2024:HHC:6089 REPORTABLE

IN THE HIGH COURT OF HIMACHAL PRADESHAT SHIMLA

Cr.MP(M) No.1163 of 2024
Reserved on: 29.07.2024
Announced on: 31.07.2024
__________________________________________________________
Vijay alias Keshav ......Petitioner
Versus

State of H.P. …Respondent

Coram
Hon’ble Mr. Justice Ranjan Sharma, Judge
1Whether approved for reporting? Yes

For the petitioner: Mr. Anirudh Sharma, Advocate.

For the respondent: Mr. Rajat Chaudhary, Assistant

Advocate General.

Ranjan Sharma, Judge

Bail petitioner, Vijay alias Keshav, [who is in

custody since 11.02.2024], has come up before this

Court seeking regular bail under Section 439 of the Code

of Criminal Procedure [hereinafter referred to as

‘Cr.P.C.’], for grant of bail originating from FIR No.26 of

2024, dated 06.02.2024, under Sections 21 & 29 of the

Narcotic Drugs and Psychotropic Substances Act, 1985,

[hereinafter referred to as ‘NDPS Act’] registered at

1
Whether reporters of Local Papers may be allowed to see the judgment?
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Police Station, Dharampur, District Solan [H.P.].

FACTUAL MATRIX:
2. Case set up by Mr. Anirudh Sharma, learned

counsel for bail petitioner-accused [Vijay alias Keshav], is

that bail petitioner is innocent and he has been falsely

implicated and he has nothing to do with the commission

of the offence. It is further averred that the bail petitioner

is a resident of House No.27, Block No.2014, Sector 32-

C, Chandigarh [U.T.], is a responsible citizen and there is

no likelihood of his fleeing away from the investigation or

the trial. The bail petitioner has furnished undertakings

that in case he is released on bail, he shall appear in the

investigation and trial and shall not cause any

inducement, threat or promise to any person or persons

acquainted with the facts of the case. Another

undertaking has also been furnished that the bail

petitioner shall not commit any similar offence in future.

2(i). It is averred in the instant bail application that

the petitioner had filed an application for bail, before

Learned Trial Court i.e. Learned Special Judge-II, Solan,

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District Solan [H.P.], which was rejected on 20.04.2024,

Annexure P-1. Thereafter, the petitioner filed the second

bail application before this Court, which was withdrawn

on 23.05.2024, Annexure P-2. The petitioner filed the

third bail application before Learned Trial Court i.e.

Learned Special Judge-II, Solan [H.P.], on 29.05.2024,

Annexure P-3, which was also dismissed.

2(ii). The instant bail application also states that

the petitioner has no criminal antecedents. During the

pendency of the instant bail application, the petitioner

had moves a Cr.MP No.2403 of 2024, enclosing copies of

judgment dated 20.04.2024, Annexure A-1, whereby, the

main accused Nikita Dutt was enlarged on bail. Along

with this application an order dated 16.05.2024,

Annexure A-2, has also been enclosed, indicating that

second co-accused [Bishap Sain], has also enlarged on

bail by the Learned Trial Court.

2(iii). In the above background, the bail petitioner

has averred that the bail petitioner is ready to furnish

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surety and shall not tamper with the administration of

justice in any manner. Since the bail petitioner is in

custody since 11.02.2024, therefore, the instant bail

application was filed by sister of bail petitioner on his

behalf.

PROCEEDINGS BEFORE THIS COURT :

3. The instant bail application [Cr.MP(M) No.1163

of 2024] was listed before this Court on 31.05.2024

when, on request of learned counsel for petitioner, the

same was adjourned and the matter was then listed on

28.06.2024 when, after hearing learned counsel for

petitioner and keeping in view the averments that the bail

petitioner has no connection whatsoever either by way of

CDR details or WhatsApp records or Bank transactions

inter se the bail petitioner with two accused, Bishap Sain

and Nikita Dutt. Therefore, this Court issued notice on

01.07.2024, directing the State Authorities to file the

Status Report in the matter. The instant bail application

was listed on 19.07.2024 when, State Authorities filed

Status Report dated 19.07.2024, which was taken on

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record and copy of the Status Report was furnished to

learned counsel for the petitioner who prayed for some

time to go through the same and make submissions.

Finally, on 29.07.2024, the matter was heard by this

Court.

