Himachal Pradesh High Court

Reserved On: 21.08.2025 vs State Of Himachal Pradesh on 27 August, 2025

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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

Cr. MP(M) No. 1581 of 2025 Reserved on: 21.08.2025

Date of Decision: 27.08.2025.

    Champa                                                                       ...Petitioner





                                          Versus
    State of Himachal Pradesh                                                    ...Respondent


    Coram

Hon'ble Mr Justice Rakesh Kainthla, Judge.

    Whether approved for reporting?1
                         r                             No

    For the Petitioner                          :      Mr. Vijender Katoch, Advocate

    For the Respondent/State                    :      Mr. Ajit Sharma, Additional
                                                       Advocate General.

    Rakesh Kainthla, Judge

The petitioner has filed the present petition for

seeking regular bail in FIR No. 60 of 2025, dated 13.05.2025,

registered at Police Station Damtal, District Kangra, H.P., for the

commission of offences punishable under Sections 21 and 29 of

the Narcotic Drugs and Psychotropic Substances Act (ND&PS

Act).

2. It has been asserted that, as per the prosecution, the

police party was on patrolling duty on 13.05.2025. They received

Whether reporters of Local Papers may be allowed to see the judgment? Yes.

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a secret information that petitioner Champa Devi and her

daughter-in-law, Sakshi, were selling heroin from their house,

and in case of search of their house, a huge quantity of heroin

could be recovered. The information was credible. It was

reduced to writing and was sent to the Sub Divisional Police

Officer (SDPO), Indora. The police party associated two

independent witnesses, Ashwani Kumar and Suresh Kumar, and

went to the petitioner's house, where she was present with her

daughter-in-law. She brought Tajinder Kumar at the instance

of the police. The police searched the house of the petitioner and

recovered 17.91 grams of heroin kept in a plastic packet inside

the Sofa. Co-accused Sakshi has been released on bail by the

learned Trial Court. The petitioner is suffering from various

ailments. Rigours of Section 37 of the NDPS Act do not apply to

the present case. Ten FIRs were registered against the

petitioner, out of which six have been decided, and four are still

pending. The petitioner would abide by all the terms and

conditions which the Court may impose. Hence, the petition.

3. The petition is opposed by filing a status report

asserting that the Police party was on patrolling duty on

13.05.2025. They received a secret information at Hill Top

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temple, Damtal, at 3:15 p.m. that the petitioner and her

daughter-in-law, Sakshi, were selling heroin, and in case of a

search of their house, a huge quantity of heroin could be

recovered. The police reduced the information into writing and

sent it to SDPO, Indora, through Constable Pankaj. Police

associated Ashwani Kumar, Up Pardhan, Village Chhanni and

Suresh Kumar as independent witnesses. The police went to the

r to petitioner's house, where the petitioner and her daughter-in-

law were present. They were asked to bring a male member to

search the police officials. Rajinder Kumar was called. The

search of the police party was conducted, and the police

searched the petitioner's house. Police recovered a plastic

packet concealed in the Sofa, which contained 17.91 grams of

heroin. The police arrested the petitioner and the co-accused

and seized the heroin. The petitioner has been convicted in six

F.I.Rs. No other F.I.R. was registered against the co-accused.

Sakshi revealed that Rahul had sold the heroin. He was also

arrested. The investigation was conducted. Heroin was sent to

SFSL Junga, and as per the report, it was found to be a sample of

diacetylmorphine (heroin). Hence, the status report.

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4. I have heard Mr. Vijender Katoch, learned counsel for

the petitioner and Mr. Ajit Sharma, learned Deputy Advocate

General, for the respondent/State.

5. Mr. Vijender Katoch, learned counsel for the

petitioner, submitted that the petitioner is innocent and that he

was falsely implicated. The quantity of heroin, stated to have

been recovered from the petitioner's house, is less than a

commercial quantity. Rigours of Section 37 of the NDPS Act do

not apply to the present case. The co-accused has been released

on bail, and the petitioner is entitled to bail on the principle of

parity. Mere pendency of the criminal cases against the

petitioner is not a ground for pre-trial detention. Therefore, he

prayed that the present petition be allowed and the petitioner be

released on bail.

6. Mr. Ajit Sharma, learned Deputy Advocate General,

submitted that the petitioner was found in possession of 17.91

grams of heroin, which could not have been meant for self-

consumption. The police received definite information that the

petitioner and her daughter-in-law were selling heroin. Heroin

is affecting the young generation adversely. The petitioner has

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criminal antecedents, and she is likely to commit a similar

offence in case of her release on bail. Hence, 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 Ramratan v. State of M.P., 2024 SCC

OnLine SC 3068, wherein it was observed as follows: -

"12. The fundamental purpose of bail is to ensure the

accused's presence during the investigation and trial. Any conditions imposed must be reasonable and directly related to this objective. This Court in Parvez Noordin Lokhandwalla v. State of Maharastra (2020) 10 SCC 77

observed that though the competent court is empowered to exercise its discretion to impose "any condition" for the grant of bail under Sections 437(3) and 439(1)(a) CrPC, the discretion of the court has to be guided by the

need to facilitate the administration of justice, secure the presence of the accused and ensure that the liberty of the

accused is not misused to impede the investigation, overawe the witnesses or obstruct the course of justice. The relevant observations are extracted below:

"14. The language of Section 437(3) CrPC which uses the expression "any condition ... otherwise in the interest of justice", has been construed in several decisions of this Court. Though the competent court is empowered to exercise its discretion to impose "any condition" for the grant of bail under Sections 437(3) and 439(1)(a) CrPC, the discretion of the court has to be guided by the need to facilitate the

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administration of justice, secure the presence of the accused and ensure that the liberty of the accused is not misused to impede the investigation, overawe the witnesses or obstruct the course of justice. Several

.

decisions of this Court have dwelt on the nature of the

conditions which can legitimately be imposed both in the context of bail and anticipatory bail." (Emphasis supplied)

13. In Sumit Mehta v. State (NCT of Delhi) (2013) 15 SCC 570, this Court discussed the scope of the discretion of the Court to impose "any condition" on the grant of bail and observed in the following terms: --

"15. The words "any condition" used in the provision should not be regarded as conferring absolute power on a court of law to impose any condition that it chooses to impose. Any condition has to be interpreted as

a reasonable condition acceptable in the facts permissible

in the circumstance, effective in the pragmatic sense, and should not defeat the order of grant of bail. We are of the view that the present facts and circumstances of the case do not warrant such an extreme condition to be

imposed." (Emphasis supplied)

14. This Court, in Dilip Singh v. State of Madhya Pradesh (2021) 2 SCC 779, laid down the factors to be taken into

consideration while deciding the application for bail and observed:

"4. It is well settled by a plethora of decisions of this Court that criminal proceedings are not for the

realisation of disputed dues. It is open to a court to grant or refuse the prayer for anticipatory bail, depending on the facts and circumstances of the particular case. The factors to be taken into consideration while considering an application for bail are the nature of the accusation and the severity of the punishment in the case of conviction and the nature of the materials relied upon by the prosecution; reasonable apprehension of tampering with the witnesses or apprehension of threat to

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the complainant or the witnesses; the reasonable possibility of securing the presence of the accused at the time of trial or the likelihood of his abscondence; character, behaviour and standing of the accused; and the

.

circumstances which are peculiar or the accused and

larger interest of the public or the State and similar other considerations. A criminal court, exercising jurisdiction to grant bail/anticipatory bail, is not expected to act as

a recovery agent to realise the dues of the complainant, and that too, without any trial."

(Emphasis supplied)

9. The present petition has to be decided as per the

10. to parameters laid down by the Hon'ble Supreme Court.

A perusal of the status report shows that the

petitioner and co-accused were present in the house, from

where the police had recovered 17.91 grams of heroin. It was laid

down by the Hon'ble Supreme Court in Union of India v. Mohd.

Nawaz Khan, (2021) 10 SCC 100: (2021) 3 SCC (Cri) 721: 2021 SCC

OnLine SC 1237, that a person is in possession if he is in a position

to exercise control over the article. It was observed at page 111:

25. We shall deal with each of these circumstances in

turn. The respondent has been accused of an offence under Section 8 of the NDPS Act, which is punishable under Sections 21, 27-A, 29, and 60(3) of the said Act.

