1.  ( 2026:HHC:852 )

IN THE HIGH COURT OF HIMACHAL PRADESH

SHIMLA

Cr.MP(M) No.3006 of 2025

Reserved on:- 31.12.2025

Date of Decision: 05.01.2026

Gaurav Sharma …Applicant

Versus

State of H.P. …..Respondent

Coram:

The Hon’ble Mr. Justice Virender Singh, Judge.

Whether approved for reporting?

1

For the applicant : Mr. Bhupinder Singh Ahuja,

Advocate.

For the respondent :Mr. Mohinder Zharaick,

Additional Advocate General,

with Ms. Ranjna Patial and Ms.

Avni Kochhar Mehta, Deputy

Advocates General, assisted by

ASI Rakesh Kumar, Police

Station Sadar Una, District

Una, H.P.

Virender Singh, Judge

By way of the present application, filed under

Section 483 of the Bharatiya Nagarik Suraksha Sanhita,

2023 (hereinafter referred to as ‘BNSS’), applicant-Gaurav

Sharma has sought his release, on bail, during the pendency

of the trial, arising out of FIR No.213 of 2024, dated

14.07.2024, registered under Sections 15 and 29-61-85 of

the Narcotic Drugs & Psychotropic Substances Act

1

Whether reporters of Local Papers may be allowed to see the judgment?

2.  ( 2026:HHC:852 )

(hereinafter referred to as the ‘NDPS Act’), with Police

Station, Sadar Una, District Una H.P.

2. According to the applicant, he is innocent person

and has falsely been implicated, in this case.

3. As per the case of the applicant, rigors of Section

37 of NDPS Act, are not applicable, in this case, as nothing

has been recovered from him and he has been implicated in

this case, on the basis of the confessional statement of the

other accused.

4. Investigation, in the present case, is stated to

have been completed and police has filed the charge sheet, in

this case.

5. It is the further case of the applicant that the

story of the police is not confidence inspiring and the

statement of the main accused cannot be used in evidence,

unless, the same was made in the Court.

6. According to the applicant, there is no legally

admissible evidence connecting him, with the crime in

question.

7. On the basis of the above facts, the applicant has

further pleaded that he has filed the Cr.MP(M) No.7 of 2025,

which was dismissed as withdrawn on 07.01.2025. He has

3.  ( 2026:HHC:852 )

also filed bail application No.383 of 2024, before learned

Special Judge-II, Una, District Una, H.P., which was

dismissed on 30.11.2024. Thereafter, he has moved another

application No.44 of 2025, before the learned Special Judge-

II, Una, District Una, H.P., which was also dismissed on

20.02.2025. Thereafter, the applicant has filed the bail

application bearing Cr.MP(M) No.1066 of 2025, before this

Court, which was again dismissed on 31.07.2025.

8. Apart from this, Mr. Bhupinder Singh Ahuja,

Advocate, appearing for the applicant, has given certain

undertakings, on behalf of the applicant, for which, the

applicant is ready to abide by, in case, ordered to be released

on bail, during the pendency of the trial.

9. On the basis of the above facts, a prayer has been

made to allow the bail application.

10. When, put to notice, the police has filed the

status report, disclosing therein, that on 14.07.2024, ASI

Vinod Kumar along with other police officials, was on

patrolling duty, as well as, to detect the crime relating to

excise and narcotics and he was having his personal laptop

with printer.

4.  ( 2026:HHC:852 )

10.1. While on duty, when he was present near Jannat

Hotel at Majara, then at about 8:50 PM, he received a secret

information that a truck bearing No.HP72C-4761, loaded

with narcotic substance being driven by Rahul Sharma is

moving towards Nangal from Santoshgarh side. Said Rahul

Sharma, is stated to had worn orange coloured T-shirt and

green coloured striped lower. The said information was

found to be authentic and reliable. As such, compliance of

Section 42(2) of NDPS Act, was done and the report was

submitted to Superintendent of Police, Una. Thereafter,

Ward Panch Kuldeep Singh was telephonically requested to

be present on the spot, who reached, at the spot within 20

minutes. He was apprised about the secret information and

thereafter, picketing was done. At about 9:15 PM, from

Nangal side, as per the secret information, truck No.HP72C-

4761, being driven by its driver was found coming from

Santoshgarh side. The driver was given signal to stop the

same, consequently, he stopped the vehicle on the left side of

the road. The truck driver was directed to switch off the

engine.

