Himachal Pradesh High Court
Dev Pal & Bittu vs Of on 13 October, 2023
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
Cr. MP (M) No.2463 of 2023 a/w
Cr.MP(M) No.2469 of 2023
.
Date of Decision: 13.10.2023
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1. Cr.MP(M) No.2463 of 2023
Dev Pal & Bittu ...Petitioner
Versus
of
State of Himachal Pradesh ...Respondent
2. Cr.MP(M) No.2469 of 2023
Lot Ram alias Sanju
rt ...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(s). Mr. Rakesh Chaudhary, Advocate, for
the petitioner in Cr.MP(M) No.2463 of
2023.
Mr. Kamal Kant Chandel, Ms. Hem
Lata Thakur and Ms. Kiran Dhiman,
Advocate, for the petitioner in
Cr.MP(M) No.2469 of 2023.
For the Respondent: Mr. Rajan Kahol, Mr. Vishal Panwar
and Mr. B.C.Verma, Additional
Advocate Generals with Mr. Ravi
Chauhan and Ms. Sunaina, Deputy
Advocate Generals.
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Sandeep Sharma, J. (Oral)
Bail petitioners, namely Devi Pal alias Bittu and Lot Ram @ Sanju, who are behind the bars since 15/17.01.2021 1 Whether reporters of the local papers may be allowed to see the judgment?
::: Downloaded on - 17/10/2023 20:42:49 :::CIS 2respectively, have approached this Court in the instant proceedings filed under Section 439 Cr.P.C, for grant of regular .
bail in case FIR No. 06 of 2021, dated 14.01.2021, under Sections 20 and 29 of the NDPS Act, registered at PS Banjar, District Kullu, H.P.
2. Pursuant to the notice issued in the instant of proceedings, respondent-State has filed the status report and HC Ajay Kumar, has come present with records. Records perused and returned.
3. rtClose scrutiny of the record/status report reveals that on 13.01.1021, police after having received secret information that huge consignment of contraband is likely to be transported near Gharatgad near Kalwari, constituted a raiding party. Allegedly, on the intervening night of 13th /14th January 2021, at 1.45 AM, three persons carrying gunny bags (Bohra) on their shoulder were seen coming from Sanaradh towards Dewari by the police. After having seen the police, persons carrying gunny bags got perplexed and tried to flee from the spot. One person namely, Choveshwar though was apprehended by the police, whereas bail petitioners namely, Devi Pal alias Bittu and Murali succeeded in fleeing from the spot. After having associated independent witnesses, police effected search of gunny bags and allegedly recovered 110.90 Kg of charas from three bags. Since, no plausible explanation, if any, ::: Downloaded on - 17/10/2023 20:42:49 :::CIS 3 ever came to be rendered on record qua possession of aforesaid huge quantity of contraband, police after completion of necessary .
codal formalities, arrested the person namely. Choveshwar, who allegedly during investigation disclosed to the police that charas was being carried by him alongwith two persons namely, Devi Pal alias Bittu and Murali. Choveshwar allegedly disclosed to the police of during the investigation that bail petitioner Lot Ram told him that in case he wants to get rid of NDPS cases registered against him, he may supply him charas and as such, he alongwith persons, namely rt Devi Pal and Pradeep @ Murali were going to Lot Ram to deliver the charas, but before that they were apprehended. In the aforesaid background, a case under Sections 20 and 29 of the Act came to be registered against the present bail petitioners as well as Pradeep alias Murali. At present all the accused, named hereinabove, are behind the bars. Since challan stands filed in the competent court of law and nothing remains to be recovered from the bail petitioners, they have approached this Court in the instant proceedings for grant of regular bail.
4. Mr. Rakesh Chaudhary and Mr. Kamal Kant Chandel, learned counsel representing the petitioners, vehemently argued that petitioners have been falsely implicated because at no point of time recovery, if any, ever came to be effected from their conscious possession, rather their names came to be incorporated in the FIR ::: Downloaded on - 17/10/2023 20:42:49 :::CIS 4 on the basis of statement made by co-accused under Section 67 of the Act. While referring to the judgment passed by Hon'ble Apex .
Court in Tofan Singh v. State of Tamil Nadu (2021) 4 SCC 1, learned counsel for the petitioners submitted that incarceration for indefinite period during trial of the bail petitioners is totally impermissible, especially when same has been effected on the of basis of disclosure statement made by co-accused.
