Himachal Pradesh High Court
Sikandar Singh vs State Of Himachal Pradesh on 27 May, 2025
( 2025:HHC:16298 )
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr. MP(M) No. 1042 of 2025
Reserved on: 09.05.2025
Date of Decision: 27.05.2025.
Sikandar Singh ...Petitioner
Versus
State of Himachal Pradesh ...Respondent
Coram
Hon'ble Mr Justice Rakesh Kainthla, Judge.
Whether approved for reporting?1 No.
For the Petitioner : Mr. Arsh Chauhan, Advocate.
For the Respondent/State : Mr. Jitender Sharma, Additional
Advocate General.
ASI Rajpal, PS Damtal, District
Kangra (H.P), present in person
with police record.
Rakesh Kainthla, Judge
The petitioner has filed the present petition for
seeking pre-arrest bail. It has been asserted that the petitioner
apprehends his arrest in FIR No. 38 of 2025, dated 04.04.2025
registered at Police Station Damtal, District Kangra, H.P., for the
commission of offences punishable under Sections 21, 25 & 29 of
the Narcotic Drugs and Psychotropic Substances Act ("in short
Whether reporters of Local Papers may be allowed to see the judgment? Yes.
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ND&PS Act"). The police are seeking the petitioner's arrest in
connection with the aforesaid FIR. The petitioner is innocent, and
he was falsely implicated. As per the prosecution, the police
recovered 74.83 grams of Heroin from one Anchal who was riding
a motorcycle bearing registration No. HP-97-5382. Anchal made
a disclosure statement that his son Sikander @ Nimma (the
present petitioner) had provided the substance to him, which was
to be delivered to an unidentified individual near the Toki Excise
Barrier. The call detail record shows that the petitioner and
Anchal were in touch with each other. The transactions worth
₹24,32,036/- were found in the bank account of the petitioner in
the one year. The petitioner was wrongly named by the
co-accused. The financial transactions are natural and unrelated
to the drugs. No recovery has been effected from the petitioner.
The custodial interrogation of the petitioner is not required. The
petitioner would abide by the terms and conditions which the
Court may impose. Hence, the petition.
2. The petition is opposed by filing a status report
asserting that the police party had set up a Naka (check point)
near the Excise Barrier on 03.04.2025 and were checking the
vehicles. A scooter bearing registration No. HP-97A-6376 was
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stopped for checking. The rider revealed his name as Abhinav
Kumar, and the pillion rider revealed his name as Deepak Kumar.
In the meantime, a motorcycle bearing registration No. HP-97-
5382 also reached on the the spot. The police signalled the
motorcyclist to stop, however, he tried to reverse the motorcycle.
He had a mobile phone with him, which fell. The police picked up
the mobile phone and found a message in which the photograph
of a polythene tied with a knot was sent. The police seized the
motorcycle and recovered a polythene tied with a knot. The knot
was opened, and it was found to be containing Heroin/Chitta. The
Heroin/Chitta was weighed and its weight was found to be 74.83
grams. The police seized the Heroin/Chitta and arrested the
motorcyclist. He revealed on inquiry that the petitioner Sikandar
@ Nimma had delivered the Heroin/Chitta to him with the
direction to hand it over to some unknown person at the Toki
Barrier. The substance was sent to FSL, and it was found to be
Diacetylmorphine (Heroin). The police checked the call details
record and found that the petitioner and co-accused were in
touch with each other. A transaction of ₹24,32,036/- was found
in the bank account of the petitioner. The petitioner was involved
in the commission of a similar offence, and FIR No.11 of 2021,
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dated 25.01.2021, under NDPS Act was registered against him.
Hence, the status report.
3. I have heard Mr. Arsh Chauhan, learned counsel for
the petitioner, and Mr. Jitender Sharma, learned Additional
Advocate General, for the respondent-State.
4. Mr. Arsh Chauhan, learned counsel for the petitioner,
submitted that the petitioner is innocent and was falsely
implicated. There is no evidence against the petitioner except the
statement made by the co-accused, which is inadmissible in
evidence. The call detail records are not sufficient to connect the
petitioner with the commission of the crime. Therefore, he
prayed that the present petition be allowed and the petitioner be
released on bail. He relied upon the judgment of this Court in
Budh Bahadur Singh v. State of Himachal Pradesh [2024:HHC;1434],
in support of his submission.
