Himachal Pradesh High Court

Roshan Lal vs State Of Himachal Pradesh on 9 February, 2024

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

Cr. MP (M) No. 170 of 2024

Reserved on: 02.02.2024

Date of Decision: 09.02.2024.

    Roshan Lal                                                                   ...Petitioner

                                           Versus

    State of Himachal Pradesh


    Coram
                            r                to                                  ...Respondent

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

For the Petitioner : Mr. Umesh Kanwar, Advocate.

For the Respondent : Mr. H.S. Rawat, Additional Advocate General.

Rakesh Kainthla, Vacation Judge

The petitioner has filed the present petition for

seeking regular bail. It has been asserted that the petitioner was

arrested for the commission of offences punishable under

Sections 20, 25 and 29 of the Narcotic Drugs and Psychotropic

Substances Act, 1985 (in short 'NDPS Act') registered vide FIR

No. 116 of 2023, dated 6.6.2023 at Police Station Dharamshala,

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

District Kangra, H.P. The petitioner is innocent and he was

falsely implicated based on the statement made by co-accused

Sohan Singh. This statement is inadmissible. The petitioner has

not committed any crime. He has no criminal antecedent and he

will abide by all the terms and conditions, which may be

imposed by the Court. Hence, the petition.

2. The police filed a status report asserting that the

police party was on patrolling duty on 6.6.2023. The driver of a

car tried to speed away from the place of Naka after seeing the

police. The police stopped the car. The driver opened the door

and tried to run away. The police searched the vehicle in the

presence of the witnesses and recovered 5 kg. 40 grams of

charas. The driver revealed his name as Sohan Singh on inquiry.

The police seized the charas, and the vehicle and also arrested

Sohan Singh. Sohan Singh revealed on inquiry that he had

purchased the charas from the present petitioner Roshan Lal.

The call detail record also shows that Roshan Lal and Sohan

Singh had talked to each other. Roshan Lal absconded and was

arrested on 26.7.2023. The police prepared the challan and

presented the same before the Court.

3. I have heard Mr. Umesh Kanwar learned counsel for

the petitioner and Mr. H.S. Rawat learned Additional Advocate

General for the respondent/State.

4. Mr Umesh Kanwar learned counsel for the petitioner

submitted that the petitioner is innocent and he was falsely

implicated based on the statement of co-accused Sohan Singh,

which is inadmissible. Hence, he prayed that the present

petition be allowed and the petitioner be released on bail.

5. Mr. H.S. Rawat learned Additional Advocate General

submitted that the petitioner is involved in the commission of a

heinous offence. The quantity of the charas recovered from co-

accused Sohan Singh is commercial and the rigours of Section 37

of the ND&PS Act apply to the present case. Therefore, he prayed

that the present petition be dismissed.

6. I have given considerable thought to the submissions

at the bar and have gone through the records carefully.

7. The Hon'ble Supreme Court had discussed the

parameters for granting the bail in Bhagwan Singh v. Dilip

Kumar, 2023 SCC OnLine SC 1059 as under: -

12. The grant of bail is a discretionary relief which necessarily means that such discretion would have to be exercised in a judicious manner and not as a matter of

.

course. The grant of bail is dependent upon contextual

facts of the matter being dealt with by the Court and may vary from case to case. There cannot be any exhaustive parameters set out for considering the application for a

grant of bail. However, it can be noted that;

(a) While granting bail the court has to keep in mind factors such as the nature of accusations, severity of the punishment, if the accusations entail

a conviction and the nature of evidence in support of the accusations;

(b) reasonable apprehensions of the witnesses

being tampered with or the apprehension of there

being a threat for the complainant should also weigh with the Court in the matter of grant of bail.

beyond reasonable doubt but there ought to be always a prima facie satisfaction of the Court in support of the charge.

(d) Frivility of prosecution should always be

considered and it is only the element of genuineness that shall have to be considered in the matter of grant of bail and in the event of there

being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused is entitled to have an order of bail.

13. We may also profitably refer to a decision of this Court in Kalyan Chandra Sarkar v. Rajesh Ranjan @ Pappu Yadav (2004) 7 SCC 528 where the parameters to be taken into consideration for the grant of bail by the Courts have been explained in the following words:

"11. The law in regard to grant or refusal of bail is very well settled. The court granting bail should

exercise its discretion in a judicious manner and not as a matter of course. Though at the stage of granting bail a detailed examination of evidence

.

and elaborate documentation of the merit of the

case need not be undertaken, there is a need to indicate in such orders reasons for prima facie concluding why bail was being granted particularly

where the accused is charged of having committed a serious offence. Any order devoid of such reasons would suffer from non-application of mind. It is also necessary for the court granting bail to

consider among other circumstances, the following factors also before granting bail; they are:

(a) The nature of accusation and the severity of punishment in case of conviction and the

nature of supporting evidence.

(b) Reasonable apprehension of tampering with the witness or apprehension of threat to the complainant.

(c) Prima facie satisfaction of the court in support of the charge. (See Ram Govind Upadhyay v. Sudarshan Singh [(2002) 3 SCC

598: 2002 SCC (Cri) 688] and Puran v. Rambilas [(2001) 6 SCC 338: 2001 SCC (Cri) 1124].)"

8. A similar view was taken in State of Haryana vs

Dharamraj 2023 SCC Online 1085, wherein it was observed:

7. A foray, albeit brief, into relevant precedents is warranted. This Court considered the factors to guide the grant of bail in Ram Govind Upadhyay v. Sudarshan Singh, (2002) 3 SCC 598 and Kalyan Chandra Sarkar v. Rajesh Ranjan, (2004) 7 SCC 528. In Prasanta Kumar Sarkar v. Ashis Chatterjee, (2010) 14 SCC 496, the relevant principles were restated thus:

'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;

r (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.'

