Aryan Tomar v. State of Himachal Pradesh

regular bail in FIR No.13 of 2025, dated 28.01.2025, registered for the commission of offences punishable under Sections 21 and 29 the Narcotic Drugs and Psychotropic Substances Act (hereinafter referred to as ‘the NDPS Act’) at Police Station Sadar Nahan, District Sirmour, H.P.

#2. It has been asserted that as per the prosecution, the petitioner was found in possession of 8.5 grams of heroin. These 1 Whether reporters of Local Papers may be allowed to see the judgment? Yes. 2 allegations are false, and there is no material to connect the petitioner to the commission of the crime. The petitioner has remained in judicial custody since 28.01.2025, and the prosecution has failed to complete the evidence, which violates the petitioner's right to a speedy trial. FIR No. 10 of 2022, dated 21.01.2022, for the commission of offences punishable under Sections 341 and 323 read with Section 34 of IPC, F.I.R. No. 66 of 2023, dated

16.06.2023, for the commission of offences punishable under Sections 379 of IPC, F.I.R. No. 22 of 2024, dated 08.02.2024, for the commission of offences punishable under Sections 457 and 511 read with Section 34 of IPC, F.I.R. No. 81 of 2024, dated 10.05.2024, for the commission of offences punishable under Sections 379 of IPC and F.I.R. No. 154 of 2024, dated 09.10.2024, for the commission of offences punishable under Sections 305 and 331(3) of BNS have been registered against the petitioner. The petitioner would abide by the terms and conditions that the Court may impose. Hence, it was prayed that the present petition be allowed and the petitioner be released on bail.

#3. The petition is opposed by filing a status report asserting that the police had gone for patrolling on 28.01.2025; they received secret information at about 12.40 p.m. that Sahil 3 Verma and Aryan Tomar (present petitioner) were selling heroin from a room, and a huge quantity of heroin could be recovered by searching the room. The information was credible, and the delay in procuring the search warrant would have led to the destruction of the heroin. Hence, the information was reduced into writing and was sent to the Supervisory Officer. The police joined Rahul Thakur and Jitender Kumar and went towards the room, where the petitioner and co-accused were found present. The police searched the room and recovered one polythene packet containing

8.5 grams of heroin, 37 insulin syringes and currency notes worth ₹3,050/-. The police seized the articles and arrested the petitioner and the co-accused. The Heroin was sent to the SFSL, and as per the report of analysis, it was found to be a sample of diacetylmorphine. FIR No. 10 of 2022, dated 21.01.2022, for the commission of offences punishable under Sections 341 and 323 read with Section 34 of IPC, F.I.R. No. 66 of 2023, dated

16.06.2023, for the commission of offences punishable under Sections 379 of IPC, F.I.R. No. 22 of 2024, dated 08.02.2024, for the commission of offences punishable under Sections 457 and 511 read with Section 34 of IPC, F.I.R. No. 81 of 2024, dated 10.05.2024, for the commission of offences punishable under Sections 379 of 4 IPC and F.I.R. No. 154 of 2024, dated 09.10.2024, for the commission of offences punishable under Sections 305 and 331(3) of BNS are pending against the petitioner. The petitioner would indulge in the commission of a similar offence if released on bail. The prosecution has cited 26 witnesses, out of whom 13 witnesses have been examined. The matter is listed before the learned trial Court for recording the statements of witnesses at Sl. No 1 to 3 on

27.08.2026. Hence, the status report.

#4. I have heard Mr Prashant Sharma, learned Advocate for the petitioner and Mr Ajit Sharma, learned Advocate for the respondent/State.

#5. Mr Prashant Sharma, learned Counsel petitioner submitted that the petitioner is innocent and he was falsely implicated. The petitioner was arrested on 28.01.2025, and the prosecution has not completed the evidence. The petitioner was found in possession of 8.5 grams of heroin, which is an intermediate quantity, and the rigours of Section 37 of the NDPS Act do not apply to the present case. The petitioner has already undergone a substantial part of the imprisonment that can be awarded to him in case of his conviction. The police have filed the 5 charge sheet and trial is continuing. No fruitful purpose would be served by detaining the petitioner in custody. Hence, he prayed that the present petition be allowed and the petitioner be released on bail.

#6. Mr Ajit Sharma, learned Deputy Advocate General for the respondent State, submitted that the petitioner was involved in the commission of similar offences in the past. He would indulge in the commission of the crime if released on bail. The 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.

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

#8. 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

#56. 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 6 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.

#8. 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.]

#9. 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 offences 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)

#57. 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 7 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)

#58. 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 offence 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)

#59. In Kalyan Chandra Sarkar v. Rajesh Ranjan, (2004) 7 SCC 528: 2004 SCC (Cri) 1977, this Court held that although it is 8 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.

