Himachal Pradesh High Court
Mukul Chauhan vs State Of Himachal Pradesh on 15 May, 2025
2025:HHC:14073
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr. MP (M) Nos. 879, 898, 903 and
906 of 2025
Reserved on: 06.05.2025
Date of Decision: 15.05.2025.
1. Cr.MP(M) No. 879 of 2025
Mukul Chauhan ...Petitioner
Versus
State of Himachal Pradesh ...Respondent
2. Cr.MP(M) No. 898 of 2025
Sandeep Dhiman ...Petitioner
Versus
State of Himachal Pradesh ...Respondent
3. Cr.MP(M) No. 903 of 2025
Akshit Verma @ Akshu ...Petitioner
Versus
State of Himachal Pradesh ...Respondent
4. Cr.MP(M) No. 906 of 2025
Rajat Kreik ...Petitioner
Versus
State of Himachal Pradesh ...Respondent
2025:HHC:14073
Coram
Hon'ble Mr Justice Rakesh Kainthla, Judge.
Whether approved for reporting?1
For the Petitioner(s) : Mr. Ajay Kochhar, Senior Advocate
with M/s Anubhav Chopra, Aanksha
Chauhan and Swati Sharma,
Advocates, in Cr.MP(M) No. 879 of
2025, Mr. Ravi Tanta, Advocate, in
Cr.MP(M) Nos. 898 and 906 of 2025
and Mr. Narender Singh Thakur,
Advocate, in Cr.MP(M) No. 903 of
2025.
For the Respondent(s) : Mr Anup Rattan, Advocate General,
with Mr Lokender Kutlehria,
Additional Advocate General and
Mr Prashant Sen, Deputy Advocate
General, assisted by Inspector/SHO
Dharam Singh and SI Hari Singh
from Police Station Sadar, Shimla,
H.P.
Rakesh Kainthla, Judge
All the petitions have been filed for seeking regular
bail in the same FIR; hence, these are being taken up together for
disposal by way of a common judgment.
2. The petitioners have filed the present petitions
seeking regular bail in FIR No. 107 of 2024, dated 14.8.2024,
registered for the commission of offences punishable under
Sections 21, 27A and 29 of the Narcotic Drugs and Psychotropic
Substances (NDPS) Act and Section 111(2) of Bharatiya Nayaya
Whether reporters of Local Papers may be allowed to see the judgment? Yes.
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Sanhita, (BNS), at Police Station, Sadar, Shimla, H.P. It has been
asserted that the petitioners have been arrested based on the
disclosure statements made by the co-accused, financial
transaction with Sandeep Shah and call detail records. No
recovery was made from the petitioners. The quantity of heroin
stated to have been recovered in the present case is 6.038 grams,
which is an intermediate quantity, and the rigours of Section 37
of the ND&PS Act do not apply to the present case. The
petitioners are in custody, and no recovery is to be effected from
them. The investigation is complete, and no fruitful purpose
would be served by detaining the petitioners in custody. The
petitioners would abide by the terms and conditions which the
Court may impose. Hence, the petitions.
3. The petitions are opposed by filing status reports
asserting that the police party was on patrolling duty on 13th
August 2024. A secret information was received on 14th August
2024 at about 12:05 am that two persons staying in Room No. 101
of Hotel Himachal had a huge quantity of narcotics. The police
reduced the information to writing and sent it to the Supervisory
Officer. The police went to room number 101 with two
independent persons. Suraj and Rohit Pandey were found in the
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room. The police searched the room and recovered one polythene
packet containing 6.380 grams of heroin and a digital weighing
machine. The police seized the heroin and the Digital weighing
machine. The police arrested the occupants of the room. Suraj
and Rohit Pandey disclosed during the investigation that the
heroin was made available to them by Sandeep Shah. Sandeep
Shah used to send the location and direct them to keep the heroin
in those locations. They would drop the heroin and send the
location to Sandeep Shah via WhatsApp. The police checked the
call detail records and the bank account statements. The police
found that Jitender Verma, Jugal Kishore and Aastik Chauhan
were in contact with Rohit Pandey and Suraj. They had
transferred a huge amount to Sandeep Shah's bank account.
Police arrested Jitender Verma, Jugal Kishore, Aastik Chauhan,
Sandeep Shah and Neeraj Kashyap. The police found during the
investigation that Sandeep Shah was dealing in narcotics. FIR
number 108/2022 and FIR number 190/21 were registered against
him. Many persons, including the present petitioners, had
transferred the money to the accounts of Sandeep Shah, Arpita
Shah, and Neeraj Kashyap. The petitioners are members of an
organised crime syndicate which is involved in drug trafficking.
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Bandita Bali, wife of the petitioner, Mukul Chauhan, had
transferred ₹28,500/- to the account of Sandeep Shah. Neelam
Chauhan, mother of the petitioner Mukul Chauhan, had
transferred ₹3,000/- to the account of Sandeep Shah and
₹6,000/- to the account of Neeraj Kashyap. Petitioner Rajat Kreik
had transferred ₹55,000/- to Kotak Mahindra Bank account of
Sandeep Shah, ₹19,000/- to Utkarsh Small Finance Bank of
Sandeep Shah, ₹12,000/- to the Union Bank Account of Neeraj
Kashyap, ₹14,000/- to SBI Account of Neeraj Kashyap and
₹9,000/- to Ajay Goswami. Petitioner Sandeep Dhiman had
transferred ₹41,200/- to the account of Sandeep Shah.
Petitioner-Akshit Verma had transferred ₹4,950/- to the
account of Neeraj Kashyap, and his friend Sakshi had transferred
₹63,600/- to the Kotak Mahindra Bank account of Sandeep Shah,
₹10,600/- to the Union Bank of India account of Neeraj Kashyap
and ₹17,000/- to the account of Neeraj Kashyap in Kotak
Mahindra Bank. There are many facts in the present case which
cannot be disclosed to the Court as their disclosure would affect
the ongoing investigation. Hence, the status report.
4. The State has also filed a reply asserting that it was
revealed during the investigation that accused Suraj and Rohit
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Pandey had travelled from Delhi to Shimla on 6.8.2024 and
stayed at Hotel Himachal. They had purchased the contraband
from Sandeep Shah which was supplied through his associate.
The accused had sold small quantities of narcotics to residents.
