Sunita v. State of HP

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. MP(M) No. 1755 of 2026 Reserved on: 30.09.2026 Date of Decision: 06.10.2026

Sunita

…. Petitioner

Versus

State of HP

…. Respondent

Coram

Hon'ble Mr Justice Rakesh Kainthla, Judge. Whether approved for reporting?1 No. For the Petitioner

: Mr Vijender Katoch, Advocate. For the respondent/State : Mr P.K.Nadda, Additional Advocate General.

Rakesh Kainthla, Judge

The petitioner has filed the present petition seeking regular bail in F.I.R. No.74 of 2026, dated 14.07.2026, registered at Police Station Shahpur, District Kangra, H.P., for the commission of offences punishable under Sections 21, 25 and 29 of the Narcotic Drugs and Psychotropic Substances (NDPS) Act.

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

2.

It has been asserted that as per the prosecution, the police had received secret information on 14.07.2026, at 5:05 p.m. that a motorcycle bearing registration No. PB46AP-4388 was transporting a huge quantity of heroin, which could be recovered by searching it. The information was credible and was reduced to writing. It was sent to the Additional Superintendent of Police, Dharamshala, District Kangra, H.P. The police intercepted the motorcycle, and the driver of the motorcycle revealed his name as Vinod Kumar. The pillion rider identified herself as Sunita (present petitioner). The police joined Sidhu Kumar and Ankit as independent witnesses and checked the motorcycle. The police recovered a green bag kept beneath the seat of the motorcycle. The police checked the bag and found 33.01 grams of heroin. The petitioner is innocent and has nothing to do with the commission of the crime. The quantity of heroin stated to have been recovered by the police is less than the commercial quantity and rigours of Section 37 of the NDPS Act do not apply to the present case. The petitioner has two minor children, who are dependent upon her. The police have completed the investigation and filed the charge sheet before the Court. No fruitful purpose would be served by detaining the petitioner in custody. The petitioner is a permanent resident of District Hoshiarpur (Punjab), and there is no likelihood of her absconding. 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 received secret information on

14.07.2026 at 05:05 p.m. at Ladwara Mour, near Shanidev Temple, that a motorcycle bearing registration No. PB46AP-4388 was transporting a huge quantity of heroin, which could be recovered by searching the motorcycle. The information was credible, and any delay in procuring the search warrant would have led to the destruction of the case property. Hence, the information was reduced to writing and was sent to the Supervisory Officer, Dharamshala, H.P. The police waited for the motorcycle. The motorcycle reached the spot at about 05:25 p.m. The police stopped the motorcycle. The motorcycle driver identified himself as Vinod Kumar and the pillion rider identified herself as Sunita Devi. The police joined Sidhu Kumar and Ankit as independent witnesses. The police checked the motorcycle and recovered a green carry bag kept beneath the seat of the motorcycle. The police checked the carry bag and found 33.01 grams of heroin in it. The police seized the heroin and arrested the motorcyclists. The heroin was sent to the FSL, and as per the report of the analysis, it was confirmed to be a sample of diacetylmorphine. The petitioner is involved in the transportation of a huge quantity of heroin. She would indulge in the commission of a similar crime in case of her release on bail. Therefore, it was prayed that the present petition be dismissed.

4.

I have heard Mr Vijender Katoch, learned counsel for the petitioner and Mr P.K. Nadda, learned Additional Advocate General, for the respondent/State.

5.

Mr Vijender Katoch, learned counsel for the petitioner, submitted that the petitioner is innocent and was falsely implicated. The petitioner does not have any criminal antecedents, and as per the prosecution version, she was transporting the heroin for the consumption of her son, who is a drug addict. The petitioner is a victim of circumstances and not a drug peddler. Her minor children are dependent upon her. The police have completed the investigation, and no fruitful purpose would be served by detaining the petitioner in custody. The petitioner would abide by the terms and conditions that the court may impose. Hence, he prayed that the present petition be allowed and the petitioner be released on bail.

6.

Mr P.K. Nadda, learned Additional Advocate General, for the respondent/State, submitted that the petitioner was found in possession of 33.01 grams of heroin, which is a huge quantity and could not have been meant for self-consumption. The petitioner would indulge in the commission of a similar offence in case of her release. Therefore, 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

¶56In Gudikantis 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 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.

