Himachal Pradesh High Court

Munish Thakur vs State Of H.P on 28 August, 2024

Author: Sandeep Sharma

Bench: Sandeep Sharma

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

Cr.MP(M) No.1781 of 2024 Date of Decision: 28.07.2024

_______________________________________________________

Munish Thakur .......Petitioner Versus

State of H.P. ... Respondent Coram:

Hon'ble Mr. Justice Sandeep Sharma, Judge. Whether approved for reporting? 1

For the Petitioner: Mr. Atul Sharma and Ms. Ankita, Advocates.

For the Respondent: Mr. Rajan Kahol, Mr. Vishal Panwar and Mr. B.C.Verma, Additional Advocate Generals,

with Mr. Ravi Chauhan, Deputy Advocate

General.

_______________________________________________________ Sandeep Sharma, Judge(oral):

Bail petitioner namely, Munish Thakur, who is behind the

bars since 04.07.2024, has approached this Court in the instant

proceedings filed under Section 483 of Bharatiya Nagarik Suraksha

Sanhita, praying therein to grant regular bail in case FIR No.21 of

2024, dated 15.06.2024, under Sections 22 and 29 of the Narcotic

Drugs & Psychotropic Substances Act, 1985 (for short 'Act'),

registered at police Station, Chopal, District Shimla, Himachal

Pradesh.

Whether the reporters of the local papers may be allowed to see the judgment?

2. Pursuant to the noticed issued in the instant proceedings,

respondent-State has filed status report and HC Dinesh Kumar has

come present alongwith the record. Record perused and returned.

3. Close scrutiny of the status report/record clearly reveals

that on 15.06.2024, at about 12.40 PM, police after having received

secret information that person namely, Chirag Ramchaik indulges in

illegal trade of narcotics, raided his room and allegedly recovered 38

bottles of Cadizrex-T containing Codeine Phosphate and Triprolidine

Hydrochloride Syrup. At the time of recovery, four persons were found

sitting in the room of above named accused. Since no plausible

explanation ever came to be rendered on record qua possession of

aforesaid quantity of contraband, police after having completed

necessary codal formalities arrested above named Chirag alongwith

other four boys, who at the relevant time were found sitting in the

room. Since above named accused Chirag Ramchaik and other boys

allegedly disclosed to the police that they had purchased the

recovered contraband from the person namely, Gulshan though

present bail petitioner, police arrested bail petitioner on 04.07.2024

and since then he is behind the bars. Since investigation in the case

is complete and nothing remains to be recovered from the bail

petitioner, he has approached this Court in the instant proceedings for

grant of regular bail.

4. While fairly admitting factum with regard to filing of

Challan in the competent court of law, Mr. Rajan Kahol, learned

Additional Advocate General, submits that though nothing remains to

be recovered from bail petitioner, but keeping in view the gravity of

offence alleged to have been committed by him, he does not deserve

any leniency. Learned Additional Advocate General submits that

though 38 bottles of Codeine Phosphate containing prohibited drugs

were not recovered from the conscious possession of the bail

petitioner, but there is overwhelming evidence adduced on record

suggestive of the fact that bottles of Syrup containing Codeine

Phosphate recovered from the room of the accused namely Chirag

were actually supplied by bail petitioner. Learned Additional Advocate

General contends that petitioner is a drug peddler, which fact

otherwise stands established on record on account of record of

financial transaction adduced on record interse co-accused Chirag

and present bail petitioner. Learned Additional Advocate General

submits that in the event of petitioner being enlarged on bail, he may

not only flee from justice, rather may again indulge in such activities

and as such, his prayer for grant of bail may be rejected out rightly.

5. Having heard learned counsel for the parties and perused

material available on record, this court finds that contraband, as

detailed hereinabove, was not recovered from the conscious

possession of the bail petitioner, rather he came to be named in the

FIR on the basis of the disclosure statements made by co-accused

Chirag and other four boys that they had handed over money to

present bail petitioner for buying the contraband. They further

allegedly disclosed to the police that bail petitioner transferred the

money to Gulshan Kumar, who later on supplied them contraband.

Though, perusal of bank details placed on record suggests that some

amount was transferred in the bank account of the present bail

petitioner, but that may not be sufficient to conclude guilt, if any, of

the accused, especially when as per own case of the prosecution

contraband was allegedly supplied by Gulshan Kumar. Whether co-

accused Chirag alongwith other four persons had deposited money in

the account of the bail petitioner for sale and purchase of contraband

allegedly recovered from them, is a question to be decided by the

learned trial Court in totality of evidence, but certainly at this stage

same cannot be a ground to deny bail to the petitioner, from whose

possession admittedly no contraband was recovered, rather he was

named in the FIR on the basis of disclosure statements made by the

co-accused, named in the FIR.