5. Mr. Jitender Sharma, learned Additional Advocate
General, for the respondent-State, submitted that the petitioner
is involved in the heinous offence. He has a past criminal history
and is likely to commit the crime if released on bail. Hence, he
prayed that the present petition be dismissed.
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6. I have given considerable thought to the submissions
made at the bar and have gone through the records carefully.
7. 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."
8. It was held in P Chidambaram (supra) that economic
offences are to be treated differently from other offences. It was
observed:
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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 Kumar Jain, (1998) 2
SCC 105: 1998 SCC (Cri) 510], it was held that in economic
offences, the accused is not entitled to anticipatory bail.
xxxxxx
80. Observing that an economic offence is committed with
deliberate design with an eye on personal profit regardless
of the consequence to the community, in State of
Gujarat v. Mohanlal Jitamalji Porwal [State of
Gujarat v. Mohanlal Jitamalji Porwal, (1987) 2 SCC 364: 1987
SCC (Cri) 364], it was held as under: (SCC p. 371, para 5)
"5. ... The entire community is aggrieved if the
economic offenders who ruin the economy of the
State are not brought to book. A murder may be
committed in the heat of the moment, upon passions
being aroused. An economic offence is committed
with cool calculation and deliberate design with an
eye on personal profit, regardless of the
consequences to the community. A disregard for the
interest of the community can be manifested only at
the cost of forfeiting the trust and faith of the
community in the system to administer justice in an
even-handed manner without fear of criticism from
the quarters which view white-collar crimes with a
permissive eye unmindful of the damage done to the
national economy and national interest."
81. Observing that economic offences constitute a class
apart and need to be visited with a different approach in
the matter of bail, in Y.S. Jagan Mohan Reddy v. CBI [Y.S.
Jagan Mohan Reddy v. CBI, (2013) 7 SCC 439: (2013) 3 SCC
(Cri) 552], the Supreme Court held as under: (SCC p. 449,
paras 34-35)
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"34. Economic offences constitute a class apart and need
to be visited with a different approach in the matter of
bail. The economic offences having deep-rooted
conspiracies and involving huge loss of public funds
need to be viewed seriously and considered as grave
offences affecting the economy of the country as a whole
and thereby posing a serious threat to the financial
health of the country.
35. While granting bail, the court has to keep in mind the
nature of accusations, the nature of evidence in support
thereof, the severity of the punishment which conviction
will entail, the character of the accused, circumstances
which are peculiar to the accused, reasonable possibility of
securing the presence of the accused at the trial,
reasonable apprehension of the witnesses being tampered
with, the larger interests of the public/State and other
similar considerations." (emphasis supplied)
82. Referring to Dukhishyam Benupani v. Arun Kumar
Bajoria [Dukhishyam Benupani v. Arun Kumar Bajoria,
(1998) 1 SCC 52: 1998 SCC (Cri) 261], in Directorate of
Enforcement v. Bher Chand Tikaji Bora [Directorate of
Enforcement v. Bher Chand Tikaji Bora, (1999) 5 SCC 720:
1999 SCC (Cri) 1045], while hearing an appeal by the
Enforcement Directorate against the order [Bherchand
Tikaji Bora v. State of Maharashtra, Criminal Application No.
2140 of 1998, decided on 21-7-1998 (Bom)] of the Single
Judge of the Bombay High Court granting anticipatory bail
to the respondent thereon, the Supreme Court set aside the
order of the Single Judge granting anticipatory bail.
9. This position was reiterated in Srikant Upadhyay v.
State of Bihar, 2024 SCC OnLine SC 282, wherein it was held:
"25. We have already held that the power to grant
anticipatory bail is extraordinary. Though in many cases it
was held that bail is said to be a rule, it cannot, by any
stretch of the imagination, be said that anticipatory bail is
the rule. It cannot be the rule, and the question of its grant
( 2025:HHC:16298 )
should be left to the cautious and judicious discretion of
the Court, depending on the facts and circumstances of
each case. While called upon to exercise the said power, the
Court concerned has to be very cautious as the grant of
interim protection or protection to the accused in serious
cases may lead to a miscarriage of justice and may hamper
the investigation to a great extent as it may sometimes
lead to tampering or distraction of the evidence. We shall
not be understood to have held that the Court shall not
pass interim protection pending consideration of such
application as the Section is destined to safeguard the
freedom of an individual against unwarranted arrest, and
we say that such orders shall be passed in eminently fit
cases."
