Himachal Pradesh High Court

Reserved On: 07.10.2023 vs State Of Himachal Pradesh on 8 November, 2023

Bench: Sushil Kukreja

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

Cr.MP(M) No. 2193 of 2023 Reserved on: 07.10.2023 Decided on: 08.11.2023 Devender Pal ...Petitioner Versus State of Himachal Pradesh ...Respondent

Coram The Hon'ble Mr. Justice Sushil Kukreja, Judge Whether approved for reporting?1

For the petitioner: Mr. Bhupinder Singh Ahuja, Advocate.

For the respondent: Mr. Jitender Kumar Sharma, Additional Advocate General.

____________________________________________________ __ Sushil Kukreja, Judge

The instant bail application has been filed by the

petitioner under Section 439 of the Code of Criminal Procedure

(Cr.P.C.) for releasing him on bail in case FIR No. 71 of 2023,

dated 05.05.2023, under Sections 21 and 29 of the Narcotic

Drugs and Psychotropic Substances Act (for short "NDPS Act"),

registered at Police Station Manali, District Kullu, H.P.

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

2. The facts giving rise to the instant petition can be

summarized as under:

2(a). On 04.05.2023, the police party was on patrolling

duty and around 10:00 p.m., when they were present near Jeep

Union, Bhootnath Mandir Manali, they received a secret

information that near Hotel Hillans, Vishavdeep @ Aalla, who

was residing in the building of one Prem Singh Thakur, as a

tenant, was doing illegal trade of chitta/heroin and if his room

was searched, huge quantity of chitta/heroin could be recovered.

Acting upon the aforesaid information, the police party reached

near Hotel Hillans and associated Prem Singh Thakur and

Parvesh as independent witnesses in the proceedings. In

presence of the aforesaid witnesses, the police party entered the

room of Vishavdeep @ Aalla and on seeing the police party, he

got perplexed. Thereafter, the police conducted search of his

room and found a bag. On opening the bag, the police found a

packet wrapped with silver foil, which was containing some

whitish and yellowish granule like powder and some solid

yellowish substance. The recovered substance was found to be

chitta/heroin, which on weighment was found to be 266 grams.

After completion of all the codal formalities, accused Vishavdeep

@ Aalla was arrested and investigation commenced. During the

course of interrogation, Vishavdeep @ Aalla, disclosed that 2-3

years back he came to Manali and started selling paan. He

further disclosed that he was a poor person and in order to come

out of his poverty, he started selling chitta to local school

students and tourists. He also disclosed that Devender Pal

(petitioner herein) had supplied him the chitta for sale and he

was in touch over phone with him, who resides in Kanpur. On

24.05.2023, at about 6:10 P.M., the petitioner was arrested from

Kullu.

3. The bail petition has been filed on the ground that the

petitioner is innocent and has been falsely implicated in this

case. Learned counsel for the petitioner has contended that

except for the disclosure statement of the accused, no other

evidence has been collected by the Investigating Agency against

the petitioner in order to implicate him in the present case. He

further contended that investigation in the case is complete and

nothing remains to be recovered at the instance of the petitioner,

as such, he deserves to be enlarged on bail.

4. Per contra, learned Additional Advocate General

opposed the bail application on the ground that keeping in view

the gravity of the offence alleged to have been committed by the

petitioner, he is not entitled to be enlarged on bail.

5. I have heard the learned counsel for the petitioner as

well as learned Additional Advocate General and have also gone

through the record of the case. From the perusal of the status

report filed on behalf of the respondent/state, it is evident that the

petitioner has been implicated on the basis of disclosure

statement of the accused and also on the basis of alleged call

details record between the accused and the petitioner through

their respective mobile phones. It is not in dispute that the

chitta/heroin in question never came to be recovered from the

conscious possession of the petitioner, rather it was recovered

from accused Vishavdeep @ Aalla.

6. The Hon'ble Apex Court in Tofan Singh Vs State of

Tamil Nadu (2021) 4 SCC 1, has categorically held that the

disclosure statement, if any, made under Section 67 of the Act, is

inadmissible. The relevant paragraph of the aforesaid judgment

reads as under:-

"155. Thus, to arrive at the conclusion that a confessional statement made before an officer designated under section 42 or section 53 can be the basis to convict a person under the NDPS Act, without any non obstante clause doing away with section 25 of the Evidence Act, and without any safeguards, would be a direct infringement of the constitutional guarantees contained in Articles 14, 20(3) and 21 of the Constitution of India.

156.The judgment in Kanhaiyalal (supra) then goes on to follow Raj Kumar Karwal (supra) in paragraphs 44 and 45. For the reasons stated by us hereinabove, both these judgments do not state the law correctly, and are thus overruled by us. Other judgments that expressly refer to and rely upon these judgments, or upon the principles laid down by these judgments,also stand overruled for the reasons given by us.

