Himachal Pradesh High Court
Suraj vs State Of Himachal Pradesh on 24 November, 2023
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.MPM No. 2374 of 2023 Reserved on: 07.11.2023 Date of Decision: 24th November 2023.
Suraj ....Petitioner Versus State of Himachal Pradesh ....Respondent Coram Hon'ble Mr Justice Rakesh Kainthla, Judge. Whether approved for reporting? Yes For the Petitioner : Mr. M.A. Safee, Advocate. For the Respondent : Ms. Avni Kochhar, Advocate, with I.O. Shamim Akhtar, P.S. Parwanoo, District Solan, H.P. Rakesh Kainthla,Judge The petitioner has filed the present petition for seeking regular bail. It has been asserted that the police of Police Station Parwanoo, District Solan, H.P. registered an F.I.R. No. 89/2023, dated 01.08.2023, against the petitioner for the commission of offences punishable under Sections 21,22, and 29 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (in short 'NDPS Act'). The petitioner has been in custody since 03.08.2023. He is innocent and was not involved in the commission of the offences Whether reporters of the local papers may be allowed to see the judgment? Yes 2 alleged against him. No incriminating substance was recovered from the petitioner. He is respectable person in the society. He is ready and willing to join the investigation and abide by all the terms and conditions, which may be imposed by the Court upon him. An F.I.R. for the commission of offences punishable Under Sections 21, 22 and 29 of the NDPS Act was registered against him at Police Station Chandi Mandir, Panchkulla, which is pending for trial. The petitioner filed a bail petition before the learned Sessions Judge, Solan, H.P, which was dismissed on 13.09.2023. Therefore, it was prayed that the present petition be allowed and the petitioner be released on bail.
2. The State has filed a status report asserting that the police party was patrolling on 01.08.2023. The police checked the vehicle bearing registration no.HP64A-9942 and recovered 21 grams of heroin and 0.46 grams of Methamphetamine (ICE). Sunil Kumar was driving the vehicle. He was arrested and contraband was seized. On enquiry, he (Sunil Kumar) revealed that he had purchased 20 grams of Heroin from the present petitioner for ₹ 37,000/-. The petitioner had supplied ½ gram of Methamphetamine (ICE) to Sunil Kumar as a reward. The call detail record was obtained. Sunil Kumar and the petitioner were 3 found to be in contact with each other. The police arrested the petitioner. The result from SFSL, Junga has been received and the recovered substance has been confirmed to be Diacetylmorphine (Heroin) and Methamphetamine (ICE). The Challan has been prepared and presented before the learned Session Judge, on 30.09.2023. The petitioner would intimidate the witnesses and indulge in the commission of a similar offence in case he is enlarged on bail. Therefore, it was prayed that the present bail petition be dismissed.
3. I have heard Mr. M.A. Safee, learned counsel for the petitioner and Ms.Avni Kochhar, learned Deputy Advocate General for the respondent State.
4. Mr. M.A. Safee, learned counsel for the petitioner submitted that the petitioner is innocent and he was falsely implicated in the case. The evidence collected by the police against the petitioner is the statement made by the co-accused and call detail record, which is legally not admissible, therefore; he prayed that the bail petition be allowed and the petitioner be enlarged on bail.
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5. Ms Avni Kochhar, learned Deputy Advocate General, submitted that the petitioner is involved in a heinous crime and he was selling narcotic substances, which is affecting the young generation. Therefore, she prayed that the bail petition of the petitioner be dismissed.
6. I have given considerable thought to the rival submissions at the bar and have gone through the record carefully.
7. The Hon'ble Supreme Court discussed the parameters for granting the bail in Bhagwan Singh v. Dilip Kumar, 2023 SCC OnLine SC 1059 as under:-
12. The grant of bail is a discretionary relief which necessarily means that such discretion would have to be exercised in a judicious manner and not as a matter of course. The grant of bail is dependent upon contextual facts of the matter being dealt with by the Court and may vary from case to case. There cannot be any exhaustive parameters set out for considering the application for a grant of bail. However, it can be noted that;
(a) While granting bail the court has to keep in mind factors such as the nature of accusations, severity of the punishment, if the accusations entail a conviction and the nature of evidence in support of the accusations;
(b) reasonable apprehensions of the witnesses being tampered with or the apprehension of there 5 being a threat for the complainant should also weigh with the Court in the matter of grant of bail.
(c) While it is not accepted to have the entire evidence establishing the guilt of the accused beyond reasonable doubt but there ought to be always a prima facie satisfaction of the Court in support of the charge.
(d) Frivility of prosecution should always be considered and it is only the element of genuineness that shall have to be considered in the matter of grant of bail and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused is entitled to have an order of bail.
13. We may also profitably refer to a decision of this Court in Kalyan Chandra Sarkar v. Rajesh Ranjan @ Pappu Yadav (2004) 7 SCC 528 where the parameters to be taken into consideration for the grant of bail by the Courts have been explained in the following words:
"11. The law in regard to grant or refusal of bail is very well settled. The court granting bail should exercise its discretion in a judicious manner and not as a matter of course. Though at the stage of granting bail a detailed examination of evidence and elaborate documentation of the merit of the case need not be undertaken, there is a need to indicate in such orders reasons for prima facie concluding why bail was being granted particularly where the accused is charged of having committed a serious offence. Any order devoid of such reasons would suffer from non-application of mind. It is also necessary for the court granting bail to consider among other circumstances, the following factors also before granting bail; they are:
(a) The nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence.6
(b) Reasonable apprehension of tampering with the witness or apprehension of threat to the complainant.