STAND OF THE STATUS AUTHORITIES :

4. The Status Report filed by State Authorities

dated 19.07.2024, narrates the sequence of events. The

Status Report reveals that on 06.02.2024, police party

headed by HHC Rajesh Kumar No.216, was on patrolling

duty in the Government vehicle bearing Registration

No.HP-14B-9570, towards Dharampur, Parwanoo, TTR

and when, at about 6:10 p.m. the police party received

information, when they were about one kilometer around

Sanwara Toll Plaza, that a vehicle bearing Registration

No.HP-33-0054 [Tigor] was coming from Panchkula to

Solan and the persons travelling in the said car were

carrying Heroin/Chitta. Accordingly, at about 7:30 p.m.

on 06.02.2024, police stopped the aforesaid vehicle, in

which Bishap Sain & Nikita Dutt were travelling. Police

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searched the aforesaid two persons in the presence of

witnesses as mandated by the norms and nothing was

found. However, the vehicle in which they were travelling

i.e. No.HP-33-0054 was searched by police party in which

a plastic pouch containing brown coloured round shaped

substance was recovered, which after weighing came out

to be 11 grams of Heroin/Chitta. The recovery memo was

prepared and thereafter Rukka was sent and FIR was

registered by police.

4(i). Consequent upon the recovery of 11 grams of

Heroin/Chitta from Bishap Sain & Nikita Dutt, as

referred to above, both the accused were arrested by

police on 07.02.2024, at about 02:50 a.m. (Night) and

thereafter both were produced before Learned

Jurisdictional Magistrate and then again on 09.02.2024

for preparation of the inventory as per norms.

4(ii). Consequent upon the arrest of main accused,

Bishap Sain & Nikita Dutt, on 07.02.2024 and during the

remand, both these accused reveal to police that they

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have purchased Heroin/Chitta from a person in Zirakpur

[Punjab], accordingly, the police party went to Zirakpur

[Punjab], but no such person could be traced.

4(iii). The Status Report reveal that on 10.02.2024,

the police party nabbed the bail petitioner, namely Vijay

alias Keshav, who is resident of House No.27, Block

No.2014, Sector 32-C, Chandigarh [U.T.] and he was

formally arrested on 11.02.2024 by the police. After his

arrest he was produced before Jurisdictional Magistrate

i.e. Additional Chief Judicial Magistrate, Kasauli, District

Solan, whereby, he was sent for four days police remand.

4(iv). During the period of remand of bail petitioner,

it transpired that the bail petitioner, Vijay alias Keshav,

had purchased Heroin/Chitta from Rahul of Zirakpur

[Punjab]. Thereafter, police took the bail petitioner to

Zirakpur [Punjab] to trace Rahul [Main Supplier], but no

such person was found by the police.

4(v). The Status Report indicates that the bail

petitioner, had resorted to WhatsApp voice calls and

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WhatsApp chats with the arrested accused, Bishap Sain

& Nikita Dutt, as referred to above. The Status Report

further reveals that bail petitioner as well as arrested

accused, Bishap Sain & Nikita Dutt, had adjusted their

respective phones by putting their mobiles on Disappear

Out Message Mode, due to which phones chats were

deleted.

4(vi). The Status Report further indicates that on

01.02.2024, the main accused Bishap Sain had

transferred an amount of Rs.1,000/- [Rupees One

Thousand] to bail petitioner, Vijay alias Keshav, through

Paytm online mode.

It is in this background Status Report was

filed and Learned State Counsel has prayed for dismissal

of bail application.

5. Heard Mr. Anirudh Sharma, Learned Counsel

for the petitioner as well as Mr. Rajat Chaudhary,

Learned Assistant Advocate General, for the Respondent

and have perused the available material.

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STATUTORY PROVISIONS:

6. In order to test, the claim, for enlargement on

bail, it is necessary to have a recap of the provisions

of Section 21 & 29 of the NDPS Act, which read as

under:-

“Section 21 of the NDPS Act reads as under:

21. Punishment for contravention in relation

to manufactured drugs and preparations-
Whoever, in contravention of any provision of
this Act or any rule or order made or condition
of licence granted thereunder, manufactures,
possesses, sells, purchases, transports,
imports inter-State, exports inter-State or uses
any manufactured drug or any preparation
containing any manufactured drug shall be
punishable ,--

(a) where the contravention involves small

quantity, with rigorous imprisonment for a
term which may extend to one year, or with
fine which may extend to ten thousand
rupees, or with both;
(b) where the contravention involves
quantity, lesser than commercial
quantity but greater than small
quantity, with rigorous imprisonment
for a term which may extend to ten
years and with fine which may extend
to one lakh rupees;
(c) where the contravention involves
commercial quantity, with rigorous
imprisonment for a term which shall not be
less than ten years but which may extend
to twenty years and shall also be liable
to fine which shall not be less than one
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lakh rupees but which may extend to

two lakh rupees:
Provided that the court may, for reasons to
be recorded in the judgment, impose a fine
exceeding two lakh rupees.

