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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Rakesh Kainthla, J.
Jeet Bahadur Rawal – Appellant
Versus
State of Himachal Pradesh - Respondent
Cr.MP(M) No. 777 of 2025
Decided on : 28-4-2025
(A) Narcotic Drugs and Psychotropic Substances Act, 1985 - Sections 18 and 29 - Bail application - Petitioner arrested for possession of 3.890 Kgs of opium - Petitioner has no criminal antecedents and has been in custody for ten months - Co-accused released on bail - Court finds insufficient evidence to attribute commercial quantity to petitioner - Petition allowed. (Paras 1, 12, 15)
(B) Bail - Parameters for granting bail - The court must consider the nature of accusations, gravity of the offence, and likelihood of tampering with witnesses - The fundamental purpose of bail is to ensure the accused's presence during trial. (Paras 8, 9, 10)
Facts of the case:
The petitioner was arrested for possession of opium, with the police recovering 3.890 Kgs from him and a co-accused. The petitioner has been in custody for ten months, and the trial is not likely to conclude soon. (Paras 1, 3)
Findings of Court:
The court found that the prosecution failed to establish that the petitioner possessed a commercial quantity of opium, leading to the conclusion that the rigours of Section 37 of the NDPS Act do not apply. (Paras 12, 15)
Issues: The main issues were whether the petitioner was in possession of a commercial quantity of opium and whether the conditions for bail under Section 37 of the NDPS Act were satisfied. (Paras 6, 12)
Ratio Decidendi: The court ruled that the evidence did not sufficiently establish the quantity of opium attributed to the petitioner, thus allowing bail despite the serious nature of the charges. (Paras 12, 15)
Result: Petition allowed; petitioner released on bail subject to conditions.
JUDGMENT :
(Rakesh Kainthla, J.)
The petitioner has filed the present petition for seeking regular bail. It has been asserted that the petitioner was arrested for the commission of offences punishable under Sections 18 & 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short ‘NDPS Act’) vide FIR No. 114/2024, dated 03.07.2024 registered at Police Station, West (Boileauganj), District Shimla, H.P. As per the prosecution, the police had recovered 3.890 Kgs of opium from the petitioner and the co-accused. The petitioner has been in custody for ten months. The Court has already released the co-accused on bail. The petitioner has no criminal antecedents, and he has roots in the society. He would abide by all the terms and conditions which may be imposed upon him by the Court. No useful purpose would be served by detaining the petitioner in judicial custody. The police have filed the charge sheet, and the custodial interrogation of the petitioner is not required. The trial is not likely to conclude soon, and the petitioner cannot be kept behind the bars indefinitely. Therefore, it was prayed that the present petition be allowed and the petitioner be released on bail.
3. The petition is opposed by filing a status report asserting that the police party was on patrolling duty on 03.07.2024. They intercepted a bus bearing registration No. HP-36D-1830 and found one backpack each with the occupants of seats No. 30 and seat No.31 of the bus. The occupant of seat No.30 of the bus revealed his name as Jeet Bahadur (present petitioner), and the occupant of seat No.31 revealed his name as Moti Lal Budha. The police checked the backpacks and found two transparent packets in each backpack, along with other articles. The police checked the plastic packets and found opium in them. The opium was weighed, and its weight was found to be 3.890 Kgs. The police seized the opium and arrested the petitioner and Moti Lal Budha. It was found from their interrogation that Dhan Bahadur, Moti Lal Budha, and the petitioner are residents of Nepal. They are related to each other. They had bought four packets of opium from a woman on 02.07.2024. Two packets were kept by Moti Lal, and two packets were kept by the petitioner. The opium was sent to FSL, and as per the report of analysis, the percentage of morphine found in the opium was 7.19% w/w. The police filed the charge sheet before the Court on 13.09.2024.
4. I have heard K.S. Gill, learned counsel for the petitioner and Mr Jitender Sharma, learned Additional Advocate General, for the respondent/State.
5. Ms K.S. Gill, learned counsel for the petitioner, submitted that the petitioner is innocent and he was falsely implicated. Even if the prosecution's case is accepted in its entirety, it is not established how much quantity was found in possession of the petitioner. Therefore, he prayed that the present petition be allowed and the petitioner be released on bail.
6. Mr Jitender Sharma, learned Additional Advocate General for the respondent-State, submitted that the petitioner was found in possession of a commercial quantity of opium and the rigours of Section 37 of NDPS apply to the present case. The petitioner has failed to satisfy the twin conditions laid down in Section 37 of the NDPS Act. Therefore, he prayed that the present petition 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 as under 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, the manner in which the crime is alleged to have been committed, the gravity of the offence, the role attr
The court ruled that insufficient evidence existed to attribute a commercial quantity of opium to the petitioner, allowing bail despite serious charges under the NDPS Act.
The court ruled that the rigours of Section 37 of the ND&PS Act do not apply as the quantity of heroin is less than commercial, allowing bail with conditions.
The court established that the rigours of Section 37 of the NDPS Act do not apply for intermediate quantities, allowing bail based on the absence of criminal antecedents and reasonable conditions to ....
The court ruled that the rigours of Section 37 of the NDPS Act do not apply to the petitioner as the quantity of heroin is intermediate, allowing for bail under reasonable conditions.
Bail is granted considering the nature of the accusation, the defendant's status as a first offender, and the absence of risks associated with granting bail, subject to stringent conditions.
The court established that pre-trial detention is unjustified when the accused can be secured by bail, especially in the absence of substantial evidence.
Bail denied in NDPS commercial quantity case as twin conditions under Section 37 unsatisfied; presumptions of culpable mental state and possession under Sections 35 & 54 not rebutted by accused.
The court ruled that bail is not a matter of right, especially for drug-related offences, and emphasized the importance of considering the accused's criminal antecedents and potential for re-offendin....
The presence of prior convictions and the nature of the crime necessitate a cautious approach to bail, emphasizing that release could pose a threat to society.
The court established that possession of narcotics must be conscious, and bail may be granted based on the absence of criminal antecedents and the nature of the offence.
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