Himachal Pradesh High Court
Sagar vs State Of Himachal Pradesh on 27 August, 2024
Neutral Citation No. ( 2024:HHC:7410 ) IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. MP (M) No. 1755 of 2024 .
Reserved on: 12.08.2024.
Date of Decision: 27.08.2024.
Sagar ...Petitioner
Versus
State of Himachal Pradesh ...Respondent
Coram
Hon'ble Mr Justice Rakesh Kainthla, Judge.
Whether approved for reporting?1 No
For the Petitioner : Mr. N.S. Chandel, Senior Advocate
with Mr. Kashitij Thakur,
Advocate.
For the Respondent : Mr. Jitender Sharma, Additional
Advocate General.
Rakesh Kainthla, Judge
The petitioner has filed the present petition seeking a pre-arrest bail. It has been asserted that FIR No. 53 of 2024, dated 21.05.2024, was registered against the petitioner for the commission of offences punishable under Sections 21 & 29 of Narcotic Drugs and Psychotropic Substances (ND&PS) Act in Police Station Fatehpur, District Kangra at the instance of co-
accused Subhash Chand, who made a statement claiming that he 1 Whether reporters of Local Papers may be allowed to see the judgment? Yes.
::: Downloaded on - 27/08/2024 20:33:05 :::CIS2 Neutral Citation No. ( 2024:HHC:7410 ) had purchased the contraband from one Gopi for delivering it to the present petitioner. The petitioner is apprehending his .
immediate arrest by the police. The petitioner belongs to a respectable family and he has deep roots in the society. The petitioner would suffer humiliation in case of his arrest. The petitioner would abide by all the terms and conditions, which the Court may impose. He would join the investigation and cooperate with the police. Hence the petition.
2. The petition is opposed by filing a status report asserting that the police party was present at Banaal on 20.05.2024 for nakabandi and traffic checking. Around 10-15 vehicles were stopped for checking, which were being checked in seriatim. One person came out of a vehicle and started walking towards Jasur. He was looking over his shoulders, which made the police suspicious. The police followed him. The person took out a polythene packet from his pocket and threw it towards the bushes. The police apprehended him. He revealed his name as Subhash Chand. The police associated independent witnesses and searched the polythene packet thrown by Subhash Chand. It was found to be containing 156.00 grams of Heroin. The police seized the Heroin after completing the formalities and arrested ::: Downloaded on - 27/08/2024 20:33:05 :::CIS 3 Neutral Citation No. ( 2024:HHC:7410 ) the accused Subhash Chand. Subhash Chand made a statement during his custody that he had purchased the heroin from Gopi a .
resident of Amritsar. The police took Subhash Chand to Amritsar but could not trace Gopi. Subhash Chand further revealed that the heroin was brought at the instance of the present petitioner.
Subhash Chand had supplied the heroin to the petitioner on an earlier occasion as well. FIR No. 25 of 2023 dated 13.03.2023 for the commission of offences punishable under Sections 21 & 29 of the ND&PS Act was earlier registered against the present petitioner. The heroin was sent to SFSL and as per the report, the presence of Diacetyl morphine was found in the sample. The police searched for petitioner Sagar but could not locate him.
The police filed the charge sheet before the Court on 18.07.2024.
Customer application and call details record are yet to be obtained and a supplementary challan will be filed after their receipt. Hence, the status report.
3. I have heard Mr. N.S. Chandel learned Senior Counsel assisted by Mr Kshitiz Thakur, learned counsel for the petitioner and Mr Jitender Sharma, learned Additional Advocate General for the respondent/State.
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4. Mr. N.S. Chandel, learned Senior Counsel for the petitioner submitted that the petitioner is innocent and he was .
falsely implicated. The statement made by the co-accused during the investigation is inadmissible in evidence and the petitioner cannot be detained in custody based on such confessional statement. The challan has already been filed before the competent Court of law and no recovery has to be effected from the petitioner. Therefore, he prayed that the present petition be allowed and petitioner be released on bail.