#60. 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 judiciously, the High Court to exercise cautiously and strictly in compliance with the basic principles laid down in a plethora of decisions of this Court is well settled that, among other on the point. It circumstances, the factors to be borne in mind while considering an application for bail are: its discretion (i) whether there is any prima facie or reasonable ground to believe that the accused had committed the offence; (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 offence 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) xxxxxxx 9

#62. 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 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 (emphasis offence(s) alleged against an accused.” supplied)

#9. Hon’ble Supreme Court held in State of Rajasthan v. Balchand, (1977) 4 SCC 308: 1977 SCC (Cri) 594: 1977 SCC OnLine SC 261 that the normal rule is bail and not jail, except where the gravity of the crime or the heinousness of the offence suggests otherwise. It was observed at page 308: 10

#2. The basic rule may perhaps be tersely put as bail, not jail, except where there are circumstances suggestive of fleeing from justice or thwarting the course of justice or creating other troubles in the shape of repeating offences or intimidating witnesses and the like, by the petitioner who seeks enlargement on bail from the Court. We do not intend to be exhaustive but only illustrative.

#3. It is true that the gravity of the offence involved is likely to induce the petitioner to avoid the course of justice and must weigh with us when considering the question of jail. So also, the heinousness of the crime….”

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

#11. The status report shows that the petitioner and the co- accused were found present in the room, from which the recovery of 8.5 grams of heroin was recovered. Thus, prima facie, there is sufficient material to connect the petitioner to the commission of the crime.

#12. As per the prosecution, the police had recovered 8.5 grams of heroin. The Central Government has notified 250 grams of heroin as a commercial quantity, which means that a person possessing 250 grams of heroin can be sentenced to imprisonment of 10 years. The petitioner has undergone a substantial part of the imprisonment that can be awarded to him by applying the principle of proportionality. The prosecution has only examined 13 11 witnesses out of 26 cited by it. The matter is not even listed for recording the statements of the remaining witnesses, but for recording the statements of witnesses at Sl. No. 1 to 3 on

27.08.2026, which means that the trial is not likely to conclude soon and the learned trial Court is not interested in the expeditious disposal of the trial. Hence, in these circumstances, the petitioner cannot be detained in custody.

#13. It was submitted that the petitioner has criminal antecedents and he is likely to commit the same crime in case of his release on bail; this submission will not help the State. It was laid down by the Hon’ble Supreme Court in Ayub Khan v. State of Rajasthan, 2024 SCC OnLine SC 3763: 2024: INSC:994 that the criminal antecedents may not be a reason to deny bail to the accused in case of long incarceration. It was observed: “10. The presence of the antecedents of the accused is only one of the several considerations for deciding the prayer for bail made by him. In a given case, if the accused makes out a strong prima facie case, depending upon the fact situation and period of incarceration, the presence of antecedents may not be a ground to deny bail. There may be a case where a Court can grant bail only on the grounds of long incarceration. The presence of antecedents may not be relevant in such a case. In a given case, the Court may grant default bail. Again, the antecedents of the accused are irrelevant in 12 such a case. Thus, depending upon the peculiar facts, the Court can grant bail notwithstanding the existence of the antecedents.”

#14. The petitioner asserted that he is a permanent resident of district Sirmour. This was not stated to be incorrect in the status report, which means that the petitioner has roots in the society and there is no chance of his absconding.

#15. The police have already filed the charge sheet before the Court, and the custodial interrogation of the petitioner is not required. No fruitful purpose would be served by retaining the petitioner in custody.

#16. In view of the above, the present petition is allowed, and the petitioner is ordered to be released on bail, subject to his furnishing personal bond in the sum of ₹1,00,000/- with one surety in the like amount to the satisfaction of the learned Trial Court. While on bail, the petitioner will abide by the following conditions: - (I) The petitioner will not intimidate the witnesses, nor will he influence any evidence in any manner whatsoever. (II) The petitioner shall attend the trial on each and every hearing and will not seek unnecessary adjournments. (III) The petitioner will not leave the present address for a continuous period of seven days without furnishing 13 the address of the intended visit to the SHO concerned, the Police Station concerned and the Trial Court. (IV) The petitioner will surrender his passport, if any, to the Court; and (V) 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.

#17. 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.

#18. The petition stands accordingly disposed of.

#19. A copy of this order be sent to the Jail Superintendent, Model Central Jail Nahan, District Sirmour, H.P. and the learned Trial Court by FASTER.

#20. The observations made hereinabove are regarding the disposal of this petition and will have no bearing whatsoever on the merits of the case. 06th August, 2026. (Ravinder) (Rakesh Kainthla) Judge.