Himachal Pradesh High Court
Madan Lal vs State Of Himachal Pradesh on 15 March, 2023
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
Cr. MP (M) No.493 of 2023
.
Date of Decision: 15.03.2023
-----------------------------------------------------------------------------------------
Madan Lal ...Petitioner
Versus
State of Himachal Pradesh ...Respondent
-----------------------------------------------------------------------------------------
Coram:
The Hon'ble Mr. Justice Sandeep Sharma, Judge.
Whether approved for reporting?1
---------------------------------------------------------------------------------------
For the Petitioner: Mr. N.S.Chandel, Senior Advocate
with Mr. Vinod Gupta and Mr.
r Pranav Sharma, Advocates.
For the Respondent: Mr. Rajan Kahol, Mr. Vishal
Panwar and Mr. B.C.Verma,
Additional Advocate Generals.
-----------------------------------------------------------------------------------------
Sandeep Sharma, J. (Oral)
Bail petitioner, namely Madan Lal, who is behind the bars since 23.06.2020, has approached this Court in the instant proceedings filed under Section 439 Cr.P.C, for grant of regular bail in case FIR No. 69 of 2020 dated 11.6.2020, under Sections 20, 25 and 29 of the NDPS Act and Section 201 of IPC, registered at PS Banjar, District Kullu, H.P. Respondent-State has filed the status report in terms of order dated 1.3.2023. ASI Om Prakash, PS Banjar, District Kullu, H.P., has come present with records.
Records perused and returned.
1Whether reporters of the local papers may be allowed to see the judgment?
::: Downloaded on - 16/03/2023 20:35:40 :::CIS 22. Close scrutiny of the record reveals that on 11.6.2020, police party intercepted one tempo TATA-407 bearing registration .
No. HP 41-0675, being driven by person namely, Leeladhar and allegedly recovered commercial quantity of contraband i.e. 42.50 Kg. charas in 53 envelops kept in secret box made in the body of the vehicle. Since, no plausible explanation came to be rendered on record qua the possession of aforesaid quantity of contraband, police after completion of necessary codal formalities, lodged the FIR, as detailed hereinabove and arrested the driver of the vehicle, as named hereinabove. During investigation, driver of the vehicle named Leeladhar allegedly disclosed to the police that vehicle in question belongs to person namely; Thakur Dass and he had got the body of the vehicle modified from Karnal, Haryana. He also disclosed to the police that Thakur Dass, owner of the vehicle had asked him to collect the aforesaid quantity of charas from person namely, Madan Lal present bail petitioner and thereafter, same was to be delivered to person namely Suresh, resident of Haryana.
On the basis of aforesaid information shared by co-accused Leeladhar, police arrested Thakur Dass as well as present bail petitioner Madan Lal. As per the investigation, Thakur Dass while admitting himself to be owner of the vehicle also admitted that he had got body of vehicle modified from person namely Vinod, resident of Karnal, for total consideration of Rs. 50,000/- Allegedly, ::: Downloaded on - 16/03/2023 20:35:40 :::CIS 3 Thakur Dass disclosed to the police that charas recovered from his vehicle was meant to be sold to person namely Suresh and for that .
purpose he had transferred sum of Rs. 3,92,000/- in different bank accounts belonging to his relatives. Police after having collected Call Details Report arrested Kuldeep Singh, who now stands enlarged on bail in terms of order dated 15th June, 2022 passed by this Court in Cr.MP(M) No.780 of 2022. Since investigation in the case is complete and nothing remains to be recovered from the bail petitioner, he has approached this Court in the instant proceedings for grant of regular bail.
3. Precisely, prayer for grant of bail has been made on behalf of the petitioner on two grounds;(i) inordinate delay in conclusion of the trial and, (ii) there is no direct evidence to connect the petitioner with the contraband allegedly recovered from the conscious possession of the co-accused Leeladhar, who is already behind the bars. While placing reliance upon the judgment rendered by Hon'ble Apex Court in Tofan Singh v. State of Tamil Nadu (2021) 4 SCC 1, Mr. N.S.Chandel, learned Senior Counsel for the petitioner argued that since bail petitioner came to be named in the FIR on the basis of disclosure statement made by co-accused Thakur Dass, he deserves to be enlarged on bail. Mr. Chandel, further argued that there is no evidence, worth credence, adduced on record, by the prosecution to demonstrate that charas ::: Downloaded on - 16/03/2023 20:35:40 :::CIS 4 allegedly recovered from the vehicle belonging to Thakur Dass was actually supplied by the present bail petitioner, rather as per own .
