Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2025 Supreme(HP) 762

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
RAKESH KAINTHLA, J.
Deepak Kumar - Petitioner
Versus
State of Himachal Pradesh – Respondent
Cr. MP(M) No. 813 of 2025
Decided On : 28-04-2025

Advocates Appeared:
For the Petitioner:Mr. Ganesh Barowalia, Advocate.
For the Respondent:Mr. Jitender Sharma, Additional Advocate General.

Anticipatory bail under the NDPS Act should be granted sparingly, especially when custodial interrogation is necessary for serious offences.

Headnote:
(A) Narcotic Drugs and Psychotropic Substances Act, 1985 - Sections 21 and 29 - Pre-arrest bail - The petitioner sought pre-arrest bail in connection with FIR for narcotic offences, asserting false implication based on co-accused's statement - The court emphasized that anticipatory bail is an extraordinary remedy, to be granted sparingly, particularly in serious offences involving narcotics. (Paras 1, 6, 14, 18)

(B) Judicial Discretion - The court must balance individual rights against public interest and the need for effective investigation when considering anticipatory bail applications. (Paras 9, 10, 17)

Facts of the case:
The petitioner was implicated in a narcotics case based on a co-accused's disclosure, despite not being named in the FIR. The co-accused was found with heroin, and the petitioner was expected to cooperate with the investigation.

Findings of Court:
The court found that the petitioner was not entitled to pre-arrest bail due to the serious nature of the allegations and the necessity for custodial interrogation.

Issues: The main issues included the admissibility of the co-accused's statement and the appropriateness of granting pre-arrest bail in narcotics cases.

Ratio Decidendi: The court ruled that anticipatory bail should not be granted when custodial interrogation is necessary, especially in serious offences like those under the NDPS Act.

Result: Petition dismissed.

JUDGMENT :

(Rakesh Kainthla, J.)

The petitioner has filed the present petition for seeking pre-arrest bail. It has been asserted that the police had registered an FIR No. 23 of 2025, dated 17.01.2025 for the commission of offences punishable under Sections 21 and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short NDPS Act) at Police Station Dharmapur, District Solan, H.P. The petitioner has been falsely implicated in the said FIR based on the disclosure statement made by the co-accused Banti. The petitioner’s name did not appear in the FIR. The co-accused has been granted bail by the Court. As per the prosecution’s case, the co-accused was found in possession of 7.25 grams of heroin, which is an intermediate quantity. The petitioner would join the investigation as and when directed to do so. Hence the petition.

2. I have heard Mr Ganesh Barowalia, learned counsel for the petitioner and Mr Jitender Sharma, learned Additional Advocate General, for the respondent-State.

3. Mr. Ganesh Barowlia, learned Counsel for the petitioner, submitted that the petitioner is innocent and he was falsely implicated. He has been named by the co-accused, and the statement made by the co-accused is inadmissible in evidence. There is no prohibition in granting pre-arrest bail to a person stated to be involved in the commission of an offence punishable under the ND&PS Act. Therefore, he prayed that the present petition be allowed and the petitioner be released on bail. He relied upon the judgments of Manu Sharma vs. State of H.P. 2025:HHC:7027, Paras vs. State of H.P. 2025:HHC:4006 and Lakhwinder Kaura @ Neeru @ Lok vs. State of Punjab CrMM 10843 of 2025 decided on 25.03.205 in support of his submission.

4. Mr Jitender Sharma, learned Additional Advocate General, for the respondent-State, submitted that the petitioner is involved in the commission of a serious offence. There is sufficient material to connect the petitioner with the commission of a crime. His custodial interrogation is necessary to determine the source of the heroin. Therefore, he prayed that the present petition be dismissed.

5. I have given considerable thought to the submissions made at the bar and have gone through the records of the case carefully.

6. It was laid down by the Hon’ble Supreme Court in P. Chidambaram v. Directorate of Enforcement, (2019) 9 SCC 24: (2019) 3 SCC (Cri) 509: 2019 SCC OnLine SC 1143 that the power of pre-arrest bail is extraordinary and should be exercised sparingly. It was observed:

“69. Ordinarily, arrest is a part of the procedure of the investigation to secure not only the presence of the accused but also several other purposes. Power under Section 438 Cr.P.C. is an extraordinary power, and the same has to be exercised sparingly. The privilege of pre-arrest bail should be granted only in exceptional cases. The judicial discretion conferred upon the court has to be properly exercised after application of mind as to the nature and gravity of the accusation; the possibility of the applicant fleeing justice and other factors to decide whether it is a fit case for the grant of anticipatory bail. Grant of anticipatory bail to some extent interferes in the sphere of investigation of an offence, and hence, the court must be circumspect while exercising such power for the grant of anticipatory bail. Anticipatory bail is not to be granted as a matter of rule, and it has to be granted only when the court is convinced that exceptional circumstances exist to resort to that extraordinary remedy.”

7. It was held in P. Chidambaram (supra) that economic offences are to be treated differently from other offences. It was observed:

Economic offences

78. Power under Section 438 CrPC being an extraordinary remedy, has to be exercised sparingly; more so, in cases of economic offences. Economic offences stand as a different class as they affect the economic fabric of society. In Directorate of Enforcement v. Ashok Kumar Jain [Directorate of Enforcement v. Ashok