present case, is complete and according to him, no useful purpose would be served by keeping him in the judicial custody. 4. In addition to this, the applicant has also given the details of the case, which has been registered against him, apart from the present case, by submitting that FIR No.107/2024 dated 14.08.2024, under Sections 21, 29 and 27A of NDPS Act, has already been registered against him. However, according to him, he has not been convicted by the competent Court of law, in the above-noted case. 5. According to the applicant, he had earlier tried his luck by moving similar application, before the Court of learned Special Judge, Rohru, Camp at Theog, District Shimla, Himachal Pradesh. However, the same was dismissed vide order dated 21.12.2024. 5.1. Thereafter, the applicant had moved bail application, bearing CrMP(M) No.629 of 2025, before this Court. However, the said application was dismissed as withdrawn, vide order dated 28.03.2025. 6. Apart from this, Mr. Sunil Kumar, Advocate, appearing for the applicant, has given certain undertakings, on behalf of the applicant, for which, the applicant is ready to abide by, in case, ordered to be released on bail, during the pendency of the trial. 7. On the basis of the above facts, a prayer has been made to allow the bail application. 8. When, put to notice, the police has filed the status report, disclosing therein, that on 20.11.2024, IO ASI Narender Kumar, PP Fagu, received a secret information, at about 01:30 in the midnight, regarding the fact that vehicle No. HP09-B-1876, make Ignis, colour silver, being driven by its driver, was coming from Fagu to Theog side, in which, two persons were sitting and having large quantity of narcotics substance with them. As such, IO found the said information to be authentic and reliable and since, the Court was situated at a considerable distance and according to the IO, in case, he would have made efforts to obtain authorization letter of search warrant, in that eventuality, there were chances that the contraband could be removed from there. As such, he has complied with the provisions of Section 42(2) of the NDPS Act and submitted the report to SDPO, Theog. 8.1. It is the case of the police that subsequently, IO, along with other police officials, had put the picketing at main Fagu Chowk, at about 01:50 in the midnight. Thereafter, IO requested the drivers of the vehicles, crossing therefrom, to become independent witnesses, but, all of them had shown their inability. As such, IO associated HC Vinod No.192 and Ct. Dinya No.1563 in the raiding party. 8.2. It is the further case of the police that at about 01:55 in the midnight, from Kufri side, IO noticed vehicle No. HP09-B-1876, being driven by its driver, and gave signal to stop the said vehicle. Consequently, the driver of the said vehicle stopped his car. Apart from the driver, another person was found sitting in the said vehicle. Subsequently, IO enquired their names and addresses. Then, the person, who was on wheel, disclosed his name as Manish Kashyap S/o Mohan Lal Kashyap (applicant) and the another person, sitting next to Manish Kashyap (applicant), disclosed his name as Rohit Verma, S/o Aadi Ram. Thereafter, IO had also apprised the grounds for the search of their vehicle and both of them were directed to come out from the vehicle. 8.3. Thereafter, the vehicle was searched and during the search, underneath the foot mat, a transparent polythene envelope was found, which, on opening, was found to be containing granule-shaped light yellow coloured substance and on the basis of experience, the same was found to be chitta/heroin. Manish Kashyap (applicant) and Rohit Verma, on enquiry, also confirmed the said fact. The said substance, on checking, on drug detection kit, was found to be 10 grams of heroin/chitta and the same was taken into possession. Other codal formalities were completed. 8.4. After registration of the FIR, the police has arrested the accused persons. 8.5. Manish Kashyap (applicant) and Rohit Verma, on enquiry, also confirmed the said fact. The said substance, on checking, on drug detection kit, was found to be 10 grams of heroin/chitta and the same was taken into possession. Other codal formalities were completed. 8.4. After registration of the FIR, the police has arrested the accused persons. 8.5. The contraband, so recovered, was sent to SFSL, Junga, after complying with the provisions of Section 52A of the NDPS Act and after receiving positive report from there, the police has filed the chargesheet (challan), in the Court of learned Additional Sessions Judge, Rohru, Camp at Theog (hereinafter referred to as the ‘trial Court’) and now, the case is stated to have been listed on 14.05.2025 for consideration on charge. 8.6. In addition to this, it has also been mentioned in the status report that apart from the present case, the applicant has also been named in FIR No.107/2024, dated 14.08.2024, under Sections 21, 29 and 27A of NDPS Act, regarding which, the Court of learned JMFC-III, Shimla has issued the production warrants. This fact has been pleaded to show that the applicant is also involved in another case, which has also been registered under the provisions of NDPS Act. 9. On the basis of the above facts, a prayer has been made to dismiss the bail application. 