Jagdish Kumar vs State Of Himachal Pradesh

Rakesh Kainthla, J

The petitioner has filed the present petition seeking regular bail in FIR No. 21 of 2025, dated 13.3.2025, registered at Police Station Jubbal, District Shimla, H.P., for the commission of offences punishable under Sections 21, 25, 27A and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act).

It has been asserted that, as per the prosecution, 228 grams of heroin were recovered by the police. The police arrested the petitioner. The investigation is complete, and the charge sheet has been filed before the Court. Statements of some witnesses have been recorded. The quantity of heroin stated to have been recovered by the police is intermediate, and the rigours of Section 37 of the NDPS Act do not apply to the present case. The petitioner belongs to a reputed family and has deep roots in society. There is no likelihood of his absconding, if released on bail. The prosecution has cited 33 witnesses, and the trial is likely to take some time for its conclusion. The petitioner would abide by the terms and conditions that the Court may impose. Hence, the petition.

The petition is opposed by filing a status report, asserting that the police were on patrolling duty on 13.3.2025 at Patsari. They received a secret information at 11.30 AM that a vehicle bearing registration No. PB-07-AB-5288 was transporting a huge quantity of heroin. The information was credible, and any delay in procuring the warrant could have led to the destruction of the heroin. Hence, the information was reduced into writing and was sent to Sub Divisional Police Officer (SDPO), Rohru. The police associated Harish Chajta, Up-Pradhan, Gram Panchayat Sarswatinagar and set up a naka. The vehicle bearing registration No. PB-07-AB-5288 reached the spot at 1.08 PM. The driver took the vehicle towards the link road; however, the police intercepted it. The driver identified himself as Raj Kumar. The person sitting in the front seat identified himself as Jagdish Kumar, and the person sitting on the rear seat identified himself as Jitender Kumar. The police checked the vehicle and recovered two packets containing 228 grams of heroin. The police arrested the occupants of the vehicle who were going to sell the heroin to Kapil Rajta. The police also arrested him. He disclosed the names of Kulwant and Raj Kumar and the police also arrested them. Boota Singh was also arrested based on the financial transactions. Heroin was sent to the SFSL, Junga and as per the result of the analysis, it was found to be a sample of Diacetylmorphine (Heroin). The police filed the charge sheet and the matter was listed for recording the statements of the prosecution witnesses on 24.12.2025. Hence, the status report.

I have heard Mr K.B. Khajuria, learned counsel for the petitioner and Mr Pushpender Singh Jaswal, learned Additional Advocate General for the respondent/State.

Mr K.B. Khajuria, learned counsel for the petitioner, submitted that the petitioner is innocent and has been falsely implicated. There is no material on record to connect him to the commission of the crime. The quantity of heroin stated to have been recovered by the police is intermediate, and the rigours of Section 37 of the NDPS Act do not apply to the present case. The petitioner would abide by the terms and conditions that the Court may impose. Hence, he prayed that the present petition be allowed and the petitioner be released on bail.

Mr Pushpender Singh Jaswal, learned Additional Advocate General for the respondent/State, submitted that the quantity of the heroin found in possession of the petitioner was huge and could not have been meant for self-consumption. Heroin is adversely affecting the young generation, and no leniency should be shown to the petitioner. Hence, 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 record carefully.

The parameters for granting bail were considered by the Hon’ble Supreme Court in Pinki v. State of U.P., (2025) 7 SCC 314: 2025 SCC OnLine SC 781, wherein it was observed at page 380:

(i) Broad principles for the grant of bail

In Gudikanti Narasimhulu v. High Court of A.P., (1978) 1 SCC 240: 1978 SCC (Cri) 115, Krishna Iyer, J., while elaborating on the content of Article 21 of the Constitution of India in the context of personal liberty of a person under trial, has laid down the key factors that should be considered while granting bail, which are extracted as under: (SCC p. 244, paras 7-9)

“7. It is thus obvious that the nature of the charge is the vital factor, and the nature of the evidence is also pertinent. The punishment to which the party may be liable, if convicted or a conviction is confirmed, also bears upon the issue.

Another relevant factor is whether the course of justice would be thwarted by him who seeks the benignant jurisdiction of the Court to be freed for the time being. [Patrick Devlin, “The Criminal Prosecution in England” (Oxford University Press, London 1960) p. 75 — Modern Law Review, Vol. 81, Jan. 1968, p. 54.]