10.2. As per information, the driver was found to be

wearing orange coloured T-shirt and green coloured striped

5.  ( 2026:HHC:852 )

lower. In the presence of the witnesses, his name and

address was inquired, then, the truck driver disclosed his

name as Rahul Sharma, son of Raman Kumar, R/o village

Baas P/o Bhabour Sahib, Tehsil Nangal, District Rupnagar,

Punjab. The truck driver was directed to submit the papers

to the IO, which, he had produced. As per the documents i.e.

Registration Certificate, the said truck was registered in the

name of one Darshan Singh, son of Rattan Chand R/o

village Dehla, Tehsil and District Una, H.P. The truck driver

was apprised about the fact that the police is having the

information that narcotic substance has been loaded in the

truck, as such, his truck is to be searched.

10.3. On hearing this, the truck driver Rahul Sharma

got perplexed and tried to avoid the search of the truck, as

such, the suspicion became more probable. The bolt and

seals were broken and the rear door of the truck was

opened. Inside the truck, near the medicine box, 5 white

coloured, sacks were found and on checking, the same were

found containing brown coloured substance, which, on

checking and on the basis of experience was found to be

poppy husk. On weighment, the total poppy husk was

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found to be 1 Quintal, 46 Kg.890 grams. All the 5 sacks

were sealed with seal AM.

10.4. Other codal formalities were completed and

rukka was submitted to Police Station, upon which, FIR in

question was registered.

10.5. Initially the investigation was conducted by ASI

Vinod Kumar, IO, Police Post Santoshgarh, who has

prepared the spot map. Statements of the witnesses were

recorded, under Section 180 of BNSS. Thereafter accused

Rahul Sharma was inquired and he was arrested at 4:00 PM,

on that day. The information regarding his arrest was given

to his wife Meena Sharma.

10.6. On 15.07.2024, Special Investigating Team was

constituted, under the leadership of Probational Dy.SP.

During police remand, accused Rahul Sharma, disclosed

that the poppy husk was brought from the Dhaba of Vishnu

Vaishnav S/o Bhagwan Dass R/o village and P/o Negria,

Police Station, Mangalwad, Tehsil Dungla, District

Chitaurgarh, Rajasthan. Rahul Sharma has identified the

said place, from where, he had purchased the poppy husk

and spot map of the same was prepared. However, accused

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Vishnu Vaishnav was not found, as he came to know about

the information qua the movement of police party.

10.7. During investigation, accused Rahul Sharma

disclosed that he had purchased 60 Kg poppy husk for

himself whereas, he has purchased 90 Kg poppy husk for

Gaurav Sharma (applicant) and the payment of the same

was also made by applicant-Gaurav to Vishnu Vaishnav. As

per CDRs, Vishnu Vaishnav, applicant-Gaurav Sharma and

Rahul Sharma talk to each other, on their mobile phones,

through Whatsapp call, as well as, by way of ordinary calls.

10.8. On 23.07.2024 applicant-Gaurav Sharma was

detained and inquired in Police Post Santoshgarh. As per

the police, it was found that Gaurav Sharma (applicant) had

transported 90 Kg. of Poppy husk through accused Rahul

Sharma and it was agreed to pay a sum of Rs.800/- per Kg.,

as transportation charges to Rahul Sharma.

