Himachal Pradesh High Court
Reserved On: 07.04.2025 vs State Of Himachal Pradesh on 24 April, 2025
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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr. MP (M) No. 124 of 2025
Reserved on: 07.04.2025
Date of Decision: 24th April 2025.
Desh Raj ...Petitioner
Versus
State of Himachal Pradesh ...Respondent
Coram
Hon'ble Mr Justice Rakesh Kainthla, Judge.
Whether approved for reporting? No.
For the Petitioner : Mr. Vijender Katoch, Advocate.
For the Respondent/State. : Mr. Lokender Kutlehria,
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
for the commission of offences punishable under Sections 20, 25
and 29 of the Narcotic Drugs and Psychotropic Substances (NDPS)
Act vide F.I.R. No. 233 of 2024 dated 19.10.2024 at Police Station
Nurpur, District Kangra, H.P. As per the prosecution, police
recovered 3.575 Kgs of charas from a vehicle bearing registration
_______________
Whether reporters of Local Papers may be allowed to see the judgment? Yes.
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No. TO424CH6911A on 18.10.2024. The police arrested Bhupinder
Thakur-driver and occupant Jitender Thakur. The police seized
the charas and sent it to the FSL. The police interrogated
Bhupinder Thakur, who disclosed that Desh Raj, the present
petitioner, had handed over charas to him on 18.10.2024 with a
direction to deliver it to Sonu at Pathankot. The police arrested the
petitioner. There is no evidence against the petitioner except the
statement made by the co-accused. The petitioner does not have
any criminal antecedents. He is ready and willing to furnish
sureties to the satisfaction of the Court and 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 were on patrolling duty on 18.10.2024.
They received a secret information at 12:30 am that a vehicle was
transporting a huge quantity of charas, and in case of its search,
police could recover charas. The police reduced the information to
writing and sent it to the Supervisory Officer. The police went to
24 miles near Jonta and found that a car bearing registration No.
TO424CH6911A was parked on the road. The police checked the car
in the presence of Mahinder Singh Up Pradhan. The driver
revealed his name as Bhupinder Thakur, and the person sitting
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beside the driver revealed his name as Jitender Thakur. The police
recovered 7 packets containing black sticks wrapped in
transparent polythene. The police checked the sticks and found
them to be charas. The police weighed the packets and found their
weight to be 3.575 kgs. The police seized the charas and arrested
the occupant of the vehicle. As per the report of analysis, the
exhibit was an extract of cannabis and a sample of charas.
Bhupinder Thakur revealed during the interrogation that Desh
Raj, the present petitioner, had handed over the charas to him on
Katola Batheri road with a direction to deliver it to Sonu. The
police are searching for Sonu; hence, the status report.
3. I have heard Mr. Vijender Katoch, learned counsel for
the petitioner and Mr. Lokender Kutlehria, learned Additional
Advocate General for the respondent/State.
4. Mr. Vijender Katoch, 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 made by the co-accused, which is not legally
admissible; therefore, he prayed that the present petition be
allowed and the petitioner be released on bail.
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5. Mr. Lokender Kutlehria, learned Additional Advocate
General, for the respondent/State, submitted that the main
accused was found in possession of a commercial quantity of
charas and the rigours of Section 37 of the NDPS Act apply to the
present case. The petitioner is unable to satisfy the twin
conditions laid down under Section 37 of the NDPS Act, and he is
not entitled to bail; hence, 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 Ajwar v. Waseem (2024) 10 SCC 768:
2024 SCC OnLine SC 974, wherein it was observed at page 783: -
"Relevant parameters for granting bail
26. While considering 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 the accused
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on bail. [Refer: Chaman Lal v. State of U.P. [Chaman
Lal v. State of U.P., (2004) 7 SCC 525: 2004 SCC (Cri)
1974]; Kalyan Chandra Sarkar v. Rajesh Ranjan [Kalyan
Chandra Sarkar v. Rajesh Ranjan, (2004) 7 SCC 528: 2004 SCC
(Cri) 1977]; Masroor v. State of U.P. [Masroor v. State of U.P.,
(2009) 14 SCC 286 : (2010) 1 SCC (Cri) 1368]; Prasanta Kumar
Sarkar v. Ashis Chatterjee [Prasanta Kumar Sarkar v. Ashis
Chatterjee, (2010) 14 SCC 496 : (2011) 3 SCC (Cri) 765]; Neeru
Yadav v. State of U.P. [Neeru Yadav v. State of U.P., (2014) 16
SCC 508 : (2015) 3 SCC (Cri) 527]; Anil Kumar Yadav v. State
(NCT of Delhi)[Anil Kumar Yadav v. State (NCT of Delhi),
(2018) 12 SCC 129 : (2018) 3 SCC (Cri) 425]; Mahipal v. Rajesh
Kumar [Mahipal v. Rajesh Kumar, (2020) 2 SCC 118 : (2020) 1
SCC (Cri) 558] .]
