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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
VIRENDER SINGH, J.
Deepak Kashyap - Applicant
Versus
State of Himachal Pradesh – Respondent
Cr.MP(M) No.187 of 2025
Decided On : 11-03-2025
(A) Bharatiya Nagarik Suraksha Sanhita, 2023 - Section 483 - Narcotic Drugs & Psychotropic Substances Act - Sections 21, 29, 61, 85 - Bail application filed by the applicant during trial for possession of chitta/heroin. The applicant argues that the quantity does not constitute 'commercial quantity', thus Section 37's rigors do not apply. The applicant has a history of other cases but remains unconvicted. The court finds the presumption of innocence applicable, allowing bail due to the indefinite period of judicial custody. (Paras 1, 19, 20, 24)
(B) Judicial Custody - The court emphasizes that pre-trial punishment is prohibited and that the applicant cannot be held indefinitely without conviction. (Paras 20, 23)
(C) Bail Conditions - The court sets specific conditions for bail, including availability for interrogation and non-tampering with evidence. (Paras 25, 26)
Facts of the case:
The applicant was arrested for allegedly possessing 29.10 gms of chitta/heroin, with claims of false implication. The investigation is complete, and the applicant has other pending cases but no convictions.
Findings of Court:
The court allows the bail application, citing the lack of commercial quantity and the presumption of innocence.
Issues: The court addressed the applicability of Section 37 of the NDPS Act and the implications of the applicant's previous cases.
Ratio Decidendi: The court ruled that without commercial quantity, Section 37's restrictions are not applicable, and the applicant retains the presumption of innocence.
Result: Bail application allowed.
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-Deepak Kashyap has sought his release, on bail, during the pendency of the trial, in case FIR No.180 of 2024, dated 06.11.2024, registered under Sections 21, 29-61-85 of the Narcotic Drugs & Psychotropic Substances Act (hereinafter referred to as the ‘NDPS Act’), with Police Station Kangra, District Kangra, 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 for allegedly possessing 29.10 gms of chitta/heroin, along with currency notes and ornaments.
3. As per applicant, the contraband, allegedly recovered in the present case, does not fall within the definition of ‘commercial quantity’. As such, rigors of Section 37 of the NDPS Act are not applicable, in this case.
4. It is the case of the applicant that he has no concern whatsoever with the crime, for which, he has been arrested. The investigation is also stated to be complete.
5. Applicant, in the present bail application, has himself admitted that apart from the present case, three other cases have also been registered against him, but, according to him, he has not been convicted in any of the cases, the particulars of which are reproduced, as under:-
i. FIR No.142/2023 dated 19.08.2023 under Section 21 of the NDPS Act at PS Dehra.
ii. FIR No.18/2023 dated 18.01.2023 under Section 21 of the NDPS Act at PS Mohali.
iii. FIR No.118/2024 dated 18.11.2024 under Section 21 of the NDPS Act at PS Gagret.
6. According to the applicant, he had earlier tried his luck by moving similar application, before the Court of learned Special Judge-II, Kangra at Dharamshala, District Kangra, Himachal Pradesh. However, the same was dismissed vide order dated 14.01.2025.
7. Apart from this, Mr. Vijender Katoch, 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 Sub-Inspector Gurdev Singh, along with other police officials, was on patrolling duty, as well as, the duty to detect the crime, relating to excise and narcotics.
10. It is the further case of the police that on 06.11.2024, at about 09:30pm, when, the police party was present at a place known as ‘Vodhar Valla’, then, he received a secret information regarding the indulgence of Pawan Kumar and Neena Devi, in the business of selling chitta. As per informant, in case, their house is searched, then, the large quantity of heroin/chitta could be recovered. The said information was found to be authentic and reliable and due to paucity of time, it was not possible for police party to obtain search warrant or authorization, as, according to the Investigating Officer, in case of delay, there were chances that the contraband could be shifted from the spot. As such, IO has complied with Section 42(2) of the NDPS Act and thereafter, he has associated two independent witnesses, namely Ashwani Kumar and Sunil Dutt.
11. It is the further case of the police that subsequently, the raiding party, formed by the IO, reached at the spot i.e. house of Pawan Kumar and his wife Neena Devi. Both of them were apprised about the secret information and thereafter, other codal formalities were complied with. Their room was searched and during the search, 26.10 gms of heroin/chitta was recovered, which was taken into possession. Apart from this, gold and silver ornaments, as well as, currency notes, total amounting to Rs.44,580/-, were also found there, which were also taken into possession.
12. After registration of the FIR, the police has arrested both the accus
The court held that the absence of commercial quantity under the NDPS Act allows the presumption of innocence, permitting bail despite prior pending cases.
The absence of 'commercial quantity' in drug possession negates the application of Section 37 of the NDPS Act, allowing for bail and preserving the presumption of innocence.
Bail granted in NDPS case involving non-commercial quantity contraband: Section 37 rigors inapplicable; presumption of innocence persists despite prior pending cases; no purpose in indefinite custody....
Courts must strictly apply Section 37 of the NDPS Act requiring proof of non-guilt and lack of risk to public safety for bail eligibility.
The court ruled that possession of a non-commercial quantity of narcotics does not invoke the rigors of Section 37 of the NDPS Act, allowing for bail based on the presumption of innocence.
The court held that bail for offences involving commercial quantities of narcotics requires strict adherence to Section 37 of the NDPS Act, emphasizing the necessity of satisfying specific conditions....
The court emphasized the mandatory conditions under Section 37 of the NDPS Act for granting bail, requiring reasonable grounds for believing the accused is not guilty and assurance against further of....
The court emphasized that the mandatory conditions under Section 37 of the NDPS Act must be satisfied for bail, particularly in cases involving commercial quantities of contraband.
Bail can be granted when the accused is a permanent resident, has no prior cases, and the contraband is non-commercial, ensuring conditions are met.
The court emphasized that under Section 37 of the NDPS Act, bail can only be granted if there are reasonable grounds for believing the accused is not guilty and unlikely to commit further offences.
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