29. Punishment for abetment and criminal

conspiracy.-

(1) Whoever abets or is a party to a criminal

conspiracy to commit an offence punishable
under this Chapter, shall, whether such
offence be or be not committed in
consequence of such abetment or in
pursuance of such criminal conspiracy, and
notwithstanding anything contained in section
116 of the Indian Penal Code (45 of 1860), be
punishable with the punishment provided for
the offence.

(2) A person abets, or is a party to a criminal

conspiracy to commit, an offence, within the
meaning of this section, who, in India abets
or is a party to the criminal conspiracy to
the commission of any act in a place without
and beyond India which-

(a) would constitute an offence if

committed within India; or

(b) under the laws of such place, is an

offence relating to narcotic drugs or
psychotropic substances having all the
legal conditions required to constitute it
such an offence the same as or analogous
to the legal conditions required to
constitute it an offence punishable under
this Chapter, if committed within India.

MANDATE OF LAW:
7. Notably, the offences under the NDPS Act

including Section 21 of the aforesaid Act, as in this

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case are cognizable, therefore, the claim of the suspect-

accused for post arrest bail-regular bail is to be

examined/tested within the parameters prescribed of the

Code of Criminal Procedure and also the broad para-

meters mandated by the Hon’ble Supreme Court

regulating grant of bail in Gurbaksh Singh Sibbia versus

State of Punjab (1980) 2 SCC 565, Ram Govind

Upadhyay versus Sudarshan Singh (2002) 3 SCC 598 ;

Kalyan Chandra Sarkar versus Rajesh Ranjan, (2004)

7 SCC 528 ; Prasanta Kumar Sarkar versus Ashish

Chatterjee, (2010) 14 SCC 496 ; reiterated in P

Chidambaram versus Directorate of Enforcement,

(2019) 9 SCC 24, mandating that the bail {anticipatory

or regular} is to be granted where the case is frivolous or

groundless and no prima facie or reasonable grounds

exists which lead to believe or point out towards

accusation ; and these parameters for regular bail have

been reiterated in Sushila Aggarwal versus State-NCT

Delhi, (2020) 5 SCC 01.

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7(i). While dealing with the case for grant of

regular bail, under Section 439 Cr PC, the three judges

bench of Hon’ble Supreme Court, after reiterating the

broad parameters, has held in Deepak Yadav versus

State of Uttar Pradesh, (2022) 8 SCC 559, in Para 25

that the nature of the crime has a huge relevancy, while

considering claim for bail.

7(ii). In the case of Ansar Ahmad versus State

of Uttar Pradesh, 2023 SCC Online SC 974, the

Hon’ble Supreme Court had expanded the horizon of

the broad parameters, which are to be primarily taken

into account, for considering the claim for regular bail

or anticipatory bail as under:

11. Mr. R. Basant, the learned Senior Counsel

appearing for one of the private respondents
that the Court while granting bail is not
required to give detailed reasons touching
the merits or de-merits of the prosecution
case as any such observation made by the
Court in a bail matter can unwittingly cause
prejudice to the prosecution or the accused at
a later stage. The settled proposition of law,
in our considered opinion, is that the order
granting bail should reflect the judicial
application of mind taking into
consideration the well-known parameters
including:

(i) The nature of the accusation weighing

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in the gravity and severity of the

offence;
(ii) The severity of punishment;
(iii) The position or status of the accused,
i.e. whether the accused can exercise
influence on the victim and the
witnesses or not;
(iv) Likelihood of accused to approach or
try to approach the victims/witnesses;
(v) Likelihood of accused absconding from
proceedings;
(vi) Possibility of accused tampering with
evidence;
(vii) Obstructing or attempting to obstruct
the due course of justice;
(viii) Possibility of repetition of offence if left
out on bail;
(ix) The prima facie satisfaction of the
court in support of the charge
including frivolity of the charge;
(x) The different and distinct facts of each
case and nature of substantive and
corroborative evidence.

