Himachal Pradesh High Court
Puran Lal vs State Of H.P on 16 May, 2023
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.MP(M) No.985 of 2023 Date of Decision: 16.05.2023 .
_______________________________________________________ Puran Lal .......Petitioner Versus State of H.P. ... Respondent _______________________________________________________ Coram:
Hon'ble Mr. Justice Sandeep Sharma, Judge. Whether approved for reporting? 1 For the Petitioner: Mr. Ajay Kochhar, Senior Advocate with Mr. Bhairav Gupta and Mr. Anubhav Chopra, Advocates.
For the Respondent: Mr. Rajan Kahol, Mr. Vishal Panwar and Mr. B.C.Verma, Additional Advocate Generals with Mr. Rahul Thakur, and Mr. Ravi Chauhan, Deputy Advocate Generals _______________________________________________________ Sandeep Sharma, Judge(oral):
Bail petitioner, namely Puran Lal, who is behind the bars for approximately one year, has approached this Court in the instant proceedings filed under Section 439 of the Code of Criminal Procedure, praying therein to grant regular bail in case FIR No.37 of 2022, dated 14.06.2022, registered at police Station, Nirmand, District Kullu, H.P., under Sections 20-29 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (for short 'Act').
2. Pursuant to order dated 24.4.2023, respondent-State has filed status report and ASI Devinder Nath has come present with record. Record perused and returned.
1Whether the reporters of the local papers may be allowed to see the judgment?
::: Downloaded on - 16/05/2023 20:42:20 :::CIS 23. Close scrutiny of the status report/record made available to this Court reveals that on 14.06.2022, police after having received information that co-accused namely, Balak Ram indulge in illegal .
trade of narcotics and is likely to deliver contraband to someone near Government Primary School, Badilanj, constituted team and thereafter apprehended aforesaid person at 5.30 PM while he was coming down from his orchard. Police allegedly recovered 1.542 Kg of charas from the bag allegedly carried by co-accused Balak Ram in the presence of independent witnesses. Since no plausible explanation came to be rendered on record qua possession of aforesaid quantity of contraband, police lodged FIR, as detailed hereinabove. Since during investigation, above named accused disclosed that he had purchased aforesaid quantity of contraband from present bail petitioner, coupled with the fact that he was in constant touch with the bail petitioner while recovery was affected, police also arrested the present bail petitioner on 19.6.2022. Since investigation in the case is complete and nothing remains to be recovered from the bail petitioner, petitioner has approached this Court in the instant proceedings for grant of regular bail.
4. Mr. Ajay Kochhar, learned Senior counsel representing the bail petitioner, submits that bail petitioner has been falsely implicated because at no point of time recovery, if any, ever came to ::: Downloaded on - 16/05/2023 20:42:20 :::CIS 3 be effected from him. Learned counsel representing the petitioner states that commercial quantity of contraband was recovered from the conscious possession of co-accused Balak Ram, who is already .
behind the bars and merely on his statement that he had purchased contraband from the petitioner, petitioner could not be arrested. While referring to the judgment passed by Hon'ble Apex Court in case Tofan Singh v. State of Tamil Nadu (2021) 4 SCC 1, learned counsel for the petitioner states that statement, if any, of co-accused is inadmissible and as such, could not be made basis for arrest of the petitioner, who has been otherwise implicated falsely.
5. Mr. Rajan Kahol, learned Additional Advocate General, while fairly admitting factum with regard to filing of Challan in the competent court of law, states that though nothing remains to be recovered from bail petitioner, but keeping in view the gravity of offence alleged to have been committed by him, he does not deserve leniency. He further submits that there is overwhelming evidence adduced on record suggestive of the fact that contraband recovered from the conscious possession of co-accused Balak Ram, was actually prepared and sold by present bail petitioner and as such, it cannot be said that he has been falsely implicated. While making this Court peruse report/Drayafat of bail petitioner, learned Additional Advocate General states that he himself admitted that he prepared ::: Downloaded on - 16/05/2023 20:42:20 :::CIS 4 the contraband of his own. He further submits that CDR report collected on record clearly reveals that both bail petitioner and co-
accused Balak Ram in constant touch while recovery was affected.
.
He submits that since petitioner indulged in serious crime having adverse impact on the society, 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, rather may again indulge in such activities.
