Deekshitha Sharmile

The High Court of Himachal Pradesh Single Bench of Justice Rakesh Kainthla granted bail to a Nepali national accused of possessing a commercial quantity of opium, holding that the prosecution case was weakened by serious lapses in the seizure and sampling process. The Court noted that all pouches of the alleged contraband were mixed before samples were drawn, affecting the reliability of the procedure, and that the status report did not show that samples were sent to the State Forensic Science Laboratory or that any analysis confirmed the substance as opium. On these grounds, the Court directed the accused’s release on bail subject to specified conditions.

The petitioner, a Nepali national, was arrested on 27 April 2025 following recovery of opium during a police search of a bus travelling from Solan to Shimla. According to the prosecution, the police acted on secret information and intercepted the bus. Two individuals were found seated in the rear seats with backpacks near their feet. The police recovered three pouches containing 2.544 kilograms of opium from the bag near the petitioner and six pouches containing 5.640 kilograms of opium from the bag near the co-accused. The total weight was recorded as 8.184 kilograms.

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The petitioner sought bail, contending that she had clean antecedents, was not in conscious possession of the contraband, and that the grounds of arrest were not communicated to her. It was argued that discrepancies existed in the weight of the seized material and that mixing of pouches defeated the requirement of representative sampling under Section 52A of the NDPS Act. The State opposed the petition, asserting that the petitioner was found in possession of a commercial quantity of opium and that Section 37 of the NDPS Act barred bail. The prosecution cited CCTV footage from a hotel where the petitioner and co-accused had stayed and filed a charge sheet on 2 July 2025.

Justice Rakesh Kainthla recorded the parameters for granting bail as laid down by the Supreme Court. “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 conviction is confirmed, also bears upon the issue.”

The Court further noted: “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. It was stated: “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.”

The Court referred to established principles: “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.”

It was recorded: “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 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.”

The Court observed: “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.” It was further stated: “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.”

On the facts of the present case, the Court noted that the police had mixed the contents of the backpacks and weighed them together. “The status report does not mention that the sample was representative and homogeneous. The packets were also not sent individually to determine whether they contained opium or not.”

The Court recorded: “Thus, it is highly doubtful that the samples were taken from the contents of the backpack recovered near the feet of the petitioner.” It was observed: “Therefore, in these circumstances, it is difficult to conclude that the petitioner was found in possession of a commercial quantity of opium.”

The Court stated: “Hence, the submission that the rigours of Section 37 of NDPS apply to the present case is not acceptable.” It was noted: “The petitioner asserted that she has no criminal antecedents. The status report also does not mention that any FIR was registered against the petitioner. Hence, the plea that the petitioner has no criminal antecedents has to be accepted as correct.”

The Court recorded: “The status report has not provided any reasons for the petitioner's pre-trial detention, hence no fruitful purpose would be served by detaining the petitioner in custody.”

The Court directed: “In view of the above, the present petition is allowed and the petitioner is ordered to be released on bail subject to her furnishing bail bonds in the sum of ₹1,00,000/- with two sureties in the like amount to the satisfaction of the learned Trial Court.”

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“The petitioner, while on bail, will abide by the following terms and conditions :- (i) The petitioner will join the investigation as and when directed to do so through a written hukamnama. (ii) The petitioner will not intimidate the witnesses nor will she influence any evidence in any manner whatsoever. (iii) The petitioner shall attend the trial in case a charge sheet is presented against her and will not seek unnecessary adjournments. (iv) The petitioner will not leave the present address for a continuous period of seven days without furnishing the address of intending a visit to the SHO, the Police Station concerned and the Trial Court. (v) The petitioner will surrender her passport, if any, to the Court; and (vi) 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.”

“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.”

Advocates Representing the Parties

For the Petitioners: M/s Ajay Sipahiya and Tarun Mehta, Advocates
For the Respondents: Mr Jitender Sharma, Additional Advocate General

Case Title: Shiranjana Buddha v. State of Himachal Pradesh
Neutral Citation: 2025:HHC:39626
Case Number: Cr. MP (M) No. 2439 of 2025
Bench: Justice Rakesh Kainthla