Himachal Pradesh High Court
Kaka Singh vs State Of Himachal Pradesh on 5 March, 2024
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
Cr. MP (M) No. 246 of 2024
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Date of Decision: 05.03.2024
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Kaka Singh ...Petitioner
Versus
State of Himachal Pradesh ...Respondent
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Coram:
The Hon'ble Mr. Justice Sandeep Sharma, Judge.
Whether approved for reporting?1
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For the Petitioner Mr. Ishaan Kashyap, Advocate.
For the Respondent Mr. Rajan Kahol, Mr. Vishal Panwar
r and Mr. B.C.Verma, Additional
Advocate Generals with Mr. Menka
Raj Chauhan, Deputy Advocate
General.
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Sandeep Sharma, J. (Oral)
Bail petitioner, namely Kaka Singh, who is behind the bars since 24.08.2022, has approached this Court in the instant proceedings filed under Section 439 Cr.P.C, for grant of regular bail in case FIR No. 223 of 2020, dated 15.12.2020 under Ss. 15, 25 & 29 of the Narcotic Drugs and Psychotropic Substances Act (for short 'Act), registered at Police Station Aut, District Mandi, Himachal Pradesh.
2. Respondent-State has filed status report and ASI Keshav Ram has come present with the record.
1Whether reporters of the local papers may be allowed to see the judgment?
::: Downloaded on - 06/03/2024 20:31:21 :::CIS 23. Close scrutiny of the record as well as status report reveals that on 15.12.2020, police party present at Nakka laid at .
Kothi Nala, tried to stop Innova car bearing registration No.DL-4- CAE-3047 being driven by co-accused Kuldeep Singh for checking, but since he fled away from the spot, police followed the car and apprehended the above named accused at the place called four mile near dumping site. Allegedly, police after having associated independent witnesses, recovered one bag containing 63 Kg. of poppy husk from the vehicle, as detailed hereinabove.
Since no plausible explanation came to be rendered on record qua possession of aforesaid quantity of contraband, police after having completed necessary codal formalities, registered the FIR, as detailed hereinabove, and arrested co-accused Kuldeep Singh.
Allegedly, co-accused Kuldeep Singh disclosed to the police that present bail petitioner Kaka Singh was also with him, but he had alighted from the vehicle few meters behind nakka. In the aforesaid background, bail petitioner herein also came to be named in the FIR. Since 24.08.2022 bail petitioner is behind the bars for considerable time, he has approached this court in the instant proceedings for grant of bail on the ground of delay in conclusion of trial.
4. While fairly acknowledging factum with regard to filing of Challan in the competent court of law, Mr. Vishal Panwar, ::: Downloaded on - 06/03/2024 20:31:21 :::CIS 3 learned Additional Advocate General, contends that though nothing remains to be recovered from the bail petitioner, but .
keeping in view gravity of the offence alleged to have been committed by him, he does not deserve any leniency. Learned Additional Advocate General further contends that though bail petitioner was not apprehended on the spot, but co-accused Kuldeep Singh specifically disclosed to the police that he alongwith present bail petitioner had purchased 63 Kg. of poppy husk from the person, namely Fateh Singh and as such, it cannot be said that bail petitioner has been falsely implicated. Learned Additional Advocate General further states that as per record, four cases already stand registered against the petitioner under NDPS Act in the State of Punjab and as such, it can be safely inferred that bail petitioner is a drug peddler and in the event of his being enlarged on bail, he may not only flee from justice, but may again indulge in such activities. However, learned Additional Advocate General fairly states that co-accused Kuldeep Singh, from whose conscious possession contraband was recovered, stands enlarged on bail vide order dated 26.05.2023 passed by this court in Cr.MP(M) No.482 of 2023.
5. Having heard learned counsel for the parties and perused material available on record, this court finds that on the date of alleged incident police had recovered 63 Kg. of poppy husk from ::: Downloaded on - 06/03/2024 20:31:21 :::CIS 4 the car being driven by the co-accused, but it is also not in dispute that at the time of recovery, bail petitioner herein was not present, .
rather he came to be named in the FIR merely on the basis of the statement made by co-accused Kuldeep Singh. As per own case of the prosecution, co-accused Kuldeep Singh disclosed to the police that bail petitioner herein had also gone to Banjar for buying poppy husk, but such fact, if any, is yet to be proved in accordance with law.
6. Hon'ble Apex Court in case Tofan Singh v. State of Tamil Nadu (2021) 4 SCC 1, has categorically held that disclosure statement, if any, made under Section 67 of the NDPS Act, is inadmissible and same cannot be used as confessional statement in the trial of an offence under Section 67 of the Act. Relevant para of the aforesaid judgment reads as under:
"155.Thus, to arrive at the conclusion that a confessional statement made before an officer designated under section 42 or section 53 can be the basis to convict a person under the NDPS Act, without any non obstante clause doing away with section 25 of the Evidence Act, and without any safeguards, would be a direct infringement of the constitutional guarantees contained in Articles 14, 20(3) and 21 of the Constitution of India.
156.The judgment in Kanhaiyalal (supra) then goes on to follow Raj Kumar Karwal (supra) in paragraphs 44 and 45. For the reasons stated by us hereinabove, both these judgments do not state the law correctly, and are thus overruled by us. Other judgments that expressly refer to and rely upon these judgments, or upon the principles laid down by these judgments, also stand overruled for the reasons given by us.::: Downloaded on - 06/03/2024 20:31:21 :::CIS 5
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 statement in the trial of an offence r under the NDPS Act."
7. 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 Act, will remain inadmissible in the trial of an offence under the Act.
Hon'ble Apex Court in this case upheld the order/judgment passed by the High Court of Karnataka granting bail to the accused arrested by the petitioner NCB on the basis of confessional/ voluntary statement of the co-accused under Section 67 of the NDPS Act. Apart from above, Hon'ble Apex Court in the aforesaid judgment has held that CDR 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.
::: Downloaded on - 06/03/2024 20:31:21 :::CIS 68. Apart from above, this Court finds that the bail petitioner is behind bars for almost 1 ½ years and till date, .
prosecution has been able to examine only three witnesses. Ten witnesses are yet to be examined, meaning thereby considerable time is likely to be consumed in the conclusion of the trial.
9. Leaving everything aside, co-accused Kuldeep Singh, from whose conscious possession huge quantity of contraband was recovered, already stands enlarged on bail on account of delay in trial vide judgment dated 26.05.2023 passed by this Court in Cr.MP(M) No.482 of 2023.
10. Hon'ble Apex Court having taken note of inordinate delay in conclusion of trial in similar facts ordered for enlargement of accused on bail in Nitish Adhikary @ Bapan v. The State of West Bengal, Special Leave to Appeal (Crl.) No. 5769 of 2022 decided on 1.8.2022 and in Abdul Majeed Lone v. Union Territory of Jammu and Kashmir, Special Leave to Appeal (Crl) No. 3961 of 2022, decided on 1.8.2022, who were also framed under Narcotic Drugs and Psychotropic Substances Act and were behind the bars for approximately two years and there was no likelihood of conclusion of trial in near future, subject to certain conditions.
11. Placing reliance upon aforesaid judgments, a Co-
ordinate Bench of this court in Cr.MP(M) No. 1328 of 2022 titled Roop Singh v. State of Himachal Pradesh, decided on 6.9.2022, ::: Downloaded on - 06/03/2024 20:31:21 :::CIS 7 also ordered for enlargement of an accused, who was allegedly apprehended carrying commercial quantity of Tramadol, on the .
ground of delay in conclusion of trial.
12. Apart from above judgment, Co-ordinate Bench of this court while granting bail vide order dated 22.3.2021 in CrMP(M) No. 35 of 2021 titled Ajay Singh v. State of Himachal Pradesh, also placed reliance upon a judgment delivered by a three-Judge Bench in Cr. Appeal No. 668 of 2020 titled Amrit Singh Moni v. State of Himachal Pradesh, decided on 12.10.2020, wherein petitioner was allegedly found in possession of 3285 grams of charas from a vehicle, wherein four other persons were sitting.
13. Hon'ble Apex Court having taken note of inordinate delay in conclusion of trial in similar facts ordered for enlargement of accused on bail in Nitish Adhikary @ Bapan v. The State of West Bengal, Special Leave to Appeal (Crl.) No. 5769 of 2022 decided on 1.8.2022 and in Abdul Majeed Lone v. Union Territory of Jammu and Kashmir, Special Leave to Appeal (Crl) No. 3961 of 2022, decided on 1.8.2022, who were also framed under Narcotic Drugs and Psychotropic Substances Act and were behind the bars for approximately two years and there was no likelihood of conclusion of trial in near future, subject to certain conditions.
::: Downloaded on - 06/03/2024 20:31:21 :::CIS 814. Learned Counsel appearing for the petitioner, to substantiate his plea for enlarging the petitioner on bail, has .
referred to order dated 12.10.2020 passed by a three judges Bench of the Supreme Court, in Criminal Appeal No. 668 of 2020, titled Amrit Singh Moni v. State of Himachal Pradesh, whereby petitioner therein, facing trial for recovery of 3.285 kilograms charas from a vehicle, alongwith four other persons, was enlarged on bail, for having been in detention for 2 years and 7 months, as till then out of 14 witnesses, 7 witnesses were yet to be examined and last witness was examined in February, 2020 and, thereafter, there was no further progress in the trial.
