Himachal Pradesh High Court

Bhupinder Sharma vs State Of Himachal Pradesh on 1 October, 2024

Neutral Citation No. ( 2024:HHC:9412 )

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

Cr. MP (M) No. 1852 of 2024 Reserved on: 17.09.0224 Date of Decision: 01.10.2024

Bhupinder Sharma ...Petitioner Versus

State of Himachal Pradesh ...Respondent

Coram Hon'ble Mr Justice Rakesh Kainthla, Judge. Whether approved for reporting?1 No. For the Petitioner : Mr. P.S. Goverdhan, Senior Advocate with Mr. Rakesh Thakur, Advocate, for the petitioner.

For the Respondent : Ms. Ayushi Negi, 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 22 and

29 of the Narcotic Drugs and Psychotropic Substances Act (short

NDPS) Act vide F.I.R. No. 17 of 2024, dated 07.03.2024, at Police

Station Renukaji, District Sirmour, H.P. The petitioner belongs to

a respectable family. He is an innocent person and he was falsely

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

Neutral Citation No. ( 2024:HHC:9412 )

implicated. The police have completed the investigation and no

recovery is to be effected from the petitioner. The petitioner

would abide by all the terms and conditions, which the Court may

impose. Hence, the petition.

2. The petition is opposed by filing a status report

asserting that the police party was on traffic checking duty on

07.03.2024. They stopped a scooter bearing registration No.

HP18C-5005 at 4:20 p.m. The police asked the driver to produce

the documents and found that the rider had no insurance. The

rider revealed his name as Inder Singh and the pillion rider

revealed his name as Arun Dhiman. The police checked the dickey

of the scooty in the presence of two independent witnesses and

recovered six strips of Spasmo Proxyvon Plus containing 144

capsules. The police also recovered eighteen strips of Spas Parvion

Plus containing 432 capsules. These capsules contained Tramadol

Salt. The driver or the pillion rider failed to produce any papers

for transporting the capsules. The police seized the capsules and

scooty. The police also arrested Inder Singh and Arun Dhiman.

Inder Singh revealed on inquiry that he used to purchase the

capsules from Arun Dhiman. Arun Dhiman was short of capsules.

Hence, both of them went to Kala Amb to purchase the capsules.

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Arun Dhimanrevealed that the present petitioner used to supply

the capsules to him. The police went to the shop of the petitioner

and searched it. The police found torn pieces of the carton of the

Tramadol capsules. The petitioner could not give any satisfactory

answer regarding the possession of the carton and the sale of the

capsules to Arun Dhiman. The police also went through the call

details record and found that the petitioner was in touch with

Arun Dhiman. The police arrested the petitioner. The capsules

were sent to FSL and as per the report of the analysis the capsules

Spas Parvion Plus contained 240.400 grams and Spasmo Proxyvon

Plus contained 88.992 grams of Tramadol. In this manner,

337.392 grams of Tramadol was recovered from the possession of

Inder Singh and Arun Dhiman. The police filed the charge sheet

before the Court on 21.05.2024. The learned Trial Court framed the

charges against the petitioner and the co-accused on

03.08.2023.The matter is now listed for prosecution evidence on

22.11.2024. Hence, the status report.

3. I have hard Mr P.S. Goverdhan, learned Senior Counsel

assisted by Mr Rakesh Thakur, learned counsel for the petitioner

and Ms Ayushi Negi, learned Deputy Advocate General, for the

respondent/State.

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4. Mr. P.S.Goverdhan, learned Senior Counsel for the

petitioner submitted that the petitioner is innocent and he was

falsely implicated based on the statement made by the co-accused

which is not a legally admissible piece of evidence. The police had

only found some torn pieces of the carton of the Tramadol, which

does not show the involvement of the petitioner. As per the

prosecution case, the police had found Spasmo Proxyvon Plus and

Spas Parvion Plus capsules containing Tramadol. Therefore, the

capsules recovered from Inder Singh and Arun Dhiman are not

connected. The call details record cannot be used to connect the

petitioner with the commission of a crime. Therefore, he prayed

that the present petition be allowed and the petitioner be released

on bail.

5. Ms Ayushi Negi, learned Deputy Advocate General for

the respondent submitted that Arun Dhiman and Inder Singh were

found in possession of commercial quantities of Tramadol

capsules. The drugs are adversely affecting the younger

generation of society. Hence, he prayed that the present petition

be dismissed.

Neutral Citation No. ( 2024:HHC:9412 )

6. I have given considerable thought to the submissions

made 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, 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.

(c) While it is not accepted to have the entire evidence establishing the guilt of the accused beyond reasonable doubt but there ought to be always a prima facie satisfaction of the Court in support of the charge.

(d) Frivolity 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

Neutral Citation No. ( 2024:HHC:9412 )

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 with 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

Dharamraj2023 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

Neutral Citation No. ( 2024:HHC:9412 )

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 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 present petition has to be decided as per the

parameters laid down by the Hon'ble Supreme Court.

10. As per the status report, the accused Inder Singh

revealed on inquiry that he had purchased the capsules from Arun

Dhiman. Arun Dhiman stated that he had purchased the capsules

Neutral Citation No. ( 2024:HHC:9412 )

from the present petitioner;therefore, it is apparent that the

police are using the statement made by Arun Dhiman to connect

the petitioner with the commission of a crime. It was laid down by

the Hon'ble Supreme Court in DipakbhaiJagdishchandra 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 is 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, that 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 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."

11. Similarly, it was held in Surinder Kumar Khanna vs.

Intelligence Officer Directorate of Revenue Intelligence 2018 (8) SCC

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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 is not 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.

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 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

Neutral Citation No. ( 2024:HHC:9412 )

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.

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

06.10.2023 and 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 judicial

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

Neutral Citation No. ( 2024:HHC:9412 )

details; as these do not constitute a legally admissible piece of

evidence.

16. The police relied upon the recovery of the torn pieces of

the Tramadol carton. This will not assist the prosecution. There is

a force in the submission of learned Senior counsel for the

petitioner that Arun Dhiman and Inder Singh were found in

possession of Spas Parvion Plus and Spasmo Proxyvon Plus

capsules. Thus, the carton of Tramaldol is not connected to the

capsules recovered from the possession of Inder Singh and Arun

Dhiman. Further, in the absence of any other evidence, mere torn

pieces of carton will not attract the provisions of the NDPS Act.

17. Therefore, there is insufficient material at this stage to

prima facie connect the petitioner with the commission of crime.

Hence, the petitioner cannot be detained in judicial custody.

18. 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 one surety in

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

While on bail, the petitioner will abide by the following conditions:

Neutral Citation No. ( 2024:HHC:9412 )

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

(ii) The petitioner shall attend the trial and will not seek unnecessary adjournments.

(iii) The petitioner will not leave the present address for a continuous period of seven days without furnishing the address of the intended visit to the concerned Police Station and the Court.

(iv) 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.

19. It is clarified that if the petitioner misuses the liberty

or violates any of the conditions imposed upon him, the

investigating agency shall be free to move the Court for

cancellation of the bail.

20. The observations made hereinabove are regarding the

disposal of this petition and will have no bearing, whatsoever, on

the case's merits.

Neutral Citation No. ( 2024:HHC:9412 )

21. The petition stands accordingly disposed of. A copy of

this order be sent to the Superintendent Model Jail Nahan, District

Sirmour, H.P. and the learned Trial Court through FASTER.

(Rakesh Kainthla) Judge 01st October, 2024 (ravinder)

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

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