Roshan Kumar Jha vs State Of H.P
2025 Latest Caselaw 384 HP

Himachal Pradesh High Court

Roshan Kumar Jha vs State Of H.P on 5 May, 2025

Author: Virender Singh

Bench: Virender Singh

IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr. MP(M) No. 772 of 2025 Reserved on : 2.5.2025 Decided on : 5.5.2025

Roshan Kumar Jha ...Applicant Versus State of H.P. ...Respondent

_______________________________________________________ Coram Hon'ble Mr. Justice Virender Singh, Judge Whether approved for reporting?

________________________________________________

For the Applicant : Mr. Lovneesh Kanwar, Senior Advocate with Mr. Bhairav Gupta, Advocate.

For the Respondent : Ms. Ranjna Patial, Dy. A.G., assisted by ASI Jagdish Singh, Police Station, West Shimla.

Virender Singh, Judge

The applicant has filed the present application,

under Section 483 of the Bharatiya Nagarik Suraksha

Sanhita, 2023 (hereinafter referred to as 'the B.N.S.S.') in

case FIR No. 257 of 2022, dated 16.10.2022, under

Sections 21 and 29 of the Narcotic Drugs & Psychotropic

Substances Act (hereinafter referred to as 'the NDPS")

registered with Police Station, Boileauganj, Shimla, H.P.

2. According to the applicant, he has been falsely

implicated in the present case, as he is an innocent

person and has nothing to do with the case.

3. Applicant has further pleaded that investigation,

in the present case, is complete and Police has filed the

charge sheet. All these facts have been pleaded to show

that custodial interrogation of the applicant is no longer

required by the Police.

4. The bail has also been sought on the ground that

there is no legal evidence against the applicant and he

has falsely been implicated in this case by distorting the

facts.

5. In addition to this, the plea of inordinate delay in

trial has been put forward in this case, to get the relief.

According to the applicant, he has been arrested on

16.10.2022 and there are 30 witnesses in this case, out

of which, till date, only eight witnesses are stated to have

been examined.

6. The applicant has also relied upon the decisions

of Hon'ble Supreme Court in Special Leave to Appeal

(Crl.) No. 6690/2022, titled as, 'Dheeraj Kumar Shukla

versus State of Uttar Pradesh' and Cr. Appeal No. 2787 of

2024, titled as, 'Javed Gulam Nabi Shaikh versus State of

Maharashtra & anr. and the decisions of this Court in

Cr.M.P. (M) No. 892 of 2024, titled as, 'Aakash versus

State of Himachal Pradesh, Cr.M.P. (M) No. 909 of 2024,

titled as, 'Aakash versus State of Himachal Pradesh' and

Cr.M.P. (M) No. 2822 of 2022, titled as, 'Deep Raj @ Neetu

versus State of Himachal Pradesh'.

7. The applicant has also put forward his young age

and future prospects, as grounds to seek relief of bail.

8. Thereafter, the applicant has again tried his luck

by moving similar bail applications, bearing Cr.M.P. (M)

No.1761 of 2023, Cr.M.P. (M) No. 3198 of 2023, Cr.M.P.

(M) No. 1281 of 2024 and Cr.M.P. (M) No. 26 of 2025,

which were dismissed as withdrawn.

9. The applicant had earlier tried his luck, by

moving bail application No. 134-S/22 of 2022, before

the learned Special Judge-I, Shimla, District Shimla,

H.P., which was dismissed on 23.1.2023.

10. The applicant, through his counsel, has

undertaken to abide by the terms and conditions, to

be imposed by this court, in case, he is ordered to be

released on bail.

11. On these submissions, a prayer has been

made to allow the bail application.

12. When, put to notice, Police has filed status

report, disclosing therein, that on 16.10.2022, HC Lalit

alongwith HHC Sunil Kumar, HC Amit, Const.