The accused disclosed that Sandeep Shah used to send them the
location coordinates of the places where the contraband was
stored. The accused were directed to visit these locations to
collect the narcotics. They also revealed that Sandeep Shah was
paying ₹200/- per gram of heroin sold. Suraj and Rohit Pandey
were apprehended by the police by following legal procedure. The
accused disclosed during custody that they used to establish
contact with Sandeep Shah through a telephonic conversation
facility by a mutual acquaintance. The accused admitted the
collection of heroin from various locations. The accused willingly
entered into the conspiracy to work with Sandeep Shah. They
received contraband from different locations communicated to
them by Sandeep Shah via WhatsApp. They revealed that the
accused were in contact telephonically with various individuals
in and around Shimla. They identified the mobile number of
Sandeep Shah. The call detail records were obtained. The
Forensic analysis report confirmed the recovered substance to be
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heroin. The bank statement revealed multiple monetary
transactions which were corroborated by CDRs. Sandeep Shah
was arrested from West Bengal and co-accused Neeraj Kashyap
was apprehended from Delhi. Sandeep Shah had established an
interstate drug trafficking network in Shimla. The syndicate was
involved in illicit drug trafficking. FIRs were registered against
Sandeep Shah. There is a substantial volume of monetary
transactions amounting to crores of rupees. The accused had a
significant international connection with a Nigerian national
who was also apprehended. Digital examination of his cell phone
revealed videos depicting the unpacking and repacking of white
substance which is consistent with narcotic substance. 59
persons have been apprehended in connection with the present
case. Money transactions of lacs of rupees have been found in the
accounts. 10 kilograms of heroin was delivered. There is reliable
evidence including CCTV footage, WhatsApp chat and online
transactions. The accused have employed novel methods and
technological innovation to facilitate their illicit activities
including dropping narcotics at different places, capturing
photographs and transmitting them to co-conspirators in a
highly secretive and clandestine manner. More than 200 persons
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acted jointly and individually. There are many offenders whose
charge sheets have been prepared. The drug addicts blackmailed
their families and committed ancillary crimes. Acts of the
petitioners caused widespread anxiety, fear and social
disturbance. Detention of the petitioners is essential for public
safety. Drug trafficking poses a grave threat to the society. The
police expended significant resources and efforts to dismantle an
organized drug syndicate at Shimla. Releasing the petitioners on
bail will frustrate the investigation and jeopardize the public
safety. The petitioners are repeat offenders and their release
would undermine the credibility of the criminal justice system.
Hence the reply/status report.
5. I have heard Mr Ajay Kochhar, learned Senior
Counsel, assisted by M/s Anubhav Chopra, Akansha Chauhan and
Swati Sharma, learned counsel for the petitioner-Mukul
Chauhan, Mr Narender Singh Thakur, learned counsel for the
petitioner Akshit Verma alias Akshu, Ravi Tanta, learned counsel
for the petitioners Sandeep Dhiman and Rajat Kriek; and Mr
Anup Rattan, learned Advocate General, with Mr Lokender
Kutlehria, learned Additional Advocate General and Mr Prashant
Sen, learned Deputy Advocate General, for the respondent/State.
2025:HHC:14073
6. Mr. Ajay Kochhar, learned Senior Counsel for the
petitioner-Mukul Chauhan, submitted that the petitioner is
innocent and he was falsely implicated based on the statement
made by the co-accused and the financial transactions. These are
insufficient to connect the petitioner with the commission of
crime. Co-accused Anshul Rana, Sanjay Verma, Prajwal Justa,
Ayan Chauhan and Abhinav Kanwar were granted bail by this
Court, and the petitioner is also entitled to bail on the principle of
parity. Section 111 of the Bharatiya Nayaya Sanhita does not apply
to the present case because there is sufficient evidence to
conclude the existence of an organised crime syndicate or
unlawful activity. Section 27A of the ND&PS Act does not apply to
the present case because there is a distinction between
sale/purchase and finance. Therefore, he prayed that the present
petition be allowed and the petitioner be released on bail. He
relied upon the judgments of Rhea Chakraborty Vs. Union of India
2021 Crl. LJ 248, State of West Bengal Vs. Rakesh Singh @ Rakesh
Kumar Singh, Crl. Appeal No. 923 of 2022, decided on 11.7.2022, Om
Prakash Vs. State of Karnataka 2025:KHC-D:2482, Muhammad
Rasheed Vs. State of Kerala, 2024 0 Supreme(Ker) 843, Ali Akbar Vs.
State of Kerala 2024 0 Supreme(Ker) 825, Anshul Rana and others
2025:HHC:14073
Vs. State of H.P. 2025:HHC:11014 and Muhammad Rasheed Vs. State
of Kerala 2024 0 Supreme(Ker)853 in support of his submission.
7. Mr Ravi Tanta, learned counsel for the petitioners
Sandeep Dhiman and Rajat Kriek and Mr Narender Singh Thakur,
learned counsel for the petitioner Akshit Verma alias Akshu,
adopted the submissions of Mr Ajay Kochhar, learned Senior
Counsel for the petitioner Mukul Chauhan.
8. Mr. Anup Rattan, learned Advocate General,
submitted that heroin is affecting the young generation
adversely. The State is fighting a war against the drug lords, and
the Court should not show misplaced sympathy to the drug
peddlers. The financial transactions unearthed by the police
show that the petitioners are financing the drug activities.
Sandeep Shah is the kingpin who is supplying heroin to various
people and directing his agents to drop the consignment at
different places. The police collected WhatsApp/Signal chat. The
mobile phones have been sent to FSL, and incriminating data is
expected to be recovered. The rigours of Section 37 of the ND&PS
Act apply to the present case. The attention of the Court was not
drawn towards Section 27A and the rigours of Section 37 of the
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ND&PS Act while deciding Anshul Rana (supra), and this Court
should not follow the judgment in Anshul Rana. He relied upon
the judgment of the Union of India vs. Rattan Malik @ Habul 2009
(2) SCC 624 and State of Kerala vs. Rajesh 2020 (12) SCC 122 in
support of his submission.
9. I have given considerable thought to the submissions
made at the bar and have gone through the records carefully.
10. 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 on page 783: -
"Relevant parameters for granting bail
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
the accused 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
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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] .]
11. This position was reiterated in Ramratan v. State of
M.P., 2024 SCC OnLine SC 3068, wherein it was observed: -
"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
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
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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 circumstance, 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 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
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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)
12. This position was reiterated in Shabeen Ahmed versus
State of U.P., 2025 SCC Online SC 479.
13. The present petitions have to be decided as per the
parameters laid down by the Hon'ble Supreme Court.
14. The petitioners were arrested based on the
statements made by the accused and the deposit of money by
them in the account of Sandeep Shah and Neeraj Kashyap. 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. It was also held
that the confession made by the co-accused is inadmissible
under 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 be questioned, and the statement is taken by the
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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."
15. 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 petitioners.
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16. 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.
17. 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.
18. 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,
19. Therefore, the petitioners cannot be detained in
custody based on a statement made by the co-accused, as the
same does not constitute a legally admissible piece of evidence.
20. The police have relied upon the deposit of money in
the accounts of Sandeep Shah and Neeraj Kashyap. The status
report does not show that any heroin was recovered from these
persons. It was laid down by the Kerala High Court in Amal E vs
State of Kerala 2023:KER:39393 that financial transactions are not
sufficient to connect the accused with the commission of a crime.
It was observed:
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"From the perusal of the case records, it can be seen that,
apart from the aforesaid transactions, there is nothing to
show the involvement of the petitioners. It is true that the
documents indicate the monetary transactions between
the petitioners and some of the accused persons, but the
question that arises is whether the said transactions were
in connection with the sale of Narcotic drugs. To establish
the same, apart from the confession statements of the
accused, there is nothing. However, as it is an aspect to be
established during the trial, I do not intend to enter into
any finding at this stage, but the said aspect is sufficient to
record the satisfaction of the conditions contemplated
under section 37 of the NDPS Act, as the lack of such
materials evokes a reasonable doubt as to the involvement
of the petitioner."
21. Heavy reliance was placed upon the WhatsApp/Signal
chat to submit that Sandeep Shah is dealing in narcotics, and he
had directed various persons to drop heroin at various locations.
This submission will not help the State because in none of the
chats, the term 'heroin' was used. The terms '01 gram, 04
grams', etc. were used, which the learned Advocate General
wanted this Court to read as referring to heroin, but in the
absence of any other evidence, these words cannot be read as
referring to heroin. Further, the name of Shah has been
mentioned, and there is no evidence that the term 'Shah' refers
the 'Sandeep Shah' and not any other person. The phone number
used to create the account was not ascertained to link it with
Sandeep Shah. The name of any of the petitioners was not
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mentioned in any of the chats relied upon by the prosecution,
and these chats cannot be connected to the petitioners.
Therefore, these chats will not help the petitioners.
22. Reference was also made to some photographs and
one video stated to have been recovered from the co-accused, in
which he was shown grinding the pieces into powder; however,
in the absence of any evidence that the pieces were of heroin,
this video will also not help the State. Therefore, no advantage
can be derived from the photographs/video recording. Further,
the authenticity of these photographs is yet to be verified
because the result from FSL is awaited, and it is difficult to rely
upon them at this stage.
23. Therefore, prima facie, there is insufficient material to
connect the petitioners with the commission of an offence
punishable under Section 21 of the NDPS Act.
24. It was submitted that the petitioners are involved in
the financing of the drugs; therefore, they are involved in the
commission of an offence punishable under Section 27A of the
ND&PS Act. This submission is not acceptable. Bombay High
Court dealt with Section 27A of the ND&PS Act in Rhea
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Chakraborty (supra) and held that the sale and purchase of the
drugs are separately made punishable under Sections 20, 21, 22
and 23, and the term financing cannot be interpreted to mean
providing money for a particular transaction but can only mean
making that particular activity operational or sustainable. It was
observed:-
"66. Section 27A is much wider if sub-clause (iv) of
Section 2(viiia) is taken into account. This sub-clause (iv)
of Section 2(viiia) takes in its sweep all the remaining
activities which are not mentioned in sub-clauses (i),(ii) &
(iii). This covers just about every activity which can be
described as dealing in narcotic drugs or psychotropic
substances. The interpretation of Section 27A should not
be stretched to the extent of rendering the classification of
sentences depending on the quantities in penal Sections
20, 21, 22 and 23 otiose.
67. Sub-clause (viiia) of Section 2 of the NDPS Act is an
inclusive definition. The inclusive part mentions
financing, abetting or conspiring and harbouring. The
financing and harbouring parts are specifically made
punishable under Section 27A.
68. The activities mentioned in Section 2(viiia)(iii) and
Section 8(c) refer to sale, purchase, export, import, etc. All
these activities involve monetary transactions. For every sale
or purchase, there can be use of money. But that will not mean
that either of the parties has "financed" the transaction. Such
sales and purchases are separately prohibited and made
punishable under Section 8(c), read with Section 20 and other
similar Sections. Therefore, "financing" is something more
than just paying for purchases and other activities involving
contraband as defined under Section 8(c). Contravention of
that Section and indulging in activities mentioned in Sections
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20, 21, 22 and 23 incur punishment depending on the quantity
of the contraband.
69. For interpreting Section 27A harmoniously with the
Scheme of the Act and other Sections, it is necessary to go
to the Statement of Objects and Reasons for incorporating
this Section in the Act w.e.f. 29.5.1989. The Statement of
Objects and Reasons of the 1989 Amendment, which is
reproduced hereinbefore, mentions that India was facing a
problem of transit traffic in illicit drugs. The spillover
from such traffic was causing problems of abuse and
addiction. Therefore, a need was felt to amend the Law to
further strengthen it.
70. Thus, the aim was to control the traffic in illicit drugs
as the spillover from such traffic was causing problems of
abuse and addiction. The Legislature wanted to attack the
basic cause of the illicit traffic of drugs. The prohibitory
Section 8 was already existing at that time. Therefore, a
separate Section 27A was introduced to check these
activities, which were the root cause of illicit traffic.
"Financing" and "harbouring" such activities were,
therefore, specifically mentioned under Section 27A.
71. "Financing" is not defined under the Act. The Concise
Oxford Dictionary defines the word "finance" as "(1) the
management of (esp. public) money, (2) monetary
support for an enterprise, (3) (in pl.) the money resources
of a state, company, or person, to provide capital for (a
person or enterprise)".