case of the prosecution, co-accused Thakur Dass had agreed to sold the charas to person namely Suresh alias Kuldeep Kumar and in that regard, Suresh alias Kuldeep Kumar had transferred sum of Rs. 3,92,000/- in different bank accounts belonging to relatives of Thakur Dass. Learned Senior counsel further submitted that no doubt present bail petitioner Madan Lal is relative of co-accused Thakur Dass and he had also transferred some amount in his bank account, but that does not mean that same was qua sale and purchase of the contraband. He submits that entire case of the prosecution against the petitioner is that he had been talking to co-
accused Thakur Dass and Leeladhar on his mobile but that may not be sufficient to conclude complicity, if any, of the petitioner in the alleged commission of offence punishable under Section 20 of the Act. He states that since there is no direct financial transaction, if any, interse present bail petitioner and person from whose vehicle commercial quantity of contraband came to be recovered, case, if any against bail petitioner is not sustainable in the eye of law. He states that though there is no evidence to connect the bail petitioner with the offence alleged to have been committed by him but even otherwise statement, if any, made by co-accused thereby impleading bail petitioner is of no consequence as has been held ::: Downloaded on - 16/03/2023 20:35:40 :::CIS 5 by Hon'ble Apex Court in Tofan Singh case supra. He submits that for the last two years nine months bail petitioner is behind the .
bars but till date only five prosecution witnesses out of 32 have been examined, meaning thereby considerable time is likely to be consumed in the conclusion of the trial and in case during the pendency of trial petitioner is allowed to incarcerate in jail, it would amount to pre-trial conviction, which is not permissible in law.
4. Mr. Rajan Kahol, learned Additional Advocate General, while fairly admitting factum with regard to filing of the Challan in the competent court of law, contends that though nothing remains to be recovered from the bail petitioner, but keeping in the gravity of offence alleged to have been committed by him, he does not deserve any leniency. He states that there is overwhelming evidence adduced on record by the prosecution suggestive of the fact that commercial quantity of contraband recovered from the vehicle being driven by co-accused Leeladhar was actually supplied by present bail petitioner and in that regard some amount was transferred in his bank account by co-accused Kuldeep Kumar from Haryana. He further states that call detail reports available on record clearly reveals that bail petitioner was in constant touch with Thakur Dass before recovery of contraband.
He further states that bail petitioner has been not named in the FIR solely on the basis of disclosure statement made by co-accused ::: Downloaded on - 16/03/2023 20:35:40 :::CIS 6 Thakur Dass, rather on the basis Call detail report as well as financial transaction and as such, benefit, if any, of judgment .
rendered by Hon'ble Apex Court in Tofan Singh case supra cannot be taken by the bail petitioner, who in the event of being enlarged on bail may not only flee from justice but may again indulge in these activities.
5. 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 from the conscious possession of the bail petitioner, rather same was recovered from the vehicle being driven by co-accused Leeladhar, who is already behind the bars. Admittedly, petitioner came to be named in the FIR on the basis of statement made by co-accused Leeladhar that he was given commercial quantity of charas by present bail petitioner on the askance of owner of the vehicle namely Thakur Dass for further handing over to the person namely Suresh Kumar alias Kuldeep Kumar. As per own case of the prosecution, co-accused Thakur Dass admitted that person namely Suresh Kumar alias Kuldeep Kumar had contacted him to supply the charas and in that regard had transferred some amount in the bank account of his relatives. There is no statement, if any, on behalf of Thakur Dass that he obtained the charas from present bail petitioner Madan Lal for further handing over to Suresh Kumar ::: Downloaded on - 16/03/2023 20:35:40 :::CIS 7 alias Kuldeep Kumar. No doubt, record reveals that sum of Rs.49000/- came to be deposited in the bank account of the .
present bail petitioner on two occasions, but definitely there is no material available on record suggestive of the fact that such amount was deposited by Suresh Kumar alias Kuldeep Kumar for purchase of contraband. While considering the bail petition having been filed by co-accused Suresh Kumar alias Kuldeep Singh, this Court had specifically called upon investigating agency to find out from which bank and by whom amount was transferred in the bank accounts of the relatives of the Thakur Dass including the present bail petitioner. It was informed by investigating agency in the bail petition, having been filed by co-accused Kuldeep Singh, that though amount was deposited from Haryana but name of the persons, who deposited such amount could not be ascertained.
