Himachal Pradesh High Court

Decided On: 04.10.2024 vs State Of Himachal Pradesh on 4 October, 2024

Author: Sandeep Sharma

Bench: Sandeep Sharma

                                                                              2024:HHC:9598




         IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
                                   CrMP(M) No. 2113 of 2024
                                      Decided on: 04.10.2024
 ________________________________________________________
Imtiaz Hashmi @ Bura Khan                   ...........Petitioner

                                  Versus
State of Himachal Pradesh                   ....Respondent
________________________________________________________
Coram:
Hon'ble Mr. Justice Sandeep Sharma, Judge.
Whether approved for reporting? 1

For the Petitioner                      :     Mr. Kulwant Singh Gill, Advocate.

For the Respondent                      :     Mr. Rajan Kahol, Mr. Vishal Panwar
                                              and Mr. B.C. Verma, Additional
                                              Advocates General with Mr. Ravi
                                              Chauhan, Deputy Advocate General.

                              ASI Ajay Kumar, Police Station
                              Paonta Sahib, District Sirmaur, HP,
                              present in person. .
________________________________________________________
Sandeep Sharma, Judge (oral):

Bail petitioner Imtiaz Hashmi @ Bhura Khan, who is

behind bars since 03.07.2024, has approached this Court by way of

present petition filed under Section 483 of Bharatiya Nagrik Suraksha

Sanhita, for grant of regular bail in case FIR No. 99 of 2024, dated

28.06.2024, registered at Police Station Paonta Sahib, Tehsil Paonta

Sahib, District Sirmaur, under Sections 20, 25, 29, 61 and 85 of

Narcotic Drugs and Psychotropic Substances Act.

2. Pursuant to order dated 19.09.2024, respondent-

State has filed status report and ASI Ajay Kumar, Police Station Paonta

Sahib has come present with record. Record perused and returned.

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

2 2024:HHC:9598

3. Close security of record/status report reveals that

on 22.4.2023, police, after having received secret information,

apprehended vehicle bearing registration No. HP-77-9555 near Guru

Nank Service and Washing Centre, Paonta Sahib and allegedly

recovered 2.4 Kgs of charas from the bag kept in afore vehicle. Since

occupants of the vehicle namely Vipan Basu, Ashish Kumar and Manjit

Singh were unable to render plausible explanation qua possession of

aforesaid quantity of contraband, police, after completion of codal

formalities, arrested all the accused named hereinabove and since

then, they are behind the bars. Subsequently on the basis of

statements given by the accused named hereinabove, Police also

arrested person namely Parmod Kumar, who had allegedly sent the

consignment to co-accused Manjit Singh, R/o of Majra. Since allegedly

aforesaid Parmod Kumar during investigation disclosed to the police

that some quantity of contraband recovered from vehicle in question

was to be delivered to the present bail-petitioner, he also came to be

named in the FIR. Since investigation 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 acknowledging factum with regard to

completion of investigation, Mr. B.C.Verma, learned Additional

Advocate General, states that though nothing remains to be recovered

from the bail-petitioner, but keeping in view the gravity of offence

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

leniency and as such, his prayer for grant of regular bail deserves 3 2024:HHC:9598

outright rejection. While making this court peruse call details report

adduced on record, Mr. Verma, learned Additional Advocate General,

attempted to argue that prior to recovery of contraband from the vehicle

in question, main accused Parmod Kumar had telephonic conversation

with present bail-petitioner and as such, it cannot be said that he has

been falsely implicated, rather there is overwhelming evidence

available on record suggestive of the fact that the bail petitioner

indulges in illegal trade of narcotics. He states that in case the bail

petitioner is enlarged on bail, he may not only flee from justice, but may

again indulge in such activities, as such, prayer for grant of bail made

on his behalf deserves to be rejected.

5. Having heard learned counsel for the parties and

perused material available on record, this court finds that commercial

quantity of contraband was never recovered from conscious

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

FIR on the basis of statement given by the person namely Parmod

Kumar, who was also not present at the time of recovery of

contraband. Allegedly co-accused Parmod Kumar disclosed to the

Police that some quantity of contraband was to be delivered to the bail-

petitioner and thereafter, police having taken note of call details report,

wherein admittedly some telephonic conversation had taken place inter

se Parmod Kumar and present bail-petitioner, proceeded to arrest the

bail-petitioner. Having perused aforesaid disclosure statement made by

co-accused Parmod Kumar, this Court is persuaded to agree with Mr.

Kulwant Singh Gill, learned counsel for the petitioner, that disclosure 4 2024:HHC:9598

statement of co-accused is not admissible, especially to conclude the

complicity of the bail-petitioner in the commission of offence. Otherwise

also, in the instant case, there is no evidence adduced on record

suggestive of the fact that contraband was ever purchased by the bail-

petitioner, rather only evidence against him is that main co-accused

Parmod Kumar was about to deliver some part of contraband to the

present bail-petitioner. Evidence, if any, with regard to call details

report is not sufficient to conclude the guilt of the bail-petitioner.

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 5 2024:HHC:9598

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. The 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 of some of

the accused or the allegations of tempering of evidence on the part of 6 2024:HHC:9598

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 in the case at hand. 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 in

cases involving commercial quantity of contraband. Though, aforesaid

aspect of the matter is required to be considered and decided by

learned 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 the bail petitioner.

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. In the case at

hand, complicity, if any, of the bail petitioner is yet to be established on

record by the investigating agency, as such, this Court sees no reason 7 2024:HHC:9598

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 Deputy Advocate General, that in

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

or indulge in such offences again, can be best met by putting the bail

petitioner to stringent conditions.

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 8 2024:HHC:9598

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 above, bail petitioner has carved out a

case for himself, as such, present petition is allowed. Bail petitioner

is ordered to be enlarged on bail, subject to furnishing bail bonds in

the sum of Rs.5,00,000/- with one surety in the like amount, to the 9 2024:HHC:9598

satisfaction of the learned Trial Court, besides the following

conditions:

(a) He shall make himself available for the purpose of interrogation, if so required and regularly attend the trial Court on each and every date of hearing and if prevented 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