Dharmraj Dhami v. State of Uttarakhand

Heard Mr. Karan Anand, learned counsel for the Applicant and Mr. Vipul Painuly, learned A.G.A. for the State as well as perused the records available on file.

4. Learned counsel for the Applicant argued that no contraband was recovered from the Applicant personally, and the seizure was made from premises rented by a co-accused. Mere presence at the spot, it was submitted, does not establish conscious possession or dominion over the recovered substance.

5. It was further urged that the State relies mainly on statements recorded during the investigation, which are of doubtful admissibility when made before officers exercising police powers under the NDPS Act.

6. Counsel also submitted that the Applicant has been in custody since April 2024, the investigation is complete, and no further custodial interrogation is Second Bail Application No. 223 of 2025 - Dharmraj Dhami v. State of Uttarakhand 2 Ashish Naithani J. required.

7. On parity, it was argued that co-accused, including the person in whose name the premises stood, have already been granted bail, and the Applicant’s case is on similar footing.

8. It was further submitted that the earlier rejection of bail on the ground of flight risk no longer holds good. The Hon’ble Supreme Court has clarified that Registration Officers and Civil Authorities under the Foreigners Act can regulate the movement of foreign nationals on bail, which adequately addresses the concern of securing the Applicant’s presence.

9. In response, learned counsel for the State contended that the recovery involves a commercial quantity, and therefore, the strict twin conditions of Section 37 of the NDPS Act apply.

10. Learned counsel argued that the Applicant’s presence at the premises during recovery indicates his involvement and cannot be dismissed as coincidental.

11. The counsel maintained that the Applicant, being a foreign national, poses a serious risk of Second Bail Application No. 223 of 2025 - Dharmraj Dhami v. State of Uttarakhand 3 Ashish Naithani J. absconding, especially considering the open border, and that no real change in circumstance has occurred since the earlier rejection of bail.

12. It was also submitted that parity cannot be claimed, as the Applicant’s case is distinct due to his nationality and the risk he poses.

13. Learned counsel for the Applicant, Mr. Karan Anand, has relied upon the pronouncement of the Hon’ble Supreme Court in Frank Vitus v. Narcotics Control Bureau 2024 INSC 479, wherein it has been clarified that while considering bail of a foreign national, the Court may impose specific conditions and direct the prosecuting agency to inform the concerned Registration Officer under the Registration of Foreigners Rules, 1992, so that appropriate monitoring may be ensured.

14. Section 37 of the NDPS Act places an express restriction on the power to grant bail in cases involving commercial quantity. It obliges the Court to record its satisfaction on two cumulative conditions, namely, that there are reasonable grounds to believe the accused is not guilty of the alleged offence and that he is not likely Second Bail Application No. 223 of 2025 - Dharmraj Dhami v. State of Uttarakhand 4 Ashish Naithani J. to commit any offence while on bail. These twin requirements are stringent, yet they do not foreclose judicial discretion where the material on record creates a plausible defence or where prolonged pre-trial custody, completed investigation, and enforceable conditions of supervision reduce the risks which Section 37 seeks to guard against. At this stage, the Court is concerned only with the prima facie complexion of the case and not with a detailed examination of the evidence, which remains the province of the trial.

15. At this juncture, this Court proceeds to assess whether the statutory pre-conditions for the grant of bail stand satisfied, and whether suitable conditions can adequately mitigate concerns as to flight risk, witness influence, and re-offending.

16. The State’s case briefly, rests on recovery effected from premises allegedly rented by a co-accused; no contraband is shown to have been seized from the person of the Applicant. At the stage of bail, the Court does not weigh evidence as at trial. Yet, it must ascertain whether there exist reasonable grounds to believe that the Applicant may not ultimately be found guilty and that Second Bail Application No. 223 of 2025 - Dharmraj Dhami v. State of Uttarakhand 5 Ashish Naithani J. he is not likely to commit an offence while on bail.

17. Section 37 of the NDPS Act places an express restriction on the power to grant bail in cases involving commercial quantity. It obliges the Court to record its satisfaction on two cumulative conditions, namely, that there are reasonable grounds to believe the accused is not guilty of the alleged offence and that he is not likely to commit any offence while on bail. These twin requirements are stringent, yet they do not foreclose judicial discretion where the material on record creates a plausible defence or where prolonged pre-trial custody, completed investigation, and enforceable conditions of supervision reduce the risks which Section 37 seeks to guard against. At this stage, the Court is concerned only with the prima facie complexion of the case and not with a detailed examination of the evidence, which remains the province of the trial.

18. The concept of “possession” under the NDPS Act is not confined to physical custody; it extends to “conscious possession,” which is a matter of inference from proved facts. Where recovery is from a shared or third-party premises, the link between the accused and Second Bail Application No. 223 of 2025 - Dharmraj Dhami v. State of Uttarakhand 6 Ashish Naithani J. the contraband must be established with some cogent material indicating dominion or control. The present record, at least prima facie, does not disclose such material beyond the Applicant’s presence at the spot. Presence, by itself, insufficient to demonstrate conscious possession at this stage.

19. The State also relies on statements recorded during investigation. The law as explained by the Supreme Court treats statements recorded by officers having police powers under the NDPS Act as inadmissible confessions for the purpose of proving guilt at trial. While the Court does not finally pronounce on evidentiary admissibility in a bail order, the settled position reduces the probative value of such statements at the prima facie stage and dilutes the singularity of the link sought to be forged against the Applicant.