¶8Another 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.]

¶9Thus, 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, based on evidence about the criminal record of a defendant, is therefore not an exercise in irrelevance." (emphasis supplied)

¶57In 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 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 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)

¶58This 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)

¶59In 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 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.

¶60In 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 the High Court to exercise its discretion judiciously, cautiously and strictly in compliance with the basic principles 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 application for bail are:

(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

¶62One 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 offence(s) alleged against an accused." (emphasis 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:

¶2The 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.

¶3It 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 her husband were found riding the motorcycle bearing the registration number PB46AP-4388; the police checked the motorcycle in the presence of independent witnesses and recovered a carry bag containing 33.01 grams of heroin. It was laid down by the Hon'ble Supreme Court in Madan Lal versus State of H.P. (2003) 7 SCC 465; 2003 SCC (Cri) 1664; 2003 SCC OnLineSC 874, 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.

¶20Section 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.

¶21It 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.

¶22The expression "possession" is a polymorphous term that 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.

¶23The word "conscious" means awareness of a particular fact. It is a state of mind which is deliberate or intended.

¶24As 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.

¶25The 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)].)

¶26Once possession is established, the person who claims that it was not a conscious possession has to establish it 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.

¶27In 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."

12.

Therefore, prima facie, the petitioner is to be treated as being in possession, and the burden would shift upon her to prove that she was not in conscious possession of the heroin.

13.

The quantity of heroin stated to have been recovered from the motorcycle is less than the commercial quantity and the rigours of Section 37 of the NDPS Act do not apply to the present case.

14.

The petitioner asserted that she is a permanent resident of District Hoshirpur, Punjab. The status report mentions that the documents of the permanent residence are being verified. The petitioner was arrested on 15.07.2026, and the petitioner claimed that she is a resident of District Hoshiarpur (Punjab). The status report was filed on 17.09.2026, and the police had sufficient time to verify the correctness of the address; however, the police have not even mentioned the steps taken by them to verify the correct address. Hence, the petitioner cannot be detained in custody because the police have not verified the correct address or found it to be incorrect.

15.

The status report also mentions that it is difficult to say anything regarding the criminal antecedents because the investigation is continuing. Again, the status report is highly contradictory; it was mentioned that the charge sheet was filed on

09.09.2026 before the Court and at the same time it is stated that the investigation is continuing and nothing can be said till the conclusion of the investigation. The police had sufficient time to verify the criminal antecedents, and the petitioner cannot be detained in custody for an indefinite period, because the police have verified the petitioner's criminal antecedents.

16.

The status report also mentions that the petitioner was transporting the heroin for the consumption of her son, who is a drug addict. This shows that the petitioner is not a drug peddler, but the victim of the circumstances. Therefore, the petitioner is entitled to sympathetic consideration.

17.

The petitioner is the first offender and has the right to reform herself. Keeping the petitioner in custody would expose her to hardened criminals, which would make her chances of reformation bleak.

18.

In view of the above, the present petition is allowed, and the petitioner is ordered to be released on bail, subject to her furnishing a 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 she 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 the address of the intended visit to the SHO concerned, the Police Station concerned and the Trial Court.

(IV) The petitioner will surrender her passport, if any, to the Court; and

(V) The petitioner will furnish her 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.

19.

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.

¶20The petition stands accordingly disposed of.

21.

A copy of this order be sent to the Jail Superintendent, Lala Lajpat Rai, District and Open Air Correctional Home, Dharamshala, H.P., and the learned Trial Court by FASTER.

22.

The observations made hereinabove are regarding the disposal of this petition and will have no bearing whatsoever on the merits of the case.

( Rakesh Kainthla ) 06th October, 2026.

Judge.

(Ravinder)

DN: C=IN, O=HIGH COURT OF HIMACHAL PRADESH SHIMLA, Phone=35ecb6f93c6891a7dae90f163e34d7ecaa420b13af13 63204abtietif5c87077dc, PostalCode=171001, S=Himachal Pradesh, SERIALNUMBER=f6cc63c55495d14ce1f8623eacdb6cb9ef2 c553803537a2f53c4ee637cbebaff, CN=RAVINDER KUMAR Reason: I am the author of this document Location: Date: 2026-10-06 14:50:19 RAVINDER KUMAR