12. We hasten to add that there can be

several other relevant factors which,
depending upon the peculiar facts and
circumstances of a case, would be required
to be kept in mind while granting or
refusing bail to an accused. It may be
difficult to illustrate all such circumstances,
for there cannot be any straight jacket
formula for exercising the discretionary
jurisdiction vested in a Court under
Sections 438 and 439 respectively of the
CrPC, as the case may be.

7(iii). In CBI versus Santosh Karnani, (2023) 6

SCALE 250, the Hon’ble Supreme Court has reiterated

the illustrative time tested broad parameters which are

required to be taken into account while considering

the prayer for bail ; which have recently been reiterated

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by the Hon’ble Supreme Court in the case of State

of Haryana versus Dharamraj, 2023 SCC OnLine SC

1085.

7(iv). This Court is also conscious of the fact that as

per the mandate of law, in Criminal Appeal No 3840 of

2023, titled as Saumya Churasia versus Directorate of

Enforcement, decided on 14.12.2023, while considering

the prayer for bail, though a Court, is not required to

weigh the evidence collected by the Investigating Agency

meticulously, nonetheless, the Court should keep in mind

the nature of accusation; the nature of evidence

collected; the gravity of offence; the role attributed to

each of the accused; the severity of punishment

prescribed for an offence(s); the character of the accused;

the possibility of securing presence of accused during the

trial; the apprehension of witnesses being tampered; the

possibility of accused causing any threat or inducement

to witnesses; by forming a prima facie opinion in the

context of above broad-parameters and by balancing the

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personal liberty of an accused vis-à-vis the societal

rights and interests; and without delving into merits, so

as to prevent any prejudice to either the accused or the

prosecution.

OBJECT OF NDPS ACT:

8. Even in order to examine the claim for

bail under the NDPS Act, this Court deems it necessary,

to have a recap of the Preamble of the NDPS Act, which

reads as under:

“An Act to consolidate and amend the law relating

to narcotic drugs, to make stringent provisions for
the control and regulation of operations relating to
narcotic drugs and psychotropic substances to
provide for the forfeiture of property derived from,
or used in, illicit traffic in narcotic drugs and
psychotropic substances, to implement the
provisions of the International Conventions on
Narcotic Drugs and Psychotropic Substances and
for matters connected therewith.”

8(i). While dealing with the object of the NDPS

Act, the Hon’ble Supreme Court in Durand Didier,

(1990) 1 SCC 95, has mandated that the devastating

menace of clandestine smuggling and illegal trafficking in

drugs and substances has led to drug addiction amongst

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a sizeable section of the society, the adolescents and the

youth.

8(ii). This Court is conscious of the fact that though

the rigors of Section 37(1)(b)(ii) of the NDPS Act, are not

applicable in offences relating to Small Quantity or

Intermediate Quantity but the fact remains, that the

offences under the NDPS Act are “cognizable offences”, in

terms of Section 37(1)(a) of the Act.

In normal parlance, the claim of an accused for

bail has to be examined and tested in the light of the

parameters mandated by the Hon’ble Supreme Court

from time to time. Merely, because the accusation relates

to either a small or Intermediate Quantity, shall neither

confer an automatic right nor a vested right of bail.

Involvement in offences relating to small or intermediate

quantity does not give a license or leverage to a person to

indulge in nefarious activities. The Court has to form an

opinion regarding the involvement of an accused, from

the Case Diary or the Status Report(s) or other available

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material, and in normal situations, aforesaid material

must prevail unless the same is contradicted and/or

overcome or is disproved by other evidence which on the

face of it casts doubt on the material(s) gathered by the

prosecution. Enlargement on bail merely because the

offence-accusation relates to small or Intermediate

Quantity, despite, the fact that the material on record

reveals the prima facie case or reasonable grounds shall

certainly result in adding wings to their flight and giving

leverage to such suspect-accused to continue, expand and

flourish in inhumane, prohibited, illegal and nefarious

activities. Persons including in these activities curtail the

fundamental right of a commoner to live with dignity, by

causing adversarial effect on his mental and physical

state, including health who fall prey to these activities.

8(iii). The exception to this principle, is that

the enlargement on bail {be it relates to either small

quantity or intermediate quantity of contraband} can be

extended, on case to case basis, when the available

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material does not points towards the prima facie

involvement and the past conduct being unblemished,

subject to the fulfillment of other broad parameters,

mandated by the Hon’ble Supreme Court, from time to

time as detailed herein.