Section 8 of the Act prohibits a person from possessing any narcotic drug or psychotropic substance. The concept of possession recurs in Sections 20 to 22, which provide for punishment for offences under the Act. In Madan Lal v. State of H.P. [Madan Lal v. State of H.P., (2003) 7 SCC

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465: 2003 SCC (Cri) 1664] this Court held that : (SCC p. 472, paras 19-23 & 26)

"19. Whether there was conscious possession has to be

determined with reference to the factual backdrop.

The facts which can be culled out from the evidence on record are that all the accused persons were travelling in a vehicle, and as noted by the trial court, they were

known to each other, and it has not been explained or shown as to how they travelled together from the same destination in a vehicle which was not a public vehicle.

20. Section 20(b) makes possession of contraband

articles an offence. Section 20 appears in Chapter IV of the Act, which relates to offences for possession of such articles. It is submitted that in order to make the possession illicit, there must be a conscious

possession.

21. It is highlighted that unless the possession was coupled with the requisite mental element, i.e. conscious possession and not mere custody without awareness of the nature of such possession, Section 20

is not attracted.

22. The expression "possession" is a polymorphous

term which assumes different colours in different contexts. It may carry different meanings in

contextually different backgrounds. It is impossible, as was observed in Supt. & Remembrancer of Legal Affairs, W.B. v. Anil Kumar Bhunja [Supt. & Remembrancer of

Legal Affairs, W.B. v. Anil Kumar Bhunja, (1979) 4 SCC 274: 1979 SCC (Cri) 1038] to work out a completely logical and precise definition of "possession" uniform[ly] applicable to all situations in the context of all statutes.

23. The word "conscious" means awareness of a particular fact. It is a state of mind which is deliberate or intended.

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***

26. Once possession is established, the person who claims that it was not a conscious possession has to

establish it because how he came to be in possession is

within his special knowledge. Section 35 of the Act gives a statutory recognition of this position because of the presumption available in law. Similar is the

position in terms of Section 54, where also a presumption is available to be drawn from possession of illicit articles."

26. What amounts to "conscious possession" was also

considered in Dharampal Singh v. State of Punjab [Dharampal Singh v. State of Punjab, (2010) 9 SCC 608 :

(2010) 3 SCC (Cri) 1431], where it was held that the knowledge of possession of contraband has to be gleaned

from the facts and circumstances of a case. The standard

of conscious possession would be different in the case of a public transport vehicle with several persons as opposed to a private vehicle with a few persons known to one another. In Mohan Lal v. State of Rajasthan [Mohan

Lal v. State of Rajasthan, (2015) 6 SCC 222: (2015) 3 SCC (Cri) 881], this Court also observed that the term "possession" could mean physical possession with

animus; custody over the prohibited substances with animus; exercise of dominion and control as a result of

concealment; or personal knowledge as to the existence of the contraband and the intention based on this knowledge.

11. Therefore, prima facie, there is sufficient material to

connect the petitioner with the commission of an offence

punishable under Section 21(b) of the NDPS Act.

12. It was submitted that the petitioner was found in

possession of an intermediate quantity of heroin, and she is

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entitled to bail as a matter of right. This submission is not

acceptable. This Court laid down in Dilbar Khan v. State of H.P.,

2022 SCC OnLine HP 2441, that a person found in possession of

an intermediate quantity of drugs is not entitled to bail as a

matter of right. It was observed:

"9. No doubt the quantity of contraband in the case is intermediate and therefore the rigours of Section 37 of the NDPS Act will not be applicable. Merely because the

quantity of contraband recovered is less than the commercial quantity may not, by itself, be sufficient to grant bail.

10. The menace of drug abuse is not unknown in society

in modern times. The victims are innocent adolescents, among others. Drug abuse more often than not leads to drug addiction, which ruins the lives of a substantial number of such persons. The question arises as to how

young adolescents, who by and large remain in the custody of their guardians, are able to procure the prohibited drug. Definitely, the drug is made available through a supply chain managed in an organised

manner."

13. It was laid down by this Court in Khushi Ram Gupta v.

State of H.P., 2022 SCC OnLine HP 3779, that the menace of drug

addiction has seriously eroded into the fabric of society, and the

release of an accused on bail in NDPS Act cases will send a

negative signal to society. It was observed:

"8. The menace of drug addiction, especially in adolescents and students, has seriously eroded into the

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fabric of society, putting the future generation as well as the prospects of future nation-building into serious peril.