72. Black's Law Dictionary gives the meaning of the word
"finance" as "to raise or provide funds".
73. Thus, "financing" as generally understood, is offering
monetary support or provide funds.
74. Therefore, simply providing money for a particular
transaction or other transactions will not be financing of that
activity. Financing will have to be interpreted to mean to
provide funds for either making that particular activity
operational or for sustaining it. It is the financial support
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which directly or indirectly is cause of the existence of such
illicit traffic. The word "financing" would necessarily refer to
some activities involving illegal trade or business.
75. The allegations against the Applicant of spending
money in procuring drugs for Sushant Singh Rajput will
not, therefore, mean that she had financed illicit traffic."
(emphasis supplied)
25. I respectfully agree with the judgment of the Bombay
High Court and hold that financing does not involve the
sale/purchase of drugs but something more than that.
Interpreting the term financing as sale/purchase would make the
provisions of Sections 20, 21, 22 and 23 of the ND&PS Act
redundant, and a statute cannot be interpreted in a manner to
make any part of the legislation redundant. It was laid down by
the Hon'ble Supreme Court in Nathi Devi v. Radha Devi Gupta,
(2005) 2 SCC 271: 2004 SCC OnLine SC 1625 that a statute cannot
be interpreted to make any of its provisions redundant. It was
observed on page 285:
"31. Furthermore, it is now well settled that a statute
should be read in a manner which would give effect to all
the words used in the Act and in the event the decision of
this Court in Kanta Goel [(1977) 2 SCC 814] is read in a
manner suggested, the expressions "let out by her or by
her husband" and "such premises" in Section 14-D would
be otiose. Such a construction is not contemplated in law
in view of the well-settled principle that endeavour should
be made to give effect to all the expressions used in a
statute."
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26. Further, the legislature has consciously used the
words sale, purchase and financing in different provisions. These
words are different and cannot mean the same. It was laid down
in The Guardians of the Parish of Brighton vs The Guardians of the
Strand Union [1891] 2 Q.B. 156 that when different words are used
by the legislature, they are presumed to carry different
meanings. It was observed:
It is a rule of construction that where in the same Act of
Parliament, and in relation to the same subject matter,
different words are used, the Court must see whether the
legislature has not made the alteration intentionally, and
with some definite purpose; primâ facie, such an alteration
would be considered intentional. We have to determine,
then, whether "pauper" in s. 36 has a different meaning
from "person" in ss. 34 & 35, and I am clearly of the
opinion, after hearing the arguments and reading the
judgments of the Divisional Court, that "pauper" means
something different from "person."
27. A similar view was taken in Oriental Insurance Co. Ltd.
v. Hansrajbhai V. Kodala, (2001) 5 SCC 175: 2001 SCC (Cri) 857: 2001
SCC OnLine SC 621 wherein it was observed on page 191:
"19...When the legislature has taken care of using
different phrases in different sections, normally different
meaning is required to be assigned to the language used
by the legislature, unless context otherwise requires.
However, in relation to the same subject matter, if
different words of different import are used in the same
statute, there is a presumption that they are not used in
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the same sense (Member, Board of Revenue v. Arthur Paul
Benthall [AIR 1956 SC 35] AIR at p. 38)...."
28. Further the words sale, purchase and finance are not
the same and cannot mean the same. Lord Atkin held in his
dissenting judgment of Liversidge v. Sir John Anderson and
another, (1942) A.C. 206 that the strained meaning cannot be
given to the ordinary words. It was observed:
"I protest, even if I do it alone, against a strained
construction put on words with the effect of giving an
uncontrolled power of imprisonment to the minister. To
recapitulate: The words have only one meaning. They are
used with that meaning in statements of the common law
and statutes. They have never been used in the sense now
imputed to them. They are used in the Defence
Regulations in their natural meaning, and, when it is
intended to express the meaning now imputed to them,
different and apt words are used in the regulations
generally and in this regulation in particular. Even if it
were relevant, which it is not, there is no absurdity or no
such degree of public mischief as would lead to a non-
natural construction.
I know of only one authority which might justify the
suggested method of construction: "'When I use a word,'
Humpty Dumpty said in rather a scornful tone, 'it means
just what I choose it to mean, neither more nor less.' 'The
question is,' said Alice, 'whether you can make words
mean so many different things.' 'The question is,' said
Humpty Dumpty, 'which is to be master -- that's all.'"
("Through the Looking Glass," c. vi.) After all this long
discussion, the question is whether the words "If a man
has" can mean "If a man thinks he has." I am of the
opinion that they cannot, and that the case should be
decided accordingly.
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29. Therefore, it is difficult to agree with the submission
of the learned Advocate General that financing in Section 27A of
the NDPS Act is equivalent to sale/purchase.
30. It was specifically mentioned in the status reports
that the petitioners had transferred money to the account of
Sandeep Shah and others for the sale/purchase of the drugs.
Therefore, as per the status reports, it was a simple case of sale
and purchase and did not involve the financing of the drug trade.
Hence, prima facie, the applicability of Section 27A of the ND&PS
Act is not made out based on the allegations contained in the
status report.
31. The police have also added Section 111 of BNS. It reads
as under:
"111. Organised Crime. "(1) Any continuing unlawful
activity including kidnapping, robbery, vehicle theft,
extortion, land grabbing, contract killing, economic
offence, cyber-crimes, trafficking of persons, drugs,
weapons or illicit goods or services, human trafficking for
prostitution or ransom, by any person or a group of
persons acting in concert, singly or jointly, either as a
member of an organized crime syndicate or on behalf of
such syndicate, by use of violence, threat of violence,
intimidation, coercion, or by any other unlawful means to
obtain direct or indirect material benefit including a
financial benefit, shall constitute organized crime.
Explanation. --For the purposes of this subsection,--
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(i) "organised crime syndicate" means a group of
two or more persons who, acting either singly or
jointly, as a syndicate or gang, indulge in any
continuing unlawful activity;
(ii) "continuing unlawful activity" means an
activity prohibited by law which is a cognizable
offence punishable with imprisonment of three
years or more, undertaken by any person, either
singly or jointly, as a member of an organised crime
syndicate or on behalf of such syndicate in respect
of which more than one charge-sheets have been
filed before a competent Court within the preceding
period of ten years and that Court has taken
cognizance of such offence, and includes economic
offence;
(iii) "economic offence" includes criminal breach of
trust, forgery, counterfeiting of currency notes,
bank notes and Government stamps, hawala
transaction, mass-marketing fraud or running any
scheme to defraud several persons or doing any act
in any manner with a view to defraud any bank or
financial institution or any other institution
organization for obtaining monetary benefits in any
form.