10.9. During investigation, applicant-Gaurav Sharma

also disclosed that he had already paid a sum of

Rs.1,00,000/- to Vishnu Vaishnav, through Google Pay and

Rs.1,00,000/- through Punjab National Bank, as the

amount of poppy husk. As such, according to the police,

involvement of applicant-Gaurav Sharma was found in the

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sales/purchase of poppy husk, as such, he was arrested,

under Section 29 of the NDPS Act.

10.10. On 23.07.2024, bank details of the accused

persons were obtained by sending e-mail, under Section 94

of BNSS. On 27.07.2024, from YES Bank and Punjab

National Bank, the record was received regarding the

account of Gaurav Sharma (applicant) through e-mail. After

analyzing the same, it was found that applicant-Gaurav

Sharma had transferred a sum of Rs.27,00,000/- within a

period of nine months to Vishnu Vaishnav, through UPI

transactions. Regarding this, applicant-Gaurav Sharma

could not disclose the specific reasons. The details of the

payments, were obtained, which are mentioned in the status

report and have been reproduced, as under:-

Sr.

No.

Date Amount

transferred (Rs).

Payment to

1 06.05.2024Rs.1,00,000/- VAISHNAVVISHNU08

5-

1@OKHDFCBANK/

UPI

2 24.04.2024Rs. 90,000/- -do--

3 19.04.2024Rs. 1,00,000/- -do--

4 17.04.2024Rs. 1,00,000/- -do--

5 15.04.2024Rs. 1,00,000/- -do--

6 10.03.2024Rs. 1,00,000/- -do--

7 08.03.2024Rs. 50,000/- -do--

8 17.02.2024Rs. 99,000/- -do--

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9 04.02.2024Rs. 15,000/- -do--

10.30.01.2024Rs. 1,00,000/- -do--

11.19.01.2024Rs. 70,000/- -do--

12.17.01.2024Rs. 90,000/- -do--

13.17.12.2023Rs. 1,00,000/- -do--

14 16.12.2023Rs. 98,000/- -do--

15.15.12.2023Rs. 98,000/- -do--

16.14.12.2023Rs. 1,00,000/- -do--

17.13.12.2023Rs. 70,000/- -do--

18.05.12.2023Rs. 50,000/- -do--

19.1.12.2023Rs. 90,000/- -do--

20 28.11.2023Rs. 90,000/- -do--

21 27.11.2023Rs. 90,000/- -do--

22 25.11.2023Rs. 90,000/- -do--

23 19.11.2023Rs. 70,000/- -do--

24 17.11.2023Rs. 50,000/- -do--

25 15.11.2023Rs. 70,000/- -do--

26 14.11.2023Rs. 80,000/- -do--

27 27.11.2023Rs. 80,000/- -do--

28 5.11.2023Rs. 50,000/- -do--

29 28.10.2023Rs. 30,000/- -do--

30 9.10.2023Rs. 90,000/- -do--

31 28.09.2023Rs. 20,000/- -do--

32 21.09.2023Rs. 50,000/- -do--

33 14.09.2023Rs. 40,000/- -do--

34 05.09.2023Rs. 6,000/- -do--

35 18.08.2023Rs. 30,000/- -do--

36 13.08.2023Rs. 25,000/- -do--

37 06.08.2023Rs. 80,000/- -do--

38 06.08.202

3 to

06.05.202

4 Total

Rs. 26,61,000/-

10.  ( 2026:HHC:852 )

10.11. On 30.07.2024, positive report has been received

from SFSL Junga. When, the applicant-Gaurav Sharma was

arrested and his mobile phone was also taken into

possession. The data was found to be deleted from this

mobile phone, as such, the same was sent to RFSL for

retrieving the data, as well as, to obtain the IPDR.

10.12. During investigation, Whatsapp photographs of

the mobile phone of Rahul Sharma, bearing Mobile

No.623073642, were obtained. The CDRs and customer

application form of the mobile phone number of Gaurav

Sharma (applicant) bearing Mobile No.8285329569 were

obtained. On analyzing the same, it was found that accused

Rahul Sharma and applicnat-Gaurav Sharma were talking to

each other, through Whatsapp calls. On the day, i.e. on

14.07.2024, when accused Rahul Sharma was nabbed with

poppy husk, then, in the intervening night of

13/14.07.2024, they had made calls with each other. Mobile

phone of Gaurav Sharma (applicant) was saved, under the

name Gora B.

