2026:HHC:3358

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

Cr. MP(M) No. 3004 of 2025

Reserved on: 16.01.2026

Date of Decision: 23.01.2026.

_____________________________________

Sunil Kumar ...Petitioner

Versus

State of Himachal Pradesh ...Respondent

Coram

Hon’ble Mr Justice Rakesh Kainthla, Vacation Judge.

Whether approved for reporting?

1

No

For the Petitioner : Mr Abhimanyu Thakur, Advocate.

For the Respondent : Mr Lokender Kutlehria, Deputy

Advocate General.

Rakesh Kainthla, Judge

The petitioner has filed the present petition seeking

regular bail in FIR No. 120 of 2025, dated 19.08.2025, registered at

Police Station Dhalli, District Shimla, H.P., for the commission of

offences punishable under Section 21 and 29 of the Narcotic

Drugs and Psychotropic Substances Act, 1985 (NDPS Act).

2. It has been asserted that, as per the prosecution, the

police intercepted a vehicle bearing registration No. PB-01D-

1

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

2. 2026:HHC:3358

2378 and arrested the occupants, Arvinder Singh @ Billa,

Gurpreet Singh and Sunil Kumar for the possession of 29.840

grams of heroin. The petitioner had hired a taxi on sharing basis.

He had visited Shimla on vacation. The petitioner is working as a

car painter and is the sole earner of the family. The petitioner has

been in custody since 19.08.2025. The police have filed the charge

sheet. The co-accused has been released on bail, and the

petitioner is entitled to bail on the principle of parity. FIR No.56

of 2022 was registered against the petitioner. 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 were on patrol duty on 19.08.2025. They

received secret information at 3:25 pm that a vehicle bearing

registration No. PB-01D-2378 was transporting heroin, and a

huge quantity of heroin could be recovered from its search. The

information was credible. It was reduced to writing and was sent

to the Supervisory Officer. The police joined Gopal Sharma and

went towards the place where the vehicle was stated to be parked.

The police found three people present in the vehicle. The driver

identified himself as Gurpreet Singh, the person sitting on the

3. 2026:HHC:3358

front seat identified himself as Arvinder Singh, and the person

sitting on the rear seat identified himself as Sunil Kumar. The

police gave their search to the occupants of the vehicle and

searched the vehicle. The police recovered a transparent

polythene kept beneath the foot mat of the rear seat. The police

checked the polythene packet and recovered 29.840 grams of

heroin. The police seized the vehicle and the heroin and arrested

the occupants. The heroin was sent to SFSL, Junga and as per the

result, indicated the presence of Diacetylmorphine. The call detail

records were obtained, and the occupants were found to be in

touch with each other. A charge sheet has been filed before the

Court, and the matter was listed before the learned Special Judge

(1) for the fixation of evidence on 17.01.2026. The petitioner Sunil

Kumar had used his SIM No.xxxxx0377 in different mobile

phones. FIR No.56/2022 has been registered against the

petitioner. The petitioner would indulge in the commission of a

similar case in case of his release on bail. Hence, the status report.

4. I have heard Mr Abhimanyu Thakur, learned counsel

for the petitioner and Mr Lokender Kutlehria, learned Additional

Advocate General for the respondent/State.

4. 2026:HHC:3358

5. Mr Abhimanyu Thakur, learned counsel for the

petitioner, submitted that the petitioner is innocent and that he

was falsely implicated. The co-accused has been released on bail,

and the petitioner is entitled to bail on the principle of parity. The

quantity of heroin stated to have been recovered by the police is

intermediate, and the rigours of Section 37 of the NDPS Act do not

apply in the present case. The petitioner would abide by the terms

& conditions which the Court may impose; hence, he prayed that

the present petition be allowed and the petitioner be released on

bail.

6. Mr Lokender Kutlehria, learned Additional Advocate

General for the respondent/State, submitted that the petitioner

has criminal antecedents and he is likely to commit a similar

offence in case of his release on bail. His criminal antecedents

separate his case from the co-accused, and the petitioner cannot

claim any parity; hence, he prayed that the petition be dismissed.

7. I have given considerable thought to the submissions

made at the bar and have gone through the record carefully.