(2) Whoever commits organised crime shall--
(a) If such offence has resulted in the death of any
person, be punished with death or imprisonment for
life, and shall also be liable to a fine which shall not
be less than ten lakh rupees;
(b) In any other case, be punished with
imprisonment for a term which shall not be less
than five years but which may extend to
imprisonment for life, and shall also be liable to a
fine which shall not be less than five lakh rupees.
(3) Whoever abets, attempts, conspires or knowingly
facilitates the commission of an organised crime, or
otherwise engages in any act preparatory to an organised
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crime, shall be punished with imprisonment for a term
which shall not be less than five years but which may
extend to imprisonment for life, and shall also be liable to
fine which shall not be less than five lakh rupees.
(4) Any person who is a member of an organised crime
syndicate shall be punished with imprisonment for a term
which shall not be less than five years but which may
extend to imprisonment for life, and shall also be liable to
a fine which shall not be less than five lakh rupees.
(5) Whoever, intentionally, harbours or conceals any
person who has committed the offence of an organised
crime shall be punished with imprisonment for a term
which shall not be less than three years but which may
extend to imprisonment for life, and shall also be liable to
fine which shall not be less than five lakh rupees: Provided
that this sub-Section shall not apply to any case in which
the harbour or concealment is by the spouse of the
offender.
(6) Whoever possesses any property derived or obtained
from the commission of an organised crime or proceeds of
any organised crime or which has been acquired through
the organised crime, shall be punishable with
imprisonment for a term which shall not be less than
three years but which may extend to imprisonment for life
and shall also be liable to fine which shall not be less than
two lakh rupees.
(7) If any person on behalf of a member of an organized
crime syndicate is, or at any time has been in possession
of movable or immovable property which he cannot
satisfactorily account for, shall be punishable with
imprisonment for a term which shall not be less than
three years but which may extend to imprisonment for ten
years and shall also be liable to fine which shall not be less
than one lakh rupees".
32. It is apparent from the bare perusal of the Section
that a person should indulge in a specified activity either singly
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or jointly as a member of an organised crime syndicate in respect
of which more than one charge sheet has been filed before a
Court within the preceding period of ten years and the Court has
taken cognisance of such offence.
33. It was laid down by the Kerala High Court in Mohd.
Hashim v. State of Kerala, 2024 SCC OnLine Ker 5260 that where no
charge sheet was filed against the accused in the preceding ten
years, he cannot be held liable for the commission of an offence
punishable under Section 111 of the BNS Act. It was observed:
"10. Section 111 (1) explicitly stipulates that to attract the
offence, there should be a continuing unlawful activity, by
any person or group of persons acting in concert, singly or
jointly, either as a member of an organised crime
syndicate or on behalf of such syndicate. The material
ingredient to attract the above provision, so far as the
present case is concerned, is that there should have been a
continuing unlawful activity committed by a member of
an organised crime syndicate or on behalf of such
syndicate.
11. Explanation (i) and (ii) of sub-section (1) of Section 111
of BNS define an organised crime syndicate and a
continuing unlawful activity, respectively.
12. Continuing unlawful activity under explanation (ii) of
Section 111(1) of the BNS means an activity prohibited by
law, which is a cognizable offence punishable with
imprisonment of three years or more, undertaken by any
person, either singly or jointly, as a member of an
organised crime syndicate or on behalf of such syndicate
in respect of which more than one charge-sheet has to be
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filed before a competent Court within the preceding period
of ten years and that Court has taken cognizance of such
an offence. Furthermore, an organised crime syndicate
under Explanation (i) of sub-section (1) of Section 111 of
the BNS means a group of two or more persons who,
acting either singly or jointly as a syndicate or gang,
indulge in any continuing unlawful activity.
13. While interpreting the analogous provisions of
the Maharashtra Control of Organised Crime Act, 1999,
which mandates the existence of at least two charge
sheets in respect of a specified offence in the preceding
ten years, the Honourable Supreme Court in State of
Maharashtra v. Shiva alias Shivaji Ramaji Sonawane [(2015)
14 SCC 272] has unequivocally held as follows:
"9. It was in the above backdrop that the High Court
held that once the respondents had been acquitted for
the offence punishable under the IPC and Arms Act in
Crimes No. 37 and 38 of 2001 and once the Trial Court
had recorded an acquittal even for the offence
punishable under Section 4 read with Section 25 of
the Arms Act in MCOCA Crimes No. 1 and 2 of 2002 all
that remained incriminating was the filing of charge
sheets against the respondents in the past and taking
of cognizance by the competent court over a period of
ten years prior to the enforcement of the MCOCA. The
filing of charge sheets or taking of the cognisance in
the same did not, declared the High Court, by itself
constitute an offence punishable under Section 3 of the
MCOCA. That is because the involvement of
respondents in previous offences was just about one
requirement, but by no means the only requirement,
which the prosecution has to satisfy to secure a
conviction under MCOCA. What was equally, if not more
important, was the commission of an offence by the
respondents that would constitute "continuing unlawful
activity". So long as that requirement failed, as was the
position in the instant case, there was no question of
convicting the respondents under Section 3 of the MCOCA.
2025:HHC:14073
That reasoning does not, in our opinion, suffer from any
infirmity.
10. The very fact that more than one charge sheet had
been filed against the respondents, alleging offences
punishable with more than three years' imprisonment,
is not enough. As rightly pointed out by the High Court,
the commission of offences before the enactment of
MCOCA does not constitute an offence under MCOCA.
Registration of cases, filing of charge sheets and taking of
cognisance by the competent court in relation to the
offence alleged to have been committed by the respondents
in the past is but one of the requirements for invocation of
Section 3 of the MCOCA. Continuation of unlawful activities
is the second and equally important requirement that
ought to be satisfied. Only if an organised crime is
committed by the accused after the promulgation of
MCOCA, he may, seen in the light of the previous charge
sheets and the cognisance taken by the competent court, be
said to have committed an offence under Section 3 of the
Act.
