Himachal Pradesh High Court
Prem Chand vs Of on 11 January, 2024
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr. MP (M) No. 3121 of 2023
Reserved on: 02.01.2024
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Date of Decision: 11th January, 2024
Prem Chand ...Petitioner
Versus
of
State of Himachal Pradesh ...Respondent
Coram rt
Hon'ble Mr. Justice Rakesh Kainthla, Judge.
Whether approved for reporting?1 No
For the Petitioner : Mr. Pavinder Advocate.
For the Respondent : Ms. Avni Kochhar, Deputy
Advocate General.
Rakesh Kainthla, 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 21 and 29 of the Narcotic Drugs and Psychotropic
Substances Act (in short 'the ND&PS Act') vide F.I.R. No. 188 of
2023 r dated 06.09.2023, registered at Police Station Sadar
Solan, District Solan, H.P. The petitioner is innocent and he was
Whether reporters of Local Papers may be allowed to see the judgment? Yes.
falsely implicated. He has nothing to do with the commission of
the offence. The petitioner would abide by all the terms and
.
conditions, which may be imposed by the Court. The co-accused
has already been released vide order passed in Cr.MP (M) No.
2804 of 2023. Hence, the present petition.
2. The petition was opposed by filing a status report,
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asserting that the police party was patrolling on 06.09.2023
when a secret information was received that Arun Yadav was
rt
supplying Heroin and he was present in a vehicle bearing
Registration No. UP24AT-1960. The police searched the vehicle
and recovered 101 grams of Heroin. The police arrested Arun
Yadav and seized heroin. The police interrogated Arun Yadav
and he showed the place where Satish Kumar had handed over
the Heroin to him. He also identified Satish Kumar. The police
arrested Satish Kumar and checked his mobile phone. A QR Code
of Sai African Super Market was found. The KYC was found in the
name of Sameer Shrivastav. The money was transferred to this
account at the instance of Satish Kumar for purchasing the
Heroin. The police arrested Sameer Shrivastav. Sonu and
Udayveer were also found involved in the commission of
offence. They were interrogated. The bank statements showed
the involvement of other persons in the commission of the
offence. They were arrested. Sonu disclosed that the amount
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was transferred for the purchase of Heroin to a person of
Nigerian origin. Prem Chand was also with Sonu, Udayvir and
Satish when the Heroin was transported to Solan from Daultpur.
The police arrested Prem Chand, who disclosed on inquiry that
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he had gone to Burari to purchase Heroin. He had purchased the
Heroin on 04.09.2023 and handed it over to Arun Yadav. Sonu
rt
and Udayveer were with Satish at that time. The call details
record verified the statement. Ndiaye Baasirou was arrested at
the instance of the petitioner. As per the report of the analysis,
the substance was confirmed to be Heroin. The petitioner is a
resident of a different State and he can abscond in case of release
on bail. He had purchased the Heroin and handed it over to Arun
Yadav and in this manner, he helped Satish Kumar and Arun
Yadav in the transportation of the Heroin. Hence, it was prayed
that the present petition be dismissed.
3. I have heard Mr. Pavinder, learned Counsel for the
petitioner and Ms. Avni Kochhar, learned Deputy Advocate
General for the respondent-State.
4. Mr Pavinder learned Counsel for the petitioner
submitted that the petitioner is innocent and he was falsely
.
implicated. There is no evidence against the petitioner except
the statement of the co-accused, which is inadmissible;
therefore, he prayed that the present petition be allowed and the
petitioner be released on bail.
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5. Ms. Avni Kochhar, learned Deputy Advocate General
submitted that the statement of co-accused and the call detail
rt
records show the involvement of the petitioner. Drugs are
adversely affecting the young generation. Therefore, she prayed
that the 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 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,
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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
of
weigh with the Court in the matter of grant of bail.
(c) While it is not accepted to have the entire
evidence establishing the guilt of the accused
rt 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
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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.
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(b) Reasonable apprehension of tampering
with the witness or apprehension of threat to
the complainant.
rt (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;
(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
of
released on bail;
(v) character, behaviour, means, position and
standing of the accused;
rt (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
Sonu 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 fulfils 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
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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
rt
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 NDPS Act. It was laid down in
Union of India v. Khalil Uddin, 2022 SCC OnLine SC 2109 that the
benefit of Tofan Singh (supra) can be taken during the bail
proceedings. It was observed:
.