ANALYSIS OF CLAIM IN INSTANT CASE

9. Notwithstanding the rejection of earlier bail

applications by Learned Trial Court on 01.03.2024 and

on 24.05.2024 [Annexures P-1 & P-2], dismissing the

same, this Court proceeds to examine the prayer of

petitioner for bail in the instant case.

10. After taking into consideration the entirety

of the facts and circumstances of the case; and the

material on record; and the statutory provisions, and

the mandate of law; as referred to above, this Court is of

the considered view that the bail petitioner [Vijay alias

Keshav], is entitled to be enlarged on bail, for the

following reasons:-

10(i). No prima facie accusation is made out against

the bail petitioner.

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10(ii). The material on record, which is borne out

from the Status Report, does not reveal any reasonable

grounds to believe the accusation against the bail

petitioner.

The Status Report filed by State Authorities

dated 19.07.2024, indicates that police arrested two

persons, namely, Bishap Sain & Nikita Dutt, after

searching their vehicle, in which 11 grams of

Heroin/Chitta was recovered on 06.02.2024 [Night] and

consequent upon their arrest on 07.02.2024 at about

02:50 a.m. [Night] and the bail petitioner has no

connection with two arrested persons namely, Bishap

Sain & Nikita Dutt.

During investigation, on disclosure by Bishap

Sain & Nikita Dutt, arrested accused, the police was

informed that both the accused had purchased the

Heroin/Chitta from a person at Zirakpur [Punjab]. That

being so, once the Heroin/Chitta was purchased by

a person at Zirakpur [Punjab] then, it appears to be

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highly improbable as to why and what basis the police

implicated and arrested the bail petitioner [Vijay alias

Keshav] on 11.02.2024, who is a resident of House

No.27, Block No.2014, Sector 32-C, Chandigarh [U.T.].

The Status Report reveals that bail petitioner

[Vijay alias Keshav] was arrested allegedly, on the

disclosure made by two arrested accused Bishap Sain &

Nikita Dutt, before the police.

10(iii). Leaving everything aside, there is no doubt

that the petitioner herein has been booked under Section

29 of NDPS Act, that too on the basis of statement of

co-accused coupled with the fact that there is no other

supportive material on record, in the Status Report,

either by way of CDRs or Bank Transactions or

otherwise, revealing any connection of the bail petitioner

[Vijay alias Keshav] with the two accused Bishap Sain &

Nikita Dutt, therefore, in view of the mandate of the

Hon’ble Apex Court, in case, titled as Tofan Singh vs.

State of Tamil Nadu, (2021) 4 SCC 1, the disclosure

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statement, in absence of any other supportive material is

inadmissible in following terms:-

“155. Thus, to arrive at the conclusion that a

confessional statement made before an officer
designated under section 42 or section 53 can
be the basis to convict a person under the
NDPS Act, without any non obstante clause
doing away with section 25 of the Evidence
Act, and without any safeguards, would be a
direct infringement of the constitutional
guarantees contained in Articles 14, 20(3) and
21 of the Constitution of India.
156. The judgment in Kanhaiyalal (supra) then goes
on to follow Raj Kumar Karwal (supra) in
paragraphs 44 and 45. For the reasons stated
by us hereinabove, both these judgments do
not state the law correctly, and are thus
overruled by us. Other judgments that
expressly refer to and rely upon these
judgments, or upon the principles laid down by
these judgments, also stand overruled for the
reasons given by us.

157. On the other hand, for the reasons given by us

in this judgment, the judgments of Noor Aga
(supra) and Nirmal Singh Pehlwan v. Inspector,
Customs (2011) 12 SCC 298 are correct in law.

158. We answer the reference by stating:

(i) That the officers who are invested with

powers under section 53 of the NDPS Act
are “police officers” within the meaning of
section 25 of the Evidence Act, as a result of
which any confessional statement made to
them would be barred under the provisions
of section 25 of the Evidence Act, and
cannot be taken into account in order to
convict an accused under the NDPS Act.
(ii) That a statement recorded under section 67
of the NDPS Act cannot be used as a
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confessional statement in the trial of an

offence under the NDPS Act.”

After taking into account the entirety of the

facts and circumstances, as referred to above, the

accusation against the bail petitioner is not made out,

at this stage.

