Gaurav Kumar vs State of Himachal Pradesh

Rakesh Kainthla, J

The petitioner has filed the present petition for seeking pre-arrest bail. It has been asserted that the police had registered an FIR No. 45 of 2025, dated 28.2.2025 for the commission of offences punishable under Sections 18, 20 and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short NDPS Act) at Police Station Jogindernagar, District Mandi, H.P. The petitioner has been falsely implicated in the said FIR based on the disclosure statement made by the co-accused. The petitioner is stated to be in conversation with the co-accused. The petitioner is running a restaurant in the name and style of M/s Sharma Dbaba at Village Galu, Joginder Nagar, District Mandi, HP. The co-accused Ganga Ram used to supply unskilled labour to the petitioner, therefore, the petitioner used to remain in touch with the co-accused. The petitioner would join the investigation as and when directed to do so. He is a permanent resident of District Mandi, H.P. and there is no apprehension of his absconding. Hence the petition.

The petition is opposed by filing a status report asserting that the police party was on patrolling duty on 28.2.2025. They found Ganga Ram, Mani Ram and Sher Singh in suspicious condition. Ganga Ram had a black backpack. The police searched the backpack in the presence of two independent witnesses and recovered 3.11 kilograms of opium. The police arrested Ganga Ram, Mani Ram and Sher Singh. Ganga Ram made a disclosure statement and got recovered 2.109 kilograms of charas. He disclosed the name of the petitioner. It was found after the investigation that Ganga Ram used to purchase charas from Jagdish and sell it to the petitioner. The call detail record also shows the conversation between Ganga Ram and the petitioner. Ganga Ram had also sent photographs of the charas and opium on the Whatsapp number of the petitioner. The police seized the vehicle of the petitioner and found documents regarding the sale/purchase of charas. The petitioner is involved in the sale and purchase of charas. Therefore, it was prayed that the present petition be dismissed.

I have heard Mr Peeyush Verma, learned Senior Counsel, assisted by Mr Abhishek Thakur, learned counsel for the petitioner and Mr Jitender Sharma, learned Additional Advocate General, for the respondent-State.

Mr. Peeyush Verma, learned Senior Counsel for the petitioner submitted that the petitioner is innocent and he was falsely implicated. He has been named by the co-accused and the statement made by the co-accused is inadmissible in evidence. There is no prohibition in granting pre-arrest bail to a person stated to be involved in the commission of an offence punishable under the ND&PS Act. Therefore, he prayed that the present petition be allowed and the petitioner be released on bail. He relied upon the judgments of the Hon’ble Supreme Court in State Vs. B. Ramu, 2024 INSC 114, Lakho Vs. State of Punjab 2025 PHHC 000632 and Sahil Firoz Shaikh Vs. State of Maharashtra SLP (Crl.) No. 11871 of 2024, decided on 29.11.2024 in support of his submission.

Mr Jitender Sharma, learned Additional Advocate General, for the respondent-State submitted that the petitioner is involved in the commission of a serious offence. There is sufficient material to connect the petitioner with the commission of a crime. His custodial interrogation is necessary to determine the destination of opium and charas. Therefore, he prayed that the present petition be dismissed.

I have given considerable thought to the submissions made at the bar and have gone through the records of the case carefully.

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 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 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.”

It was held in P Chidambaram (supra) that economic offences are to be treated differently from other offences. It was observed:

Economic offences

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.

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Observing that 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 consequence 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.”

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)

“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.

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)

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 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.”

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 circumstances of each case becomes crucial to ensure a just outcome.”

The main accused had named the petitioner in the present case. 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.

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, therefore, allow these appeals, set aside the view taken by the High Court and direct that both the appellants be taken in custody forthwith”.

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 respondent-accused is the kingpin and the organiser of the illicit trade in ganja

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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 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.”.

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 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.

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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.

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)

In the present case, the petitioner has not only been named by the co-accused but it was found that the co-accused had sent the photographs of the charas and opium to the mobile phone of the petitioner. He was also in touch with the co-accused and as per the status report; he had talked to the co-accused 304 times between 1.9.2023 to 27.9.2025. The police have also recovered the documents from the vehicle of the petitioner which connects him with the sale/purchase of the charas. Thus, there is sufficient material to further interrogate the petitioner. Keeping in view the quantity of the charas and opium recovered from the co-accused, the prayer that further interrogation of the petitioner is required is 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-orientated 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 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”

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.”

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.”

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.

The observations made here-in-before shall remain confined to the disposal of the petition and will have no bearing, whatsoever, on the merits of the case.