Pawan Kumar vs State Of Himachal Pradesh

Virender Singh, J

Applicant­Pawan Kumar, has filed the present application, under Section 483 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (hereinafter referred to as ‘BNSS’), with a prayer to release him on bail, during the pendency of  the  trial,  arising  out  of  FIR  No.180  of  2024,  dated 06.11.2024, registered under Sections 21 and 29 of the Narcotic Drugs & Psychotropic Substances Act (hereinafter referred to as the ‘NDPS Act’), with Police Station, Kangra, District Kangra, H.P.

According to the applicant, he is innocent person and has falsely been named and arrested, in this case, for allegedly possession 26.10 grams of Chitta/ Heroin.

As per the applicant, investigation, in this case, is complete and no useful purpose would be served, by keeping him, in the judicial custody, as, there is no likelihood of conclusion of trial, against him, in near future. The applicant is stated to be in judicial custody for the last about seven months.

The applicant has also tried his luck, by moving a similar application, before the learned Special Judge­II, Kangra at Dharamshala, District Kangra, bearing Bail Application No.23 of 2025, however, the said application was dismissed on 23.01.2025. Thereafter, the applicant has filed Cr.MP(M) No.328 of 2025, before this Court, which was also dismissed vide order dated 19.03.2025.

On the basis of the above facts, Mr. J.L. Bhardwaj, learned Senior Advocate assisted by Ms. Dhanwanti, Advocate has prayed that the application may kindly be allowed and the applicant may kindly 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 06.11.2024, SI Gurdev Singh, Investigation Officer, Police Station, Kangra, has submitted a rukka to the Police Station for the registration of the FIR, mentioning therein, that he, along with other police officials, was on patrolling duty in order to detect crime relating to narcotic drugs. At about 09.30. a.m., when, the police party was present at a place known as ‘Baudar Balla’, then, the I.O. received a secret information, with regard to the fact that the applicant and his wife are indulged in the business of selling Chitta/ Heroin, from their house and as per the informant, in case, their house is searched, then, large quantity of Chitta can be recovered.

6.1. The said information was found to be authentic and reliable. As per the I.O., in case, he would have obtained search warrants, in that situation, there was possibility of removal of contraband. As such, the I.O., complied with the provisions of Section 42(2) of the NDPS Act and submitted the report to the superior officer.

6.2. Thereafter, the I.O. has associated independent witnesses, after apprising them about the secret information.

6.3. Subsequently, the I.O., along with other police officials, as well as, the independent witnesses, reached at the house of Pawan Kumar (applicant). Pawan Kumar (applicant) and his wife were found present. They were apprised about the secret information, which the I.O. had received and the house was searched.

6.4. During search of the house, Chitta/Heroin was found from the basket put on the refrigerator in the kitchen. On weighment, it was found to be 26.10. grams. Apart from this, gold jewellery weighing 241.200 grams and silver jewellery weighing 1207 grams, currency notes worth Rs.44,580/­ in the denomination of 10/­, 20/­, 50/­, 100/­, 200/­ and 500/­ were found.

After completion of the codal formalities, the FIR, in question, was registered, against the accused persons and the criminal machinery swung into motion.

The contraband, along with other case property, was taken into possession and the accused persons were arrested.

During investigation, accused Pawan Kumar (applicant) and Neena Devi, disclosed that they used to sell Chitta @ Rs.3,000/­ per half gram. Accused Pawan Kumar (applicant) has disclosed that he has purchased the Chitta from Deepak, who belongs to Hoshiarpur (Punjab). Thereafter, Deepak was arrested, in this case.

As per the status report, the following five cases are found to have been registered against the applicant :­

i) FIR No.27/19 dated 22.02.2019, under Sections 20 & 21 of the NDPS Act, Police Station Kangra.

ii) FIR No.09/20 dated 08.01.2020, under Section 21 of the NDPS Act, Police Station Kangra.

iii) FIR No.189/20 dated 02.10.2020, under Section 21 of the NDPS Act, Police Station Kangra.

iv) FIR No.19/23 dated 02.02.2023, under Section 20 of the NDPS Act, Police Station Kangra.

v) FIR No.109/23 dated 15.07.2023, under Section 21 of the NDPS Act, Police Station Kangra.

In this case, the police has taken a specific stand that after investigation, charge sheet has been submitted in the competent Court of law, i.e. Additional Sessions Judge­I, Kangra at Dharamshala, which is now fixed for 12.06.2025, for consideration on charge.

On the basis of the above facts, a prayer has been made to dismiss the application.

Admittedly, from the possession of the applicant 26. 10 grams of Chitta/Heroin, was recovered, which does not fall within the definition of commercial quantity, as such, rigors of Section 37 of the NDPS Act are not applicable, in the present case.

During the course of arguments, it has been highlighted by learned Senior counsel that the wife of the applicant, Neena Devi and co­accused Deepak have already been released on bail.

In this case, the applicant had earlier tried his luck, by moving similar application, before this Court, which was dismissed on 19.03.2025, mainly on the ground that five cases were found to be registered against him, that too, under the NDPS Act. Now, the petitioner has approached this Court again for the same relief.