Bhuvnesh Kumar and Const. Rahul, under the

leadership of ASI Ambi Lal was on patrolling duty and

duty to check the traffic violation and to prevent the

crime, in the private vehicle No.HP 52C-0426. They had

proceeded towards Sankat Mochan-Tara Devi-Shoghi

side. At about 11:40 a.m., when HC Lalit alongwith other

police officials was present at Police barrier,Shoghi for

checking, then, from Solan side, Haryana Roadways bus,

being driven by its driver, came there. HC Lalit signaled

to stop the vehicle. The registration of the bus was found

to be HR58B-2566, enroute from Yamunanagar to

Shimla. HC Lalit and HC Bhuvnesh Kumar entered the

bus for checking, from front door. There were about 35-

36 passengers in the bus. HC Lalit had started checking

the belongings of the passengers from the front portion of

the vehicle, and when, he reached at seat Nos. 9,10, then

he noticed that on seat No. 9 (window), one young man

was sitting and seat No. 10 was found vacant.

12.1 The person sitting on seat No. 9 was having a

rucksack in his lap. When, the reason for travelling was

inquired, then, he could not give satisfactory answer and

also shown his reluctance to get the rucksack checked.

As such, I.O. developed suspicion that some

objectionable item could be there. As such, he has

requested other passengers sitting in the bus to be the

witnesses, but all of them had shown their inability to be

the witnesses. Thereafter, the bus driver Mahinder Singh

and Conductor Shamsher Singh were associated as

independent witnesses. In the presence of aforesaid

persons, name and address of the person, sitting on seat

No. 9 were inquired. On inquiry, he disclosed his name

as Roshan Kumar Jha S/o Naveen Jha (applicant).

12.2 Thereafter, his rucksack was checked. From the

outer packet of rucksack, question papers of UPSC and

BPSC, one mobile charger, one E-Admit card, issued in

the name of applicant and from the inner pocket of

rucksack, two books pertaining to UPSC examinations,

one lower, one micron packet (white coloured),

containing wearing apparels, alongwith one plastic

envelope and two pouches, wrapped with brown tape,

were found. On opening the pouches, granule shaped

white coloured substance was found. Total 15 pouches

were found. Apart from this, a green coloured bottle

containing 4-4 white coloured granules were found. The

yellow substance was found to be heroin/chitta,

whereas, 12 granules were found to be MDMA.

12.3 On weighment, chitta was found to be 324 grams

and MDMA was found to be 3.58 grams. Other codal

formalities were completed and after registration of the

FIR, accused was arrested.

12.4 During investigation, involvement of one Sahib

Singh was also found. After receiving positive report from

the SFSL, Junga, charge sheet has been filed.

12.5 On the basis of above facts, it has been

apprehended that in case, the applicant is released on

bail, he may not be available for trial and may again

indulge in the same activities. As such, a prayer has

been made to dismiss the application.

13. The contraband, allegedly recovered in the

present case, admittedly, falls within the 'commercial

quantity'. When, the rigors of Section 37 of the NDPS are

applicable, in that eventuality, before releasing the

accused (applicant) on bail, this Court has to satisfy the

twin conditions as per Section 37(b) of the NDPS Act by

holding that the accused (applicant) has not committed

the offence and in case, he is ordered to be released on

bail, he will not commit any offence.

14. The provisions of Section 37 of the NDPS Act,

have been discussed and explained by a three-Judge

Bench of the Hon'ble Supreme Court, way back in the

year 2004, in cases, titled as Collector of Customs, New

Delhi versus Ahmadalieva Nodira, reported in (2004)

3 Supreme Court Cases 549, and Narcotics Control

Bureau versus Dilip Pralhad Namade, reported in

(2004) 3 Supreme Court Cases 619. The relevant paras

9 to 11 of the judgment in Dilip Pralhad Namade's

case (supra), are reproduced, as under:

"9. As observed by this Court in Union of India v. Thamisharasi & Ors. (JT 1995(4) SC 253) clause (b) of sub-section (1) of Section 37 imposes limitations on granting of bail in addition to those provided under the Code. The two limitations are (1) an opportunity to the public prosecutor to oppose the bail application and (2) satisfaction of the Court that there are reasonable grounds for believing that the accused is not guilty of such offence and that he is not likely to commit any offence while on bail.