Since prosecution was unable to establish on record that amount was deposited by Suresh Kumar alias Kuldeep Singh for purchase of contraband, this Court ordered enlargement of co-accused Kuldeep Singh on bail, as has been recorded hereinabove. Since very deposit of amount, if any, by co-accused Suresh alias Kuldeep Singh in the bank account of relatives of Thakur Dass including the present bail petitioner is doubtful, mere factum with regard to deposit, if any, of Rs.49,000/- on two occasions in the bank account of present bail petitioner is not sufficient to conclude ::: Downloaded on - 16/03/2023 20:35:40 :::CIS 8 the complicity, if any, of the bail petitioner in the alleged commission of offence.
.
6. Status report filed in Kuldeep Singh case clearly reveals that amount in the bank accounts of persons namely Madan Lal, Smt. Beena Devi, Gopi Chand and Hem Raj was deposited at ATM at Sonipat. Though, learned Additional Advocate General argued that since village of co-accused Kuldeep Singh is at a distance of 9 KM from ATM from where money was transferred in the bank accounts of aforesaid persons, it can be safely presumed that such amount was transferred by present bail petitioner, however this Court is not impressed with aforesaid submission of learned Additional Advocate General for the reason that statement of account placed on record clearly reveals that amount was transferred in the bank accounts of aforesaid persons 25 days prior to the date of recovery and on that day, number of other persons had made transactions in the ATM concerned.
Similarly, mere telephonic conversation inter-se present bail petitioner and other co-accused is not sufficient to conclude complicity of the present bail petitioner in the alleged commission of the offence, especially when there is no other corroborative evidence. Leaving everything aside, there is no dispute that bail petitioner herein has been booked under Section 29 of the Act on the basis of statement made by the co-accused, which is not ::: Downloaded on - 16/03/2023 20:35:40 :::CIS 9 admissible, as has been held by Hon'ble Apex Court in n case Tofan Singh(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 confessional statement in the trial of an offence under Section 67 of the Act. Relevant para of the aforesaid judgment reads as under:
r to "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 ::: Downloaded on - 16/03/2023 20:35:40 :::CIS 10 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 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 ::: Downloaded on - 16/03/2023 20:35:40 :::CIS 11 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 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. Admittedly, in the case at hand, petitioner is behind the bars for the last two years nine months and till date prosecution has been able to examine only five witnesses out of 32 prosecution witnesses. Since 26 prosecution witnesses are yet to be examined, there is every likelihood further delay in conclusion of the trial.
::: Downloaded on - 16/03/2023 20:35:40 :::CIS 12Hon'ble Apex Court has repeatedly held that accused entitled to speedy trial and as such, right is granted under constitution.
.
10. 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:-
"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 r Constitution of India. (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).
11. 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:
"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, ::: Downloaded on - 16/03/2023 20:35:40 :::CIS 13 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."
12. 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 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 ::: Downloaded on - 16/03/2023 20:35:40 :::CIS 14 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 affirmed."
13. In the aforesaid judgment, Hon'ble Apex Court has held that while considering the prayer for grant of bail, 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.
14. 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 - 16/03/2023 20:35:40 :::CIS 1515. 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 an indefinite period during trial, especially when nothing remains to be recovered from him. Apprehension expressed by learned Deputy 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.
16. 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.
::: Downloaded on - 16/03/2023 20:35:40 :::CIS 1617. 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.
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 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 ::: Downloaded on - 16/03/2023 20:35:40 :::CIS 17 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.
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 the petitioner is ordered to be enlarged on bail in aforesaid FIR, subject to his furnishing personal bond in the sum of Rs. 5,00,000/-
with two local sureties in the like amount to the satisfaction of concerned Chief Judicial Magistrate/trial Court, with 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 ::: Downloaded on - 16/03/2023 20:35:40 :::CIS 18 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.
22. 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.
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.
Copy dasti.
(Sandeep Sharma) Judge March 15,2023 (shankar) ::: Downloaded on - 16/03/2023 20:35:40 :::CIS