10. It was held in Pratibha Manchanda v. State of Haryana,
(2023) 8 SCC 181: 2023 SCC OnLine SC 785 that the Courts should
balance individual rights, public interest and fair investigation
while considering an application for pre-arrest bail. It was
observed:
"21. The relief of anticipatory bail is aimed at
safeguarding individual rights. While it serves as a
crucial tool to prevent the misuse of the power of
arrest and protects innocent individuals from
harassment, it also presents challenges in
maintaining a delicate balance between individual
rights and the interests of justice. The tightrope we
must walk lies in striking a balance between
safeguarding individual rights and protecting public
interest. While the right to liberty and presumption of
innocence are vital, the court must also consider the
gravity of the offence, the impact on society, and the
need for a fair and free investigation. The court's
discretion in weighing these interests in the facts and
( 2025:HHC:16298 )
circumstances of each case becomes crucial to ensure
a just outcome."
11. The status report shows that the main accused,
Anchal, disclosed that the petitioner had handed over the
Heroin/Chitta to him with the direction to deliver it to an
unknown person at the Toki Barrier. It was submitted that the
statement made by the co-accused is not admissible. Reliance
was placed upon the judgment of the Hon'ble Supreme Court in
Tofan Singh Vs. State of Tamilnadu 2021 4 SCC (1). The Hon'ble
Supreme Court considered this judgment in Union of India vs
Khaliludeen 2022 Supreme SC 1247 and denied bail to the accused,
who was named by the co-accused. It was observed: -
"8. The answer to said question could be the statement
recorded by Md. Nizam Uddin. The statement of Md. Jakir
Hussain, recorded under Section 67 of the act, has also
named his owner Abdul Hai. We are conscious of the fact
that the validity and scope of such statements under
Section 67 have been pronounced upon by this Court in
Tofan Singh vs. State of Tamil Nadu, (2021) 4 SCC 1. In State
by (NCB) Bengaluru vs. Pallulabid Ahmad Arimutta and
Another, 2022 Live Law (SC) 69, the rigour of law laid down
by this Court in Tofan Singh was held to be applicable even
at the stage of grant of bail.
9. However, going by the circumstances on record, at this
stage, on the strength of the statement of Md. Nizam
Uddin, though allegedly retracted later, the matter stands
on a different footing. In our considered view, in the face of
the mandate of Section 37 of the Act, the High Court could
not and ought not to have released the accused on bail. We,
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therefore, allow these appeals, set aside the view taken by
the High Court and direct that both the appellants be taken
in custody forthwith".
12. This position was reiterated in Union of India v. Ajay
Kumar Singh, 2023 SCC OnLine SC 346, wherein it was held:
"11. The information revealed by the above two accused
persons indicated that both of them knew the respondent-
accused and that they had connived with him to transport
the illicit ganja, and that they were in direct contact with
the respondent-accused all through his mobile number.
The facts as unfurled from the complaint/FIR and the
statements of the above two accused persons recorded
under Section 67 of the NDPS Act reveal that the
respondent-accused is the kingpin and the organiser of the
illicit trade in ganja
xxxx
17. The quantity of "ganja" recovered is admittedly of
commercial quantity. The High Court has not recorded any
finding that the respondent-accused is not prima
facie guilty of the offence alleged and that he is not likely to
commit the same offence when enlarged on bail; rather,
his antecedents are indicative that he is a regular offender.
In the absence of a recording of such satisfaction by the
court, we are of the opinion that the High Court manifestly
erred in enlarging the respondent-accused on bail.
13. It was held by the Hon'ble Supreme Court in State of
Haryana v. Samarth Kumar, 2022 SCC OnLine SC 2087, that the
accused cannot be released on pre-arrest bail relying upon the
judgment in Tofan Singh (supra). It was observed:
"4. The High Court decided to grant pre-arrest bail to the
respondents on the only ground that no recovery was
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effected from the respondents and that they had been
implicated only on the basis of the disclosure statement of
the main accused, Dinesh Kumar. Therefore, reliance was
placed by the High Court in the majority judgment of this
Court in Tofan Singh v. State of Tamil Nadu, (2021) 4 SCC 1.
xxxxx
8. In cases of this nature, the respondents may be able to take
advantage of the decision in Tofan Singh v. State of Tamil
Nadu (supra), perhaps at the time of arguing the regular bail
application or at the time of final hearing after the conclusion
of the trial.
