Himachal Pradesh High Court

Swaroop Chand vs State Of Himachal Pradesh on 29 May, 2025

( 2025:HHC:16515 )

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

Cr. MP(M) No. 875 of 2025 Reserved on: 15.05.2025 Date of Decision: 29.05.2025.

    Swaroop Chand                                                                ...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. Ashwani Kaundal, Advocate. For the Respondent : Mr. Prashant Sen, Deputy Advocate General.

Rakesh Kainthla, Judge

The petitioner has filed the present petition for

seeking regular bail. It has been asserted that the petitioner was

arrested vide FIR No. 109 of 2024, dated 24.12.2024, registered for

the commission of an offence punishable under Section 18 of

Narcotic Drugs & Psychotropic Substances Act ("in short NDPS

Act"), 1985, at Police Station Darlaghat, District Solan, H.P. As per

the prosecution case, the police received an information that

petitioner was running a Pandit Dhaba at Kyarad and was dealing

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

2( 2025:HHC:16515 )

with sale of opium and in case of search, a huge quantity of

narcotics could be recovered. The police searched the Dhaba and

recovered 47.38 grams of opium wrapped in a plastic kept inside

the last drawer of the counter. The petitioner belongs to a

respectable family, and he is deeply rooted in the society. There is

no apprehension of his fleeing from justice. The investigation is

over, and the petitioner is not required for the investigation. The

petitioner is the sole breadwinner of the family. He 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 was on a patrolling duty on

24.12.2024. They received a secret information at 04:45 pm near

Bhararighat that the petitioner was dealing with opium in his

Pandit Dhaba. The police reduced the information into writing

and searched the Dhaba in the presence of Mohan Singh (Up-

Pradhan), Constable Prem Chand, and the petitioner. Police

recovered one weighing machine and a plastic packet containing

47.38 grams of opium kept in the last drawer of the counter. The

police seized the opium and arrested the petitioner. The opium

was sent to SFSL, Junga and as per the result, Morphine, Codeine, 3( 2025:HHC:16515 )

Thebaine, Papaverine, Narcotine and Meconic acid were found in

it. The percentage of Morphine in the opium was 4.26% w/w. FIR

No. 40/12 dated 17.02.2012 & FIR No.211/19 dated 16.09.2019 have

been registered against the petitioner, which are pending before

the Court. The matter is listed before the learned Special Judge-II,

Solan on 11.06.2025 for checking of the copies. Hence, the status

report.

3. I have heard Mr. Ashwani Kaundal, learned counsel for

the petitioner and Mr. Prashant Sen, learned Deputy Advocate

General, for the respondent-State.

4. Mr. Ashwani Kaundal, learned counsel for the

petitioner, submitted that the petitioner is innocent and was

falsely implicated. The quantity of opium found in possession of

the petitioner is more than a small quantity but less than a

commercial quantity, hence, rigours of Section 37 of the NDPS Act

do not apply to the present case. The petitioner is not the owner

of the Dhaba but only a servant working in the Dhaba. There is

insufficient material on record to connect the petitioner to the

commission of a crime. Therefore, he prayed that the present

petition be allowed and the petitioner be released on bail. He 4( 2025:HHC:16515 )

relied upon the judgment of this Court in Lalit Singh v. State of

Himachal Pradesh 2025:HHC:11455 in support of his submission.

5. Mr. Prashant Sen, learned Deputy Advocate General,

for the respondent-State, submitted that the petitioner has

criminal antecedents in the past and he is likely to commit the

offence in case of his release on bail. Narcotics are adversely

affecting the society, and no leniency should be shown to a

person who is dealing with Narcotics. Considering the gravity of

the offence, the petitioner is not entitled to bail. Hence, he prayed

that the present petition be dismissed.

6. I have given considerable thought to the submissions

made at the bar and have gone through the records carefully.

7. The parameters for granting bail were considered by

the Hon'ble Supreme Court in Ajwar v. Waseem (2024) 10 SCC 768:

