Himachal Pradesh High Court
Pradeep Kumar @ Murli vs State Of Himachal Pradesh on 12 January, 2024
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
Cr. MP (M) No.3194 of 2023
Date of Decision: 12.01.2024
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Pradeep Kumar @ Murli ...Petitioner
Versus
State of Himachal Pradesh ...Respondent
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Coram:
of
The Hon'ble Mr. Justice Sandeep Sharma, Judge.
Whether approved for reporting?1
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For the Petitioner: Mr. Rakesh Chaudhary, Advocate.
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For the Respondent: Ms. Seema Sharma, Deputy Advocate
General.
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Sandeep Sharma, J. (Oral)
Bail petitioner, namely, Pradeep Kumar @ Murli, who is behind the bars since 17.01.2021, has 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 proceedings, respondent-State has filed the status report and HC Ajay Kumar, has come present with records. Records perused and returned.
1Whether reporters of the local papers may be allowed to see the judgment?
::: Downloaded on - 12/01/2024 20:53:01 :::CIS 23. Close scrutiny of the record/status report reveals that on 13.01.2021, 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 of 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 rt though was apprehended by the police, whereas co-accused namely Devi Pal alias Bittu and present bail petitioner Pradeep Kumar @ 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, 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 present bail petitioner. Accused Choveshwar allegedly disclosed to the police during the investigation that bail petitioner Lot Ram told him that in case he wants to get rid of NDPS cases registered ::: Downloaded on - 12/01/2024 20:53:01 :::CIS 3 against him, he may supply him charas and as such, he alongwith persons, namely Devi Pal and bail petitioner 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 petitioner. Since challan stands filed in the competent of court of law and nothing remains to be recovered from the bail petitioner, he has approached this Court in the instant proceedings for grant of regular bail.
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4. Mr. Rakesh Chaudhary, learned counsel representing the petitioner, vehemently argued that petitioner has been falsely implicated because at no point of time recovery, if any, ever came to be effected from his conscious possession, rather his name came to be incorporated in the FIR 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 petitioner submitted that incarceration for indefinite period during trial of the bail petitioner is totally impermissible, especially when same has been effected on the basis of disclosure statement made by co-
accused.
5. Mr. Rakesh Chaudhary, learned counsel representing bail petitioner stated that since petitioner was not apprehended on ::: Downloaded on - 12/01/2024 20:53:01 :::CIS 4 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 case stands registered against the bail petitioner and as such, it cannot be said that he is drug peddler, rather he has been falsely implicated and as such, deserve to be enlarged on bail.
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6. While fairly acknowledging factum with regard to filing of the challan in the competent court of law, Ms. Seema Sharma, learned Deputy Advocate General, states that though nothing rt remain 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. While making this Court to peruse the record, learned Deputy Advocate General vehemently argued that there is overwhelming evidence adduced on record suggestive of the fact that bail petitioner in connivance with co-accused Choveshwar and Dev Pal were making an attempt to smuggle huge quantity of contraband, but before that, one of the co-
accused Choveshwar was apprehended. He further submitted that call details placed on record clearly reveal that the bail petitioner was not in constant touch with co-accused Choveshwar, from whose conscious possession commercial quantity of contraband came to be recovered. Learned Deputy Advocate General argued that though in the past also, no case under NDPS Act stands ::: Downloaded on - 12/01/2024 20:53:01 :::CIS 5 registered against the petitioner, 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 petitioner, who otherwise as per evidence on record had prior knowledge of of transportation/smuggling of commercial quantity of contraband. He submitted that in the event of bail petitioner being enlarged on bail, there is every possibility of his fleeing from trial as well as rt indulging in illegal activity again and as such, prayer made on his 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 from the conscious possession of the bail petitioner, rather same was recovered from three gunny bags allegedly being carried out by co-accused Choveshwar.
8. Though, precise case of the prosecution is that at the time of recovery, two persons namely Dev Pal @ Bittu and present bail petitioner 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 ::: Downloaded on - 12/01/2024 20:53:01 :::CIS 6 Choveshwar. Admittedly, petitioner 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 present bail petitioner was transporting three bags of contraband to Lot Ram, but before that they were apprehended. Record reveals that police collected on of record call detail report, perusal whereof clearly reveals that prior to alleged incident, accused Lot Ram had a telephonic conversation with co-accused Choveshwar, but that cannot be the rt sole ground to conclude complicity of the bail petitioner 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 petitioner and co-accused Choveshwar.
9. Leaving everything aside, there is no dispute that bail petitioner has been booked under Section 29 of the Act on the basis of the statement made by co- accused, which is not 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 ::: Downloaded on - 12/01/2024 20:53:01 :::CIS 7 offence under Section 67 of the Act. Relevant para of the aforesaid judgment reads as under:
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"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 of 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 rt 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."::: Downloaded on - 12/01/2024 20:53:01 :::CIS 8
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.
of Hon'ble Apex Court in this case upheld the order/judgment passed by the High Court of Karnataka granting bail to the accused arrested rtby 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.
11. 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 ::: Downloaded on - 12/01/2024 20:53:01 :::CIS 9 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 of 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, rt especially when nothing remain to be recovered from the bail petitioner. Apprehension expressed by learned Deputy 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.
12. Admittedly, in the case at hand, petitioner is behind the bars for the last three years and till date prosecution 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 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 ::: Downloaded on - 12/01/2024 20:53:01 :::CIS 10 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 of 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 rt kilograms, meaning thereby there is no record, if any, of 33.78 kilograms of charas. Though, learned Deputy 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 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 possession of co-accused Choveshwar, who is otherwise behind the bars.
::: Downloaded on - 12/01/2024 20:53:01 :::CIS 1114. 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 of 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 rt 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 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).
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:
"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 ::: Downloaded on - 12/01/2024 20:53:01 :::CIS 12 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 of 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:
rt "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 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."
18. 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 ::: Downloaded on - 12/01/2024 20:53:01 :::CIS 13 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.
19. 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 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) rt 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.
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 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.
::: Downloaded on - 12/01/2024 20:53:01 :::CIS 1421. 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.
of 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 rt 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 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 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 ::: Downloaded on - 12/01/2024 20:53:01 :::CIS 15 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 of 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 rt 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.
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 involved, apprehension of repetition of offence and witnesses being influenced.
26. 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 he is ::: Downloaded on - 12/01/2024 20:53:01 :::CIS 16 ordered to be enlarged on bail in aforesaid FIR, subject to his furnishing personal bonds in the sum of Rs. 5,00,000/- with two .
local sureties in the like amount each 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 of 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 rt
(c) manner whatsoever;
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.
(e) He shall surrender his passport, if any, before the investigating agency.
27. 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.
28. 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.
29. Learned counsel for the petitioner is permitted to produce copy of order downloaded from the High Court website ::: Downloaded on - 12/01/2024 20:53:01 :::CIS 17 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 January 12, 2024 (shankar) of rt ::: Downloaded on - 12/01/2024 20:53:01 :::CIS