Thus, the legal principles and practice validate the Court considering the likelihood of the applicant interfering with witnesses for the prosecution or otherwise polluting the process of justice. It is not only traditional but rational, in this context, to enquire into the antecedents of a man who is applying for bail to find whether he has a bad record, particularly a record which suggests that he is likely to commit serious oflences while on bail. In regard to habituals, it is part of criminological history that a thoughtless bail order has enabled the bailee to exploit the opportunity to inflict further crimes on the members of society. Bail discretion, on the basis of evidence about the criminal record of a defendant, is therefore not an exercise in irrelevance.” (emphasis supplied)

In Prahlad Singh Bhati v. State (NCT of Delhi), (2001) 4 SCC 280: 2001 SCC (Cri) 674, this Court highlighted various aspects that the courts should keep in mind while dealing with an application seeking bail. The same may be extracted as follows: (SCC pp. 284-85, para 8)

“8. The jurisdiction to grant bail has to be exercised on the basis of well-settled principles, having regard to the circumstances of each case and not in an arbitrary manner. While granting the 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, behaviour, means and standing 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 or State and similar other considerations. It has also to be kept in mind that for the purposes of granting the bail the legislature has used the words “reasonable grounds for believing” instead of “the evidence” which means the court dealing with the grant of bail can only satisfy it (sic itself) as to whether there is a genuine case against the accused and that the prosecution will be able to produce prima facie evidence in support of the charge.” (emphasis supplied)

This Court in Ram Govind Upadhyay v. Sudarshan Singh, (2002) 3 SCC 598: 2002 SCC (Cri) 688, speaking through Banerjee, J., emphasised that a court exercising discretion in matters of bail has to undertake the same judiciously. In highlighting that bail should not be granted as a matter of course, bereft of cogent reasoning, this Court observed as follows: (SCC p. 602, para 3)

“3. Grant of bail, though being a discretionary order, but, however, calls for the exercise of such a discretion in a judicious manner and not as a matter of course. An order for bail bereft of any cogent reason cannot be sustained. Needless to record, however, that the grant of bail is dependent upon the contextual facts of the matter being dealt with by the court and facts do always vary from case to case. While the placement of the accused in society, though it may be considered by itself, cannot be a guiding factor in the matter of grant of bail, the same should always be coupled with other circumstances warranting the grant of bail. The nature of the oflence is one of the basic considerations for the grant of bail — the more heinous is the crime, the greater is the chance of rejection of the bail, though, however, dependent on the factual matrix of the matter.” (emphasis supplied)

In Kalyan Chandra Sarkar v. Rajesh Ranjan, (2004) 7 SCC 528: 2004 SCC (Cri) 1977, this Court held that although it is established that a court considering a bail application cannot undertake a detailed examination of evidence and an elaborate discussion on the merits of the case, yet the court is required to indicate the prima facie reasons justifying the grant of bail.

In Prasanta Kumar Sarkar v. Ashis Chatterjee, (2010) 14 SCC 496: (2011) 3 SCC (Cri) 765, this Court observed that where a High Court has granted bail mechanically, the said order would suffer from the vice of non-application of mind, rendering it illegal. This Court held as under with regard to the circumstances under which an order granting bail may be set aside. In doing so, the factors which ought to have guided the Court's decision to grant bail have also been detailed as under: (SCC p. 499, para 9)

“9. … It is trite that this Court does not, normally, interfere with an order passed by the High Court granting or rejecting bail to the accused. However, it is equally incumbent upon the High Court to exercise its discretion judiciously, cautiously and strictly in compliance with the basic principles laid down in a plethora of decisions of this Court on the point. It is well settled that, among other circumstances, the factors to be borne in mind while considering an application for bail are:

(i) whether there is any prima facie or reasonable ground to believe that the accused had committed the oflence;

(ii) nature and gravity of the accusation;

(iii) severity of the punishment in the event of conviction;

(iv) danger of the accused absconding or fleeing, if released on bail;

(v) character, behaviour, means, position and standing of the accused;

(vi) likelihood of the oflence being repeated;

(vii) reasonable apprehension of the witnesses being influenced; and

(viii) danger, of course, of justice being thwarted by grant of bail.” (emphasis supplied)

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One of the judgments of this Court on the aspect of application of mind and requirement of judicious exercise of discretion in arriving at an order granting bail to the accused is Brijmani Devi v. Pappu Kumar, (2022) 4 SCC 497 : (2022) 2 SCC (Cri) 170, wherein a three-Judge Bench of this Court, while setting aside an unreasoned and casual order (Pappu Kumar v. State of Bihar, 2021 SCC OnLine Pat 2856 and Pappu Singh v. State of Bihar, 2021 SCC OnLine Pat 2857) of the High Court granting bail to the accused, observed as follows: (Brijmani Devi v. Pappu Kumar, (2022) 4 SCC 497 : (2022) 2 SCC (Cri) 170]), SCC p. 511, para 35)

“35. While we are conscious of the fact that liberty of an individual is an invaluable right, at the same time while considering an application for bail courts cannot lose sight of the serious nature of the accusations against an accused and the facts that have a bearing in the case, particularly, when the accusations may not be false, frivolous or vexatious in nature but are supported by adequate material brought on record so as to enable a court to arrive at a prima facie conclusion. While considering an application for the grant of bail, a prima facie conclusion must be supported by reasons and must be arrived at after having regard to the vital facts of the case brought on record. Due consideration must be given to facts suggestive of the nature of crime, the criminal antecedents of the accused, if any, and the nature of punishment that would follow a conviction vis-à-vis the oflence(s) alleged against an accused.” (emphasis supplied)

The present petition has to be decided as per the parameters laid down by the Hon’ble Supreme Court.