11. On the basis of the above facts, a prayer has been

made to dismiss the application.

11.  ( 2026:HHC:852 )

12. As stated above, the bail application of the

applicant has already been dismissed on merit, by this Court

on 31.07.2025, however, the present application has been

filed on the basis of alleged changed circumstances.

13. It is not in dispute that the contraband, so

recovered, in the present case, falls within the definition of

‘commercial quantity’.

14. Once, it has been held that the commercial

quantity of contraband is involved, then, before releasing the

applicant in such case, it is incumbent upon this Court to

record findings with respect to the existence of twin

conditions, as enumerated, under Section 37 (1)(2) of the

NDPS Act.

15. The Hon’ble Supreme Court in a case titled as,

‘Narcotics Control Bureau versus Kashif’, Citation No.

2024 INSC 1045, in Criminal Appeal No. 5544 of 2024

has elaborately discussed the provisions of Section 37 of

NDPS Act and has held that before releasing the applicant,

on bail, involving the commercial quantity, it is incumbent

upon the Court to record the findings, which should be

prima-facie findings about the twin conditions, as

enumerated under Section 37(1)(b) of the NDPS Act, that the

12.  ( 2026:HHC:852 )

accused has not committed the offence and while, on bail, he

will not commit any offence. Without the satisfaction of

these twin conditions, as per Section 37(1)(b), of the NDPS

Act, the accused involved in the commercial quantity, cannot

be released on bail. 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

two conditions i.e., (i) the satisfaction of the

court that there are reasonable grounds 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 conditions.

xxx xxx xxx xxx

39. The upshot of the 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

13.  ( 2026:HHC:852 )

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) Sub-section (2) of Section 52A lays down

the procedure as contemplated in sub-section

(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 ground alone.

(v) Any procedural irregularity or illegality

found to have been committed 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.”

(self-emphasis supplied)

16. In view of law laid down by Hon’ble Apex Court,

in Kashif’s case supra, now this Court would proceed to

decide, whether, the twin conditions, as enumerated by the

Act, are existing in favour of the applicant. It is no longer

res-integra that the Court before releasing the applicant, on

14.  ( 2026:HHC:852 )

bail, involving commercial quantity must record the findings

about the existence of those conditions, which should be

more than are prima-facie findings.

17. As per the stand taken by the police in the status

report, the involvement of the applicant has been found in

the present case, on three counts, firstly that his co-

accused-Rahul Sharma, during investigation has disclosed

to the police that he had purchased 60 Kg poppy husk for

himself and 90 Kg poppy husk for applicant-Gaurav Sharma.

In addition to this, he has also disclosed that the value of 90

Kg poppy husk was paid by the applicant-Gaurav Sharma to

accused Vishnu Vaishnav. When the said disclosure

statement was made, the same cannot be taken into

consideration, as held by the Hon’ble Supreme Court in

‘Tofan Singh versus State of Tamil Nadu’ reported in

(2021)4 Supreme Court Cases 1. Relevant paragraph 158.1

of the judgment is reproduced as under:-

“158.1 That the officers who are invested with

powers under Section 53 of the NDPS Act are

“police officers’ within the meaning of Section 25 of

the Evidence Act, as a result of which any

confessional statement made to them would be

barred under the provisions of Section 25 of the

Evidence Act, and cannot be taken into account in

order to convict an accused under the NDPS Act.”

15.  ( 2026:HHC:852 )

18. As such, the alleged confessional statement made

by the accused-Rahul Sharma, is liable to be discarded, at

this stage.

