The presumption of innocence remains until conviction, and bail may be granted based on parity with co-accused and absence of commercial quantity of contraband.

JUDGMENT :

Virender Singh, J.

By way of the present application, filed under Section 483 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (hereinafter referred to as ‘BNSS’), applicant-Upender Harish has sought his release, on bail, during the pendency of the trial, in case FIR No.302 of 2024, dated 15.11.2024, registered under Sections 21 and 29 of the Narcotic Drugs & Psychotropic Substances Act (hereinafter referred to as the ‘NDPS Act’), with Police Station Sadar, District Hamirpur, H.P.

2. According to the applicant, he is innocent person and has falsely been implicated, in this case, at the instance of police, for allegedly possessing 5.63 gms of heroin/chitta.

3. Applicant has pleaded that he is also the victim of drugs and has remained admitted in Rehabilitation Centre for a considerable period and as such, for the treatment of his behavioral disorder, he has been taking medicines and therapy from a Psychiatric at Radha Krishna Government Hospital, Hamirpur, H.P.

3.1. To substantiate the said fact, applicant has also annexed his medical record, along with the application.

4. According to the applicant, he had earlier tried his luck by moving similar application, before the Court of learned Special Judge, Hamirpur, District Hamirpur, Himachal Pradesh. However, the same was dismissed, vide order dated 02.01.2025.

5. The co-accused of the applicant, namely Ashish Kumar, is stated to have been released on bail, by the Court of learned Special Judge, Hamirpur, District Hamirpur, H.P., vide order dated 01.01.2025.

6. Lastly, the applicant has given the details of the cases, which are stated to have been registered against him, in para No.7 of the application, particulars of which are reproduced, as under:-

“i. FIR No.217/2018 dated 23.08.2018, under Sections 21 and 29 of NDPS Act, with PS Sadar, Hamirpur, H.P., in which, the applicant is stated to have been acquitted on 04.05.2019.

ii. FIR No.31/2024 dated 07.08.2024, under Sections 21 and 29 of NDPS Act, with PS Sadar, Hamirpur, H.P. and the said case is stated to be pending adjudication before the competent Court of law.”

7. Apart from this, Mr. T.S. Chauhan, Senior Advocate, assisted by Mr. Surya Chauhan, 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.

8. On the basis of the above facts, a prayer has been made to allow the bail application.

9. When, put to notice, the police has filed the status report, disclosing therein, that on 15.11.2024, HC Kuldeep Singh No.69, along with I/O Kit, and other police officials, was on patrolling duty and duty to detect crime, relating to narcotics, in their official vehicle, bearing No.HP22-C-5269.

9.1. It is the case of the police that on the same day, at about 12:15 pm, when, the IO was present at Kenchi Mor, then, he received a secret information regarding the fact that a person, who is on motorcycle No.HP-84-6875, is carrying chitta and as per the information, if the said motorcycle and the person, driving the same, are searched, then, large quantity of chitta/heroin could be recovered. The said information was found to be authentic and reliable 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 the Additional Superintendent of Police, Hamirpur.

9.2. It is the further case of the police that thereafter, IO has proceeded towards Partap Nagar side and on the way, IO has requested Councillor Smt. Dimple Bala, on her mobile phone, to become independent witness. Subsequently, police party reached Partap Nagar, where, Councillor Smt. Dimple Bala, along with her husband Joginder Singh, was found present. Both of them were apprised abou