6. Hon'ble Apex Court in case Tofan Singh v. State of

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

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

inadmissible and same cannot be used as confessional statement in

the trial of an offence under Section 67 of the Act. Relevant para 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

Singh Pehlwan v. Inspector, Customs (2011) 12 SCC 298 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. Hon'ble Apex Court in case titled 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.

8. True, it is that keeping in view the commercial quantity of

contraband recovered in the case at hand, rigours of S.37 of the Act

are attracted, but that does not mean that this court is estopped from

enlarging the bail petitioner on bail. Bare perusal of S.37 of the Act

clearly reveals that there is no complete bar for the court to grant bail

in the cases involving commercial quantity, but court while doing so,

at the first instance is required to provide adequate opportunity of

being heard to the public prosecutor and thereafter, if it has reason to

presume and believe that the person, seeking bail, has been falsely

implicated and there is no likelihood of his indulging in such activities

again, it can proceed to grant bail. Though, case at hand shall be

decided by the trial Court in the totality of evidence collected on

record by investigating agency, but keeping in view the aforesaid

aspects of the matter, this court sees no reason to let the bail

petitioner incarcerate in jail for an indefinite period during trial,

especially when nothing remains to be recovered from him.

Apprehension expressed by learned Additional Advocate General that

in the event of bail petitioner being enlarged on bail, he may flee from

justice, can be best met by putting him to stringent conditions.

9. Hon'ble Apex Court and this Court in a catena of cases

have repeatedly held that one is deemed to be innocent, till the time,

he/she is proved guilty in accordance with law.

10. Needless to say, object of the bail is to secure the

attendance of the accused in the trial and the proper test to be applied

in the solution of the question whether bail should be granted or

refused is whether it is probable that the party will appear to take his

trial. Otherwise, bail is not to be withheld as a punishment.

Otherwise also, normal rule is of bail and not jail. Court has to keep in

mind nature of accusations, nature of evidence in support thereof,

severity of the punishment which conviction will entail, character of

the accused, circumstances which are peculiar to the accused

involved in that crime.

11. Hon'ble Apex Court in Criminal Appeal No. 227/2018,

Dataram Singh vs. State of Uttar Pradesh & Anr decided on

6.2.2018 has held that freedom of an individual cannot be curtailed for

indefinite period, especially when his/her guilt is yet to be proved. It

has been further held by the Hon'ble Apex Court in the aforesaid

judgment that a person is believed to be innocent until found guilty.

12. Hon'ble Apex Court in Sanjay Chandra versus Central

Bureau of Investigation (2012)1 Supreme Court Cases 49 has held

that gravity alone cannot be a decisive ground to deny bail, rather

competing factors are required to be balanced by the court while

exercising its discretion. It has been repeatedly held by the Hon'ble

Apex Court that object of bail is to secure the appearance of the

accused person at his trial by reasonable amount of bail. The object

of bail is neither punitive nor preventative.

13. In Manoranjana Sinh alias Gupta versus CBI, (2017) 5

SCC 218, Hon'ble Apex Court has held that the object of the bail is to

secure the attendance of the accused in the trial and the proper test

to be applied in the solution of the question whether bail should be

granted or refused is whether it is probable that the party will appear

to take his trial. Otherwise also, normal rule is of bail and not jail.

Apart from above, Court has to keep in mind nature of accusations,

nature of evidence in support thereof, severity of the punishment,

which conviction will entail, character of the accused, circumstances

which are peculiar to the accused involved in that crime.

14. The Apex Court in Prasanta Kumar Sarkar versus

Ashis Chatterjee and another (2010) 14 SCC 496, has laid down

various principles to be kept in mind, while deciding petition for bail

viz. prima facie case, nature and gravity of accusation, punishment

involved, apprehension of repetition of offence and witnesses being

influenced.

15. In view of the aforesaid discussion as well as law laid

down by the Hon'ble Apex Court, petitioner has carved out a case

for grant of bail, accordingly, the petition is allowed and the petitioner

is ordered to be enlarged on bail in aforesaid FIR, subject to his

furnishing bail bonds in the sum of Rs.2,00,000/- with two local

sureties in the like amount each, to the satisfaction of the learned trial

Court, besides the following conditions:

a. He shall make himself available for the purpose of in- terrogation, if so required and regularly attend the trial

Court on each and every date of hearing and if pre- vented by any reason to do so, seek exemption from appearance by filing appropriate application; b. He shall not tamper with the prosecution evidence nor hamper the investigation of the case in any manner whatsoever;

c. He shall not make any inducement, threat or promises to any person acquainted with the facts of the case so as to dissuade him/her from disclosing such facts to the Court or the Police Officer; and d. He shall not leave the territory of India without the prior permission of the Court.