10. The limitations on granting of bail come in only when the question of granting bail arises on merits. Apart from the grant of opportunity to the public prosecutor, the other twin conditions which really have relevance so far the present accused respondent is concerned, are (1) the satisfaction of the Court that there are reasonable grounds for believing that the accused is not guilty of the alleged offence and that he is not likely to commit any offence while on bail. The conditions are cumulative and not alternative. The satisfaction contemplated

regarding the accused being not guilty has to be based for reasonable grounds. The expression "reasonable grounds" means something more than prima facie grounds. It contemplates substantial probable causes for believing that the accused is not guilty of the alleged offence. The reasonable belief contemplated in the provision requires existence of such facts and circumstances as are sufficient in themselves to justify satisfaction that the accused is not guilty of the alleged offence and he is not likely to commit any offence while on bail. This nature of embargo seems to have been envisaged keeping in view the deleterious nature of the offence, necessitates of public interest and the normal tendencies of the persons involved in such network to pursue their activities with greater vigour and make hay when, at large. In the case at hand the High Court seems to have completely overlooked the underlying object of Section 37 and transgressed the limitations statutorily imposed in allowing bail. It did not take note of the confessional statement recorded under Section 67 of the Act.

11. A bare reading of the impugned judgment shows that the scope and ambit of Section 37 of the NDPS Act was not kept in view by the High Court. Mere non-compliance of the order passed for supply of copies, if any, cannot as in the instant case entitle an accused to get bail notwithstanding prohibitions contained in Section 37."

15. The term 'reasonable' has elaborately been

discussed by the Hon'ble Supreme Court, in case, titled

as Union of India versus Shiv Shanker Kesari,

reported in (2007) 7 Supreme Court Cases 798. The

relevant paras 8 to 11 of the judgment are reproduced, as

under:

"8. The word "reasonable" has in law the prima facie meaning of reasonable in regard to those circumstances of which the actor, called on to act reasonably, knows or ought to know. It is difficult to give an exact definition of the word "reasonable".

"7. ... In Strouds Judicial Dictionary, Fourth Edition, page 2258 states that it would be unreasonable to expect an exact definition of the word 'reasonable'. Reason varies in its conclusions according to the idiosyncrasy of the individual, and the times and circumstances in which he thinks. The reasoning which built up the old scholastic logic sounds now like the jingling of a child's toy.

(See: Municipal Corporation of Delhi v. M/s Jagan Nath Ashok Kumar and another (1987) 4 SCC 497. and Gujarat Water Supplies and Sewerage Board v. Unique Erectors (Gujarat) Pvt. Ltd. and another [(1989) 1 SCC 532].

9. "9. ...It is often said that "an attempt to give a specific meaning to the word "reasonable" is trying to count what is not number and measure what is not space". The author of Words and Phrases (Permanent Edition) has quoted from Nice & Schreiber 123 F. 987, 988 to give a plausible meaning for the said word. He says,

'the expression "reasonable" is a relative term, and the facts of the particular controversy must be considered before the question as to what constitutes reasonable can be determined'.

It is not meant to be expedient or convenient but certainly something more than that."

10. The word "reasonable" signifies "in accordance with reason". In the ultimate analysis it is a question of fact, whether a particular act is reasonable or not depends on the circumstances in a given situation. (See: Municipal Corporation of Greater Mumbai and another v. Kamla Mills Ltd. (2003) 6 SCC 315).

11. The Court while considering the application for bail with reference to Section 37 of the Act is not called upon to record a finding of not guilty. It is for the limited purpose essentially confined to the question of releasing the accused on bail that the Court is called upon to see if there are reasonable grounds for believing that the accused is not guilty and records its satisfaction about the existence of such grounds. But the Court has not to consider the matter as if it is pronouncing a judgment of acquittal and recording a finding of not guilty."

16. This view has again been reiterated by the

Hon'ble Supreme Court in a latest decision, in case,

titled as State of Kerala and others versus Rajesh

and others, reported in (2020) 12 Supreme Court

Cases 122. The relevant paras 18 to 21 of the judgment

are reproduced, as under:

"18. This Court has laid down broad parameters to be followed while considering the application for bail moved by the accused involved in offences under NDPS Act. In Union of India Vs. Ram Samujh and Ors. 1999(9) SCC 429, it has been elaborated as under:

