Kamal Kumar vs State Of Himachal Pradesh

Virender Singh, J

Applicant­Kamal has filed the present application, under Section 483 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (hereinafter referred to as the 'BNSS'), with a prayer to release him on bail, during the pendency of trial, in case arising out of FIR No. 85 of 2025, dated 15.05.2025, under Section 22 of the Narcotic Drugs and Psychotropic Substances Act, (hereinafter referred to as the ‘ND&PS Act’), registered with Police Station Puruwala, District Sirmaur, H.P.

According to the applicant, he is innocent person and has falsely been implicated by the police, in the present case. The investigation of the present case is complete and the applicant is in judicial custody.

The applicant had fur her pleaded that the applicant is suffering from 60% disability, permanent in nature, as such, he is nable to walk without the help of walker. In this regard, he has annexed disability certificate Annexure P­2.

The applicant has tried his luck by moving similar application before learned Special Judge­I, Sirmaur District at Nahan, H.P., however, his application has been dismissed vide order dated 16.10.2025.

On the basis of the above facts, Sh. K.S. Gill, learned counsel appearing for the applicant has given certain undertakings, to which, the applicant is ready to abide by, in case, the applicant is ordered to be released on bail, during the pendency of the trial.

When, put to notice, the police has filed the status report, disclosing therein, that on 15.05.2025, HC Rakesh Kumar No. 224, I.O. SIU District Sirmaur, H. . has submitted a rukka to Police Station Puruwala, through C. Dinesh Kumar No. 342, disclosing therein, that on 15. 05.2025, he along with the other police o ficials, in his private vehicle bearing No. HP79­0852, was on the duty to conduct patrolling, to detect he crime relating to excise and narcotic drugs, left the office of SIU Nahan at 1:15 pm, towards Kolar, Paonta Sahib, Kafota, Shillai etc.

6.1 After c nducting the patrolling, when, the police party reached in the market near Kafota, then, at about 4:55 pm, he received a secret information about the fact t at Surinder Singh is running a shop in the ground floor, n his building, which is situated near Senior Secondary School, Jamna (Jakhana). His shop is in front of the school gate and from the said shop, he is selling prohibited medicine codeine phosphate, not only to the school children, but also to local people. The said Surinder Singh, as per the information, has brought huge quantity of codeine phosphate syrup from Vikasnagar by purchasing the same from Prabha Medical Store and in case, the said shop is searched, then large quantity of codeine phosphate vials could be recovered.

6.2 As per the information, in case, I.O. obtains the search warrant, in that eventuality, contraband could be sold or may be removed from there. The said information was authentic and reliable. As such, information under Section 42(2) of the ND&PS Act, was prepared and submitted to SDPO Paonta Sahib, through C. Narinder Singh No. 605, at 5:10 pm.

6.3 Thereafter, the I.O., along with the police officials, proceeded towards place Jakhana. At about 5:45 pm, when, he reached near Government Senior Secondary Sc ool Jakhana, then, he met Pradhan, Gram Panchayat Kando Cheog, Sh. Shyam Dutt and another person, who, on inquiry disclosed his name as Jitender Singh son of Sh. Telu Ram. I.O., thereafter, gave his personal identification to the said persons and also apprised them about the secret information and associated them as independent witnesses in the raiding party. Along with them, C. Vishal No. 559 was associated as independent witness.

6.4 Thereafter, police party along with independent witnesses reached in the daily need shop of Surinder Singh. One person was found sitting, at the counter. Upon inquiry, he disclosed his name as Surinder Singh son of late Sh. Narayan Singh. He apprised about the secret information and before searching the shop, the I.O., as well as, the police officials and independent witnesses had given their personal search to Surinder Singh. Separate memo was prepared in this rega d. Thereafter, in the presence of independent witnesses and Surinder Singh, his shop was searched.