9. To grant anticipatory bail in a case of this nature is not
really warranted. Therefore, we are of the view that the
High Court fell into an error in granting anticipatory bail to
the respondents." (Emphasis supplied)
14. These judgments were followed by this Court in Rajesh
Kumar v. State of H.P., Cr.MP(M) No. 458 of 2025, decided on
25.3.2025, and it was held that the pre-arrest bail can be denied to
a person named by the co-accused to enable the police to
interrogate the petitioner. An SLP No. 55547 of 2025 titled Rajesh
Kumar Vs. State of H.P. against this order was withdrawn on
21.4.2025.
15. In the present case, the co-accused is the father of the
petitioner, and he had no reason to make a false statement
against him. Therefore, prima facie, there is sufficient material to
connect the petitioner with the commission of crime. The
judgment of Budh Bahadur (supra) specifically recognises that the
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Court can consider the prayer for pre-arrest bail in case of a small
or intermediate quantity. There can be no dispute with this
proposition of law. However, in the present case, the
investigation is continuing, and the role of the petitioner and
other persons is to be ascertained. Therefore, it would not be
proper to release the petitioner on bail at this stage.
16. It was submitted that the custodial interrogation of
the petitioner is necessary to find the involvement of the other
persons. This submission has to be accepted as correct. It was laid
down by the Hon'ble Supreme Court in State Versus Anil Sharma
(1997) 7 SCC 187 that where custodial interrogation is required,
pre-arrest bail should not be granted. It was observed: -
"6. We find force in the submission of the CBI that
custodial interrogation is qualitatively more elicitation-
oriented than questioning a suspect who is well-ensconced
with a favourable order under Section 438 of the Code. In a
case like this, effective interrogation of a suspected person
is of tremendous advantage in disinterring many useful
information and also materials which would have been
concealed. Success in such interrogation would elude if the
suspected person knows that he is well protected and
insulated by a pre-arrest bail order during the time he is
interrogated. Very often, interrogation in such a condition
would reduce to a mere ritual. The argument that the
custodial interrogation is fraught with the danger of the
person being subjected to third-degree methods need not
be countenanced, for such an argument can be advanced by
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all accused in all criminal cases. The Court has to presume
that responsible Police Officers would conduct themselves
in a responsible manner and that those entrusted with the
task of disinterring offences would not conduct themselves
as offender"
17. A similar view was taken by the Delhi High Court in
Mukesh Khurana v. State (NCT of Delhi), 2022 SCC OnLine Del 1032,
wherein it was observed: -
"13. One of the significant factors in determining this
question would be the need for custodial interrogation.
Without a doubt, custodial interrogation is more effective
to question a suspect. The cocoon of protection afforded by
a bail order insulates the suspect, and he could thwart
interrogation, reducing it to futile rituals. But it must be
also kept in mind that while interrogation of a suspect is
one of the basic and effective methods of crime solving, the
liberty of an individual also needs to be balanced out."
18. It was held in P Chidambaram (supra) that the grant of
pre-arrest bail may hamper the investigations. It was observed:
"83. Grant of anticipatory bail at the stage of investigation
may frustrate the investigating agency in interrogating the
accused and in collecting useful information, and also the
materials which might have been concealed. Success in
such interrogation would elude if the accused knows that
he is protected by the order of the court. Grant of
anticipatory bail, particularly in economic offences, would
definitely hamper the effective investigation. Having
regard to the materials said to have been collected by the
respondent Enforcement Directorate and considering the
stage of the investigation, we are of the view that it is not a
fit case to grant anticipatory bail."
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19. Keeping in view the quantity of narcotics recovered
and the material collected by the police, the petitioner is not
entitled to the concession of pre-arrest bail. Hence, the present
petition fails, and the same is dismissed.
20. The observations made heretofore shall remain
confined to the disposal of the petition and will have no bearing,
whatsoever, on the merits of the case.
(Rakesh Kainthla)
Judge
27th May, 2025
(Shamsh Tabrez)