11. The State Authorities could not implicate the

bail petitioner, by arresting him on 11.02.2024, merely

on the basis of an Online-Paytm Transaction of

Rs.1,000/- [Rupees One Thousand] on 01.02.2024,

allegedly between the arrested accused Bishap Sain and

alleging the said transaction to be with the bail

petitioner.

The above plea of the State Authorities, is on

the face of perverse when, a perusal of Paytm-Online

transaction entry dated 01.02.2024, reveals that the

aforesaid Paytm Transaction was between accused,

Bishap Sain with one Bains Service Station and the

aforesaid entry has nothing to do with the bail petitioner,

Vijay alias Keshav, in the instant case.

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The facts in the Status Report, implicating the

bail petitioner, on the stray entry of Paytm transaction of

Rs.1,000/- cannot be made the basis for detaining the

bail petitioner needlessly, in view of law laid down by

Hon’ble Supreme Court in Special Leave to Appeal

[CRL] No.5822/2024, titled as Jeet Ram vs State of

Himachal Pradesh, to support his contention, which

reads as under:-

“3. The appellant is charged with the offences

punishable under Sections 21 and 29 of the
Narcotic Drugs and Psychotropic Substances
Act, 1985. Heroin of the quantity of 8.54 grams
was recovered from the co-accused. We have
perused the allegations contained in the charge-
sheet against the appellant. The allegation
seems to be that there was a transaction
between the appellant and the co-accused
under which a sum of Rs.1,000/- was
transferred by the appellant to the co-
accused by Google Pay.”

In the background of the mandate of law in the

case of Jeet Ram, (supra) once the petitioner-accused,

Jeet Ram, was released on bail, keeping in view the

meagre/stray entry of transfer of Rs.1,000/- by Google

Pay account, as in this case.

In the above background, stray entry of Paytm

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of Rs.1,000/- only, cannot be sole basis for inferring the

connection of bail petitioner with two arrested persons

Bishap Sain & Nikita Dutt, as referred to above.

11(i). Admittedly, once, the contraband and

Heroin/Chitta of 11 grams was recovered from two

accused, Bishap Sain & Nikita Dutt, who were arrested

by police on 07.02.2024 and there is nothing on record

to point out that the bail petitioner had any involvement

in the aforesaid recovery or illicit trafficking, then, the

accusation is not made out against the bail petitioner, at

this stage. Further, the fact as to whether, the bail

petitioner had remitted/transferred the amount of

Rs.1,000/- by ways of Paytm to arrested accused Bishap

Sain is a matter, which is yet to be proved in accordance

with law during the trial. The detention of bail petitioner,

on the basis of mere stray-single Paytm entry of

Rs.1,000/-, which is yet to be proved during the trial, in

accordance with law in considered view of this Court

shall certainly amount to implicating the bail petitioner,

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on the basis of mere conjectures or suspicion, which is

yet to be proved. Unless and until the accusation is

proved during the trial, the bail petitioner is to be

treated innocent in the eyes of law, in view of the

mandate of Hon’ble Supreme Court in Guddan alias

Roop Narayan Versus State of Rajasthan, 2023 SCC

OnLine SC 1242, has outlined that the object of bail is

neither punitive and preventative, in the context of

Article 21 of the Constitution of India, in following

terms:-

“11. In the case of Sanjay Chandra V. Central

Bureau of Investigation, (2012) 1 SCC 40,
while hearing a bail Application in a case of an
alleged economic offence, this court held that
the object of bail is neither punitive nor
preventative. It was observed as under:
"21.In bail applications, generally, it has
been laid down from the earliest times that
the object of bail is to secure the
appearance of the accused person at his
trial by reasonable amount of bail. The
object of bail is neither punitive nor
preventative. Deprivation of liberty
must be considered a punishment,
unless it is required to ensure that an
accused person will stand his trial when
called upon. The courts owe more than
verbal respect to the principle that
punishment begins after conviction,
and that every man is deemed to be
innocent until duly tried and duly found
guilty.
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23. Apart from the question of prevention

being the object of refusal of bail, one
must not lose sight of the fact that any
imprisonment before conviction has a
substantial punitive content and it
would be improper for any court to
refuse bail as a mark of disapproval of
former conduct whether the accused has
been convicted for it or not or to refuse
bail to an unconvicted person for the
purpose of giving him a taste of
imprisonment as a lesson.

