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IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
BIPIN CHANDER NEGI, J.
Suresh Kumar - Appellant
Versus
State of Himachal Pradesh - Respondent
Cr. MP (M) No. 448 of 2025
Decided On : 14-05-2025
(A) NDPS Act - Section 20 - Bail application - The petitioner sought bail in connection with FIR No.01 of 2023 for possession of charas - The court emphasized the importance of personal liberty and the need for judicial discretion in granting bail, especially in light of the absence of criminal antecedents and the potential for undue delay in trial. (Paras 1, 19, 20, 21, 24)
(B) Judicial Discretion - The court noted that the object of bail is to secure attendance at trial, not to punish - Conditions for bail were imposed to ensure compliance and prevent interference with the investigation. (Paras 22, 24)
(C) Conditions of Bail - The petitioner must attend all hearings, not tamper with evidence, and inform authorities of any changes in residence. (Paras 24, 25)
Facts of the case:
The petitioner was arrested for allegedly possessing 4 KG 80 GM of charas, with the arrest occurring after a police operation based on credible information. The trial is ongoing, with significant delays due to co-accused's non-appearance.
Findings of Court:
The court found that the petitioner is entitled to bail given the circumstances, emphasizing the need for personal liberty and the lack of adverse information in the status report.
Issues: The main issues included the credibility of the evidence, the potential for trial delays, and the conditions necessary for granting bail.
Ratio Decidendi: The court ruled that personal liberty is a fundamental right and should only be curtailed when necessary, with the bail conditions ensuring the petitioner’s presence at trial.
Result: Bail application allowed.
JUDGMENT :
Bipin Chander Negi, J.
1. The present bail petition has been filed under Section 483 of the BNSS for grant of bail, in FIR No.01 of 2023, dated 01.01.2023, registered at Police Station, Sadar Kullu, District Kullu H.P., under Section 20 of the ND& PS Act.
2. I have heard learned counsel for the parties. Perused the record and the status report.
3. The brief facts of the present case are that on 31.12.2022, HC Jagdish No. 51, HC Sandeep Kumar No. 23, Ct. Ajay Kumar No. 444, Ct. Hukam Chand No. 477 and Ct. Tej Ram No. 324 were patrolling for surveillance regarding narcotics in the areas of Ramsheela, Hathithan, Chilmod, Shot, Kasol, etc. A report No. 14 dated 31.12.2022 was entered in the daily diary of SIU Kullu. They were traveling in a private vehicle No. HP49 1607, equipped with an IO kit, laptop, and searchlight.
4. At around 7:30 PM, while HC Jagdish Kumar No. 51 and the above-mentioned personnel were patrolling on foot in Sarasari Bazaar, HC Jagdish Kumar received confidential information from a reliable source that a youth named Suresh Kumar (bail petitioner), resident of Village Dhara, was going to sell charas near the water spring (Chashma) of Chaung at around 10:00 PM. If apprehended there, a large quantity of charas could be recovered from him. The information was deemed credible, but due to the delay in obtaining a warrant, there was a risk of Suresh Kumar (bail petitioner) escaping and the contraband being destroyed.
5. Accordingly, a written intimation under Section 42(2) of the ND&PS Act was prepared and sent to Dy SP (L&R) Shri Rajesh Kumar, who was on New Year duty in Manali. Since he was unavailable, the intimation was sent to Dy SP (HQ) Shri Mohan Rawat's office in Kullu through Ct. Hukam Chand No. 477 at around 8:00 PM from Sarasari Bazaar.
6. HC Jagdish Kumar No. 51 devised a plan with the available personnel and, along with the Informant, proceeded towards Chaung water spring in search of independent witnesses. At around 9:10 PM, near Chaung spring, no witnesses were found. HC Jagdish Kumar then called Shri Mehar Chand, the Up-Pradhan of GP Chaung, on his mobile (No. 98160-79006), introduced himself, and requested his presence at the spot. Shri Mehr Chand expressed his Inability to come due to illness but promised to send a responsible person. He provided the contact number (78761-49028) of Ward Member Swetty, who was contacted but stated that she was in Manikaran and no one else was available at that late hour.
7. At 9:25 PM, HC Jagdish Kumar conducted reconnaissance of the area and sent Constable Ajay Kumar No. 444 to search for independent witnesses. Constable Ajay returned at 9:50 PM, reporting no success. The team then cordoned off the area near the spring.
8. At 10:00 PM, a person was seen approaching from the Jalugra side under the streetlight. When the police party shone a searchlight on him, he tried to flee but was apprehended after being identified by the informant as Suresh Kumar (bail petitioner). A backpack was found on him, which he could not satisfactorily explain.
9. At 10:10 PM, a vehicle (Pickup No. HP 66A 0355) was stopped, but its driver, Desh Raj, son of Shri Tikam Ram, resident of Village Channikhod, PO Jalugra, refused to be a witness, citing a prior involvement in a 15 KG charas case and a family emergency.
10. The backpack (black, two-strapped, with orange stripes and branded "Quechua") was searched, revealing 4 KG 80 GM of charas/cannabis wrapped in transparent plastic. The contraband was weighed, sealed in a cloth parcel with 6 seals of "SIU R5" and samples were taken in NCB-1 Form (Triplicate). The seizure memo was signed by witnesses Ct. Ajay Kumar and Ct. Tej Ram, as well as the accused Suresh Kumar (bail petitioner).
11. Suresh Kumar (bail petitioner) was arrested at 03:50 AM on 01.01.2023 near Chaung spring. His father, Ses Ram, was informed. A medical examination was conducted at CHC Jari, and the contraband was deposited in the malkhana under the seal of SHO Kulwant Singh
Personal liberty is a fundamental right, and bail should be granted unless there are compelling reasons to deny it, especially in light of trial delays.
The court emphasized the presumption of innocence and the necessity of judicial discretion in granting bail, particularly in cases involving commercial quantities of contraband.
Bail cannot be granted under Section 37 of the NDPS Act for commercial quantity possession unless specific conditions are met, particularly if the public prosecutor opposes the application.
The court held that the applicant is entitled to bail as the quantity of contraband does not constitute commercial quantity, thus Section 37 of the NDPS Act is inapplicable, and the presumption of in....
Prolonged incarceration due to prosecution delays can override statutory bail restrictions under Section 37 of the NDPS Act, aligning with Article 21's protection of personal liberty.
The right to a speedy trial is fundamental, and prolonged incarceration without justifiable cause infringes on the accused's rights, warranting bail under stringent provision scrutiny.
Prolonged incarceration without trial violates the right to personal liberty under Article 21, necessitating the grant of bail even under stringent provisions like the NDPS Act if no reasonable groun....
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