5. Mr. Kamal Kant Chandel, learned counsel representing bail petitioner Lot Ram, vehemently argued that rt neither any recovery was ever effected from Lot Ram nor there is anything on record to suggest that Lot Ram had any connection with the person, from whose conscious possession commercial quantity of contraband came to be recovered. Similarly, Mr. Rakesh Chaudhary, learned counsel representing bail petitioner Dev Pal, stated that since petitioner was not apprehended on the spot, he cannot be linked with the recovery of contraband on the alleged date of incident. Lastly above named counsel submitted that in past, no cases stand registered against the bail petitioners and as such, it cannot be said that they are drug peddler, rather they have been falsely implicated and as such, deserve to be enlarged on bail.
6. While fairly acknowledging factum with regard to filing of the challan in the competent court of law, Mr. Rajan Kahol, ::: Downloaded on - 17/10/2023 20:42:49 :::CIS 5 learned Additional Advocate General, states that though nothing remain to be recovered from the bail petitioners, but keeping in the .
gravity of offence alleged to have been committed by them, they do not deserve any leniency. While making this Court to peruse the record, learned Additional Advocate General vehemently argued that there is overwhelming evidence adduced on record suggestive of of the fact that bail petitioners in connivance with co-accused Choveshwar and Pradeep alias Murali were making an attempt to smuggle huge quantity of contraband, but before that, one of the rt co-accused Choveshwar was apprehended. He further submitted that call details placed on record clearly reveal that the bail petitioners were in constant touch with co-accused Choveshwar, from whose conscious possession commercial quantity of contraband came to be recovered. Learned Additional Advocate General argued that though in the past also, no cases under NDPS Act stand registered against the petitioners, but keeping in view the recovery of commercial quantity of contraband from the conscious possession of one of the co-accused, coupled with his statement recorded under Section 161 Cr.P.C, it would be too premature at this stage to infer innocence of the bail petitioners, who otherwise as per evidence on record had prior knowledge of transportation/smuggling of commercial quantity of contraband. He submitted that in the event of bail petitioners being enlarged on ::: Downloaded on - 17/10/2023 20:42:49 :::CIS 6 bail, there is every possibility of their fleeing from trial as well as indulging in illegal activity again and as such, prayer made on their .
behalf for grant of regular bail deserve outright rejection
7. Having heard the learned counsel for the parties and perused material available on record, this Court finds that commercial quantity of contraband never came to be recovered of from the conscious possession of the bail petitioners, rather same was recovered from three gunny bags allegedly being carried out by co-accused Choveshwar.
rt
8. Though, precise case of the prosecution is that at the time of recovery, two persons namely Dev Pal @ Bittu and Pradeep @ Murali were also with Choveshwar, but they succeeded in fleeing from the spot. But interestingly none of the prosecution witnesses have stated something specific with regard to presence of aforesaid persons on the spot of occurrence apart from Choveshwar. Admittedly, petitioners herein came to be named in the FIR on the basis of the statement made by co-
accused Choveshwar, who allegedly disclosed to the police that he alongwith persons namely Dev Pal and Murali was transporting three bags of contraband to Lot Ram, but before that they were apprehended. Record reveals that police collected on record call detail report, perusal whereof clearly reveals that prior to alleged incident, bail petitioner Lot Ram had a telephonic conversation ::: Downloaded on - 17/10/2023 20:42:49 :::CIS 7 with co-accused Choveshwar, but that cannot be the sole ground to conclude complicity of the bail petitioners in the offence alleged .
to have been committed by them under Section 29 of the Act.
There is nothing on record suggestive of the fact that on account of illegal trade of narcotics, there was financial transaction, if any, interse bail petitioners and co-accused Choveshwar.
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9. Leaving everything aside, there is no dispute that bail petitioners have been booked under Section 29 of the Act on the basis of the statement made by co- accused, which is not rt admissible as has been held by Hon'ble Apex Court in Tofan Singh case (supra). In the aforesaid judgment, Hon'ble Apex Court has categorically held that disclosure statement, if any, made under Section 67 of the NDPS Act, is inadmissible and same cannot be used as a 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 ::: Downloaded on - 17/10/2023 20:42:49 :::CIS 8 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:
of
(i) That the officers who are invested with powers under section 53 of the NDPS Act are "police officers" within the meaning rt 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."
10. 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 ::: Downloaded on - 17/10/2023 20:42:49 :::CIS 9 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.
11. True, it is that keeping in view the commercial quantity of 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 petitioners on bail in the case at hand. Bare rt 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, case at hand shall 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 matter, this court sees no reason to let the bail petitioners incarcerate in jail for an indefinite period during trial, especially when nothing remain to be recovered from the bail ::: Downloaded on - 17/10/2023 20:42:49 :::CIS 10 petitioners. Apprehension expressed by learned Additional Advocate General that in the event of bail petitioners being .
enlarged on bail, they may flee from justice, can be best met by putting them to stringent conditions.