157.On the other hand, for the reasons given by us in this judgment, the judgments of Noor Aga (supra) and Nirmal are correct in law.158.We answer the reference by stating:

(i) 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.

(ii) That a statement recorded under section 67 of the NDPS Act cannot be used as a confessional statement in the trial of an offence under the NDPS Act."

7. Recently, the Hon'ble Apex Court in State by (NCB)

Bengaluru v. Pallulabid Ahmad Arimutta and anr., Special

Leave to Appeal (Crl) No. 242 of 2022 (arising out of diary

No. 22702 of 2020) decided on 10.1.2022, again reiterated that

confessional statement recorded under Section 67 of the NDPS

Act, will remain inadmissible in the trial of an offence under the

Act. Hon'ble Apex Court in this case upheld the order/judgment

passed by the High Court of Karnataka granting bail to the

accused arrested by the petitioner NCB on the basis of

confessional/voluntary statement of the co-accused under

Section 67 of the NDPS Act. Apart from above, Hon'ble Apex

Court in the aforesaid judgment has held that CDR details of

some of the accused or the allegations of tempering of evidence

on the part of the respondents is an aspect that will be examined

at the stage of the trial. The relevant portion of the judgment

reads as under:-

"10. It has been held in clear terms in Tofan Singh Vs. State of Tamil Nadu, (2021)4 SCC 1,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 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 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, passed in SLP (Crl.) No@ Diary No. 22702/2020, SLP(Crl.) No. 1454/2021, SLP (Crl.) No. 1465/2021, SLP (Crl.) No. 1773-74/2021and 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."

8. In the present case, except for the existence of CDRs

and disclosure statement of the accused, no other material has

been collected against the petitioner. Therefore, in view of the

aforesaid mandate of the Hon'ble Supreme Court in Tofan

Singh & Pallulabid Ahmad's cases (supra), the disclosure

statement made by the accused cannot be read against the

petitioner. There is also no past history of the petitioner regarding

his involvement in the similar offence.

9. Accordingly, the bail application is allowed and it is

ordered that the petitioner, who has been arrested by the police,

in case F.I.R. No. 71/2023, dated 05.05.2023, registered at

Police Station Manali, District Kullu, H.P., under Sections 21 & 29

of NDPS Act, shall be forthwith released on bail, subject to his

furnishing personal bond to the tune of Rs. 2,00,000/- (Rupees

two lac), with one local surety of District Kullu in the like amount

to the satisfaction of learned Trial Court. This bail order is

subject, however, to the following conditions:-

(i) that the petitioner will appear before the Court and the Investigating Officer whenever required ;

(ii) that he will not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him/her from disclosing any facts to the Court or the police;

(iii) that he will not tamper with the prosecution evidence nor he will try to win over the Prosecution witnesses or terrorise them in any manner;

(iv) that he will not repeat the offence, as is alleged to have been committed by him.

(v) that he will not deliberately and intentionally act in a manner which may tend to delay the investigation or the trial of the case.

(vi) that he will not leave India without prior permission of the Court.

10. Needless to say that the Investigating agency shall

be at liberty to move this Court for cancellation of the bail, if any

of the aforesaid conditions is violated by the petitioner.

11. Be it stated that any expression of opinion given in

this order does not mean an expression of opinion on the merits

of the case and the trial Court will not be influenced by any

observations made therein.

12. The Registry is directed to forward a soft copy of the

bail order to the Superintendent, District Jail Kullu, through e-

mail, with a direction to enter the date of grant of bail in the e-

prison software.

13. In case, the petitioner is not released within a period

of seven days from the date of grant of bail, the Superintendent,

District Jail Kullu, is directed to inform this fact to the Secretary,

DLSA, Kullu. The Superintendent, District Jail Kullu, is further

directed that if the petitioner fails to furnish the bail bonds, as per

the order passed by this Court, within a period of one month from

today, the said fact be submitted to this Court.




                                                              ( Sushil Kukreja )
th
8 November, 2023                                                   Judge
      (raman)
                 Digitally signed by VIRENDER BAHADUR

VIRENDE          DN: C=IN, O=HIGH COURT OF
                 HIMACHAL PRADESH, OU=HIGH COURT
                 OF HIMACHAL PRADESH SHIMLA, Phone
                 =

   R             3c5f9e29e91dda973d928ffd06d59832d2dd
                 97b9e2898117bfa738990a0ea7ba,

PostalCode=171001, S=Himachal Pradesh, SERIALNUMBER=

BAHADU fed3018c26866cd3d598cb3749b3fb29d4ab ef4b84983689d027cb645c9bb134, CN= VIRENDER BAHADUR Reason: I am approving this document

R Location: