Himachal Pradesh High Court
Sumit Kumar vs State Of Himachal Pradesh on 17 April, 2026
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
Cr. MP (M) No.543 of 2026
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Date of Decision: 17.04.2026
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Sumit Kumar ...Petitioner
Versus
State of Himachal Pradesh ...Respondent
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Coram:
of
The Hon'ble Mr. Justice Sandeep Sharma, Judge.
Whether approved for reporting?1
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For the Petitioner:rt Mr. Vipan Rajta, Advocate.
For the Respondent: Mr. Rajan Kahol & Mr. Vishal Panwar,
Additional Advocate Generals with Mr.
Ravi Chauhan & Mr. Anish Banshtu,
Deputy Advocates General.
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Sandeep Sharma, J. (Oral)
Sequel to order dated 07.04.2026, whereby bail petitioner was ordered to be enlarged on interim bail in the event of his arrest in case FIR No. 278 of 2025, dated 26.12.2025, under Sections 20, 25, 29 of the NDPS Act, registered at police Station, Sundernagar, District Mandi, Himachal Pradesh, respondent-State has filed status report and HC Jai Singh has come present alongwith the record. Record perused and returned.
2. Close scrutiny of the record/status report reveals that on 26.12.2025, police party present near Pungh Four-Lane, stopped car bearing registration No.DL-3C-DD 8275 for checking.
1Whether reporters of the local papers may be allowed to see the judgment?
::: Downloaded on - 17/04/2026 20:43:14 :::CIS 2Since occupants of the car got perplexed after having seen the police, police deemed it necessary to cause search of the vehicle .
as well as its occupants. Allegedly, after having associated independent witnesses, police recovered one bag from afore car containing 685 grams of charas. Since, occupants of the car, namely Gaurav Verma and Nikhil Thakur were unable to render of plausible explanation qua intermediate quantity of contraband recovered from their car, police after completion of necessary rt codal formalities, lodged the FIR, as detailed hereinabove. During investigation, above named occupants allegedly disclosed to the police that present bail petitioner alongwith co-accused Krish Thakur and Saksham was traveling in car bearing registration No. HR-95B-1839 and they had collected money for purchase of aforesaid contraband. On the basis of aforesaid statements made by co-accused Gaurav and Nikhil, police conducted the investigation and found that sum of Rs 30,000/- was withdrawn by Mr. Krish Thakur from his ATM and in this background, he alongwith co-accused Saksham also came to be named in the FIR.
However, all the co-accused named in the FIR, as detailed hereinabove, already stand enlarged on bail, whereas present bail petitioner has approached this Court in the instant proceedings for grant of anticipatory bail. As has been observed hereinabove, petitioner was granted anticipatory bail vide order dated ::: Downloaded on - 17/04/2026 20:43:14 :::CIS 3 07.04.2026, subject to his joining investigation. Since petitioner has already joined investigation and nothing remains to be recovered .
from him, prayer has been made on his behalf to make order dated 07.04.2026 absolute.
3. Mr. Rajan Kahol, learned Additional Advocate General, on instructions of the Investigating Officer, fairly admits of that pursuant to order dated 07.04.2026, petitioner has already joined the investigation and nothing remains to be recovered from rt him. He states that since petitioner is accused of heinous crime punishable under Section 20, 25, 29 of the Act, he does not deserve any leniency. He states that there is overwhelming evidence adduced on record by the prosecution suggestive of the fact that bail petitioner has been indulging in illegal activity having adverse impact in the society and as such, it may not be in the interest of justice to enlarge him on bail because in the event of his being enlarged on bail, he may not only flee from justice, but may again indulge in these activities. However, on the instructions of the Investigating Officer, he fairly admitted that custodial interrogation of the petitioner is not required.
4. Having heard learned counsel for the parties and perused the material available on record, this Court finds that contraband, which is of intermediate quantity was never recovered from the conscious possession of the petitioner, rather same came ::: Downloaded on - 17/04/2026 20:43:14 :::CIS 4 to be recovered from the conscious possession of co-accused Gaurav and Nikhil, who allegedly disclosed to the police that .
petitioner herein alongwith other co-accused, namely Krish Thakur and Saksham was travelling in another car and they all had actually collected the money for purchase of aforesaid contraband.
It also emerges from the status report that bail petitioner was in of touch with above named co-accused through telephone.
Prosecution has also collected evidence to the effect that sum of rt Rs. 30,000/- was withdrawn from the bank account of co-accused Krish Thakur on 25.12.2025 at Axis Bank, Bhaur, Sundernagar.
Financial transaction placed on record also reveals that on 26.12.2025, Krish Thakur paid Rs.1000/- each ten times to co-
accused Saksham, who allegedly made available contraband to other co-accused. As per status report, bail petitioner also transferred sum of Rs. 16,200/- in the bank account of Saksham for purchase of contraband.
5. Though, having taken note of aforesaid facts, this Court is not persuaded to agree with learned counsel representing the petitioner that petitioner has been falsely implicated, but having taken note of the fact that he has been arrayed as an accused on the basis of confessional statement made by co-accused, coupled with the judgment passed by Hon'ble Apex Court in Tofan Singh case(supra), wherein it has been ruled that confession statement ::: Downloaded on - 17/04/2026 20:43:14 :::CIS 5 recorded under Section 67 of the Act will remain inadmissible in the trial of an offence under the Act, this Court is persuaded to .
consider the prayer made on behalf of the petitioner for grant of bail. Moreover, on account of recovery of intermediate quantity of contraband, rigours of Section 37 of the Act are not attracted in the present case. At this stage, it would be profitable to reproduce of relevant paras of the judgment rendered by Hon'ble Apex Court in Tofan Singh case(supra) herein below:-
rt "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.