In this factual background, the material question, which arises for determination, before this Court, is whether the relief, for which the present application has been filed, can be declined to him this time also, or not.

As per the status report, the case is listed for 12.6.2025, for consideration on charge, whereas, the charge sheet, in this case, has been filed on 2.1.2025.

Considering the fact that in the long span of five months, charges have not yet been framed against the applicant, then the chances of commencement and conclusion of trial against him are not so bright. As such, no useful purpose would be served by keeping the applicant, in the judicial custody, that too, for indefinite period.

The bail application cannot be rejected, as a matter of punishment, as, pre­trial punishment is prohibited under the law and punishment can only be imposed, after the full fledged trial, by competent Court of law.

The Hon’ble Apex Court in Criminal Appeal No.2787 of 2024, titled as Javed Gulam Nabi Shaikh versus State of Maharashtra and Another, has held that accused is presumed to be innocent until proven guilty. Relevant paragraphs 18 to 20, of the judgment, are reproduced, as under:­

“18 Criminals are not born out but made. The human potential in everyone is good and so, never write off any criminal as beyond redemption. This humanist fundamental is often missed when dealing with delinquents, juvenile and adult. Indeed, every saint has a past and every sinner a future. When a crime is committed, a variety of factors is responsible for making the offender commit the crime. Those factors may be social and economic, may be, the result of value erosion or parental neglect; may be, because of the stress of circumstances, or the manifestation of temptations in a milieu of affluence contrasted with indigence or other privations.

19 If the State or any prosecuting agency including the court concerned has no wherewithal to provide or protect the fundamental right of an accused to have a speedy trial as enshrined under Article 21 of the Constitution then the State or any other prosecuting agency should not oppose the plea for bail on the ground that the crime committed is serious. Article 21 of the Constitution applies irrespective of the nature of the crime.

20 We may hasten to add that the petitioner is still an accused; not a convict. The over­arching postulate of criminal jurisprudence that an accused is presumed to be innocent until proven guilty cannot be brushed aside lightly, howsoever stringent the penal law may be.”

So far as the apprehensions, which have been expressed, by the Police, in the status report, is concerned, for those apprehensions, reasonable conditions can be imposed, in case, the applicant is ordered to be released on bail.

Even otherwise, there is nothing on the record to demonstrate as to whether any steps have been taken by the Police/State to get the bail granted to the applicant, in other cases, cancelled, for the alleged violation of the terms and conditions of the said bail orders.

Moreover, on the ground of parity also, the applicant is entitled to be released on bail, as, his co­accused have already been released, on bail.

Considering all these facts, this Court is of the view that the bail application is liable to be allowed and is accordingly allowed. The applicant is ordered to be released on bail in case FIR No.180 of 2024, dated 06.11.2024, registered, under Sections 21 and 29 of the NDPS Act, with Police Station, Kangra, District Kangra, H.P., on his furnishing personal bond, in the sum of Rs.50,000/­, with one surety, in the like amount, to the satisfaction of learned trial Court.

This order of release, however, shall be subject to the following conditions :­

“a) Applicant shall 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) Applicant shall not tamper with the prosecution evidence nor hamper the investigation of the case in any manner whatsoever;

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

d) Applicant shall keep on visiting Police Station, Sadar, Kangra initially during each and every Sunday, for two months and thereafter once in a fortnight during next three months, whereas once in a month till the evidence in the cases registered against him, is recorded in the competent Court on filing of report against him;

e) Applicant shall keep on informing the SHO, Police Station, Kangra, about his address etc., so that, in emergency his presence, if required, can conveniently be procured.

f) Applicant shall inform the IMEI number and other details of his phone to the SHO/I.O. of the Police Station and shall keep the phone location/GPS always on the “ON” mode. Whenever the Investigating officer asks to share the location, then the petitioner shall immediately do so.

g) Applicant shall neither clear the location history, WhatsApp chats, calls nor format the phone without permission of the concerned SHO/I.O.

h) Applicant shall not leave the territory of India without the prior permission of the Court.”

Any of the observations made herein above 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.

It is made clear that the respondent­State is at liberty to move an appropriate application, in case, any of the bail conditions is found to be violated by the applicant.

The Registry is directed to forward a soft copy of the bail order to the Superintendent of Jail, Lala Lajpat Rai Open Air Correctional Home, Dharamshala, District Kangra, through e­mail, with a direction to enter the date of grant of bail in the e­prison software.

In case, the applicant is not released within a period of seven  days from the date  of grant of bail, the Superintendent  of Jail, Lala Lajpat Rai  Open  Air Correctional Home, Dharamshala, District Kangra, is directed to inform this fact to the Secretary, DLSA, Kangra at Dharamshala. The Superintendent of Jail, Lala Lajpat Rai Open Air Correctional Home, Dharamshala, District Kangra, is further directed that if the applicant fails to furnish the bail bonds, as per the order passed by this Court, within a period of one month from today, then, the said fact be submitted to this Court.