19. The involvement of the applicant has also been

pleaded to be found on the ground that the accused-Vishnu

Vaishnav, Gaurav Sharma and Rahul Sharma, were found to

be in contact with each other, through their mobile phones,

by Whatsapp and ordinary calls. At the stage of deciding the

bail application, much reliance can be placed of the above

facts as Hon’ble Supreme Court in a case titled as State by

(NCB) Bengaluru versus Pallulabid Ahmad Arimutta and

Anr., reported in 2022 (2) SCALE 14, has held that

evidentiary value of the CDRs is to be determined, during

trial. Relevant portion of the judgment is reproduced as

under:-

“10. It has been held in clear terms in Tofan

Singh Vs. State of Tamil Nadu6, that a

confessional statement recorded under Section

67 of the NDPS Act will remain inadmissible in

the trial of an offence under the NDPS Act. In

the teeth of the aforesaid decision, the arrests

made by the petitioner-NCB, on the basis of the

confession/voluntary statements of the

respondents or the co-accused 6 (2021) 4 SCC

1 Page 9 of 12 2022 Live Law (SC) 63 Petition

for Special Leave to Appeal (Criminal) No. 1569

OF 2021 under Section 67 of the NDPS Act,

cannot form the basis for overturning the

impugned orders releasing them on bail. The

CDR details of some of the accused or the

allegations of tampering of evidence on the

16.  ( 2026:HHC:852 )

part of one of the respondents is an aspect that

will be examined at the stage of trial. For the

aforesaid reason, this Court is not inclined to

interfere in the orders dated 16th September,

2019, 14th January, 2020, 16th January,

2020, 19th December, 2019 and 20th

January, 2020 passed in SLP (Crl.) No@ Diary

No. 22702/2020, SLP (Crl.) No. 1454/2021,

SLP (Crl.) No. 1465/2021, SLP (Crl.) No. 1773-

74/2021 and SLP (Crl.) No. 2080/2021

respectively. The impugned orders are,

accordingly, upheld and the Special Leave

Petitions filed by the petitioner-NCB seeking

cancellation of bail granted to the respective

respondents, are dismissed as meritless.”

(self emphasis supplied)

20. Admittedly, there are telephonic calls between the

accused persons in the present case and recording of the

same has not been made by the police.

21. The CDRs can only provide information like

Caller ID, duration and Cell Tower Details, however, they do

not capture the substance of the conversation itself. These

are the call record details, which are the metadata (data

about data) about the call and the same is totally different

from call recording, which offers direct evidence of the

communication, including specific words spoken and context

of the conversation, which can be crucial, for deciding the

matter

22. The involvement has allegedly been found on the

ground that on 23.07.2024 applicant-Gaurav Sharma was

17.  ( 2026:HHC:852 )

detained and inquired, then, it was found that the Gaurav

Sharma (applicant) purchased 90 Kg. poppy husk from

Vishnu Vaishnav for a sum of Rs.2,00,000/- and the same

was transported, through accused Rahul Sharma, to whom,

he had allegedly agreed to pay transportation charges @

Rs.800/- per Kg. The amount of Rs.1,00,000/- was allegedly

paid through Google pay and Rs.1,00,000/- through Punjab

National Bank. His involvement has also been stated to be

found on the basis of the bank statements, according to

which, during the period of nine months, applicant-Gaurav

Sharma has transferred Rs.27,00,000/- within a period of

nine months to Vishnu Vaishnav, through UPI transactions

and the applicant could not put forward any explanation,

qua the said transactions.

23. In view of transactions, as discussed above, this

Court is of the view that the findings cannot be recorded, at

this stage that the accused is not guilty of the such offence

and while on bail, he may not commit any offence. In the

absence of such findings, no relief of bail can be granted to

the applicant. Hence, the present application is dismissed.

24. Any of the observations, made hereinabove, shall

not be taken as an expression of opinion, on the merits of

18.  ( 2026:HHC:852 )

the case, as, these observations, are confined, only to the

disposal of the present bail application.

(Virender Singh)

Judge

January 05, 2026

(subhash)