Himachal Pradesh High Court
Sohan Singh vs State Of Himachal Pradesh on 22 November, 2023
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.MP(M) No.2522 of 2023 .
Reserved on: 09.11.2023 Date of Decision: 22.11.2023.
Sohan Singh ...Petitioner
of
Versus
State of Himachal Pradesh
rt ...Respondent
Coram
Hon'ble Mr. Justice Rakesh Kainthla, Judge. Whether approved for reporting?1 Yes.
For the Petitioner : Mr. Chaman Singh, Advocate.
For the Respondent : Mr. Prashant Sen, Deputy Advocate General, with ASI Dharam Chand, Police Station Kangra, H.P. Rakesh Kainthla, Judge The petitioner has filed the present petition for seeking regular bail. It has been asserted that the petitioner was arrested for the commission of an offence punishable under Section 29 of the Narcotic Drugs and Psychotropic Substances Act (in short ND&PS Act), registered vide FIR No. 55/2023, dated 1 Whether reporters of Local Papers may be allowed to see the judgment? Yes.
::: Downloaded on - 22/11/2023 20:33:06 :::CIS 24.4.2023 in Police Station Kangra, District Kangra, H.P. with the allegations that Police had arrested Ajay Kumar and Ravi Kumar .
with 1.530 kilograms of charas. They disclosed that they had purchased the charas from the petitioner. They also identified the house of the petitioner. The petitioner is innocent and he has been falsely implicated. No recovery was effected from the of petitioner. The petitioner is a shepherd and he was with the herd at the time of the arrest of the main accused. The petitioner does rt not have any mobile and the mobile phone remains with the daughter of the petitioner. The call detail record is not sufficient to connect the petitioner with the commission of the crime. The petitioner is the only breadwinner of the family. He would join the investigation as and when directed to do so. He shall not tamper with the prosecution evidence and will not influence the witnesses. He would abide by the terms and conditions which may be imposed by the Court. Hence the petition.
2. A status report was filed by the State asserting that the Police apprehended Ajay Kumar and Ravi Kumar on 3.4.2023 with a backpack containing 1.530 kilograms of charas. The Police arrested them and seized the charas. They were interrogated.
Ajay Kumar revealed that on 2.4.2023 he had purchased 1.5 ::: Downloaded on - 22/11/2023 20:33:06 :::CIS 3 kilograms of charas from Sohan Singh, the present petitioner.
Ajay Kumar and Ravi Kumar led the Police partly to Village Nog .
where Ajay Kumar identified the house of present petitioner.
The Police searched for the petitioner and arrested him on 25.6.2023. The call detail records were obtained and it was found that the petitioner and Ravi Kumar had talked to each other of eight times on 2.4.2023 and once on 3.4.2023. Earlier they did not talk to each other. The supplementary challan has been rt prepared and presented before the Court which is listed for consideration of charge.
3. I have heard Mr. Chaman Singh, learned Counsel for the petitioner and Mr. Prashant Sen, learned Deputy Advocate General for the respondent State.
4. Mr. Chaman Singh, learned Counsel for the petitioner submitted that the petitioner is innocent and he was falsely implicated. The evidence collected by the prosecution against the petitioner is the disclosure statement, pointing out the house and the call detail records. These are insufficient to connect the petitioner with the commission of crime. Hence, he ::: Downloaded on - 22/11/2023 20:33:06 :::CIS 4 prayed that the present petition be allowed and the petitioner be released on bail.
.
5. Mr. Prashant Sen, learned Deputy Advocate General submitted that the petitioner was involved in the commission of a heinous offence. The quantity of the charas is commercial and the rigours of Section 37 of the ND&PS Act would apply to the of present case. Therefore, he prayed that the present petition be dismissed.
rt
6. I have given considerable thought to the rival submissions at the bar and have gone through the record carefully.
7. The Hon'ble Supreme Court discussed the parameters for granting the bail in Bhagwan Singh v. Dilip Kumar, 2023 SCC OnLine SC 1059 as under:-
12. The grant of bail is a discretionary relief which necessarily means that such discretion would have to be exercised in a judicious manner and not as a matter of course. The grant of bail is dependent upon contextual facts of the matter being dealt with by the Court and may vary from case to case. There cannot be any exhaustive parameters set out for considering the application for a grant of bail. However, it can be noted that;
(a) While granting bail the court has to keep in mind factors such as the nature of accusations, severity of the punishment, if the accusations entail ::: Downloaded on - 22/11/2023 20:33:06 :::CIS 5 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 of always a prima facie satisfaction of the Court in support of the charge.
