Himachal Pradesh High Court
Reserved On: 3.10.2024 vs State Of Himachal Pradesh on 21 October, 2024
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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr. MP (M) No. 2107 of 2024
Reserved on: 3.10.2024
Date of Decision: 21.10.2024.
Prakash Chand ...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. Rajesh Parmar, Advocate.
For the Respondent : Mr. Jitender K. Sharma, Additional
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
vide FIR No. 5 of 2024, dated 26.1.2024 registered with Police
Station, Parwanoo, District Solan, H.P. for the commission of
offences punishable under Sections 21 and 29 of the Narcotic
Drugs and Psychotropic Substances Act, 1985 (in short 'NDPS
Act'). As per the prosecution, the police stopped a bus and found
Whether reporters of Local Papers may be allowed to see the judgment? Yes.
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heroin in the possession of co-accused Kunal Kumar. The
petitioner was sitting with him. The police arrested the petitioner
and the co-accused. The petitioner had no connection with the
heroin being transported by his co-accused. 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 patrolling duty on
26.1.2024. They received information at 6.20 pm that Kunal and
Prakash Chand (present petitioner) were travelling in a bus
bearing registration No. CH-01GA-8195 on Seat Nos. 34 and 35.
They were transporting the heroin which was concealed in the bag
being carried by Kunal. The police completed the formalities and
intercepted the bus. The petitioner and Kunal were found in the
bus occupying seats No. 35 and 34 respectively. Kunal had a carry
bag. The police checked the carry bag in the presence of the driver
and conductor of the bus and found 6.21 grams of heroin in it. The
police arrested the petitioner and Kunal. They revealed on inquiry
that they had purchased the heroin from Chandigarh for
₹21,000/-. Kunal also pointed to co-accused Amrit Pal who made
a disclosure statement and led to the recovery of 5.59 grams
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of heroin. The petitioner was involved in FIR No. 87 of 2021, 138 of
2020, 114 of 2019 and 170 of 2022. Hence, the status report.
3. I have heard Mr. Rajesh Kumar Parmar, learned
counsel for the petitioner and Mr. Jitender Sharma, learned
Additional Advocate General, for the respondent/State.
4. Mr. Rajesh Kumar Parmar, learned counsel for the
petitioner submitted that the petitioner is innocent and he was
falsely implicated. The police did not effect any recovery from the
petitioner. He was occupying the seat adjacent to the co-accused
from whom the recovery was effected. He had no means to know
that the co-accused was transporting the heroin. Hence, he
prayed that the present petition be allowed and the petitioner be
released on bail.
5. Mr. Jitender Sharma, learned Additional Advocate
General, for the respondent/State submitted that the police had
received the information regarding the involvement of the
petitioner. He was sitting with the co-accused from whom the
recovery was effected. He made a statement before the police that
he had purchased the heroin from Chandigarh. The petitioner was
involved in the commission of a similar offence earlier. All these
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circumstances show the involvement of the petitioner in the
commission of the crime. Therefore, he prayed that the present
petition be dismissed.
6. I have given considerable thought to the submissions
made at the bar and have gone through the records carefully.
7. The parameters for granting bail were considered by
the Hon'ble Supreme Court in Manik Madhukar Sarve v. Vitthal
Damuji Meher, 2024 SCC OnLine SC 2271, wherein it was observed
as under: -
"19. Courts while granting bail are required to consider
relevant factors such as the nature of the accusation,
the role ascribed to the accused concerned,
possibilities/chances of tampering with the evidence and/or
witnesses, antecedents, flight risk et al. Speaking through
Hima Kohli, J., the present coram in Ajwar v. Waseem, 2024
SCC OnLine SC 974, apropos relevant parameters for
granting bail, observed:
"26. While considering as to whether bail ought to be
granted in a matter involving a serious criminal
offence, the Court must consider relevant factors like the
nature of the accusations made against the accused, the
manner in which the crime is alleged to have been
committed, the gravity of the offence, the role attributed to
the accused, the criminal antecedents of the accused, the
probability of tampering of the witnesses and repeating the
offence, if the accused are released on bail, the likelihood of
the accused being unavailable in the event bail is granted,
the possibility of obstructing the proceedings and evading
the courts of justice and the overall desirability of releasing
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the accused on bail. (Refer: Chaman Lal v. State of U.P.