5. 2026:HHC:3358

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 elaborat-

ing 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 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 perti-

nent. 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 juris-

diction 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 habitu-

als, 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 dis-

cretion, on the basis of evidence about the criminal record

6. 2026:HHC:3358

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 ex -

tracted 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 cir-

cumstances 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 entail, the character, behaviour, means and standing of

the accused, circumstances which are peculiar to the ac-

cused, reasonable possibility of securing the presence of the

accused at the trial, reasonable apprehension of the wit-

nesses being tampered with, the larger interests of the pub-

lic 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 judi-

cious manner and not as a matter of course. An order for

bail bereft of any cogent reason cannot be sustained. Need-

less to record, however, that the grant of bail is dependent

7. 2026:HHC:3358

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 mat-

ter of grant of bail, the same should always be coupled with

other circumstances warranting the grant of bail. The na-

ture 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, depen-

dent on the factual matrix of the matter.” (emphasis sup-

plied)

59. In Kalyan Chandra Sarkar v. Rajesh Ranjan, (2004) 7 SCC

528: 2004 SCC (Cri) 1977, this Court held that although it is

established that a court considering a bail application can-

not 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 re-

gard 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 reject-

ing bail to the accused. However, it is equally incumbent

upon the High Court to exercise its discretion judiciously,

cautiously and strictly in compliance with the basic princi-

ples laid down in a plethora of decisions of this Court on the

point. It is well settled that, among other circumstances, the

factors to be borne in mind while considering an applica-

tion for bail are:

8. 2026:HHC:3358

(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 convic-

tion;

(iv) danger of the accused absconding or fleeing, if re-

leased 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

62. One of the judgments of this Court on the aspect of ap-

plication of mind and requirement of judicious exercise of

discretion in arriving at an order granting bail to the ac-

cused 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 in-

dividual is an invaluable right, at the same time while con-

sidering 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 vexa-

tious in nature but are supported by adequate material

brought on record so as 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 sup-

ported by reasons and must be arrived at after having re-

9. 2026:HHC:3358

gard to the vital facts of the case brought on record. Due

consideration must be given to facts suggestive of the na-

ture of crime, the criminal antecedents of the accused, if

any, and the nature of punishment that would follow a

conviction vis-à-vis the offence(s) alleged against an ac-

cused.” (emphasis supplied)

9. The present petition has to be decided as per the

parameters laid down by the Hon’ble Supreme Court.

10. The status report shows that the petitioner was found

present in the vehicle bearing registration No. PB-01D-2378,

from which the police recovered a polythene packet containing

29.840 grams of heroin. The call detail record also showed that

the occupants of the vehicle were in touch with each other. In

Madan Lal versus State of H.P. (2003) 7 SCC 465: 2003 SCC (Cri)

1664: 2003 SCC OnLineSC 874, the contraband was recovered from

a vehicle, and it was held that all the occupants of the vehicle

would be in conscious possession of the contraband. It was

observed:

“19. Whether there was conscious possession has to be

determined with reference to the factual backdrop. The

facts which can be culled out from the evidence on record

are that all the accused persons were travelling in a vehicle,

and as noted by the trial court, they were known to each

other, and it has not been explained or shown as to how

they travelled together from the same destination in a

vehicle which was not a public vehicle.

10. 2026:HHC:3358

20. Section 20(b) makes possession of contraband articles

an offence. Section 20 appears in Chapter IV of the Act,

which relates to offences for possession of such articles. It

is submitted that to make the possession illicit, there must

be conscious possession.

21. It is highlighted that unless the possession was coupled

with the requisite mental element, i.e., conscious

possession and not mere custody without awareness of the

nature of such possession, Section 20 is not attracted.

22. The expression “possession” is a polymorphous term

which assumes different colours in different contexts. It

may carry different meanings in contextually different

backgrounds. It is impossible, as was observed in the

Supdt. & Remembrancer of Legal Affairs, W.B. v. Anil Kumar

Bhunja [(1979) 4 SCC 274: 1979 SCC (Cri) 1038: AIR 1980 SC

52] to work out a completely logical and precise definition

of “possession” uniformly applicable to all situations in

the context of all statutes.

23. The word “conscious” means awareness of a particular

fact. It is a state of mind which is deliberate or intended.

24. As noted in Gunwantlal v. State of M.P. [(1972) 2 SCC 194:

1972 SCC (Cri) 678: AIR 1972 SC 1756], possession in a given

case need not be physical possession but can be

constructive, having power and control over the article in

the case in question, while the person to whom physical

possession is given holds it subject to that power or

control.

25. The word “possession” means the legal right to

possession (see Heath v. Drown [(1972) 2 All ER 561: 1973 AC

498: (1972) 2 WLR 1306 (HL)] ). In an interesting case, it

was observed that where a person keeps his firearm in his

mother's flat, which is safer than his own home, he must

be considered to be in possession of the same.