9. It is not a case where the investigating agency is clueless in respect of evidence against the petitioner.

.

Though allegations against the petitioner are yet to be

proved in accordance with the law, it cannot be taken singly as a factor to grant bail to the petitioner. Nothing has been placed on record on behalf of the petitioner to

divulge as to how and in what manner he came in contact with the persons who were residents of the State of Himachal Pradesh. Thus, there is sufficient prima facie material to infer the implication of the petitioner in the

crime. In such circumstances, the release of the petitioner on bail will send a negative signal in society, which will definitely be detrimental to its interests.

10. The prima facie involvement of the petitioner in the

dangerous trade of contraband cannot be ignored merely

on account of the fact that he has no past criminal history. It cannot be guaranteed that there will be re-indulgence by the petitioner in similar activities, in case he is released on bail."

14. Similarly, it was held in Bunty Yadav v. State of H.P.,

2022 SCC OnLine HP 4996, that even where the rigours of Section

37 of the NDPS Act are not applicable, the bail cannot be claimed

as a matter of right. Each case has to be adjudged on its own

facts. It was observed:

"6. The quantity involved in the case is 89.89 grams of heroin and 3.90 grams of MDMA. Such quantity may not technically fall under the category of commercial quantity; nevertheless, such quantity cannot be termed to be less by any stretch of the imagination. The evident nature of commercial transactions and dealing with the contraband aggravates the situation for the petitioner. In

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a case where Section 37 of the NDPS Act is not applicable, the bail cannot be claimed as a matter of right. The fate depends on the facts of each and every case.

7. The menace of drug addiction, especially in adolescents

.

and students, has seriously eroded into the fabric of

society, putting the future generation as well as the prospects of future nation-building into serious peril."

15. The petitioner asserted in the petition that she was

convicted in F.I.R. Nos. 313 of 2020, dated 29.09.2020, 348 of

2020, dated 15.10.2020, F.I.R. No. 78 of 2007, dated 18.02.2007,

F.I.R. No. 103 of 2022, dated 05.08.2022 and F.I.R. No. 216 of

2020, dated 07.06.2020, and four other F.I.Rs are still pending

against her. This shows that the petitioner has criminal

antecedents. This Court exhaustively dealt with the relevance of

criminal antecedents in Aminodin vs State of H.P. 2024: HHC: 6091

and held, after referring to various judgments, that a Judge must

consider the criminal antecedents of the accused, the nature of

offences and his general conduct while considering the bail

petition. The bail should not be generally granted to an accused

having criminal antecedents when there is a likelihood of the

commission of the crime.

16. It was held in V. Senthil Balaji v. Enforcement

Directorate, 2024 SCC OnLine SC 2626, that where the petitioner

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can become a threat to society because of her criminal

antecedents, he should not be released on bail. It was observed:

.

"27.....An exception will also be in a case where,

considering the antecedents of the accused, there is every possibility of the accused becoming a real threat to society if enlarged on bail. The jurisdiction to issue

prerogative writs is always discretionary."

17. Similarly, it was held in Union of India v.

Barakathullah, 2024 SCC OnLine SC 1019, that where the persons

were involved in the commission of similar offences, they

should not be released on bail. It was observed: -

"20. ... So far as the respondents in the instant appeals are concerned, they are in custody for hardly one and a half years, apart from the fact that all the respondents are shown to have been involved in previous cases. There are

about 8 to 9 previous cases shown in the chargesheet against the respondents, except accused Nos. 1, 4 and 6, who are shown to have been involved in two cases.

Considering the nature and gravity of the alleged offences and considering their criminal antecedents, in our

opinion High Court should not have taken a lenient view, more particularly when there was sufficient material to show their prima facie involvement in the alleged offences

under the UAPA.

18. Therefore, the criminal antecedents of the petitioner

would disentitle her from the concession of bail, especially when

the F.I.R. registered against the petitioner relates to the

commission of offences punishable under the NDPS Act, and the

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possibility of commission of a similar offence cannot be ruled

out.

19. It was submitted that the co-accused has been

released on bail, and the petitioner is entitled to be released on

the principle of parity. This submission cannot be accepted. The

status report shows that the co-accused had no criminal

antecedents, and the petitioner, having criminal antecedents,