15. Learned Additional Advocate General, referring to judgment of a three Judges Bench of Supreme Court, passed on 19.7.2022 in Narcotics Control Bureau v. Mohit Aggarwal contends that period of detention cannot be a ground for enlarging the petitioner on bail.
16. The learned Counsel appearing for the petitioner submits that in Mohit Aggarwal, huge commercial quantity of 20 kilograms of Tramadol, against minimum commercial quantity of 250 grams, was recovered, whereas, in the present case, the recovered quantity is little more than the commercial quantity.
17. In similar circumstances, in Cr.MP(M) No. 1255 of 2022, titled Puran Chand v. State of Himachal Pradesh, decided on ::: Downloaded on - 06/03/2024 20:31:21 :::CIS 9 28.7.2022, another Co-ordinate Bench of this Court, having taken note of inordinate delay in conclusion of trial, ordered enlargement .
on bail of the person, who was apprehended with 1.996 kg of charas.
18. In the instant case, bail petitioner is behind bars for more than 1 ½ years and till date trial has not been completed and there are very bleak chances of conclusion of the same in near future, as such, there appears to be no justification to keep the bail petitioner behind the bars for an indefinite period.
19. At this stage, learned Additional Advocate General specifically invited attention of this Court to judgment dated 07.02.2024 passed by Hon'ble Apex Court in Gurwinder Singh vs. State of Punjab and another, to contend that in case of heinous crime delay in conclusion of trial may not be a ground to enlarge accused, especially when he/she is accused of repeatedly committing such offence. Having perused the aforesaid judgment passed by Hon'ble Apex Court, , this Court finds that facts of the case, as pressed into service by learned Additional Advocate General, are totally different from the case at hand. Hon'ble Apex Court in a case under Sections 124-A, 153-A, 153-B and 120-B of IPC and Sections 17, 18, 19of the Unlawful Activities (Prevention )Act 1967 (UAP Act) and Section 25 and 54 of the Arms Act 1959 refused to grant bail. In the aforesaid case, there was material on ::: Downloaded on - 06/03/2024 20:31:21 :::CIS 10 record suggestive of the fact that accused had been indulging in terrorist activities. Otherwise also, if the aforesaid judgment is read .
in its totality, it nowhere suggests that prayer made for grant of bail on the ground of delay in conclusion of trial cannot be accepted, rather Hon'ble Apex Court has said that prayer for grant of bail on the ground of inordinate delay in conclusion of trial may not be considered on the ground of delay in the cases of heinous crime.
No doubt in the case at hand, in past four cases already stand registered against the bail petitioner, but guilt, if any, of petitioner in these cases is yet to be established, coupled with the fact that in the case at hand there is no direct evidence available at this stage to connect him with the recovery. Moreover, the co-accused, from whose conscious possession contraband was recovered, already stands enlarged on bail and such, prayer made in the instant application deserves to be considered.
20. 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.
Apprehension expressed by learned Additional Advocate General, that in the event of being enlarged on bail, bail petitioner may flee from justice or indulge in such offences again, can be best met by putting the bail petitioner to stringent conditions.
::: Downloaded on - 06/03/2024 20:31:21 :::CIS 1121. 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.
22. 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.
23. In Manoranjana Sinh alias Gupta versus CBI, (2017) 5 SCC 218, Hon'ble Apex Court has held that the object of the bail is to secure the attendance of the accused in the trial and the proper test to be applied in the solution of the question whether bail should be granted or refused is whether it is probable that the party will appear to take his trial. Otherwise also, normal rule is of bail and not jail. Apart from above, Court has to keep in mind nature of ::: Downloaded on - 06/03/2024 20:31:21 :::CIS 12 accusations, nature of evidence in support thereof, severity of the punishment, which conviction will entail, character of the accused, .
circumstances which are peculiar to the accused involved in that crime.
24. 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.
25. In view of above, bail petitioner has carved out a case for himself, as such, present petition is allowed. Bail petitioner is ordered to be enlarged on bail, subject to his furnishing bail bonds in the sum of Rs.1.00 Lakh with one local surety in the like amount to the satisfaction of the learned trial Court, besides the following conditions:
(a) He shall make himself available for the purpose of interrogation, if so required and regularly attend the trial Court on each and every date of hearing and if prevented by any reason to do so, seek exemption from appearance by filing appropriate application;
(b) He shall not tamper with the prosecution evidence nor hamper the investigation of the case in any manner whatsoever;
(c) He shall not make any inducement, threat or promises to any person acquainted with the facts of the case so as to ::: Downloaded on - 06/03/2024 20:31:21 :::CIS 13 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.
26. 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 this Court for cancellation of the bail.
27. 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 petition alone. The petition stands accordingly disposed of.
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 order presented to it, same may be ascertained from the official website of this Court.
(Sandeep Sharma) Judge March 05, 2024 (shankar) ::: Downloaded on - 06/03/2024 20:31:21 :::CIS