20. As regards procedural safeguards (Sections 42, 50, 52A NDPS Act), the rival versions create disputed questions that are best tested at trial. Nevertheless, the presence of arguable lapses, viewed cumulatively with the nature of recovery, furnishes a plausible defence that cannot be brushed aside at this stage. The Court does Second Bail Application No. 223 of 2025 - Dharmraj Dhami v. State of Uttarakhand 7 Ashish Naithani J. not record a conclusive finding of illegality; it merely notes that the defence is neither speculative nor illusory for the limited purpose of bail.

21. Where recovery is not from the person of the accused, where the nexus to the contraband is tenuous and contested, and where the incriminating material is of limited prima facie worth, the threshold of “reasonable grounds” may, in a given fact situation, be met for the limited purpose of bail.

22. The earlier refusal of bail in a connected round of litigation had proceeded substantially on the open- border objection and the supposed absence of enforceable mechanisms to secure presence. That concern stands materially assuaged in view of the Supreme Court’s subsequent directions recognising that the civil/registration authorities’ powers to regulate a foreigner’s presence and departure are distinct and can be triggered upon grant of bail; therefore, the court need insist on conditions that are impossible or constitutionally suspect. This constitutes a relevant change in circumstance bearing directly on flight-risk management. Second Bail Application No. 223 of 2025 - Dharmraj Dhami v. State of Uttarakhand 8 Ashish Naithani J.

23. The Applicant has remained in custody since April 2024; investigation is complete and charge-sheet filed; custodial interrogation is not sought. Prolonged pre- trial incarceration, when weighed against a case resting on recovery from premises not owned or controlled by the accused and on statements whose evidentiary role is limited, tilts the balance towards conditional liberty, particularly when risks can be addressed by calibrated safeguards.

24. Parity is not a talisman; however, the co- accused who is the ostensible occupant/renter of the premises is already on bail. Where the role attributed to the Applicant is, on present material, derivative or inferential rather than direct, parityis considered alongside other factors, supporting the conclusion that the rigour of Section 37 can be met through tailored conditions instead of continued incarceration.

25. On the second limb of Section 37, the Court is satisfied that the Applicant is not likely to commit an offence while on bail if he is placed under a stringent regime of supervision. The combination of (i) verified local address; (ii) periodic reporting to the Investigating Second Bail Application No. 223 of 2025 - Dharmraj Dhami v. State of Uttarakhand 9 Ashish Naithani J. Officer/Trial Court; (iii) prohibition on leaving the district without prior leave; (iv) immediate intimation of the bail order to the Registration Officer under the Registration of Foreigners Rules for onward communication to the Civil Authority; and (v) surrender of passport, if any, together constitutes a robust matrix sufficient to neutralize the apprehended risks.

26. Accordingly, the statutory twin conditions under Section 37(1)(b) stand satisfied on the peculiar facts of this case; the earlier impediment predicated on open-border enforceability is effectively addressed by the Supreme Court’s guidance on coordinating with the Registration Officer/Civil Authority upon grant of bail.

27. The Court, therefore, finds it a fit case to enlarge the Applicant on bail with rigorous, bespoke safeguards, leaving all issues on merits open for trial.

28. The observations recorded above are limited to the adjudication of this bail application. Nothing herein shall be construed as an expression on the merits, which shall be examined independently by the Trial Court. Second Bail Application No. 223 of 2025 - Dharmraj Dhami v. State of Uttarakhand 10 Ashish Naithani J. ORDER The bail application is allowed. Let the Applicant, Dharmraj Dhami, be released on bail in connection with FIR No. 0181 of 2024, P.S. Raipur, District Dehradun, under Sections 8, 20, 29 & 60 of the NDPS Act, on his furnishing a personal bond of `50,000/- (Rupees Fifty Thousand only) with two sureties of the like amount to the satisfaction of the Court concerned, subject to the following conditions: (i) The Applicant shall not leave India without prior permission of the Trial Court. (ii) The Applicant shall deposit his passport with the Trial Court. If he does not possess a passport, he shall file an affidavit to that effect; in such case, the Trial Court may verify the statement from the Passport Officer concerned. (iii) The Applicant shall appear before the concerned police station once every fortnight and mark his attendance, until further orders. (iv) The Applicant shall not tamper with evidence or influence witnesses in any manner. Second Bail Application No. 223 of 2025 - Dharmraj Dhami v. State of Uttarakhand 11 Ashish Naithani J. (v) The Applicant shall furnish his permanent address in Nepal as well as the address of his place of stay in India during the pendency of the trial. Any change of address shall be intimated to the Trial Court and Investigating Officer in advance. (vi) The Investigating Agency / State shall immediately inform the concerned Registration Officer under Rule 3 of the Registration of Foreigners Rules, 1992, about the grant of bail, who shall, in turn, communicate the same to the Civil Authority. (vii) The Applicant shall face cancellation of bail if any of the above conditions are violated or if he is found to be misusing the liberty granted. The Trial Court shall ensure compliance of the above conditions while releasing the Applicant on bail. Akash AKASH DN: c=IN, o=HIGH COURT OF UTTARAKHAND, 2.5.4.20=dae2472c001d56469ea76fc0caa68f48ef73518c14 8d140566ab1e26f9cbe61d, postalCode=263001, st=Uttarakhand, serialNumber=27096a1625377537a487dee49224c891823f c6a0334628b21e516047ed4f22f7, cn=AKASH (Ashish Naithani, J.)

02.09.2025 Second Bail Application No. 223 of 2025 - Dharmraj Dhami v. State of Uttarakhand 12 Ashish Naithani J.