(2004) 7 SCC 525; Kalyan Chandra Sarkar v. Rajesh Ranjan
alias Pappu Yadav (supra) (2004) 7 SCC
528; Masroor v. State of Uttar Pradesh (2009) 14 SCC 286;
Prasanta Kumar Sarkar v. Ashis Chatterjee (2010) 14 SCC
496; Neeru Yadav v. State of Uttar Pradesh (2014) 16 SCC
508; Anil Kumar Yadav v. State (NCT of Delhi) (2018) 12
SCC 129; Mahipal v. Rajesh Kumar @ Polia (supra) (2020)
2 SCC 118.
27. It is equally well settled that bail once granted, ought not
to be cancelled in a mechanical manner. However, an
unreasoned or perverse order of bail is always open to
interference by the Superior Court. If there are serious
allegations against the accused, even if he has not misused
the bail granted to him, such an order can be cancelled by
the same Court that has granted the bail. Bail can also be
revoked by a Superior Court if it transpires that the courts
below have ignored the relevant material available on
record or not looked into the gravity of the offence or the
impact on the society resulting in such an order. In P v. State
of Madhya Pradesh (supra) (2022) 15 SCR 211 decided by a
three-judge bench of this Court [authored by one of us
(Hima Kohli, J)] has spelt out the considerations that
must be weighed with the Court for interfering in an
order granting bail to an accused under Section 439(1)of
the CrPC in the following words:
"24. As can be discerned from the above decisions, for
cancelling bail once granted, the court must consider
whether any supervening circumstances have arisen or
the conduct of the accused post grant of bail
demonstrates that it is no longer conducive to a fair trial
to permit him to retain his freedom by enjoying the
concession of bail during trial [Dolat Ram v. State of
Haryana, (1995) 1 SCC 349: 1995 SCC (Cri) 237]. To
put it differently, in ordinary circumstances, this Court
would be loathe to interfere with an order passed by the
court below granting bail but if such an order is found to
be illegal or perverse or premised on material that is
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irrelevant, then such an order is susceptible to scrutiny
and interference by the appellate court." (emphasis
supplied)
20. In State of Haryana v. Dharamraj, 2023 SCC OnLine SC
1085, speaking through one of us (Ahsanuddin Amanullah,
J.), the Court, while setting aside an order of the Punjab and
Haryana High Court granting (anticipatory) bail, discussed
and reasoned:
"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
released on bail;
(v) character, behaviour, means, position and
standing of the accused;
(vi) likelihood of the offence being repeated;
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(vii) reasonable apprehension of the witnesses being
influenced; and
(viii) danger, of course, of justice being thwarted by
grant of bail.'
8. In Mahipal v. Rajesh Kumar alias Polia, (2020) 2 SCC
118, this Court opined as under:
'16. The considerations that guide the power of an
appellate court in assessing the correctness of an order
granting bail stand on a different footing from an
assessment of an application for the cancellation of bail.
The correctness of an order granting bail is tested on the
anvil of whether there was an improper or arbitrary
exercise of discretion in the grant of bail. The test is
whether the order granting bail is perverse, illegal or
unjustified. On the other hand, an application for
cancellation of bail is generally examined on the anvil of
the existence of supervening circumstances or violations
of the conditions of bail by a person to whom bail has
been granted. ...'
9. In Bhagwan Singh v. Dilip Kumar @ Deepu @
Depak, 2023 INSC 761, this Court, in view of Dolat
Ram v. State of Haryana, (1995) 1 SCC 349; Kashmira
Singh v. Duman Singh, (1996) 4 SCC 693 and X v. State of
Telangana, (2018) 16 SCC 511, held as follows:
'13. It is also required to be borne in mind that when a
prayer is made for the cancellation of the grant of bail
cogent and overwhelming circumstances must be present
and bail once granted cannot be cancelled in a
mechanical manner without considering whether any
supervening circumstances have rendered it in conducing
to allow fair trial. This proposition draws support from
the Judgment of this Court in Daulat Ram v. State of
Haryana, (1995) 1 SCC 349, Kashmira Singh v. Duman
Singh (1996) 4 SCC 693 and XXX v. State of
Telangana (2018) 16 SCC 511.'
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10. In XXX v. Union Territory of Andaman & Nicobar
Islands, 2023 INSC 767, this Court noted that the principles
in Prasanta Kumar Sarkar (supra) stood reiterated
in Jagjeet Singh v. Ashish Mishra, (2022) 9 SCC 321.
11. The contours of anticipatory bail have been
elaborately dealt with by 5-Judge Benches in Gurbaksh
Singh Sibbia v. State of Punjab, (1980) 2 SCC
565 and Sushila Aggarwal v. State (NCT of Delhi), (2020) 5
SCC 1. Siddharam Satlingappa Mhetre v. State of
Maharashtra, (2011) 1 SCC 694 is worthy of mention in
this context, despite its partial overruling in Sushila
Aggarwal (supra). We are cognizant that liberty is not to be
interfered with easily. More so, when an order of pre-arrest
bail already stands granted by the High Court.