"7. It is to be borne in mind that the aforesaid legislative mandate is required to be adhered to and followed. It should be borne in mind that in a murder case, the accused commits murder of one or two persons, while those persons who are dealing in narcotic drugs are instrumental in causing death or in inflicting deathblow to a number of innocent young victims, who are vulnerable; it causes deleterious effects and a deadly impact on the society; they are a hazard to the society; even if they are released temporarily,

in all probability, they would continue their nefarious activities of trafficking and/or dealing in intoxicants clandestinely. Reason may be large stake and illegal profit involved. This Court, dealing with the contention with regard to punishment under the NDPS Act, has succinctly observed about the adverse effect of such activities in Durand Didier v. Chief Secy., Union Territory of Goa [(1990) 1 SCC 95)] as under: '24. With deep concern, we may point out that the organised activities of the underworld and the clandestine smuggling of narcotic drugs and psychotropic substances into this country and illegal trafficking in such drugs and substances have led to drug addiction among a sizeable section of the public, particularly the adolescents and students of both sexes and the menace has assumed serious and alarming proportions in the recent years. Therefore, in order to effectively control and eradicate this proliferating and booming devastating menace, causing deleterious effects and deadly impact on the society as a whole, Parliament in its wisdom, has made effective provisions by introducing this Act 81 of 1985 specifying mandatory minimum imprisonment and fine.

8. To check the menace of dangerous drugs flooding the market, Parliament has provided that the person accused of offences under the NDPS Act should not be released on bail during trial unless the mandatory conditions provided in Section 37, namely,

(i) there are reasonable grounds for believing that the accused is not guilty of such offence; and

(ii) that he is not likely to commit any offence while on bail are satisfied. The High Court has not given any justifiable reason for not abiding by the aforesaid mandate while ordering the release of the respondent-accused on bail. Instead of attempting to take a holistic view of the harmful socio-economic

consequences and health hazards which would accompany trafficking illegally in dangerous drugs, the court should implement the law in the spirit with which Parliament, after due deliberation, has amended."

19. The scheme of Section 37 reveals that the exercise of power to grant bail is not only subject to the limitations contained under Section 439 of the CrPC, but is also subject to the limitation placed by Section 37 which commences with non-obstante clause. The operative part of the said section is in the negative form prescribing the enlargement of bail to any person accused of commission of an offence under the Act, unless twin conditions are satisfied. The first condition is that the prosecution must be given an opportunity to oppose the application; and the second, is that the Court must be satisfied that there are reasonable grounds for believing that he is not guilty of such offence. If either of these two conditions is not satisfied, the ban for granting bail operates.

20. The expression "reasonable grounds" means something more than prima facie grounds. It contemplates substantial probable causes for believing that the accused is not guilty of the alleged offence. The reasonable belief contemplated in the provision requires existence of such facts and circumstances as are sufficient in themselves to justify satisfaction that the accused is not guilty of the alleged offence. In the case on hand, the High Court seems to have completely overlooked the underlying object of Section 37 that in addition to the limitations provided under the CrPC, or any other law for the time being in force, regulating the grant of bail, its liberal approach in the matter of bail under the NDPS Act is indeed uncalled for.

21. We may further like to observe that the learned Single Judge has failed to record a finding mandated under Section 37 of the NDPS Act which

is a sine qua non for granting bail to the accused under the NDPS Act."

17. In a recent decision, in case, titled as Narcotics

Control Bureau versus Mohit Aggarwal, reported in

AIR 2022 SC 3444, the Hon'ble Supreme Court has

reiterated the earlier view regarding compliance of the

conditions, as enumerated in Section 37 of the NDPS

Act. The relevant paras 10 to 15 of the judgment are

reproduced, as under:

"10. The provisions of Section 37 of the NDPS Act read as follows:

"[37. Offences to be cognizable and non- bailable.-(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974)-

(a) every offence punishable under this Act shall be cognizable;

(b) no person accused of an offence punishable for [offences under section 19 or section 24 or section 27A and also for offences involving commercial quantity] shall be released on bail or on his own bond unless-

(i) the Public Prosecutor has been given an opportunity to oppose the application for such release, and

(ii) where the Public Prosecutor opposes the application, the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail.

(2) The limitations on granting of bail specified in clause (b) of sub section (1) are in addition to the limitations under the Code of Criminal Procedure, 1973 (2 of 1974) or any other law for the time being in force, on granting of bail.