10. Heard. 11. In this case, the contraband, allegedly stated to have been recovered, is 10 grams of heroin/chitta. Admittedly, the said contraband does not fall, within the definition of ‘commercial quantity’. As such, the rigors of Section 37 of the NDPS Act are not applicable, in this case. 12. Once, it has been held that the rigors of Section 37 of the NDPS Act are not applicable, in that eventuality, the presumption of innocence is still available to the applicant, as, the bail application cannot be rejected merely as a matter of punishment, since, pre-trial punishment is prohibited under the law, as the punishment can be inflicted, after the conclusion of trial. 13. In the present case, investigation is complete and the police has submitted the challan, in the competent Court of law (learned trial Court) and now, the case is stated to be listed on 14.05.2025 for consideration on charge. This fact is sufficient to demonstrate that the custodial interrogation of the applicant is no longer required by the police. 14. 13. In the present case, investigation is complete and the police has submitted the challan, in the competent Court of law (learned trial Court) and now, the case is stated to be listed on 14.05.2025 for consideration on charge. This fact is sufficient to demonstrate that the custodial interrogation of the applicant is no longer required by the police. 14. Moreover, the chances of commencement and conclusion of trial against the applicant, in near future, are not so bright. As such, he cannot be kept in judicial custody, that too, for the indefinite period, as, the applicant is presumed to be innocent, till his guilt is proved, by the competent Court of law. 15. So far as the criminal history, which has been mentioned by the applicant, as well as, mentioned in the status report, i.e. FIR No.107/2024 (supra), is concerned, admittedly, in the said case, the competent Court of law has not inflicted the punishment, upon the applicant. As such, the presumption of innocence is still available to the applicant. 16. Mere registration of another case against the applicant, under the provisions of NDPS Act, is too short to take away the presumption of innocence, which is still available to the applicant, as, no conviction has been recorded by the competent Court of law, in the said case. 17. Even otherwise, the applicant is the permanent resident of District Shimla. As such, it cannot be apprehended that in case, he is ordered to be released on bail, he may not be available for the trial. 18. Considering all these facts, this Court is of the view that the present bail application is liable to be allowed and is accordingly allowed. 19. Consequently, the applicant is ordered to be released, on bail, in case FIR No.130 of 2024, dated 20.11.2024, registered under Sections 21 and 29 of the NDPS Act, with Police Station Theog, District Shimla, H.P. on his furnishing personal bonds in the sum of Rs.1,00,000/- with one surety of the like amount, to the satisfaction of the learned trial Court/learned ACJM, Theog. 20. 20. This order, however, shall be subject to the following conditions:- a) The applicant shall appear before the IO, as and when, directed by the IO to do so and regularly attend the trial Court on each and every date of hearing and if prevented by any reason to do so, seek exemption from appearance by filing the appropriate application; b) The applicant shall not tamper with the prosecution evidence nor hamper the investigation of the case in any manner whatsoever; c) The applicant shall not make any inducement, threat or promises to any person acquainted with the facts of the case so as to dissuade them from disclosing such facts to the Court or the Police Officer, and d) The applicant shall not leave the territory of India without the prior permission of the Court. 21. Any of the observations, made hereinabove, shall not be taken, as an expression of opinion, on the merits of the case, as these observations are confined, only to the disposal of the present bail application. 22. It is made clear that respondent-State is at liberty to move an appropriate application, in case, any of the bail conditions is found violated by the applicant. 23. The Registry is directed to forward a soft copy of the bail order to the Superintendent of Jail, Kaithu Jail, Shimla, Himachal Pradesh, through e-mail, with a direction to enter the date of grant of bail in the e-prison software. 24. In case, the applicant is not released within a period of seven days from the date of grant of bail, the Superintendent of Jail, Kaithu Jail, Shimla, Himachal Pradesh, is directed to inform this fact to the Secretary, DLSA, Shimla. The Superintendent of Jail, Kaithu Jail, Shimla, Himachal Pradesh, is further directed that if the applicant fails to furnish the bail bonds, as per the order passed by this Court, within a period of one month from today, then, the said fact be submitted to this Court.