25. The provisions of CrPC confer discretionary

jurisdiction on criminal courts to grant
bail to the accused pending trial or in
appeal against convictions; since the
jurisdiction is discretionary, it has to
be exercised with great care and
caution by balancing the valuable right
of liberty of an individual and the
interest of the society in general. In our
view, the reasoning adopted by the learned
District Judge, which is affirmed by the
High Court, in our opinion, is a denial of
the whole basis of our system of law and
normal rule of bail system. It
transcends respect for the requirement
that a man shall be considered innocent
until he is found guilty. If such power is
recognised, then it may lead to chaotic
situation and would jeopardise the
personal liberty of an individual.
27. This Court, time and again, has stated that
bail is the rule and committal to jail an
exception. It has also observed that
refusal of bail is a restriction on the
personal liberty of the individual
guaranteed under Article 21 of the
Constitution."

12. Further, in the case of Sandeep Jain v.

National Capital Territory of Delhi, (2000) 2
SCC 66, this Court, while hearing a bail
application held that conditions for grant
of bail cannot become so onerous that
their existence itself is tantamount to
refusal of bail. This Court held as under:
2024:HHC:6089 REPORTABLE
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"We are unable to appreciate even the first

order passed by the Metropolitan
Magistrate imposing the onerous condition
that an accused at the FIR stage should
pay a huge sum of Rs. 2 lakhs to be set at
liberty. If he had paid it is a different
matter. But the fact that he was not able to
pay that amount and in default thereof he
is to languish in jail for more than 10
months now, is sufficient indication that
he was unable to make up the amount.
Can he be detained in custody endlessly
for his inability to pay the amount in the
range of Rs.2 lakhs? If the cheques issued
by his surety were dishonoured, the Court
could perhaps have taken it as a ground
to suggest to the payee of the cheques
to resort to the legal remedies provided
by law.

Similarly if the Court was dissatisfied

with the conduct of the surety as for his
failure to raise funds for honouring the
cheques issued by him, the Court could
have directed the appellant to substitute
him with another surety. But to keep
him in prison for such a long period,
that too in a case where bail would
normally be granted for the offences
alleged, is not only hard but improper.
It must be remembered that the Court has
not even come to the conclusion that the
allegations made in the FIR are true. That
can be decided only when the trial
concludes, if the case is charge-sheeted by
the police."

In the backdrop of the mandate of law

in Guddan alias Roop Narayan (supra) since neither

any prima facie accusation nor reasonable grounds

exist, then, the detention of the bail petitioner will

lead to deprivation of liberty of the bail petitioner.

2024:HHC:6089 REPORTABLE
- 28 -

11(ii). While dealing with the concept of bail and

personal liberty of an accused under Article 21 of

the Constitution of India, the Hon’ble Supreme Court,

in Criminal Appeal No.2787 of 2024, titled

as Javed Gulam Nabi Shaikh Versus State of

Maharashtra and Another, Hon’ble Apex Court, held

as under:-

“18 Criminals are not born out but made. The

human potential in everyone is good and so,
never write off any criminal as beyond
redemption. This humanist fundamental is
often missed when dealing with delinquents,
juvenile and adult. Indeed, every saint has a
past and every sinner a future. When a crime is
committed, a variety of factors is responsible
for making the offender commit the crime.
Those factors may be social and economic, may be,
the result of value erosion or parental neglect; may
be, because of the stress of circumstances, or the
manifestation of temptations in a milieu of
affluence contrasted with indigence or other
privations.

19 If the State or any prosecuting agency including

the court concerned has no wherewithal to
provide or protect the fundamental right of an
accused to have a speedy trial as enshrined
under Article 21 of the Constitution then the
State or any other prosecuting agency should
not oppose the plea for bail on the ground that
the crime committed is serious. Article 21 of
the Constitution applies irrespective of the
nature of the crime.

20 We may hasten to add that the petitioner is still

an accused; not a convict. The over-arching
postulate of criminal jurisprudence that an
accused is presumed to be innocent until
2024:HHC:6089 REPORTABLE
- 29 -

proven guilty cannot be brushed aside lightly,

howsoever stringent the penal law may be.

21 We are convinced that the manner in which the

prosecuting agency as well as the Court have
proceeded, the right of the accused to have a
speedy trial could be said to have been infringed
thereby violating Article 21 of the Constitution.

22 In view of the aforesaid, this appeal succeeds

and is hereby allowed. The impugned order passed
by the High Court is set aside.”

