Mahender vs State Of Himachal Pradesh

Sandeep Sharma, J

Sequel to order dated 19.5.2026, whereby the petitioner was ordered to be enlarged on interim bail in connection with FIR No.18/2026 dated 16.5.2026 under Section 18 of the NDPS Act, registered at Police Station Deha, Shimla, District Shimla, H.P., respondent-State has placed on record the status report and SI Mohinder Negi, has come present with record. Record perused and returned.

Close scrutiny of record/status report reveals that police after having received secret information that bail petitioner has indulged in illegal plantation of Opium, constituted a team and visited the house of the petitioner, situate in Village Jhaula. Though petitioner was not found in the house, however, his mother Smt. Shyama was present. Police after having associated independent witnesses conducted search in the apple orchard owned and possessed by the petitioner and allegedly found that 350 plants of opium were planted. Since no plausible explanation ever came to be rendered on record qua plantation of 350 opium plants, police after having completed necessary codal formalities, lodged FIR as detailed herein above. Before petitioner herein could be arrested, he approached this Court in the instant proceedings, praying therein for anticipatory bail.

Vide order dated 19.5.2026, petitioner was enlarged on interim bail, subject to joining investigation, but since petitioner has already joined investigation and nothing remains to be recovered from him, prayer has been made by him for making the order dated 19.5.2026, absolute till the disposal of the case.

While fairly acknowledging the factum with regard to joining of investigation by the bail petitioner, Mr. Rajan Kahol, learned Additional Advocate General, states that though nothing remains to be recovered from the bail petitioner, but keeping in view the gravity of offence alleged to have been committed by him, he does not deserve any leniency. He states that demarcation of the land upon which opium plants were planted is yet to be conducted and as such, it may not be in the interest of justice to enlarge him on bail, because in that event, he may not only flee from justice, but may again indulge in these activities.

Having heard learned counsel for the petitioner and perused the material available on record, this Court is not persuaded to agree with learned counsel for the petitioner that he has been falsely implicated, rather court having associated independent witnesses conducted raid/search of the orchard of the petitioner and his family situate in Village Jhaula and found that 350 opium plants were cultivated, however having taken note of the fact that land in question upon which opium plants were cultivated, is owned jointly by the petitioner, his brother and mother Smt. Shyama Devi, coupled with the fact that till date, demarcation of the land is yet to be conducted, this Court is persuaded to accept the prayer made by the petitioner for making order dated 19.5.2026, absolute.

Since prosecution is yet to establish on record that land upon which opium trees were found to be planted exclusively belongs to the petitioner and he had definite knowledge with regard to plantation of the opium plants on his land, it may be too premature to conclude guilt of the petitioner. Whether plants were cultivated by the petitioner or other co-owners, is a question to be decided by the court below in totality of peculiar facts and evidence adduced on record by the respective parties, hence this Court sees no reason for custodial interrogation of the petitioner, who otherwise in terms of orders passed by this Court not only made himself available for investigation but also shared information available with him.

Needless to say, object of the bail is to secure the attendance of the accused in the trial and the proper test to be applied in the solution of the question whether bail should be granted or refused is whether it is probable that the party will appear to take his trial. Otherwise, bail is not to be withheld as a punishment. Otherwise also, normal rule is of bail and not jail. Court has to keep in mind nature of accusations, nature of evidence in support thereof, severity of the punishment which conviction will entail, character of the accused, circumstances which are peculiar to the accused involved in that crime. See: Sanjay Chandra versus Central Bureau of Investigation (2012)1 Supreme Court Cases 49 and Prasanta Kumar Sarkar v. Ashis Chatterjee and Another (2010) 14 SCC 496.

Hon'ble Apex Court in Criminal Appeal No. 227/2018, Dataram Singh vs. State of Uttar Pradesh & Anr., decided on 6.2.2018, has categorically held that a fundamental postulate of criminal jurisprudence is the presumption of innocence, meaning thereby that a person is believed to be innocent until found guilty. Hon'ble Apex Court further held that while considering prayer for grant of bail, it is important to ascertain whether the accused was participating in the investigations to the satisfaction of the investigating officer and was not absconding or not appearing when required by the investigating officer. Hon'ble Apex Court further held that if an accused is not hiding from the investigating officer or is hiding due to some genuine and expressed fear of being victimized, it would be a factor that a judge would need to consider in an appropriate case.

Consequently, in view of the above, order dated 19.5.2026, passed by this Court, is made absolute, subject to the following conditions:

a. He shall make himself available for the purpose of interrogation, if so required and regularly attend the trial Court on each and every date of hearing and if prevented by any reason to do so, seek exemption from appearance by filing appropriate application;

b. He shall not tamper with the prosecution evidence nor hamper the investigation of the case in any manner whatsoever;

c. He shall not make any inducement, threat or promises to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or the Police Officer; and

d. He shall not leave the territory of India without the prior permission of the Court.

It is clarified that if the petitioner misuses his liberty or violates any of the conditions imposed upon him, the investigating agency shall be free to move this Court for cancellation of the bail.

Any observations made hereinabove shall not be construed to be a reflection on the merits of the case and shall remain confined to the disposal of this application alone.

The bail petition stands disposed of accordingly.

The petitioner is permitted to produce copy of order downloaded from the High Court Website and the trial court shall not insist for certified copy of the order, however, it may verify the order from the High Court website or otherwise.