8. The answer to said question could be the statement
recorded of Md. Nizam Uddin. The statement of Md. Jakir
Hussain recorded under Section 67 of the Act has also
named his owner accused Abdul Hai. We are conscious of
the fact that the validity and scope of such statements
under Section 67 has been pronounced upon by this Court
in Tofan Singh v. State of Tamil Nadu(2021) 4 SCC 1. In State
of
by (NCB) Bengaluru v. Pallulabid Ahmad Arimutta 2022 (12)
SCC 633, the rigour of law laid down by this Court in Tofan
Singh was held to be applicable even at the stage of grant
of bail.
rt
11. Therefore, no advantage can be derived by the
prosecution from the confessional statement made by the co-
accused implicating the petitioner. This is not a legally
admissible piece of evidence and cannot be used against the
petitioner.
12. 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.
13. It was laid down by this Court in Saina Devi vs. State of
Himachal Pradesh2022 LawSuit(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:-
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"[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
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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
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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.
14. 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 06.10.2023and Relu Ram vs. State of H.P.
Cr.MP(M) No. 1061 of 2023, decided on 15.05.2023,
.
15. Therefore, the petitioner cannot be detained in
custody based on a statement made by the co-accused and the
call details as these do not constitute a legally admissible piece
of evidence.
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16. Reliance was placed upon the fact that the petitioner
had pointed out the place where the Heroin was purchased.
rt
Another co-accused Ndiaye Bassirou was arrested based on the
statement of the petitioner. It was submitted that the same is
admissible under Section 27 of the Indian Evidence Act as it led
to the discovery of the place where the heroin was supplied by
the petitioner. This submission is not acceptable. It was laid
down in Gajrani vs. Emperor AIR 1933 Allahabad 394 that pointing
out the place from where the accused had purchased something
does not lead to the discovery of any fact. It was observed:
"We do not consider that the pointing out of the shop in
this statement can be held to amount to the discovery of a
fact, and consequently, we do not consider that this
evidence is admissible under Section 27, Evidence Act."
17. Similarly, in H.P. Administration vs. Om Parkash AIR
1972 SC 975, the accused pointed out the witness from whom he
had purchased the dagger. This was held to be outside the
purview of Section 27 of the Indian Evidence Act. It was
.
observed:
12. Thereafter on the information furnished by the
accused that he had purchased the weapon from Ganga
Singh P. W. 11 and that he would take them to him, they
went to the thari of P. W. 11 where the accused pointed
him out to them. It is contended that the information
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given by the accused that he purchased the dagger from P.
W. 11 followed by his leading the police to his thari and
pointing him out is inadmissible under Section 27 of the
Evidence Act. In our view, there is a force in this
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contention. A fact discovered within the meaning of
Section 27 must refer to a material fact to which the
information directly relates. In order to render the
information admissible, the fact discovered must be
relevant and must have been such that it constitutes the
information through which the discovery was made. What
is the fact discovered in this case? Not the dagger but the
dagger hidden under the stone, which is not known to the
police. (See PulukuriKottaya v. King-Emperor, 74 Ind App
65 = (AIR 1947 PC 67). But thereafter can it be said that the
information furnished by the accused that he purchased
the dagger from P. W. 11 led to a fact discovered when the
accused took the police to the thari of P. W. 11 and pointed
him out. A single Bench of the Madras High Court in
Public Prosecutor v. India China Lingiah, AIR 1954 Mad 433,
and In re Vellingiri, AIR 1950 Mad 613, seems to have taken
the view that the information by an accused leading to the
discovery of a witness to whom he had given stolen
articles is a discovery of a fact within the meaning of
Section 27. In Emperor v. RamanujaAyyanger, AIR 1935
Mad 528 a full Bench of three Judges by a majority held
that the statement of the accused "I purchased the
mattress from this shop and it was this Woman (another
witness) that carried the mattress" as proved by the
witness who visited him with the police was admissible
because the word 'fact' is not restricted to something
which can be exhibited as a material object. This
judgement was before PulukuriKattaya's case when as far
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as the Presidency of Madras was concerned law laid down
by the Full Bench of the Court, In Re AthappaGoundan, ILR
(1937) Mad 695 = (AIR 1937 Mad 618) prevailed. It held that
where the accused's statement connects the fact
discovered with the offence and makes it relevant, even
though the statement amounts to a confession of the
offence. It must be admitted because it is that that has led
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directly to the discovery. This view was overruled by the
Privy Council in PulukariKottaya's case and this Court had
approved the Privy Council case in RamkishanMithanlal
Sharma v. The State of Bombay, (1955) 1 SCR 903 = (AIR 1955
rt
SC 104).