11. It is evident from a plain reading of the non- obstante clause inserted in sub-section (1) and the conditions imposed in subsection (2) of Section 37 that there are certain restrictions placed on the power of the Court when granting bail to a person accused of having committed an offence under the NDPS Act. Not only are the limitations imposed under Section 439 of the Code of Criminal Procedure, 1973 to be kept in mind, the restrictions placed under clause (b) of sub-section (1) of Section 37 are also to be factored in. The conditions imposed in sub-section (1) of Section 37 is that (i) the Public Prosecutor ought to be given an opportunity to oppose the application moved by an accused person for release and (ii) if such an application is opposed, then the Court must be satisfied that there are reasonable grounds for believing that the person accused is not guilty of such an offence. Additionally, the Court must be satisfied that the accused person is unlikely to commit any offence while on bail.

12. The expression "reasonable grounds" has come up for discussion in several rulings of this Court. In "Collector of Customs, New Delhi v. Ahmadalieva Nodira", (2004) 3 SCC 549, a decision rendered by a Three Judges Bench of this Court, it has been held thus:

"7. The limitations on granting of bail come in only when the question of granting bail arises on merits. Apart from the grant of opportunity to the Public Prosecutor, the other twin conditions which really have relevance so far as the present accused respondent is concerned, are: the satisfaction of the court that there are reasonable

grounds for believing that the accused is not guilty of the alleged offence and that he is not likely to commit any offence while on bail. The conditions are cumulative and not alternative. The satisfaction contemplated regarding the accused being not guilty has to be based on reasonable grounds. The expression "reasonable grounds" means something more than prima facie grounds. It contemplates substantial probable causes for believing that the accused is not guilty of the alleged offence. The reasonable belief contemplated in the provision requires existence of such facts and circumstances as are sufficient in themselves to justify satisfaction that the accused is not guilty of the alleged offence."

[emphasis added]

13. The expression "reasonable ground" came up for discussion in "State of Kerala and others Vs. Rajesh and others" (2020) 12 SCC 122 and this Court has observed as below:

"20. The expression "reasonable grounds"

means something more than prima facie grounds. It contemplates substantial probable causes for believing that the accused is not guilty of the alleged offence. The reasonable belief contemplated in the provision requires existence of such facts and circumstances as are sufficient in themselves to justify satisfaction that the accused is not guilty of the alleged offence. In the case on hand, the High Court seems to have completely overlooked the underlying object of Section 37 that in addition to the limitations provided under the CrPC, or any other law for the time being in force, regulating the grant of bail, its liberal approach in the matter of bail under the NDPS Act is indeed uncalled for."

[emphasis added]

14. To sum up, the expression "reasonable grounds" used in clause (b) of Sub-Section (1) of Section 37 would mean credible, plausible and grounds for the Court to believe that the accused person is not guilty of the alleged offence. For arriving at any such conclusion, such facts and circumstances must exist in a case that can persuade the Court to believe that the accused person would not have committed such an offence. Dove-tailed with the aforesaid satisfaction is an additional consideration that the accused person is unlikely to commit any offence while on bail.

15. We may clarify that at the stage of examining an application for bail in the context of the Section 37 of the Act, the Court is not required to record a finding that the accused person is not guilty. The Court is also not expected to weigh the evidence for arriving at a finding as to whether the accused has committed an offence under the NDPS Act or not. The entire exercise that the Court is expected to undertake at this stage is for the limited purpose of releasing him on bail. Thus, the focus is on the availability of reasonable grounds for believing that the accused is not guilty of the offences that he has been charged with and he is unlikely to commit an offence under the Act while on bail."

18. Moreover, the view of this Court is also being

guided by the decision of the Hon'ble Supreme Court in

Criminal Appeal No.5544 of 2024, titled as 'Narcotics

Control Bureau versus Kashif', Citation No.2024

INSC 1045, wherein, it has been held that in case of

commercial quantity of the contraband, the accused

shall generally be not released on bail, until or unless,

the conditions, as per Section 37 of the NDPS Act, are

held to be existed in favour of the applicant. Relevant

paragraphs 8 and 39 of the said judgment are

reproduced, as under:-

"8. There has been consistent and persistent view of this Court that in the NDPS cases, where the offence is punishable with minimum sentence of ten years, the accused shall generally be not released on bail. Negation of bail is the rule and its grant is an exception. While considering the application for bail, the court has to bear in mind the provisions of Section 37 of the NDPS Act, which are mandatory in nature. The recording of finding as mandated in Section 37 is a sine qua non for granting bail to the accused involved in the offences under the said Act. Apart from the granting opportunity of hearing to the Public Prosecutor, the other two conditions i.e., (i) the satisfaction of the court that there are reasonable grounds for believing that the accused is not guilty of the alleged offence and that (ii) he is not likely to commit any offence while on bail, are the cumulative and not alternative conditions.