12. Yet, much like bail, the grant of anticipatory bail is to be
exercised with judicial discretion. The factors illustrated by
this Court through its pronouncements are illustrative, and
not exhaustive. Undoubtedly, the fate of each case turns on
its own facts and merits."
(emphasis supplied)
21. In Ajwar (supra), this Court also examined the
considerations for setting aside bail orders in terms below:
"28. The considerations that weigh with the appellate Court
for setting aside the bail order on an application being
moved by the aggrieved party include any supervening
circumstances that may have occurred after granting relief
to the accused, the conduct of the accused while on bail, any
attempt on the part of the accused to procrastinate, resulting
in delaying the trial, any instance of threats being extended
to the witnesses while on bail, any attempt on the part of the
accused to tamper with the evidence in any manner. We may
add that this list is only illustrative and not exhaustive.
However, the court must be cautious that at the stage of
granting bail, only a prima facie case needs to be examined
and detailed reasons relating to the merits of the case that
may cause prejudice to the accused, ought to be avoided.
Suffice it to state that the bail order should reveal the factors
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that have been considered by the Court for granting relief to
the accused.
29. In Jagjeet Singh (supra) (2022) 9 SCC 321, a three-
judge bench of this Court, has observed that the power to
grant bail under Section 439 Cr. P.C. is of wide amplitude
and the High Court or a Sessions Court, as the case may be, is
bestowed with considerable discretion while deciding an
application for bail. But this discretion is not unfettered. The
order passed must reflect the due application of the judicial
mind following well-established principles of law. In
the ordinary course, courts would be slow to interfere with
the order where bail has been granted by the courts below.
But if it is found that such an order is illegal or perverse or
based upon utterly irrelevant material, the appellate Court
would be well within its power to set aside and cancel the
bail. (Also refer: Puran v. Ram Bilas (2001) 6 SCC 338;
Narendra K. Amin (Dr.) v. State of Gujarat (2008) 13 SCC
584)" (emphasis supplied)
8. It is an admitted case that the petitioner was travelling
on public transport. Therefore, the prosecution was supposed to
bring some material on record to show the prima facie
involvement of the petitioner in the commission of the crime
because, in public transport, people sit beside strangers or even
known persons without knowing about the contents of the articles
carried by each other; thus, the circumstances that the petitioner
was sitting adjacent to co-accused Kunal will not help the
prosecution.
9. The prosecution is also relying upon the statement
made by the petitioner and the co-accused to the police that they
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had purchased the Heroin in Chandigarh. The statements made by
the petitioner and the co-accused will not help the prosecution. 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 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."
10. Similarly, it was held in Surinder Kumar Khanna vs.
Intelligence Officer Directorate of Revenue Intelligence 2018 (8) SCC
271 that a confession made by a co-accused cannot be taken as a
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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 or the statement made by the
petitioner implicating himself.
11. The prosecution also relies upon secret information
received by the police; however, secret information provided by a
person to the police is hearsay unless the person making the
statement is examined before the Court. In the present case, the
person making the statement was not examined and no advantage
can be derived from the secret information.
12. Thus, there is no material, at this stage against the
petitioner to show his, prima facie, involvement in the commission
of the crime.
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13. It was submitted that FIRs were registered against the
petitioner and the petitioner has criminal antecedents. This
submission will not help the State. A person cannot be kept behind
the bars merely because he has criminal antecedents without
showing his, prima facie, involvement with the commission of the
crime. Since in the present case, the prosecution has failed to
establish prima facie involvement of the petitioner, therefore, the
criminal antecedents will not help the prosecution.
14. In view of the aforesaid discussion, the present petition
is allowed and the petitioner is ordered to be released on bail in the
sum of ₹50,000/- with one surety 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 not intimidate the witnesses nor will he
influence any evidence in any manner whatsoever;
(II) The petitioner shall attend the trial in case a charge sheet is
presented against him 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 intending visit to the SHO, the Police Station
concerned and the Trial Court;
(IV) The petitioner will surrender his passport, if any, to the
Court; and
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(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.
15. It is expressly made clear that in case of violation of
any of these conditions, the prosecution will have a right to file a
petition for cancellation of the bail.
16. 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.
(Rakesh Kainthla)
Judge
21st October, 2024
(Chander)