(See Sullivan v. Earl of Caithness [(1976) 1 All ER 844: 1976 QB

966: (1976) 2 WLR 361 (QBD)].)

26. Once possession is established, the person who claims

that it was not a conscious possession has to establish it

11. 2026:HHC:3358

because how he came to be in possession is within his

special knowledge. Section 35 of the Act gives a statutory

recognition of this position because of the presumption

available in law. Similar is the position in terms of Section

54, where a presumption is also available to be drawn from

possession of illicit articles.

27. In the factual scenario of the present case, not only

possession but conscious possession has been established.

It has not been shown by the accused-appellants that the

possession was not conscious in the logical background of

Sections 35 and 54 of the Act.”

11. Therefore, prima facie, the petitioner was in

possession of the charas.

12. The quantity of heroin stated to have been recovered

from the possession of the petitioner is less than a commercial

quantity, and the rigours of Section 37 of the NDPS Act do not

apply to the present case.

13. It was submitted that, as per the prosecution, an

intermediate quantity of heroin was found in the vehicle, and the

petitioner is entitled to bail as a matter of right. This submission

is not acceptable. It was laid down by this Court in Khushi Ram

Gupta v. State of H.P., 2022 SCC OnLine HP 3779, that the menace of

drug addiction has seriously eroded into the fabric of society, and

the release of an accused on bail in NDPS Act cases will send a

negative signal to society. It was observed:

12. 2026:HHC:3358

“8. The menace of drug addiction, especially in adolescents

and students, has seriously eroded into the fabric of society,

putting the future generation as well as the prospects of

future nation-building into serious peril.

9. It is not a case where the investigating agency is clueless

in respect of evidence against the petitioner. Though

allegations against the petitioner are yet to be proved in

accordance with the law, it cannot be taken singly as a factor

to grant bail to the petitioner. Nothing has been placed on

record on behalf of the petitioner to divulge as to how and in

what manner he came in contact with the persons who were

residents of the State of Himachal Pradesh. Thus, there is

sufficient prima facie material to infer the implication of the

petitioner in the crime. In such circumstances, the release of

the petitioner on bail will send a negative signal in society,

which will definitely be detrimental to its interests.

10. The prima facie involvement of the petitioner in the

dangerous trade of contraband cannot be ignored merely on

account of the fact that he has no past criminal history. It

cannot be guaranteed that there will be re-indulgence by the

petitioner in similar activities, in case he is released on

bail.”

14. Similarly, it was held in Bunty Yadav v. State of H.P.,

2022 SCC OnLine HP 4996, that the bail cannot be claimed as a

matter of right even though the rigours of Section 37 of the NDPS

Act do not apply to a case. Each case has to be adjudged on its own

facts. It was observed:

“6. The quantity involved in the case is 89.89 grams of

heroin and 3.90 grams of MDMA. Such quantity may not

technically fall under the category of commercial quantity;

nevertheless, such quantity cannot be termed to be less by

any stretch of the imagination. The evident nature of

commercial transactions and dealing with the contraband

13. 2026:HHC:3358

aggravates the situation for the petitioner. In a case where

Section 37 of the NDPS Act is not applicable, the bail cannot

be claimed as a matter of right. The fate depends on the

facts of each and every case.

7. The menace of drug addiction, especially in adolescents

and students, has seriously eroded into the fabric of

society, putting the future generation as well as the

prospects of future nation-building into serious peril.”

15. It was laid down by the Hon’ble Supreme Court in

Union of India v Namdeo Ashruba Nakade SLP (Crl.) 9792/2025,

decided on 07.11.2025, that there is a concerning increase in drug

abuse amongst the youth. It was observed: -

8. This Court is of the view that the issue of substance

abuse has emerged as a global public health crisis in the

twenty-first century, affecting every country worldwide,

as drug trafficking and addiction have become pervasive.

The United Nations Office on Drugs and Crime (UNODC)

reported in its 2025 World Drug Report that “As at 2023,

some 316 million people worldwide had used drugs in the

past year, representing an increase over the past decade

that outpaces population growth, which indicates a higher

prevalence of drug use.”

9. In India, there has been a concerning increase in drug

abuse among the youth. Substance abuse not only affects

individuals, families, and communities but also

undermines various aspects of health, including physical,

social, political, and cultural foundations, and mental

well-being. (See: “Bhattacharya S, Menon GS, Garg S,

Grover A, Saleem SM, Kushwaha P. The lingering menace

of drug abuse among the Indian youth–it’s time for action.