Xxx xxx xxx xxx

39. The upshot of the above discussion may be summarized as under:

(i) The provisions of NDPS Act are required to be interpreted keeping in mind the scheme, object and purpose of the Act; as also the impact on the

society as a whole. It has to be interpreted literally and not liberally, which may ultimately frustrate the object, purpose and Preamble of the Act.

(ii) While considering the application for bail, the Court must bear in mind the provisions of Section 37 of the NDPS Act which are mandatory in nature. Recording of findings as mandated in Section 37 is sine qua non is known for granting bail to the accused involved in the offences under the NDPS Act.

(iv) Sub-section (2) of Section 52A lays down the procedure as contemplated in sub-section (1) thereof, and any lapse or delayed compliance thereof would be merely a procedural irregularity which would neither entitle the accused to be released on bail nor would vitiate the trial on that ground alone.

(v) Any procedural irregularity or illegality found to have been committed in conducting the search and seizure during the course of investigation or thereafter, would by itself not make the entire evidence collected during the course of investigation, inadmissible. The Court would have to consider all the circumstances and find out whether any serious prejudice has been caused to the accused."

(self-emphasis supplied)

19. So far as the case law, relied upon by the learned

counsel for the applicant in Dheeraj Kumar Shukla

versus the State of Uttar Pradesh, Special Leave to

Appeal (Crl.) No. 6690 of 2022, is concerned, with due

respect to the law laid down, the same in no way, helps

the case of the applicant, as facts of the case before the

Hon'ble Supreme Court were totally different from the

case at hand, as co-accused of the applicant were

already released on bail.

20. So far as the decision of Hon'ble Supreme Court

in Cr. Appeal No. 2787 of 2024, titled as Javed Gulam

Nabi Shaikh versus State of Maharashtra & Anr. is

concerned, no benefit can be derived by the applicant

from the same, as in the case before the Hon'ble

Supreme Court, the accused was in custody for four

years and charges were not framed, whereas, in this

case, not only charges have been framed, but eight

witnesses, as per the stand taken by the applicant, have

also been examined.

21. So far as the decisions of Co-ordinate Bench of

this Court in Cr.M.P. (M) No. 892 of 2024, titled as,

'Aakash versus State of Himachal Pradesh' and Cr. M.P.

(M) No. 909 of 2024, titled as, 'Aakash versus State of

Himachal Pradesh', are concerned, the contraband

recovered in those cases, was of intermediate quantity.

As such, no benefit can be derived from the same, by the

applicant, in this case.

22. So far as the decision of this Court in Cr.M.P.(M)

No. 2822 of 2022, titled as, 'Deep Raj @ Neetu versus

State of Himachal Pradesh', is concerned, the same is not

applicable to the facts and circumstances of the present

case, as commercial quantity of heroin is stated to be

recovered from the possession of the accused.

23. In view of the above discussion, at this stage, it

cannot be said that the applicant has not committed the

offence, nor it can be said that in case, he is ordered to

be released on bail, he will not commit any offence.

24. In the absence of the twin conditions, as

enumerated, under Section 37(1)(b) of the NDPS Act,

this Court cannot accept the arguments of learned

counsel, appearing for the applicant, who has sought the

release of the applicant, on bail, during the pendency of

the trial.

25. In view of the discussions, made hereinabove,

this Court is of the view that the applicant is not able to

make out a case for his release on bail.

26. Considering all these facts, the present bail

application is dismissed.

27. Any of the observations, made hereinabove, shall

not be taken as an expression of opinion, on the merits of

the case, as these observations, are confined, only, to the

disposal of the present bail application.

(Virender Singh) Judge

May 5, 2025 Kalpana