(c) Prima facie satisfaction of the court in support of the charge. (See Ram Govind Upadhyay v. Sudarshan Singh [(2002) 3 SCC 598:
2002 SCC (Cri) 688] and Puran v. Rambilas [(2001) 6 SCC 338: 2001 SCC (Cri) 1124].)"
8. A similar view was taken in State of Haryana vs Dharamraj2023 SCC Online 1085, wherein it was observed:
7. A foray, albeit brief, into relevant precedents is warranted. This Court considered the factors to guide the grant of bail in Ram Govind Upadhyay v. Sudarshan Singh, (2002) 3 SCC 598 and Kalyan Chandra Sarkar v. Rajesh Ranjan, (2004) 7 SCC 528. In Prasanta Kumar Sarkar v. Ashis Chatterjee, (2010) 14 SCC 496, the relevant principles were restated thus:
'9. ... It is trite that this Court does not, normally, interfere with an order passed by the High Court granting or rejecting bail to the accused. However, it is equally incumbent upon the High Court to exercise its discretion judiciously, cautiously and strictly in compliance with the basic principles laid down in a plethora of decisions of this Court on the point. It is well settled that, among other circumstances, the factors to be borne in mind while considering an application for bail are:
(i) whether there is any prima facie or reasonable ground to believe that the accused had committed the offence;
(ii) nature and gravity of the accusation;
(iii) severity of the punishment in the event of conviction;7
(iv) danger of the accused absconding or fleeing, if released on bail;
(v) character, behaviour, means, position and standing of the accused;
(vi) likelihood of the offence being repeated;
(vii) reasonable apprehension of the witnesses being influenced; and
(viii) danger, of course, of justice being thwarted by grant of bail.'
9. The police have relied upon the statement made by Sunil Kumar to implicate the petitioner. It was laid down by the Hon'ble Supreme Court in Dipakbhai Jagdishchandra Patel v. State of Gujarat, (2019) 16 SCC 547 : (2020) 2 SCC (Cri) 361: 2019 SCC OnLine SC 588 that a statement made by co-accused during the investigation is hit by Section 162 of Cr.P.C. and cannot be used as a piece of evidence. Further, the confession made to the co-
accused will be inadmissible because of Section 25 of the Indian Evidence Act. It was observed at page 568:-
44. Such a person viz. 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 police officer.
A confession, which 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 8 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."
10. Similarly, it was held in Surinder Kumar Khanna Versus 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 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 the police officer during the investigation is hit by Section 25 of the Indian Evidence Act and will not be saved by the provisions of Section 67 of the NDPS Act. Therefore, prima facie no advantage can be derived by the prosecution from the confessional statement made by the co-accused implicating the applicant. This is not a legally admissible piece of evidence and cannot be used against the applicant.
11. 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 9 that a confession of the co-accused and the phone calls are not sufficient to deny bail to a person.
12. It was laid down by this Court in Saina Devi vs. State of Himachal Pradesh 2022 LawSuit(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.
[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 10 in Tofan Singh Vs State of Tamil Nadu, 2021 4 SCC 1. Further, on the basis of aforesaid elucidation,the petitioner is also entitled to the benefit of bail.
13. A similar view was taken by this Court in Dabe Ram vs. State of H.P., passed in Cr.MP(M) No. 1894 of 2023, decided on 01.09.2023, Parvesh Saini vs State of H.P.,passed in Cr.MP(M) No. 2355 of 2023,decided on 06.10.2023 and Relu Ram vs. State of H.P. passed in Cr.MP(M) No. 1061 of 2023, decided on 15.05.2023.
14. Therefore, the petitioner cannot be detained in custody based ona statement made by the co-accused and the call detail.
15. There is no other evidence against the petitioner and it cannot be said that a prima facie case is made out against the petitioner for the commission of an offence punishable under Section 21 read with Section 29 of the NDPS Act. Hence, the present petition is allowed. The bail petitioner is ordered to be enlarged on bail, subject to his furnishing bail bonds in the sum of ₹ 50,000/- with one surety in the like amount, to the satisfaction of the learned Trial Court. While on bail the petitioner will abide by the following conditions:
(i) The petitioner will attend the trial on each and every date of hearing and if he is unable to do so, 11 he will seek an exemption from the court by filing an appropriate application,
(ii) The petitioner will not intimidate the witnesses nor will he influence any evidence in any manner whatsoever,
(iii) The petitioner shall not seek unnecessary adjournments and do any other act to hamper the progress of the trial.
(iv) The petitioner will not leave the present address for a continuous period of seven days without furnishing the address of the intended visit to the SHO Police Station Parwanoo and the Court.
(v) The petitioner will furnish his mobile number, and social media contact to the Police and the Court and will abide by the summons/notices received from the Police/Court through SMS/WhatsApp/Social Media Account. In case of any change in 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.
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.
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17. The observations made hereinabove are regarding the disposal of this petition and will have no bearing, whatsoever, on the merits of the case.The petition stands accordingly disposed of. A copy of this order be sent to the Superintendent, Sub Jail, Solan and the learned Trial Court by FASTER.
A downloaded copy of this order shall be accepted by the learned trial Court while accepting the bail bonds from the petitioner and in case, said Court intends to ascertain the veracity of the downloaded copy of the order presented to it, the same may be ascertained from the official website of this Court.
(Rakesh Kainthla)
Judge
24th November,2023
(Ravinder)
Digitally signed by KARAN SINGH
GULERIA
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KARAN HIMACHAL PRADESH, OU=HIGH
COURT OF HIMACHAL PRADESH
SHIMLA, Phone=
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Date: 2023.11.24 13:04:20+05'30' Foxit PDF Reader Version: 2023.3.0