9. The police have relied upon the statement made by

co-accused Sohan Singh to implicate the petitioner. It was laid

down by the Hon'ble Supreme Court in Dipakbhai Jagdishchandra

Patel v. State of Gujarat, (2019) 16 SCC 547: (2020) 2 SCC (Cri) 361:

2019 SCC OnLine SC 588 that a statement made by co-accused

during the investigation is hit by Section 162 of Cr.P.C. and

cannot be used as a piece of evidence. Further, the confession

made by the co-accused will be inadmissible because of Section

.

25 of the Indian Evidence Act. It was observed at page 568:-

44. Such a person viz. person who is named in the FIR,

and therefore, the accused in the eye of the law, can indeed be questioned and the statement is taken by the police officer. A confession, which is made to a police officer, would be inadmissible having regard to Section 25

of the Evidence Act. A confession, which is vitiated under Section 24 of the Evidence Act would also be inadmissible.

A confession unless it fulfills the test laid down in Pakala Narayana Swami [Pakala Narayana Swami v. King

Emperor, 1939 SCC OnLine PC 1 : (1938-39) 66 IA 66: AIR

1939 PC 47] and as accepted by this Court, may still be used as an admission under Section 21 of the Evidence Act. This, however, is subject to the bar of admissibility of a statement under Section 161 CrPC. Therefore, even if a

statement contains admission, the statement being one under Section 161, it would immediately attract the bar under Section 162 CrPC."

10. Similarly, it was held in Surinder Kumar Khanna

Versus Intelligence Officer Directorate of Revenue Intelligence 2018

(8) SCC 271 that a confession made by a co-accused cannot be

taken as a substantive piece of evidence against another co-

accused and can only be utilized to lend assurance to the other

evidence. The Hon'ble Supreme Court subsequently held in

Tofan Singh Versus State of Tamil Nadu 2021 (4) SCC 1 that a

confession made to the police officer during the investigation is

hit by Section 25 of the Indian Evidence Act and will not be saved

by the provisions of Section 67 of the NDPS Act. Therefore, no

advantage can be derived by the prosecution from the

confessional statement made by the co-accused implicating the

petitioner.

11. A similar situation arose before this Court in Dinesh

Kumar @ Billa Versus State of H.P. 2020 Cri.L.J.4564 and it was

held that a confession of the co-accused and the phone calls are

not sufficient to deny bail to a person.

12. It was laid down by this Court in Saina Devi vs. State of

Himachal Pradesh 2022 Law Suit (HP) 211, that where the police

have no material except the call details record and the disclosure

statement of the co-accused, the petitioner cannot be kept in

custody. It was observed: -

"[16] In the facts of the instant case also the prosecution, for implicating the petitioner, relies upon firstly the confessional statement made by accused Dabe Ram and secondly the CDR details of calls exchanged between the petitioner and the wife of co-accused Dabe Ram. Taking into consideration, the evidence with respect to the availability of CDR details involving the phone number of the petitioner and the mobile phone number of the wife of coaccused Dabe Ram, this Court had considered the existence of a prime facie case against the petitioner and

had rejected the bail application as not satisfying the conditions of Section 37 of NDPS Act.

[17] Since, the existence of CDR details of accused

.

person(s) has not been considered as a circumstance

sufficient to hold a prima facie case against the accused person(s), in Pallulabid Ahmad's case (supra), this Court is of the view that petitioner has made out a case for

maintainability of his successive bail application as also for grant of bail in his favour.

[18] Except for the existence of CDRs and the disclosure statement of the co-accused, no other material appears to

have been collected against the petitioner. The disclosure made by the co-accused cannot be read against the petitioner as per the mandate of the Hon'ble Supreme

Court in Tofan Singh Vs State of Tamil Nadu, 2021 4 SCC 1. Further, on the basis of aforesaid elucidation, the

petitioner is also entitled to the benefit of bail.

13. A similar view was taken by this Court in Dabe Ram

vs. State of H.P., Cr.MP(M) No. 1894 of 2023, decided on 01.09.2023,

Parvesh Saini vs State of H.P., Cr.MP(M) No. 2355 of 2023, decided

on 06.10.2023, Relu Ram vs. State of H.P. Cr.MP(M) No. 1061 of

2023, decided on 15.05.2023,

14. Therefore, the petitioner cannot be detained in

custody based on a statement made by the co-accused and the

call detail as these do not constitute a legally admissible piece of

evidence.

15. Hence, there is force in the submission of learned

counsel for the petitioner that there is prima facie no legally

admissible evidence against the petitioner and there are

reasonable grounds to believe that he is prima facie not involved

in the commission of the offence.

16. There is no material on record to show that the

petitioner would commit a similar offence in case he is released

on bail. Thus, the twin conditions laid down under Section 37 of

the ND&PS Act are duly satisfied in the present case.

17. In view of the above, the present petition is allowed

and the petitioner is ordered to be released on bail subject to his

furnishing bail bonds in the sum of ₹50,000/- with two sureties

of the like amount to the satisfaction of the learned Trial Court.

While on bail, the petitioner will abide by the following terms

and conditions:-

(i) The petitioner will join the investigation as and when directed to do so by means of a written hukamnama.

(ii) The petitioner will not intimidate the witnesses nor will he influence any evidence in any manner whatsoever.

(iii) The petitioner shall attend the trial in case a charge sheet is presented against him 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 visit to the SHO, the Police Station concerned and the Trial Court.

(v) The petitioner will furnish his 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.

18. 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.

19. 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 9th February, 2024 (Chander)