12. Admittedly, in the case at hand, petitioners are behind the bars for the last two years 10 months and till date prosecution of has been able to examine only 14 witnesses out of 34. Since 20 prosecution witnesses are yet to be examined, there is every likelihood of further delay in conclusion of the trial. Hon'ble Apex rt Court has repeatedly held that accused is entitled to speedy trial and such right is granted under constitution.
13. In the case at hand allegedly 110.90 Kg of charas was recovered, out of which three samples of 1 Kg. each were sent to SFSL for chemical analysis, meaning thereby remaining quantity of contraband i.e. 107.90 Kg. which was either kept in Malkhana or destroyed ought have been 107.90 Kg, but interestingly certificate of destruction dated 3.10.2023 Ex. P-4/PW-12 made available to this Court reveals that three parcels of cloth containing 39.22 Kg, 32.72 Kg, 38.96 Kg charas respectively were kept in Malkhana vide entry No.287 of 2021.However,subsequently when same were destroyed, quantity of parcel mark-1 was 26.110 kilogram, parcel mark-II was 22.210 kilograms and parcel mark-III was 25.800 kilograms, meaning thereby there is no record, if any, of 33.78 ::: Downloaded on - 17/10/2023 20:42:49 :::CIS 11 kilograms of charas. Though, learned Additional Advocate General attempted to argue that aforesaid quantity of contraband must .
have dried up, but even then same would remain in the bag and certainly cannot go missing. Perusal of order dated 15.01.2021 passed by learned Judicial Magistrate 1st Class, Banjar, District Kullu, Himachal Pradesh (Annexure P-2) under Section 52 of the of Act nowhere suggests that entire contraband was made homogeneous before drawing samples and as such, only 3 Kg. of charas otherwise can be said to be recovered from the conscious rt possession of co-accused Choveshwar, who is otherwise behind the bars.
14. Recently, a Division Bench of this Court in Cr. Appeal No. 427 of 2019, titled Jhallo Ram v. State, decided on 1.8.2022, has held as under:
"26. Thus, from the entirety of evidence available on record, we are convinced that the sample of 26 grams examined by SFSL, Junga was not representative of entire bulk of substance and hence, the appellant cannot be held to have been found in conscious possession of 5 k.g. 30 grams of charas. The appellant can only be held to be in possession of 26 grams or at the most 52 grams of charas by including the weight of other sample, which as per Act is small quantity."
15. Hon'ble Apex Court in case titled Umarmia Alias Mamumia v. State of Gujarat, (2017) 2 SCC 731, has held delay in criminal trial to be in violation of right guaranteed to an accused under Article 21 of the Constitution of India. Relevant para of the afore judgment reads as under:-
::: Downloaded on - 17/10/2023 20:42:49 :::CIS 12"11. This Court has consistently recognised the right of the accused for a speedy trial. Delay in criminal trial has been held to be in violation of the right guaranteed to an accused under Article 21 of the Constitution of India.
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(See: Supreme Court Legal Aid Committee v. Union of India, (1994) 6 SCC 731; Shaheen Welfare Assn. v.
Union of India, (1996) 2 SCC 616) Accused, even in cases under TADA, have been released on bail on the ground that they have been in jail for a long period of time and there was no likelihood of the completion of the trial at the earliest. (See: Paramjit Singh v. State (NCT of Delhi), (1999) 9 SCC 252 and Babba v. State of Maharashtra, (2005) 11 SCC 569).
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16. Reliance is placed upon judgment passed by Hon'ble Apex Court in Union of India v. K.A. Najeeb, Criminal Appeal No. 98 of 2021, wherein it has been held as under:
rt "18. It is thus clear to us that the presence of statutory restrictions like Section 43D (5) of UAPA perse does not oust the ability of Constitutional Courts to grant bail on grounds of violation of Part III of the Constitution. Indeed, both the restrictions under a Statue as well as the powers exercisable under Constitutional Jurisdiction can be well harmonised.
Whereas at commencement of proceedings, Courts are expected to appreciate the legislative policy against grant of bail but the rigours of such provisions will melt down where there is no likelihood of trial being completed within a reasonable time and the period of incarceration already undergone has exceeded a substantial part of the prescribed sentence. Such an approach would safeguard against the possibility of provisions like Section 43D (5) of UAPA being used as the sole metric for denial of bail or for wholesale breach of constitutional right to speedy trial."