11. In the case at hand, the offences which the
respondents are alleged to have committed after the
promulgation of MCOCA were not proved against them.
The acquittal of the respondents in Crimes Nos. 37 and
38 of 2001 signified that they were not involved in the
commission of the offences with which they were
charged. Not only that the respondents were acquitted
of the charge under the Arms Act, even in Crimes Case
Nos. 1 and 2 of 2002. No appeal against that acquittal
had been filed by the State. This implied that the
prosecution had failed to prove the second ingredient
required for the completion of an offence under
MCOCA. The High Court was, therefore, right in holding
that Section 3 of the MCOCA could not be invoked only on
the basis of the previous charge sheets for Section 3 would
come into play only if the respondents were proved to have
committed an offence for gain or any pecuniary benefit or
undue economic or other advantage after the
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promulgation of MCOCA. Such being the case, the High
Court was, in our opinion, justified in allowing the
appeal and setting aside the order passed by the Trial
Court".
14. Subsequently, the Honourable Supreme Court in State
of Gujarat v. Sandip Omprakash Gupta [2022 SCC OnLine SC
1727], while interpreting the analogous provisions of the
Gujarat Control of Terrorism and Organised Crime Act,
2015, clarified the ratio in Shivaji alias Shivaji Ramaji
Sonawane (supra) by observing thus:
"52. It is a sound rule of construction that the
substantive law should be construed strictly so as to
give effect and protection to the substantive rights
unless the statute otherwise intends. Strict
construction is one which limits the application of the
statute by the words used. According to Sutherland,
'strict construction refuses to extend the import of
words used in a statute so as to embrace cases or acts
which the words do not clearly describe'.
53. The rule as stated by Mahajan C.J. in Tolaram
Relumal v. State of Bombay, (1954) 1 SCC 961: AIR 1954 SC
496, is that "if two possible and reasonable
constructions can be put upon a penal provision, the
court must lean towards that construction which
exempts the subject from penalty rather than the one
which imposes a penalty. It is not competent to the
court to stretch the meaning of an expression used by
the legislature in order to carry out the intention of the
legislature." In State of Jharkhand v. Ambay
Cements, (2005) 1 SCC 368, this Court held that it is a
settled rule of interpretation that where a statute is
penal in character, it must be strictly construed and
followed. The basic rule of strict construction of a penal
statute is that a person cannot be penalised without a
clear reading of the law. Presumptions or assumptions
have no role in the interpretation of penal statutes.
They are to be construed strictly in accordance with the
provisions of law. Nothing can be implied. In such
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cases, the courts are not so much concerned with what
might possibly have been intended. Instead, they are
concerned with what has actually been said.
54. We are of the view and the same would be in tune with
the dictum as laid in Shiva alias Shivaji Ramaji
Sonawane (supra) that there would have to be some act or
omission which amounts to organised crime after the 2015
Act came into force i.e., 01.12.2019 in respect of which, the
accused is sought to be tried for the first time in the special
court.
55. We are in agreement with the view taken by the
High Court of Judicature at Bombay in the case
of Jaisingh (supra) that neither the definition of the
term 'organised crime' nor of the term 'continuing
unlawful activity' nor any other provision therein
declares any activity performed prior to the enactment
of the MCOCA to be an offence under the 1999 Act nor
the provision relating to punishment relates to any
offence prior to the date of enforcement of the 1999
Act, i.e., 24.02.1999. However, by referring to the
expression 'preceding period of ten years' in Section 2(1)
(d), which is a definition clause of the term 'continuing
unlawful activity' inference is sought to be drawn that in
fact, it takes into its ambit the acts done prior to the
enforcement of the 1999 Act as being an offence under the
1999 Act. The same analogy will apply to the 2015 Act.
56. There is a vast difference between the act or
activity, which is being termed or called an offence
under a statute and such act or activity being taken into
consideration as one of the requisites for taking action
under the statute. For the purpose of organised crime,
there has to be a continuing unlawful activity. There
cannot be continuing unlawful activity unless at least
two charge sheets are found to have been lodged in
relation to the offence punishable with three years'
imprisonment during the period of ten years.
Indisputably, the period of ten years may relate to the
period prior to 01.12.2019 or thereafter. In other words,
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it provides that the activities, which were offences
under the law in force at the relevant time and in
respect of which two chargesheets have been filed and
the Court has taken cognizance thereof, during the
period of preceding ten years, then it will be considered
as continuing unlawful activity on 01.12.2019 or
thereafter. It nowhere by itself declares any activity to
be an offence under the said 2015 Act prior to
01.12.2019. It also does not convert any activity done
prior to 01.12.2019 to be an offence under the said 2015
Act. It merely considers two chargesheets in relation to
the acts which were already declared as offences under
the law in force to be one of the requisites for the
purpose of identifying continuing unlawful activity
and/or for the purpose of an action under the said 2015
Act.
57. If the decision of the coordinate Bench of this Court
in the case of Shiva alias Shivaji Ramaji
Sonawane (supra) is looked into closely along with
other provisions of the Act, the same would indicate
that the offence of 'organised crime' could be said to
have been constituted by at least one instance of
continuation, apart from continuing unlawful activity
evidenced by more than one chargesheets in the
preceding ten years. We say so, keeping in mind the
following:
(a) If 'organised crime' was synonymous with
'continuing unlawful activity', two separate
definitions were not necessary.
(b) The definitions themselves indicate that the
ingredients of the use of violence in such activity
with the objective of gaining pecuniary benefit
are not included in the definition of 'continuing
unlawful activity', but find place only in the
definition of 'organised crime'.
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(c) What is made punishable under Section 3 is
'organised crime' and not 'continuing unlawful
activity'.
(d) If 'organised crime' were to refer to only
more than one chargesheets filed, the
classification of crime in Section 3(1)(i) and 3(1)
(ii) reply on the basis of the consequence of the
resulting in death or otherwise would have been
phrased differently, namely, by providing that 'if
any one of such offence has resulted in the death'
since continuing unlawful activity requires more
than one offence. Reference to 'such offence' in
Section 3(1) implies a specific act or omission.