8. This position was reiterated in Ramratan v. State of
M.P., 2024 SCC OnLine SC 3068, wherein it was observed as under:
"12. The fundamental purpose of bail is to ensure the
accused's presence during the investigation and trial. Any
conditions imposed must be reasonable and directly related
to this objective. This Court in Parvez Noordin
Lokhandwalla v. State of Maharastra (2020) 10 SCC 77
observed that though the competent court is empowered to
exercise its discretion to impose "any condition" for the
grant of bail under Sections 437(3) and 439(1)(a) CrPC, the
discretion of the court has to be guided by the need to
facilitate the administration of justice, secure the presence
of the accused and ensure that the liberty of the accused is
not misused to impede the investigation, overawe the
witnesses or obstruct the course of justice. The relevant
observations are extracted herein below:
"14. The language of Section 437(3) CrPC, which uses
the expression "any condition ... otherwise in the
interest of justice" has been construed in several
decisions of this Court. Though the competent court is
empowered to exercise its discretion to impose "any
condition" for the grant of bail under
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Sections 437(3) and 439(1)(a) CrPC, the discretion of the
court has to be guided by the need to facilitate the
administration of justice, secure the presence of the accused
and ensure that the liberty of the accused is not misused to
impede the investigation, overawe the witnesses or obstruct
the course of justice. Several decisions of this Court have
dwelt on the nature of the conditions which can
legitimately be imposed both in the context of bail and
anticipatory bail." (Emphasis supplied)
13. In Sumit Mehta v. State (NCT of Delhi) (2013) 15 SCC 570,
this Court discussed the scope of the discretion of the Court
to impose "any condition" on the grant of bail and observed
in the following terms: --
"15. The words "any condition" used in the provision
should not be regarded as conferring absolute power on
a court of law to impose any condition that it chooses to
impose. Any condition has to be interpreted as a reasonable
condition acceptable in the facts permissible in the
circumstances and effective in the pragmatic sense, and
should not defeat the order of grant of bail. We are of the
view that the present facts and circumstances of the case
do not warrant such an extreme condition to be
imposed." (Emphasis supplied)
14. This Court, in Dilip Singh v. State of Madhya Pradesh
(2021) 2 SCC 779, laid down the factors to be taken into
consideration while deciding the bail application and
observed:
"4. It is well settled by a plethora of decisions of this
Court that criminal proceedings are not for the
realisation of disputed dues. It is open to a court to grant
or refuse the prayer for anticipatory bail, depending on
the facts and circumstances of the particular case. The
factors to be taken into consideration while considering an
application for bail are the nature of the accusation and the
severity of the punishment in the case of conviction and the
nature of the materials relied upon by the prosecution;
reasonable apprehension of tampering with the witnesses or
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apprehension of threat to the complainant or the witnesses;
the reasonable possibility of securing the presence of the
accused at the time of trial or the likelihood of his
abscondence; character, behaviour and standing of the
accused; and the circumstances which are peculiar or the
accused and larger interest of the public or the State and
similar other considerations. A criminal court, exercising
jurisdiction to grant bail/anticipatory bail, is not
expected to act as a recovery agent to realise the dues of
the complainant, and that too, without any trial."
(Emphasis supplied)
9. This position was reiterated in Shabeen Ahmed versus
State of U.P., 2025 SCC Online SC 479.
10. The present petition has to be decided as per the
parameters laid down by the Hon'ble Supreme Court.
11. The prosecution is relying upon a statement made by
Bhupinder Thakur that the petitioner had delivered charas to him.
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., the person who is named in the FIR,
and therefore, the accused in the eye of the law, can indeed
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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."
12. 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
substantive piece of evidence against another co-accused and can
only be utilised 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 a
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.
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13. 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.
14. 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
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.
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[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 the aforesaid elucidation, the petitioner is
also entitled to the benefit of bail.
15. 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.
16. Therefore, the petitioner cannot be detained in custody
based on the statement made by the co-accused because it is not a
legally admissible piece of evidence.
17. There is no other evidence to connect the petitioner
with the commission of the crime; hence, the first condition that
there are no reasonable grounds to believe that the petitioner has
committed the offence punishable under the NDPS Act is satisfied.
18. There is no material on record that the petitioner is
dealing in narcotics; hence, it cannot be said that the petitioner
would indulge in the commission of the crime in case of his release
on bail; hence, the second condition is also satisfied.
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19. It was submitted that the petitioner does not have any
criminal antecedents. This was not stated to be incorrect in the
status report filed by the respondent/State, therefore, the
petitioner cannot be detained in custody based on his criminal
antecedents.
20. Consequently, 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 ₹1,00,000/- 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:
(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 surrender his passport, if any, to the Court;
and
(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
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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.
21. 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.
22. The observations made hereinabove are regarding the
disposal of this petition and will have no bearing whatsoever on
the case's merits.
23. The petition stands accordingly disposed of. A copy of
this order be sent to the Superintendent, Lala Lajpat Rai Open Air
and Correctional Home/District Jail Dharamshala, District Kangra,
H.P. and the learned Trial Court by FASTER.
24. A downloaded copy of this order shall be accepted by
the learned Trial Court while accepting the bail bonds from the
petitioner, and in case said Court intends to ascertain the veracity
of the downloaded copy of the order presented to it, the same may
be ascertained from the official website of this Court.
(Rakesh Kainthla)
24 April 2025(pathania)
th
Judge