17. Reliance is also placed upon judgment passed by Hon'ble Apex Court in Prabhakar Tewari v. State of U.P. and Anr, Criminal Appeal No. 152 of 2020, wherein it has been held as under:
"2. The accused is Malkhan Singh in this appeal. He was named in the FIR by the appellant Prabhakar Tewari as one of the five persons who had intercepted the motorcycle on which the deceased victim was riding, in front of Warisganj Railway Station (Halt) on the highway. All the five accused persons, including Malkhan Singh, as per the F.I.R. and majority of the witness ::: Downloaded on - 17/10/2023 20:42:49 :::CIS 13 statements, had fired several rounds upon the deceased victim.
The statement of Rahul Tewari recorded on 15th March, 2019, Shubham Tewari recorded on 12 th April, 2019 and Mahipam Mishra recorded on 20th April 2019 giving description of the .
offending incident has been relied upon by the appellant. It is also submitted that there are other criminal cases pending against him. Learned counsel for the accused- respondent no.2 has however pointed out the delay in recording the witness statements. The accused has been in custody for about seven months. In this case also, we find no error or impropriety in exercise of discretion by the High Court in granting bail to the accused Malkhan Singh. The reason why we come to this conclusion is broadly the same as in the previous appeal. This appeal is also dismissed and the order of the High Court is of affirmed."
18. In the aforesaid judgment, Hon'ble Apex Court has held that while considering the prayer for grant of bail, Courts are rt expected to appreciate the legislative policy against grant of bail but the rigours of such provisions will melt down where there is no likelihood of trial being completed within a reasonable time and the period of incarceration already undergone has exceeded a substantial part of the prescribed sentence.
Hon'ble Apex Court having taken note of inordinate
19. 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 ::: Downloaded on - 17/10/2023 20:42:49 :::CIS 14 likelihood of conclusion of trial in near future, subject to certain conditions.
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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. In the case at hand, complicity, if any, of the bail petitioners is yet to be of established on record by the investigating agency, as such, this Court sees no reason to let the bail petitioners incarcerate in jail for an indefinite period during trial, especially when nothing remains to rt be recovered from them.
21. 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.
22. 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 ::: Downloaded on - 17/10/2023 20:42:49 :::CIS 15 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.
23. Hon'ble Apex Court in Sanjay Chandra versus Central Bureau of Investigation (2012)1 Supreme Court Cases of 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 rt 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.
24. 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 ::: Downloaded on - 17/10/2023 20:42:49 :::CIS 16 the accused, circumstances which are peculiar to the accused involved in that crime.
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25. 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 of involved, apprehension of repetition of offence and witnesses being influenced.
26. rt Before parting, this Court having taken note of misplacement of 33.78 Kg. of charas, deems it necessary to direct Mr. Rajan Kahol, learned Additional Advocate General to bring the matter to the notice of Director General of Police and Secretary (Home) to the Government of Himachal Pradesh, so that necessary inquiry is conducted in the matter and appropriate action in accordance with law, if any, is taken against the erring official.
Besides above, aforesaid authorities may also issue guidelines, if not already issued, with regard to handling of contraband, which have been otherwise culled out in the judgment passed by Hon'ble Apex Court in Union of India vs. Mohan Lal and others, (2016) 3SCC 379.
27. In view of the aforesaid discussion as well as law laid down by the Hon'ble Apex Court, petitioners have carved out a case for grant of bail, accordingly, the petitions are allowed and ::: Downloaded on - 17/10/2023 20:42:49 :::CIS 17 they are ordered to be enlarged on bail in aforesaid FIR, subject to their furnishing personal bonds in the sum of Rs. 5,00,000/- each .
with two local sureties in the like amount each to the satisfaction of concerned Chief Judicial Magistrate/trial Court, with following conditions:
(a) They shall make themselves available for the purpose of interrogation, if so required and of 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) They shall not tamper with the prosecution rt
(c) evidence nor hamper the investigation of the case in any manner whatsoever;
They 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) They shall not leave the territory of India without the prior permission of the Court.
(e) They shall surrender their passport, if any, before the investigating agency.
28. It is clarified that if the petitioners misuse the liberty or violate any of the conditions imposed upon them, the investigating agency shall be free to move this Court for cancellation of the bail.
29. 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 these petitions alone. The petitions stand accordingly disposed of.
30. Learned counsel for the petitioners are permitted to produce copy of order downloaded from the High Court website ::: Downloaded on - 17/10/2023 20:42:49 :::CIS 18 before the trial Court, 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 October 13, 2023 (shankar) of rt ::: Downloaded on - 17/10/2023 20:42:49 :::CIS