6. Having heard learned counsel for the parties and perused material available on record, this court finds that commercial quantity of contraband never came to be recovered from the conscious possession of the present bail petitioner, rather same was recovered from the conscious possession of co-accused Balak Ram. Case against the petitioner has been registered primarily on the basis of the statement made by co-accused that he had purchased contraband from present bail petitioner, but Hon'ble Apex Court in Tofan Singh's case(supra) 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 ::: Downloaded on - 16/05/2023 20:42:20 :::CIS 5 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 statement in the trial of an offence 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 ::: Downloaded on - 16/05/2023 20:42:20 :::CIS 6 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.
8. True, it is that keeping in view the commercial quantity of contraband recovered in the case at hand, rigours of S.37 of the Act are attracted but that does not mean that this court is estopped from enlarging the bail petitioner on bail in the case at hand. Bare perusal of S.37 of the Act clearly reveals that there is no complete bar for the court to grant bail in the cases involving commercial quantity, but court while doing so, at the first instance is required to provide adequate opportunity of being heard to the public prosecutor and thereafter, if it has reason to presume and believe that the person, seeking bail, has been falsely implicated and there is no likelihood of his indulging in such activities again, it can proceed to grant bail in cases involving commercial quantity of contraband. Though, aforesaid aspect of the matter is required to be considered and decided by learned trial court, in the totality of evidence collected on record by investigating agency, but keeping in view the aforesaid aspects of the ::: Downloaded on - 16/05/2023 20:42:20 :::CIS 7 matter, this court sees no reason to let the bail petitioner incarcerate in jail for an indefinite period during trial, especially when nothing remains to be recovered from the bail petitioner. Apprehension .
expressed by learned Additional Advocate General that in the event of bail petitioner being enlarged on bail, he may flee from justice, can be best met by putting him to stringent conditions.
9. 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.
10. Needless to say, object of the bail is to secure the attendance of the accused in the trial and the proper test to be applied in the solution of the question whether bail should be granted or refused is whether it is probable that the party will appear to take his trial. Otherwise, bail is not to be withheld as a punishment.
Otherwise also, normal rule is of bail and not jail. Court has to keep in mind nature of accusations, nature of evidence in support thereof, severity of the punishment which conviction will entail, character of the accused, circumstances which are peculiar to the accused involved in that crime.
11. 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 ::: Downloaded on - 16/05/2023 20:42:20 :::CIS 8 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.
.
12. 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.
13. In Manoranjana Sinh alias Gupta versus CBI, (2017) 5 SCC 218, Hon'ble Apex Court has held that the object of the bail is to secure the attendance of the accused in the trial and the proper test to be applied in the solution of the question whether bail should be granted or refused is whether it is probable that the party will appear to take his trial. Otherwise also, normal rule is of bail and not jail.
Apart from above, Court has to keep in mind nature of accusations, nature of evidence in support thereof, severity of the punishment, which conviction will entail, character of the accused, circumstances which are peculiar to the accused involved in that crime.
::: Downloaded on - 16/05/2023 20:42:20 :::CIS 914. 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.
15. 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 the petitioner is ordered to be enlarged on bail in aforesaid FIR, subject to furnishing bail bonds in the sum of Rs.5,00,000/- with two local sureties in the like amount, to the satisfaction of the learned trial Court, besides the following conditions:
(a) He shall make himself available for the purpose of interrogation, if so required and regularly attend the trial Court on each and every date of hearing and if prevented by any reason to do so, seek exemption from appearance by filing appropriate application;
(b) He shall not tamper with the prosecution evidence nor hamper the investigation of the case in any manner whatsoever;
(c) He shall not make any inducement, threat or promises to any person acquainted with the facts of the case so as to dissuade him/her from disclosing such facts to the Court or the Police Officer; and
(d) He shall not leave the territory of India without the prior permission of the Court.::: Downloaded on - 16/05/2023 20:42:20 :::CIS 10
16. 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.
.
17. 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.
18. Learned counsel for the petitioner is permitted to produce copy of order downloaded from the High Court website before the concerned authority, who shall not insist for certified copy of the order, however, it may verify the order from the High Court website or otherwise.
(Sandeep Sharma), Judge May 16,2023 (shankar) ::: Downloaded on - 16/05/2023 20:42:20 :::CIS