Indian J Community Med 2025;50:S9-12, published on 17th

April, 2025”)

10. According to many news reports, India faces a clear

dilemma between tackling the narcotics crisis

14. 2026:HHC:3358

systematically or sacrificing its most valuable resource, i.e.

its young people. The extent of menace of drug abuse has

also been highlighted by this Court in the case of Ankush

Vipan Kapoor v. National Investigation Agency, (2025) 5 SCC

155, wherein this Court has observed as under:

“9.1 The ills of drug abuse seem to be shadowing the

length and breadth of our country, with the Central

and every State Government fighting against the

menace of substance abuse. The debilitating impact

of the drug trade and drug abuse is an immediate and

serious concern for India. As the globe grapples with

the menace of escalating Substance Use Disorders

(“SUD”) and an ever accessible drug market, the

consequences leave a generational Page 75 of 84

imprint on public health and even national security.

Article 47 of the Constitution makes it a duty of the

State to regard the raising of the level of nutrition

and the standard of living of its people and the

improvement of public health as among its primary

duties and in particular the State shall endeavour to

bring about prohibition of the consumption except

for medicinal purposes of intoxicating drinks and of

drugs which are injurious to health. The State has a

responsibility to address the root causes of this

predicament and develop effective intervention

strategies to ensure that India’s younger population,

which is particularly vulnerable to substance abuse,

is protected and saved from such a menace. This is

particularly because substance abuse is linked to

social problems and can contribute to child

maltreatment, spousal violence, and even property

crime in a family.”

16. Hence, the petitioner cannot be released on bail

merely because the rigours of Section 37 of the NDPS Act do not

apply to the present case.

15. 2026:HHC:3358

17. The status report mentions that the police had

recovered 29.840 grams of heroin, which is a huge quantity and

could not have been made for self-consumption. The quantity of

heroin stated to have been recovered from the possession of the

petitioner would disentitle him from the bail at this stage, even

though it is intermediate.

18. It was submitted that the co-accused has been

released on bail; therefore, the petitioner is entitled to bail on the

principle of parity. This submission cannot be accepted. It was

laid down by the Hon’ble Supreme Court in Sagar v. State of U.P.,

2025 SCC OnLine SC 2584, that a person cannot be released on bail

after applying the principle of parity without examining his role.

It was observed:

“14. What flows from the above judgments, which have

been referred to, only to the limited extent indicated above,

is that the High Courts speak in one voice that parity is not

the sole ground on which bail can be granted. That,

undoubtedly, is the correct position in law. The word

‘parity’ is defined by the Cambridge Dictionary as “equality,

especially of pay or position.” When weighing an application

on parity, it is the ‘position’ that is the clincher. The

requirement of ‘position’ is not met only by involvement in

the same offence. Position means what the person whose

application is being weighed, his position in crime, i.e., his

role, etc. There can be different roles played - someone

part of a large group, intending to intimidate; an instigator

of violence; someone who throws hands at the other side,

16. 2026:HHC:3358

instigated by such words spoken by another, someone who

fired a weapon or swung a machete - parity of these people

will be with those who have performed similar acts, and not

with someone who was part of the group to intimidate the

other by the sheer size of the gathering, with another who

attempted to hack away at the opposer's limbs with a

weapon.”

19. The status report shows that the petitioner has

criminal antecedents, and one FIR was lodged against him. This

Court dealt with the relevance of criminal antecedents while

granting bail in Champa vs. State of H.P.: 2025:HHC:28899 and

held that the criminal antecedents would disentitle an accused

from the concession of bail, especially when an FIR was registered

against the accused related to the commission of a similar

offence. This judgment was unsuccessfully assailed before the

Hon’ble Supreme Court in SLP(Criminal) 19120 of 2025 titled

Champa Devi vs State of H.P., decided on 27.11.2025. Therefore, the

relevance of criminal antecedents cannot be ignored.

20. In the present case, the petitioner cannot be released

on bail, considering the quantity of heroin found in his

possession and his criminal antecedents.

21. No other point was urged.

17. 2026:HHC:3358

22. In view of the above, the petitioner is not entitled to

bail. Hence, the present petition fails, and it is dismissed. Petition

stands disposed of, also, pending miscellaneous application (s), if

any, stands disposed of.

23. The observation made herein before shall remain

confined to the disposal of the instant petition and will have no

bearing whatsoever on the merits of the case.

(Rakesh Kainthla)

Vacation Judge

23, January, 2026

(meera)