The status report shows that the petitioner was sitting on the front seat of the vehicle from which the recovery was made. The driver and the petitioner are the residents of the same village. In Madan Lal versus State of H.P. (2003) 7 SCC 465: 2003 SCC (Cri) 1664: 2003 SCC OnLineSC 874, the contraband was recovered from a vehicle, and it was held that all the occupants of the vehicle would be in conscious possession of the contraband. It was observed:

“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.

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 to make the possession illicit, there must be conscious possession.

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.

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 the Supdt. & Remembrancer of Legal Aflairs, W.B. v. Anil Kumar Bhunja [(1979) 4 SCC 274: 1979 SCC (Cri) 1038: AIR 1980 SC 52] to work out a completely logical and precise definition of “possession” uniformly applicable to all situations in the context of all statutes.

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

As noted in Gunwantlal v. State of M.P. [(1972) 2 SCC 194: 1972 SCC (Cri) 678: AIR 1972 SC 1756], possession in a given case need not be physical possession but can be constructive, having power and control over the article in the case in question, while the person to whom physical possession is given holds it subject to that power or control.

The word “possession” means the legal right to possession (see Heath v. Drown [(1972) 2 All ER 561: 1973 AC 498: (1972) 2 WLR 1306 (HL)] ). In an interesting case, it was observed that where a person keeps his firearm in his mother's flat, which is safer than his own home, he must be considered to be in possession of the same. (See Sullivan v. Earl of Caithness [(1976) 1 All ER 844: 1976 QB 966: (1976) 2 WLR 361 (QBD)].)

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 a presumption is also available to be drawn from possession of illicit articles.

In the factual scenario of the present case, not only possession but conscious possession has been established. It has not been shown by the accused- appellants that the possession was not conscious in the logical background of Sections 35 and 54 of the Act.”

Therefore, prima facie, the petitioner was in possession of the charas.

The quantity of heroin stated to have been recovered from the possession of the petitioner is less than a commercial quantity, and the rigours of Section 37 of the NDPS Act do not apply to the present case.

The petitioner asserted that he is a first offender and no other case has been registered against him. This is confirmed in the status report, wherein it has been specifically mentioned that no other case has been registered against the petitioner. The petitioner, being the first offender, is entitled to reform himself and keeping him behind the bars would deprive him of this opportunity because he would come in contact with the hardened criminal, thereby making the chance of his reformation bleak.

The status report shows that the police have filed the charge sheet before the learned Trial Court, which means that the investigation is complete, and no fruitful purpose would be served by detaining the petitioner in custody.

It was submitted that the petitioner would indulge in the commission of a similar offence in case of his release on bail. This apprehension can be removed by imposing conditions, and it is not sufficient to deny bail.

It was submitted that heroin harms society, and the petitioner should not be released on bail. This submission overlooks the fact that the purpose of pre-trial detention is not punitive but to secure the presence of the accused during trial. In the present case, the petitioner asserted that he is a permanent resident of District Fazilka, Punjab which was found to be correct as per the status report. This shows that the petitioner has roots in society, and his chance of absconding is bleak. The offence is punishable with imprisonment up to 10 years, and there is nothing to suggest that the petitioner will not attend the Trial. Hence, the bail cannot be denied as a punitive measure.

It was submitted that the petitioner would intimidate the witness in case of his release on bail. There is no basis for this apprehension. Further, the apprehension can be removed by imposing the condition, and it is not sufficient to deny bail to the petitioner.

In view of the above, the present petition is allowed and the petitioner is ordered to be released on bail subject to his furnishing bail bonds in the sum of ₹1,00,000/- with two sureties in the like amount to the satisfaction of the learned Trial Court. The petitioner, while on bail, will abide by the following terms and conditions:-

(i) The petitioner will join the investigation as and when directed to do so through a written hukamnama.

(ii) The petitioner will not intimidate the witnesses nor will he influence any evidence in any manner whatsoever.

(iii) The petitioner shall attend the trial in case a charge sheet is presented against him and will not seek unnecessary adjournments.

(iv) The petitioner will not leave the present address for a continuous period of seven days without furnishing the address of intending a visit to the SHO, the Police Station concerned and the Trial Court.

(v) The petitioner will surrender his passport, if any, to the Court; and

(vi) The petitioner will furnish his mobile number and social media contact to the Police and the Court and will abide by the summons/notices received from the Police/Court through SMS/WhatsApp/Social Media Account. In case of any change in the mobile number or social media accounts, the same will be intimated to the Police/Court within five days from the date of the change.

It is expressly made clear that in case of violation of any of these conditions, the prosecution will have the right to file a petition for cancellation of the bail.

The petition stands accordingly disposed of. A copy of this order be sent to the Superintendent, Sub Jail Kaithu, District Shimla, H.P. and the learned Trial Court by FASTER.

The observation 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.

A downloaded copy of this order shall be accepted by the learned Trial Court while accepting the bail bonds from the petitioner, and in case said Court intends to ascertain the veracity of the downloaded copy of the order presented to it, the same may be ascertained from the official website of this Court.