6.5 During search of his shop, a rucksack having four zips on it, was found, which, on opening was found containing Triprolidine & Hydrochloride & Codeine Phosphate Syrup in the bigger pocket. Total 55 vials were found and under ND&PS Act, those have been shown to be as prohibited drugs. However, one vial was found to be of 100 ml and thus total quantity was found to be 5.5 litres. The said syrup was manufactured by Three B Healthcare Ltd. Opp Dental College, Rampur Road Paonta Sahib, District Sirmaur H.P. and marketed by CADIZ LIFESCIENCE 39/2/6, Basement Floor Ground Floor, First Floor and Second Floor, Site For Industrial Area Sahibabad, Sahibabad Gaziabad U.P.

6.6 When the owner of the shop was inquired about the license/permit to contain the said contraband, he could not produce the same. From the other pocket of the bag, currency notes of various den mination were found, which, on counting, were found o be Rs. 16,700/­. All the 55 vials were taken into possession along with currency notes.

6.7 The rukka was prepared and the same was submitted to the Police Station, upon which, FIR in question was registered. Spot map was prepared. Accused Surinder Singh was arrested on 15.05.2025. Thereafter, the contraband was produced before the Court, where the proceedings under Section 52­A of ND&PS Act was conducted and sample was sent to SFSL Junga and the second sample, as well as, the remaining contraband was deposited with Malkhana Nahan.

6.8 On inquiry, the applicant had dislcosed that on 13.05.2025, he has purchased 75 vials of cough syrup at the rate of Rs. 170/­ each, from Prabha Medical Store, which is owned by chemist Kamal Kumar (applicant) and till 15.05.2025, 20 vials were sold to different people, who had come to attend the Bishu fare.

6.9 It is the further case of the police that on 17.05.2025, ASI Krishan Singh Bhandari, along with other police officials had gone to Prabha Medical Store along with local Drugs Inspector, Sh. Manender Singh Rana. During search, three Lykarex­T cough syrup and 120 Spasmed capsules containing prohibited Salt Tramadol, were found. Kamal Kumar (applicant) could not produce any stock register or sale register qua the prohibited drugs. Those drugs were taken into possession.

6.10 As per the police, cough syrup was found to be of the same batch, which were found in possession of accused Surinder Singh on 15.05.2025. Statement of witnesses, under Section 180 of BNSS, were recorded and accused Kamal Kumar (applicant) was arrested on 17.05.2025, at 9:30 pm. Thereafter, Section 29 of ND&PS Act was added, in this case. Accused Kamal Kumar (applicant) was produced before the learned JMFC Nahan on 18.05.2025, from where, he was remanded to police custody till 20.05.2025.

6.11 During investigation, he had allegedly disclosed that he used to purchase cough syrup and Tramadol tablets from Mahadev Chemist Vikasnagar.

6.12 According to the police, on 13th /14 th May, 2025, raid was conducted on the said chemist shop and owner of the same was arrested. During investigation, rent agreement, which was executed between Kamal Kumar (applicant) and landlord S resh Kumar Sharma, was taken into possession. The d cuments regarding the license of the said shop was obtained from Drug Controller, upon which, Manender Singh Rana had supplied the license of Kamal Kumar (applicant).

6.13 As per the report of SFSL, the Lykarex­T Cough Syrup was found to be containing Codeine. The capsules were found to be sample of Tramadol capsules. After the completion of the investigation, police filed the charge­ sheet against accused Surinder Singh and applicant Kamal Kumar under Sections 22 and 29 of ND&PS Act and same has been submitted in the competent Court of law on 31.10.2025, and case is now listed for checking of copies

6.14 Lastly, it has been apprehended that in case, applicant Kamal Kumar is released on bail, he may not be available for trial and may coerce the witnesses. Apart from this, according to the police, in the event of his bail, he may indulge in the same activity. On the basis of above facts, a prayer has been made o dismiss the application.

