Himachal Pradesh High Court

Decided On: 29.10.2024 vs State Of Himachal Pradesh on 29 October, 2024

Author: Sandeep Sharma

Bench: Sandeep Sharma

                                                                                2024:HHC:10481




      IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.

                                    CrMP(M) No.1857 of 2024
                                      Decided on: 29.10.2024
_______________________________________________________________
Pramod Kumar                              ...........Petitioner

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

For the Petitioner                      :     Mr.   Rahul              Singh        Verma,
                                              Advocate.

For the Respondent                      :
                              Mr. Vishal Panwar and Mr. B.C.
                              Verma,    Additional   Advocates
                              General, along with H.C. Sandeep
                              Singh, No.512, Police Station
                              Paonta Sahib, District Sirmaur,
                              HP, present in person.
_______________________________________________________________
Sandeep Sharma, Judge (oral):

By way of instant petition filed under Section 483 of

Bharatiya Nagrik Suraksha Sanhita, prayer has been made on

behalf of petitioner Pramod Kumar, who is behind bars for more

than four months, 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 of Narcotic Drugs and Psychotropic Substances Act.

2. Respondent/State has filed status report and H.C.

Sandeep Singh, No.512, Police Station Paonta Sahib, District

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

2024:HHC:10481

Sirmaur, H.P., has come present along with record. Record

perused and returned.

3. Close security of record/status report reveals that

on 22.04.2023, 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 necessary codal formalities, arrested

all the accused named hereinabove and since then, they are

behind bars. Subsequently, on the basis of statements given by

the accused, named hereinabove, Police arrested bail petitioner

on the ground that he had sent the consignment to co-accused

Manjit Singh, resident of of Majra. Allegedly, petitioner further

disclosed to the Police during investigation that some quantity

of contraband recovered from vehicle in question was to be

delivered to person namely Imtiaz Hashmi @ Bura Khan. Above

named Bura Khan also came to be named in the FIR, however,

he stands enlarged on bail by this Court vide order dated

04.10.2024 passed in Cr.MP(M) No.2113 of 2024. Since

investigation is complete and nothing remains to be recovered

from the bail-petitioner, he has approached this Court in the 2024:HHC:10481

instant proceedings for grant of regular bail on the ground that

nothing was recovered from the conscious possession of the

petitioner, rather, he came to be named in the FIR on the basis

of statements given by co-accused, which is otherwise

inadmissible.

4. While fairly acknowledging factum with regard to

completion of investigation, Mr. Vishal Panwar, 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 outright rejection. He further

states that there is overwhelming evidence adduced on record

suggestive of the fact that bail petitioner is the main kingpin

and he actually sent the commercial quantity of contraband

through his younger brother Vipan Basu for further delivery to

persons namely Manjit Singh and Bura Khan. While referring to

the call detail reports adduced on record, Mr. Panwar states

that bail petitioner herein had telephonic conversation with co-

accused Manjit Singh and Bura Khan prior to the alleged

recovery and as such, it cannot be said that he has been falsely

implicated. He states that there is concrete evidence available

on record, suggestive of the fact that bail petitioner is a drug

peddler and in case he is enlarged on bail, he may not only flee 2024:HHC:10481

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 statements given by the

persons namely Vipan Basu, Ashish Kumar and Manjit Singh,

who allegedly disclosed to the Police that contraband recovered

from the vehicle in question was handed over to them by bail

petitioner for further giving it to Manjit Singh and Bura Khan.

Admittedly, call detail record adduced on record suggest that

bail petitioner herein had telephonic conversation with person

namely Manjit Singh and Bura Khan, but that may not be

sufficient to conclude the complicity of the bail-petitioner in the

commission of offence.

6. Having perused disclosure statement made by co-

accused, named hereinabove, this Court is persuaded to agree

with Mr. Rahul Singh Verma, learned counsel representing the

petitioner that name of the petitioner came to be incorporated in

the FIR, merely on the basis of statement made co-accused,

which is not admissible, especially to conclude complicity of the

bail petitioner in the commission of offence. Otherwise also, in 2024:HHC:10481

the instant case, there is no evidence adduced on record

suggestive of the fact that contraband was ever handed over by

the bail petitioner to co-accused, from whose conscious

possession contraband ultimately came to be recovered.

Evidence, if any, with regard to call details report is not

sufficient to conclude the guilt of the bail petitioner.

7. 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 judgments, or upon the principles laid down by these judgments, also stand overruled for the reasons given by us.

2024:HHC:10481

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."

8. 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 the respondents is an aspect that will be

examined at the stage of the trial.

2024:HHC:10481

9. True, it is that keeping in view the commercial

quantity of contraband recovered in the case at hand, rigours of

Section 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.

10. 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 2024:HHC:10481

to be established on record by the investigating agency, as such,

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 him. Apprehension expressed by

learned Additional 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.

11. 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.

12. 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 2024:HHC:10481

Hon'ble Apex Court in the aforesaid judgment that a person is

believed to be innocent until found guilty.

13. 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 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.

14. 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.

15. The Apex Court in Prasanta Kumar Sarkar versus

Ashis Chatterjee and another (2010) 14 SCC 496, has laid 2024:HHC:10481

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.

16. 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 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