Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2025 Supreme(HP) 747

IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
VIRENDER SINGH, J.
Manoj Kumar @ Pathak - Appellant
Versus
State of Himachal Pradesh - Respondent
Cr. MP (M) No. 370 of 2025
Decided On : 07-03-2025

Advocates:
Advocate Appeared:
For the Appellant : Anubhav Chopra
For the Respondents: Tejasvi Sharma, Ranjana Patial

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.

Headnote:
(A) Bharatiya Nagarik Suraksha Sanhita, 2023 - Section 483 - Narcotic Drugs & Psychotropic Substances Act - Sections 20, 21, 25, 27 and 29 - Bail application - Applicant sought bail during trial for possession of 112 gms of charas and 5 gms of heroin - Court found contraband did not constitute 'commercial quantity', thus Section 37 not applicable - Presumption of innocence upheld despite prior criminal history - Bail granted with conditions. (Paras 1, 22, 23, 28, 29)

Facts of the case:
The applicant was arrested for allegedly possessing narcotics, claiming innocence and that the quantity did not meet the threshold for commercial quantity under the NDPS Act. Previous bail applications were dismissed due to criminal history.

Findings of Court:
The investigation was complete, and the applicant's continued custody was deemed unnecessary given the circumstances and the nature of the charges.

Issues: The main issues included the applicability of Section 37 of the NDPS Act and the implications of the applicant's prior criminal history on the bail decision.

Ratio Decidendi: The court ruled that the absence of 'commercial quantity' negated the application of Section 37, thereby preserving the presumption of innocence and justifying bail despite prior cases against the applicant.

Result: Bail application allowed.

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-Manoj Kumar @ Pathak has sought his release, on bail, during the pendency of the trial, in Case FIR No. 156 of 2024, dated23.09.2024, registered under Sections 20, 21, 25, 27 and 29 of the Narcotic Drugs & Psychotropic Substances Act (hereinafter referred to as the ‘NDPS Act’), with Police Station Manali, District Kullu, 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 112 gms of charas and 5 grams of chitta/heroin.

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 Section37 of the NDPS Act are not applicable, in this case.

4. It is the case of the applicant that in the present case, investigation is complete and charge-sheet has been submitted, before the Court of learned Additional Sessions Judge, Kullu, H.P.

5. According to the applicant, he had earlier tried his luck by moving similar application, before the Court of learned Special Judge-II, Kullu, Himachal Pradesh. However, the same was dismissed vide order dated20.11.2024.

6. Thereafter, the applicant had moved another bail application, before the Court of learned Special Judge-II, Kullu, District Kullu, Himachal Pradesh. However, the same was also dismissed vide order dated 15.01.2025, mainly on the ground of his criminal history.

7. The applicant is stated to be in judicial custody from 23.09.2024 and according to him, the chances of conclusion of trial, against him, are not so bright. As such, he has prayed that no useful purpose would be served by keeping him in the judicial custody, that too, for the indefinite period.

8. Highlighting the criminal history, the applicant has pleaded that two other cases, i.e. FIR No.79/23, registered under the provisions of NDPS Act, with Police Station Manali and FIR No.119/10, registered under Sections 323, 341, 427, 506 and 34 IPC, with Police Station Manali, have been registered against him.

9. Apart from this, Mr. Anubhav Chopra, 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.

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

11. When, put to notice, the police has filed the status report, disclosing therein, that Investigating Officer of the present case, along with other police officials, was on patrolling duty, as well as, the duty to detect the crime, relating to excise and narcotics.

12. It is the further case of the police that when, the police party was conducting the routine checking of vehicles, near Smahan Bazaar at NH-03, then, at about 12:30 am, he stopped a vehicle, being driven by its driver, coming from Manali side and going towards Bahang side, for checking and its registration number was found to be HP-58-A-7320 make Maruti Brezza, red colour. The driving licence of the driver was demanded and on checking, the same was found to be issued in the name of Manoj Kumar (applicant). Manoj Kumar (applicant) has disclosed to the police that he is owner of the vehicle, but, is not having RC of the said vehicle.

13. It is the further case of the police that thereafter, the smell of smoke of cigarette was found inside the vehicle and on the rear seat, a man and a woman were found sitting there. On enquiry, the woman disclosed her name as Sunita, R/o District Nainital and the man disclosed his name as Anil Kumar, R/o Manali. On checking of the vehicle, charas, weighing 112 grams and chitta, weighing 5 grams, were found, which was taken into possession and other codal formalities were completed.

14. After registratio

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