13. In the Full Bench Judgment of Seven Judges in Sukhan
v. The Crown, ILR 10 Lah 283 = (AIR 1929 Lah 344) (FB)
which was approved by the Privy Council in
PulukuriKotaya's case, 74 Ind App 65 = (AIR 1947 PC
67)Shadi Lal C.J, as he then was speaking for the majority
pointed out that the expression 'fact' as defined by
Section 3 of the Evidence Act includes not only the
physical fact which can be perceived by the senses but
also the psychological fact or mental condition of which
any person is conscious and that it is in the former sense
that the word used by the Legislature refers to material
and not to a mental fact. It is clear therefore that what
should be discovered is the material fact and the
information that is admissible is that which has caused
that discovery so as to connect the information and the
fact with each other as the cause and effect.' That
information, which does not distinctly connect with the
fact discovered or that portion of the information, which
merely explains the material thing discovered is not
admissible under Section 27 and cannot be proved. As
explained by this Court as well as by the Privy Council,
normally Section 27 is brought into operation where a
person in police custody produces from some place of
concealment some object said to be connected with the
crime of which the informant is the accused. The
concealment of the fact which is not known to the police
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is what is discovered by the information and lends
assurance that the information was true. No witness with
whom some material fact, such as the weapon of murder,
stolen property or other incriminating article is not
hidden, sold or kept and which is unknown to the police
can be said to be discovered as a consequence of the
information furnished by the accused. These examples,
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however, are only by way of illustration and are
exhaustive. What makes the information leading to the
discovery of the witness admissible is the discovery from
him of the thing sold to him or hidden or kept with him,
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which the police did not know until the information was
furnished to them by the accused. A witness cannot be
said to be discovered if nothing is to be found or
recovered from him as a consequence of the information
furnished by the accused and the information which
disclosed the identity of the witness will not be
admissible.
18. It was held in State of Maharashtra Versus Damu
Gopinath Shinde AIR 2000 S.C. 169 that where the statement of
the accused did not lead to the discovery of any fact, the same is
not admissible. It was observed:-
"The information permitted to be admitted in evidence is
confined to that portion of the information which
"distinctly relates to the fact thereby discovered." But the
information to get admissibility need not be so truncated
as to make it insensible or incomprehensible. The extent
of information admitted should be consistent with
understand ability. In this case, the fact discovered by
P.W. 44 is that A-3 Mukinda Thorat had carried the dead
body of Dipak to the spot on the motorcycle.
38. How particular information led to the discovery of the
fact? No doubt, the recovery of the dead body of Dipak
from the same canal was antecedent to the information,
which P.W. 44 obtained. If nothing more was recovered
.
pursuant to and subsequent to obtaining the information
from the accused, there would not have been any discovery of
any fact at all. But when the broken glass piece was
recovered from that spot and that piece was found to be
part of the tail lamp of the motorcycle of A-2 Guruji, it
can safely be held that the Investigating Officer
discovered the fact that A-2 Guruji had carried the dead
of
body on that particular motorcycle up to the spot."
(Emphasis supplied)
19. Therefore, the statement made by the petitioner
rt
regarding the purchase of Heroin is not, prima facie, admissible
and since the pointing out of the house did not lead to the
discovery of any fact, therefore, no advantage can be derived
from the same.
20. Hence, there is force in the submission that there is
no legally admissible evidence against the petitioner and there
are no reasonable grounds to believe that the petitioner is, prima
facie, involved in the commission of the offence.
21. It was submitted that the petitioner can intimidate
the witnesses and he can abscond in case he is released on bail.
These are mere apprehensions and cannot be used to deny bail.
The apprehensions can be allayed by imposing the conditions.
22. 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
to the like amount to the satisfaction of the learned Trial Court.
While on bail, the petitioner will abide by the following terms
and conditions:-
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(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
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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.
23. It is expressly made clear that in case of violation of
any of these conditions, the prosecution will have the right to
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file a petition for cancellation of the bail.
24. The observation made herein before shall remain
confined to the disposal of the petition and will have no bearing,
whatsoever, on the merits of the case.
of
(Rakesh Kainthla)
Judge
11th January, 2024
rt
(ravinder)