2024 SCC OnLine SC 974, wherein it was observed at page 783: -

"Relevant parameters for granting bail

26. While considering whether bail ought to be granted in a matter involving a serious criminal offence, the Court must consider relevant factors like the nature of the accusations made against the accused, the manner in which the crime is alleged to have been committed, the gravity of the offence, the role attributed to the accused, the criminal antecedents of the accused, the probability of tampering of the witnesses and repeating the offence, if the accused are 5( 2025:HHC:16515 )

released on bail, the likelihood of the accused being unavailable in the event bail is granted, the possibility of obstructing the proceedings and evading the courts of justice and the overall desirability of releasing the accused on bail. [Refer: Chaman Lal v. State of U.P. [Chaman Lal v. State of U.P., (2004) 7 SCC 525: 2004 SCC (Cri) 1974]; Kalyan Chandra Sarkar v. Rajesh Ranjan [Kalyan Chandra Sarkar v. Rajesh Ranjan, (2004) 7 SCC 528: 2004 SCC (Cri) 1977]; Masroor v. State of U.P. [Masroor v. State of U.P., (2009) 14 SCC 286 : (2010) 1 SCC (Cri) 1368]; Prasanta Kumar Sarkar v. Ashis Chatterjee [Prasanta Kumar Sarkar v. Ashis Chatterjee, (2010) 14 SCC 496 : (2011) 3 SCC (Cri) 765]; Neeru Yadav v. State of U.P. [Neeru Yadav v. State of U.P., (2014) 16 SCC 508 : (2015) 3 SCC (Cri) 527]; Anil Kumar Yadav v. State (NCT of Delhi)[Anil Kumar Yadav v. State (NCT of Delhi), (2018) 12 SCC 129 : (2018) 3 SCC (Cri) 425]; Mahipal v. Rajesh Kumar [Mahipal v. Rajesh Kumar, (2020) 2 SCC 118 : (2020) 1 SCC (Cri) 558] .]

8. This position was reiterated in Ramratan v. State of

M.P., 2024 SCC OnLine SC 3068, wherein it was observed as under:

"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 herein below:

"14. The language of Section 437(3) CrPC, which uses the expression "any condition ... otherwise in the 6( 2025:HHC:16515 )

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 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, and 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 bail application 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 7( 2025:HHC:16515 )

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 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. This position was reiterated in Shabeen Ahmed versus

State of U.P., 2025 SCC Online SC 479.

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

parameters laid down by the Hon'ble Supreme Court.

11. The status report shows that the petitioner was

present in the Dhaba when the police reached the Dhaba. The

police recovered 47.38 grams of opium kept in the drawer;

therefore, prima facie, the petitioner was in possession of the

opium, and the submission that the petitioner is not the owner

and not in possession of the opium is not acceptable.

12. Further, this submission was made for the first time

during the arguments, and no plea was taken in the petition 8( 2025:HHC:16515 )

seeking bail that the petitioner is not the owner of the Dhaba, or

he is merely a servant in the Dhaba. Therefore, this submission

has no factual foundation. Further, the ownership of the Dhaba is

not essential for the offences under the NDPS Act because the

prosecution has to show the possession and not the ownership.

Since the petitioner was the only person present in the Dhaba;

therefore, the only inference that can be, prima facie, drawn is

that he was in possession of the opium.

13. It was submitted that the petitioner was found in

possession of an intermediate quantity of opium, thus, he is

entitled to bail as a matter of right. This submission cannot be

accepted. 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 9( 2025:HHC:16515 )

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."

14. 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 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 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 10( 2025:HHC:16515 )

the petitioner in similar activities, in case he is released on bail."

15. 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 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."

16. The Karnataka High Court took a similar view in Sri.

Thaha Ummer vs Union of India Criminal Petition No.9450/2022

decided on 09-11-2022 and held that merely because Section 37 of

the NDPS Act does not apply, a person involved in the commission

of an offence punishable under the NDPS Act cannot be released

on bail as a matter of right.

11( 2025:HHC:16515 )

17. In the present case, the petitioner was not only found

in possession of opium but also in possession of a digital

weighing machine as well. The recovery of the digital weighing

machine, prima facie, leads to an inference that it was to be used

for weighing the opium. Hence, the submission that the petitioner

was dealing in opium has to be, prima facie, accepted as correct. It

was rightly submitted on behalf of the State that Narcotics are

adversely affecting the young generation and their possession

cannot be viewed lightly. Hence, the petitioner is not entitled to

bail on this consideration.

18. The status report shows that the FIR No.40/12 dated

17.02.2012 & FIR No.211/19 dated 16.09.2019, were registered

against the petitioner. The petitioner has concealed these FIRs in

the petition filed by him. This shows that the petitioner has

criminal antecedents, and he is trying to conceal them from the

Court to secure bail. 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 such offences and his general conduct

while considering the bail petition. The bail should not be 12( 2025:HHC:16515 )

generally granted to an accused having criminal antecedents

when there is a likelihood of the commission of the crime.

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

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

can become a threat to society because of his 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."

20. 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 an offence, 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.