Coming to the fi st ground, upon which, bail has been sought, i.e. non­s pply of the grounds of arrest is concerned, the applicant, as per the status report, was arrested on 17.05.2025, and as per the decision of Hon’ble Supreme Court in “Criminal Appeal No. 2195 of 2025, titled as Mihir Rajesh Shah Vs State of Maharashtra & Anr., Neutral Citation No. 2025 INSC 1288”, in which the earlier decision of the Hon’ble Supreme Court in “Vihaan Kumar Vs State of Haryana, (2025) 5 SCC 799”, has been discussed and it has been held in para No. 58 that the procedure i.e. supply of the written grounds of arrest, will apply from the date of judgment i.e. November, 6th 2025. Relevant paragraph No. 58, of the judgment is reproduced, as under:­

“58. We are cognizant that there existed no consistent or binding requirement mandating written communication of the grounds of arrest for all the offences. Holding as above, in our view, would ensure implementation of the constitutional rights provided to an arrestee as engrafted under Article 22 of the Constitution of India in an e ective manner. Such clarity on obligation would avoid uncertainty in the administration of criminal justice. The ends of fairness and legal discipline therefore demand that this procedure as affirmed above shall govern arrest henceforth.”

(self emphasis supplied).

In this case, a futile attempt has also been made by learned C unsel appearing for the applicant, when he argued that the alleged contraband recovered, does not fall within the definition of commercial quantity, as suc , rigors of Section 37 of the ND&PS Act are not applicable, in the present case. The said arguments are devoid of merits, as, the present case has been registered under Sections 22 and 29 of ND&PS Act, as such, from the stand taken by the police that Lykarex­T cough syrup, allegedly found from the shop of applicant Kamal Kumar is of the same batch, of which, 55 vials were recovered from accused Surinder Singh. Situation would have been otherwise, had the police registered the separate case against applicant Kamal Kumar and against accused Surinder Singh. When, on the revelation of Surinder Singh, police raided the shop of applicant Kamal Kumar, then, the vials of the same batch were found, as such, the entire contraband is to be taken as recovery in the present case, which admittedly falls within the definition of commercial quantity.

Rigors of Section 37 (1)(b)(ii) of the NDPS Act are held to be mandatory in nature, as held by the decision of the Hon’ble Supreme Court in “Criminal Appeal No. 5544 of 2024, titled as ‘Narcotics Control Bureau versus Kashif’, Neutral 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 wo conditions i.e., (i) the satisfaction of he court that there are reasonable g ounds 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 c nditions.

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The upshot of th13. Moreover, the view of this Court is 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’, Neutral Citation No.2024 INSC 1045, wherein, it has been held that in case of commercial quantity of the contraband, the acce 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.

(iii) The purpose of insertion of Section 52A laying down the procedure for disposal of seized Narcotic Drugs and Psychotropic Substances, was to ensure the early disposal of the seized contraband drugs and substances. It was inserted in 1989 as one of the measures to implement and to give effect to the International Conventions on the Narcotic drugs and psychotropic substances.

(iv) Sub­section (2) of Section 52A lays down the procedure as contemplated in sub­section (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 gro nd alone.

(v) Any pr cedural irregularity or illegality found to have been c mmitted 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.

(vi) Any lapse or delay in compliance of Section 52A by itself would neither vitiate the trial nor would entitle the accused to be released on bail. The Court will have to consider other circumstances and the other primary evidence collected during the course of investigation, as also the statutory presumption permissible under Section 54 of the NDPS Act.”

(self­emphasis supplied)

In order to comply with the said mandatory provisions of Section 37(1)(b)(ii) of the ND&PS Act, now this Court would proceed to discuss, at this stage, that the twin conditions are existing in favour of the applicant, or not. It cannot be held, at this stage, that the applicant has not committed such offence and it can also not be held that while on bail, he will not commit any offence. As such, in the absence of any material on record, the findings cannot be rec rded in favour of applicant.

So far as the a guments that the applicant is 60% disabled and cann t walk without the help of walker, is concerned, n that ground too, provisions of Section 37(1)(b)(ii) of the ND&PS Act cannot be ignored. Moreover, t e bail application is totally silent about the difficulty being faced by the applicant on account of his disability. Superintendent of Jail, on the application by the applicant, may redress those problems, in case, the same are being faced by the applicant.

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, at this stage.

Consequently, the present bail application is dismissed.

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.