(e) As held by this Court in State of
Maharashtra v. Bharat Shanti Lal Shah (supra)
continuing unlawful activity evidenced by more
than one chargesheet is one of the ingredients of
the offence of organised crime and the purpose
thereof is to see the antecedents and not to
convict, without proof of other facts which
constitute the ingredients of Section 2(1)(e) and
Section 3, which respectively define commission
of the offence of organised crime and prescribe
punishment.
(f) There would have to be some act or omission
which amounts to organised crime after the Act
came into force, in respect of which the accused
is sought to be tried for the first time, in the
Special Court (i.e. has not been or is not being
tried elsewhere).
(g) However, we need to clarify something
important. Shiva alias Shivaji Ramaji
Sonawane (supra) dealt with the situation where a
person commits no unlawful activity after the
invocation of the MCOCA. In such circumstances, the
person cannot be arrested under the said Act on
account of the offences committed by him before the
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coming into force of the said Act, even if he is found
guilty of the same. However, if the person continues
with the unlawful activities and is arrested, after the
promulgation of the said Act, then such a person can
be tried for the offence under the said Act. If a person
ceases to indulge in any unlawful act after the said
Act, then he is absolved of the prosecution under the
said Act. But, if he continues with the unlawful
activity, it cannot be said that the State has to wait
till he commits two acts of which cognisance is taken
by the Court after coming into force. The same
principle would apply, even in the case of the 2015
Act, with which we are concerned.
58. In the overall view of the matter, we are convinced
that the dictum as laid by this Court in Shiva alias
Shivaji Ramaji Sonawane(supra) does not require any
relook. The dictum in Shiva alias Shivaji Ramaji
Sonawane (supra) is the correct exposition of law".
16. Section 111 (1) of the BNS in respect of organised crime
is, in essence, analogous to the provisions of the
Maharashtra Control of Organised Control Act and the
Gujarat Control of Terrorism and Organised Crime Act.
The legal principles laid down by the Honourable Supreme
Court in its interpretation of organised crime as defined by
the above two state legislations are applicable on all fours
to Section 111 (1) of the BNS. Thus, it is not necessary to
have a further interpretation of the above analogous
provision.
17. In view of the above discussion, to attract an offence
under Section 111 (1) of the BNS it is imperative that a
group of two or more persons indulge in any continuing
unlawful activity prohibited by law, which is a cognizable
offence punishable with imprisonment of three years or
more, undertaken by any person, either singly or jointly,
as a member of an organised crime syndicate or on behalf
of such syndicate in respect of which more than one
charge-sheet has to be filed before a competent Court
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within the preceding period of ten years and that Court
has taken cognizance of such an offence.
18. In the present case, it is undisputed that no charge
sheet has been filed against the petitioner in any court in
the last ten years. Therefore, prima facie, the offence
under Section 111(1) is not attracted. Nevertheless, these
are matters to be investigated and ultimately decided after
trial. Additionally, the petitioner has been in judicial
custody for the last 57 days, and recovery has been
effected.
34. This position was reiterated in Om Prakash vs. The
State of Karnataka (07.02.2025 - KARHC): MANU/KA/0356/2025
wherein it was observed:
"12. So far as the offence under Section 111 of the BNS is
concerned, the learned Senior Counsel for the petitioners
relied on a judgment of the Kerala High Court in the case
of Mohammed Rashid Vs. State of Kerala in Bail
Application No.5927/2024 dated 13.08.2024. The
provisions of Section 111 of the BNS are borrowed from
MaCOCA and similar enactments, including the KaCOC
Act. It is trite law that to conclude that there is an
organized crime, and the accused are members of the
organized crime Syndicate, it is essential that any one of
the members of the Syndicate should be facing at least
three charge sheets initiated within a period of ten years
prior to the crime and which are pending. The perusal of
the charge sheet nowhere indicates that any of the nine
accused are facing such charge sheets within the period of
ten years preceding the crime. Therefore, the invoking of
the provision under Section 111 of BNS is also prima facie
impermissible."
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35. This judgment was followed in Pesala Sivashankar
Reddy v. State of A.P., 2024 SCC OnLine AP 5422, wherein it was
held:
"8. The Hon'ble Supreme Court in the matter of State of
Maharashtra v. Shiva Alias Shivaji Ramaji Sonawane 2015
SCC OnLine SC 648 was dealing with the Maharashtra
Control of Organised Crime Act, 1999 (MCOC) Act and the
offence of organised crime under the said act. The Hon'ble
Supreme Court has held that only if an organised crime is
committed by the accused after the promulgation of the
MCOCA Act, that he may be seen in the light of the
previous charge sheet, which is taken cognisance by the
competent court, would have committed an offence under
Section 3 of the Act.
9. The Hon'ble Supreme Court, in the matter of Mohamad
Iliyas Mohamad Bilal Kapadiya v. State of Gujarat 2022 Live
Law (SC) 538, held that to invoke the provisions of Gujarat
control of terrorism and organised act crime, 2015, in
respect of an act of organised crime more than one charge
sheet should be filed in the preceding ten years. Section 111
of B.N.S. is analogous to the organised crime acts of
various states, which were dealt with by the Hon'ble
Supreme Court.
10. The Hon'ble High Court of Kerala in the matter
of Mohammed Hashim v. State of Kerala 2024 SCC OnLine
Ker 5260. The learned Judge of the Kerala High Court has
emphasised that Section 111 can be invoked only if more
than one charge sheet has been filed for such offences in
the preceding ten years before a competent court, and
such charge sheets are taken cognisance of by the court.
11. This Court agrees with the observations of the Kerala
High Court, and admittedly, no charge sheet has been filed
against the petitioner for similar offences in any court of
law in the preceding ten years as such, cause for
invocation of Section 111 of B.N.S. has to be dealt
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appropriately by the investigating officer during the
course of investigation of the crime."
36. It was held in Suraj Singh vs. State of Punjab
(25.09.2024 - PHHC): MANU/PH/4288/2024 that the police must
gather legally admissible evidence to connect the accused with
the commission of a crime punishable under Section 111 of the
BNS Act. It was observed:
"15. To bring an offence into the four corners of an
organised crime, the offence must fall under a category
described in S. 111 of BNS, 2023. The prima facie evidence
must be legally admissible to constitute any continuing
unlawful activity to constitute an organised crime as
defined in S. 111 BNS. Without legally admissible prima
facie evidence, the State cannot make any suspect undergo
custodial interrogation to hunt for such evidence against
the suspect or others. The evidence must be gathered first
to make out a prima facie case within the scope of S. 111 of
BNS, and such evidence alone would justify custodial
interrogation to carry out further investigation. Without
legally admissible accusations, allegations, or evidence,
the State cannot arrest a suspect to fish evidence against
them or use such a suspect as custodial bait by any hook,
line, and sinker to bring the case into the fold of S. 111 of
BNS. Prima facie evidence must be admissible, and if such
evidence is deemed inadmissible, the entire foundation
will collapse."