5. Mr. Jitender Sharma, learned Additional Advocate General for the respondent/State submitted that the petitioner was the purchaser of the heroin. The co-accused made a statement that heroin was purchased by him from Gopi for supplying it to the present petitioner. The quantity of heroin is large and could not have been meant for self-consumption.
Therefore, he prayed that the present petition be dismissed.
6. I have given considerable thought to the submissions made at the bar and have gone through the records carefully.
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7. The Hon'ble Supreme Court discussed the parameters for granting the bail in Bhagwan Singh v. Dilip .
Kumar 2023 INSC 761:2023 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 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) Frivolity 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.::: Downloaded on - 27/08/2024 20:33:05 :::CIS
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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 with 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.
(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 Dharamraj 2023 INSC 784: 2023 SCC Online 1085, wherein it was observed:
::: Downloaded on - 27/08/2024 20:33:05 :::CIS7 Neutral Citation No. ( 2024:HHC:7410 ) "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;
(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 status report shows that the petitioner is involved in the commission of the offence as per the statement ::: Downloaded on - 27/08/2024 20:33:05 :::CIS 8 Neutral Citation No. ( 2024:HHC:7410 ) made by co-accused Subhash Chand. The police also relied upon call details record between Subhash Chand and the petitioner. It .
was 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 is not saved by the provisions of Section 67 of the NDPS Act.
Therefore, no advantage can be derived by the prosecution from the confessional statement made by the co-accused implicating the petitioner.
10. 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 that a confession of the co-accused and the phone calls are not sufficient to deny bail to a person.
11. It was laid down by this Court in Saina Devi vs. State of Himachal Pradesh 2022 Law Suit (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 ::: Downloaded on - 27/08/2024 20:33:05 :::CIS 9 Neutral Citation No. ( 2024:HHC:7410 ) 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 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.
12. A similar view was taken by this Court in Dabe Ram vs. State of H.P., Cr.MP(M) No. 1894 of 2023, decided on 01.09.2023, Parvesh Saini vs State of H.P., Cr.MP(M) No. 2355 of 2023, decided on 06.10.2023 and Relu Ram vs. State of H.P. Cr.MP(M) No. 1061 of 2023, decided on 15.05.2023.
13. Section 2 (vii) (b) of the ND&PS Act provides for controlled delivery which is a technique of allowing illicit or suspect consignment of Narcotic Drugs to pass out or through ::: Downloaded on - 27/08/2024 20:33:05 :::CIS 10 Neutral Citation No. ( 2024:HHC:7410 ) the territory of India under the supervision of an officer to identify the persons involved in the commission of the offence.
.
Section 50(A) provides that the Director General of Narcotics and Anti Corruption Bureau or any other officer authorized by him in this regard can undertake controlled delivery of any consignment to any destination in India. The police could have easily resorted to the controlled delivery to verify the statement of the main accused that heroin was meant for the present petitioner. However, the police did not take any such step and merely relied upon the statement made by the co-accused, which is inadmissible and of no assistance to the prosecution.
14. The status report shows that the police have filed the charge sheet. Thus, there is a force in the submission of learned counsel for the petitioner that the custodial interrogation of the petitioner is not required and no useful purpose would be served by detaining him in custody.
15. In view of the above, the present petition is allowed and the order dated 09.08.2024 is made absolute subject to the following conditions:
(i) The petitioner will join the investigation as and when directed to do so by means of a written hukamnama.::: Downloaded on - 27/08/2024 20:33:05 :::CIS
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(ii) The petitioner will not intimidate the witnesses nor will he influence any evidence in any manner whatsoever.
(iii) The petitioner shall attend the trial in case a charge sheet .
is presented against him and will not seek unnecessary adjournments.
(iv) The petitioner will not leave the present address for a continuous period of seven days without furnishing the address of intending a visit to the SHO, the Police Station concerned and the Trial 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 expressly made clear that in case of violation of any of these conditions, the prosecution will have the right to file a petition for cancellation of the bail.
17. The observation made herein before shall remain confined to the disposal of the petition and will have no bearing, whatsoever, on the merits of the case.
(Rakesh Kainthla) Judge 27th August, 2024 (Nikita) ::: Downloaded on - 27/08/2024 20:33:05 :::CIS