12. Notably, once the two main accused, Bishap

Sain & Nikita Dutt, from whom the contraband was

recovered and were arrested have been enlarged on bail

by the Learned Trial Court, therefore, the bail petitioner

[Vijay alias Keshav] who at this stage, nowhere connected

with the alleged offence and no recovery has been made

and nothing has been spelt out or placed on record

connecting the bail petitioner with the accusation,

therefore, on the principle of parity between the bail

petitioner and two other co-accused, petitioner deserves

to be enlarged on bail on this ground also.

13. The Status Report does not point out that any

adversarial circumstance, objecting to the detention of

bail petitioner, at this stage.

2024:HHC:6089 REPORTABLE
- 30 -

14. The Status Report indicates that investigation

is complete and the challan has been presented before

the jurisdictional Court on 04.04.2024. Even, the Status

Report does not point out any criminal antecedents of

the bail petitioner. Moreover, once the recovery of 11

grams of Heroin/Chitta was made from Bishap Sain &

Nikita Dutt on 06.02.2024 for which they were arrested

on 07.02.2024 and the bail petitioner [Vijay alias Keshav]

was neither travelling with them and had no connection

with these two accused and no recovery was made from

bail petitioner at any point of time with respect to the

accusation in the instant case then, in absence of any

material connecting the bail petitioner with the

recovery, sale, purchase, transportation or inter-state

import of Heroin/Chitta/Contraband then the

accusation is not borne out against the bail petitioner, at

this stage.

CONCLUSION:
15. In view of the above discussion, the instant

petition is allowed, and the State Authorities are

2024:HHC:6089 REPORTABLE
- 31 -

directed to enlarge the petitioner [Vijay alias Keshav] on

bail, subject to observance of the following conditions:-

(i) Respondent-State Authorities shall release the

bail petitioner [Vijay alias Keshav] on furnishing
personal bond and surety bond to the tune of
Rs.1,00,000/- [Rupees One Lac] each to the
satisfaction of Learned Trial Court concerned;

(ii) Petitioner shall abide by all other conditions, as

may be imposed by the Learned Trial Court, if
any, in view of this order;

(iii) Petitioner shall neither involve himself nor shall

abet the commission of any offence hereinafter.
Any involvement or abetting shall entail the
withdrawal of concession in terms of this order.

(iv) Petitioner shall disclose his functional E-Mail

IDs/WhatsApp number and that of his surety to
the Learned Trial Court.

(v) Petitioner shall not hinder the smooth

flow of the investigation and shall join the
investigation, as and when called, by the
Investigating Agency;

(vi) Petitioner shall not jump over the bail and also
shall not leave the country without prior
information of the Court;

(vii) Petitioner shall not tamper with the witnesses

or the evidence in any manner;

(viii) Petitioner shall not directly or indirectly make

any inducement, threat or promise to any
person acquainted with the facts of the case or
the witnesses;

(ix) It is clarified that violation of any of the

conditions imposed hereinabove, shall entail
cancellation of bail automatically; and
2024:HHC:6089 REPORTABLE
- 32 -

(x) State Authorities are free to move this Court for

alteration/modification of this Court, for
violation as in (i) to (iv) supra, in the facts and
circumstances, so necessitates, at any time
herein-after.

16. The observations made in this judgment shall

not be construed in any manner as an indictive of

findings, for or against the parties herein, either for

the purpose of investigation or for trial, thereafter, in

any manner, which shall proceed, independent of any

of the observations herein, in accordance with law.

17. Petitioner is permitted to produce/use copy of

this order, downloaded from the web-page of the High

Court of Himachal Pradesh, before the authorities

concerned, and the said authorities shall not insist for

production of a certified copy, but if required, may verify

passing of order from Website of the High Court.

Pending application(s), if any, shall

also stand disposed of.

(Ranjan Sharma)
Judge
July 31, 2024
Digitally signed by TARUN MAHAJAN

TARUN
DN: C=IN, O=HIGH COURT OF HIMACHAL
PRADESH, OU=HIGH COURT OF HIMACHAL
PRADESH SHIMLA, Phone=
(Shivender) 887aba774dfe8f4f3e95a41c7aa2abacb4ecee8f
82efd8f56ec39f8e6b442b68, PostalCode=

MAHAJA
171001, S=Himachal Pradesh,
SERIALNUMBER=
3ff6ebe501e8d7c8d73d0e5a5294bacca3f198d7
d66b105bbf507179673109f5, CN=TARUN
MAHAJAN

N
Reason: I am the author of this document
Location: 12345678
Date: 2024.07.31 17:38:40+05'30'
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