37. It was submitted that the cases were registered under
the ND&PS Act against the persons who had transferred money
to Sandeep Shah. The list of 15 such persons has been given. It
was submitted that the involvement of 15 persons in the cases
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under the ND&PS Act shows that they are members of an
organised syndicate. The petitioners had also transferred money
to Sandeep Shah; therefore, they were involved in the unlawful
activity carried out by the organised crime syndicate and Section
111 of Cr.P.C. applies to them. This submission is only stated to be
rejected. It has been found above that the statement made by the
co-accused is not admissible in evidence. The financial
transaction without the statement of the co-accused that it was
related to the drug trade will not show that the transaction was
for the sale/purchase of drugs. Therefore, the petitioners cannot
be connected to the drug trade and cannot be considered part of
an organised crime syndicate involved in unlawful activity.
38. It was submitted that the transfer of such a large
amount to the account of Sandeep Shah has not been explained.
The accused has a right to silence, and he is not required to
explain anything. It is for the prosecution to prove on record that
the transactions were related to the sale/purchase of drugs and
they cannot fall back upon the silence of the accused to make
him a member of the organized crime syndicate, simply because
he is exercising the constitutional right of not being a witness
against himself.
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39. It was submitted that the administration is fighting a
war against drugs, and the Court should help the administration
in winning the war rather than placing undue sympathy with the
petitioners. I can do nothing more to counter this argument than
to quote the powerful dissent of Lord Atkin in Liversidge v. Sir
John Anderson and another, (1942) A.C. 206, wherein, in repelling
similar arguments, it was observed:-
"I view with apprehension the attitude of judges who, on a
mere question of construction, when face to face with
claims involving the liberty of the subject, show
themselves more executive-minded than the executive.
Their function is to give words their natural meaning, not,
perhaps, in wartime leaning towards liberty, but following
the dictum of Pollock C.B. in Bowditch v. Balchin(1850) 5
Ex. 378, cited with approval by my noble and learned
friend Lord Wright in Barnard v. Gorman [1941] A. C. 378,
393: "In a case in which the liberty of the subject is
concerned, we cannot go beyond the natural construction
of the statute." In this country, amid the clash of arms,
the laws are not silent. They may be changed, but they
speak the same language in war as in peace. It has always
been one of the pillars of freedom, one of the principles of
liberty for which on recent authority we are now fighting,
that the judges are no respecters of persons and stand
between the subject and any attempted encroachments on
his liberty by the executive, alert to see that any coercive
action is justified in law. In this case, I have listened to
arguments which might have been addressed acceptably
to the Court of King's Bench in the time of Charles I."
40. Therefore, the Court should resist the temptation to
interpret the law in favour of the administration because they are
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fighting a war against drugs. The Court owes a duty to the
citizens to uphold their liberty and prevent any encroachment of
liberty except as per the law. Therefore, the prosecution is
required to bring the case within the four corners of the law,
even if it is fighting a war, and the law will not be changed in the
fight against Drugs.
41. It was submitted that the mobile phones have been
sent to the FSL, and incriminating material is likely to be
collected. The Court should not release the petitioners on bail till
the result of the analysis is received by the prosecution. This
submission will not help the State because the State was
supposed to collect the evidence first and arrest a person
thereafter. It cannot detain a person in custody in the hope that
something incriminating will be found against the person. This
is putting the cart before the horse and is simply impermissible.
42. The status report also reads that other material has
been collected against the petitioners, the disclosure of which
cannot be made as the disclosure would affect the investigation
adversely. This submission is contrary to the Rule of Law. The
police want the Court to reject the bail merely because they say
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that they have some material which they are unwilling to
disclose and the Court should rely upon their ipse dixit. This
means that the Courts should surrender their judicial authority
to the police. This is unheard of in a democratic country
governed by the Rule of Law. It was held by the Hon'ble Supreme
Court in Amit Kumar Sharma v. Union of India, 2022 SCC OnLine SC
1570 that the elementary principle of law is that all material
which is relied upon by either party in the course of a judicial
proceeding must be disclosed. Therefore, the police cannot take
any help from the withheld material.
43. The judgments relied upon by the learned Advocate
General relate to the applicability of Section 37 of the NDPS Act
and are not relevant because the prosecution has prima facie
failed to attract Section 27A of the NDPS Act to the present cases.
44. Therefore, prima facie, there is insufficient material to
connect the petitioners with the commission of offences
punishable under Sections 21, 27A, and 29 of the ND&PS Act and
Section 111(3) of BNS, and their further detention is not justified.
45. In view of the above, the present petitions are
allowed, and the petitioners are ordered to be released on bail
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subject to their furnishing bail bonds in the sum of ₹1,00,000/-
each with one surety each in the like amount to the satisfaction
of the learned Trial Court. While on bail, the petitioners will
abide by the following conditions:
(i) The petitioners will not intimidate the witnesses, nor will
they influence any evidence in any manner whatsoever.
(ii) The petitioners shall attend the trial and will not seek
unnecessary adjournments.
(iii) The petitioners 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 petitioners will surrender their passports, if any, to
the Court and;
(v) The petitioners will furnish their 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.
46. It is clarified that if the petitioners misuse their
liberty or violate any of the conditions imposed upon them, the
investigating agency shall be free to move the Court for
cancellation of the bail.
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47. The observations made here-in-above are regarding
the disposal of the petitions and will have no bearing whatsoever
on the case's merits.
48. The petitions stand accordingly disposed of. A copy of
this order be sent to the Superintendent of Sub Jail Kaithu,
District Shimla, H.P. and the learned Trial Court by FASTER.
49. A downloaded copy of this order shall be accepted by
the learned Trial Court while accepting the bail bonds from the
petitioners, 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)
Judge
15th May, 2025
(Chander)