157.On the other hand, for the reasons given by us in this judgment, the judgments of Noor Aga (supra) and Nirmal Singh Pehlwan v. Inspector, Customs (2011) 12 SCC 298 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 ::: Downloaded on - 17/04/2026 20:43:14 :::CIS 6 statement in the trial of an offence under the NDPS Act."
6. Recently 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 of 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 rt 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 details 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.
7. Bare reading of aforesaid judgment passed by Hon'ble Apex Court clearly reveals that arrest made by NCB in that case on the basis of confessional/voluntary statement of the co-accused under Section 67 of the Act was not found to be in accordance with law and Hon'ble Apex Court specifically ordered that statement of the respondents or the co-accused under Section 67 of the Act cannot form the basis for overturning the impugned orders ::: Downloaded on - 17/04/2026 20:43:14 :::CIS 7 releasing them on bail, which was passed by High Court of Karnataka.
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8. Similarly, Hon'ble Apex Court categorically ruled that the CDR details of some of the accused or the allegations of tampering of evidence on the part of one of the respondents is an aspect that will be examined at the stage of trial.
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9. Since in the case at hand, intermediate quantity of contraband never came to be recovered from the conscious rt possession of the bail petitioner and he came to be named in the case, only on the basis of the statement of co-accused, from whose conscious possession intermediate quantity of contraband came to be recovered, prayer for grant of bail, made on behalf of bail petitioner deserves to be considered.
10. Hon'ble Apex Court in Criminal Appeal No. 227/2018, Dataram Singh vs. State of Uttar Pradesh & Anr decided on 6.2.2018 has held that freedom of an individual cannot be curtailed for indefinite period, especially when his/her guilt is yet to be proved. It has been further held by the Hon'ble Apex Court in the aforesaid judgment that a person is believed to be innocent until found guilty.
11. Similarly, it was held in Surinder Kumar Khanna vs Intelligence Officer Directorate of Revenue Intelligence 2018 ::: Downloaded on - 17/04/2026 20:43:14 :::CIS 8
12. (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 utilized to lend assurance to the other evidence. The Hon'ble Supreme Court subsequently held in Tofan Singh Versus State of Tamil Nadu 2021 (4) SCC 1 that a confession made to a police officer during the investigation is hit of 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 rt can be derived by the prosecution from the confessional statement made by the co-accused implicating the petitioner.
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 co-accused Dabe Ram, this Court had ::: Downloaded on - 17/04/2026 20:43:14 :::CIS 9 considered the existence of a prima facie case against the petitioner and had rejected the bail application as not satisfying the conditions of Section 37 of the NDPS Act.
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[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.
[18] Except for the existence of CDRs and the disclosure statement of 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 rt 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. Though the case at hand, is to be decided by learned court below in the totality of evidence led on record by Investigating Agency, but having taken note of the aforesaid glaring aspects of the matter, this court sees no reason to let the present bail petitioner incarcerate in jail for an indefinite period during trial, especially when guilt of the present bail petitioner is yet to be established.
::: Downloaded on - 17/04/2026 20:43:14 :::CIS 1017. Hon'ble Apex Court and this Court in a catena of cases have repeatedly held that one is deemed to be innocent, till .
the time, he/she is proved guilty in accordance with law. In the case at hand, complicity, if any, of the bail petitioner is yet to be established on record by the investigating agency, as such, this Court sees no reason to let the bail petitioner incarcerate in jail for of an indefinite period during trial, especially when nothing remains to be recovered from him. Apprehension expressed by learned rt 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.
18. 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.
19. In Manoranjana Sinh alias Gupta versus CBI, (2017) 5 SCC 218, Hon'ble Apex Court has held that the object of ::: Downloaded on - 17/04/2026 20:43:14 :::CIS 11 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, of severity of the punishment, which conviction will entail, character of the accused, circumstances which are peculiar to the accused rt involved in that crime.
20. The Apex Court in Prasanta Kumar Sarkar versus Ashis Chatterjee and another (2010) 14 SCC 496, has laid down various principles to be kept in mind, while deciding petition for bail viz. prima facie case, nature and gravity of accusation, punishment involved, apprehension of repetition of offence and witnesses being influenced.
21. In view of the aforesaid discussion as well as law laid down by the Hon'ble Apex Court, petitioner has carved out a case for grant of bail, accordingly, the petition is allowed and order dated 07.04.2026 passed by this Court is made absolute, subject to 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;::: Downloaded on - 17/04/2026 20:43:14 :::CIS 12
(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
(d) He shall not leave the territory of India without the prior permission of the Court.
(e) He shall surrender his passport, if any, before the investigating agency.
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22. It is clarified that if the petitioner misuses the liberty or violates any of the conditions imposed upon him, the investigating rt agency shall be free to move this Court for cancellation of the bail.
23. Any observations made hereinabove shall not be construed to be a reflection on the merits of the case and shall remain confined to the disposal of this application alone. The petition stands accordingly disposed of.
(Sandeep Sharma) Judge April 17,2026 (shankar) ::: Downloaded on - 17/04/2026 20:43:14 :::CIS