(d) Frivility of prosecution should always be considered and it is only the element of rt genuineness that shall have to be considered in the matter of grant of bail and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused is entitled to have an order of bail.
13. We may also profitably refer to a decision of this Court in Kalyan Chandra Sarkar v. Rajesh Ranjan @ Pappu Yadav (2004) 7 SCC 528 where the parameters to be taken into consideration for the grant of bail by the Courts have been explained in the following words:
"11. The law in regard to grant or refusal of bail is very well settled. The court granting bail should exercise its discretion in a judicious manner and not as a matter of course. Though at the stage of granting bail a detailed examination of evidence and elaborate documentation of the merit of the case need not be undertaken, there is a need to indicate in such orders reasons for prima facie concluding why bail was being granted particularly where the accused is charged of having committed a serious offence. Any order devoid of such reasons would suffer from non-application of mind. It is also necessary for the court granting bail to ::: Downloaded on - 22/11/2023 20:33:06 :::CIS 6 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 of support of the charge. (See Ram Govind Upadhyay v. Sudarshan Singh [(2002) 3 SCC 598: 2002 SCC (Cri) 688] and Puran v. Rambilas rt [(2001) 6 SCC 338: 2001 SCC (Cri) 1124].)"
8. A similar view was taken in State of Haryana vs Dharamraj 2023 SCC Online 1085, wherein it was observed:
7. A foray, albeit brief, into relevant precedents is warranted. This Court considered the factors to guide the grant of bail in Ram Govind Upadhyay v. Sudarshan Singh, (2002) 3 SCC 598 and Kalyan Chandra Sarkar v. Rajesh Ranjan, (2004) 7 SCC 528. In Prasanta Kumar Sarkar v. Ashis Chatterjee, (2010) 14 SCC 496, the relevant principles were restated thus:
'9. ... It is trite that this Court does not, normally, interfere with an order passed by the High Court granting or rejecting bail to the accused. However, it is equally incumbent upon the High Court to exercise its discretion judiciously, cautiously and strictly in compliance with the basic principles laid down in a plethora of decisions of this Court on the point. It is well settled that, among other circumstances, the factors to be borne in mind while considering an application for bail are:::: Downloaded on - 22/11/2023 20:33:06 :::CIS 7
(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;
of
(v) character, behaviour, means, position and standing of the accused;
(vi) likelihood of the offence being repeated;
rt (vii) reasonable apprehension of the witnesses being influenced; and
(viii) danger, of course, of justice being thwarted by grant of bail.'
9. The police have relied upon the statement made by Ajay Kumar to implicate the petitioner. It was laid down by the Hon'ble Supreme Court in Dipakbhai Jagdishchandra Patel v. State of Gujarat, (2019) 16 SCC 547 : (2020) 2 SCC (Cri) 361: 2019 SCC OnLine SC 588 that a statement made by co-accused during the investigation is hit by section 162 of Cr.P.C. and cannot be used as a piece of evidence. Further, the confession made by the co-
accused will be inadmissible because of Section 25 of the Indian Evidence Act. It was observed at page 568:-
44. Such a person viz. person who is named in the FIR, and therefore, the accused in the eye of the law, can indeed be questioned and the statement is taken by the ::: Downloaded on - 22/11/2023 20:33:06 :::CIS 8 police officer. A confession, which is made to a police officer, would be inadmissible having regard to Section 25 of the Evidence Act. A confession, which is vitiated under .
Section 24 of the Evidence Act would also be inadmissible.
A confession unless it fulfils the test laid down in Pakala Narayana Swami [Pakala Narayana Swami v. King Emperor, 1939 SCC OnLine PC 1 : (1938-39) 66 IA 66: AIR 1939 PC 47] and as accepted by this Court, may still be used as an admission under Section 21 of the Evidence Act. This, however, is subject to the bar of admissibility of of a statement under Section 161 CrPC. Therefore, even if a statement contains admission, the statement being one under Section 161, it would immediately attract the bar under Section 162 CrPC."
rt
10. Similarly, it was held in Surinder Kumar Khanna Versus Intelligence Officer Directorate of Revenue Intelligence 2018 (8) SCC 271 that a confession made by a co-accused cannot be taken as a substantive piece of evidence against another co-
accused and can only be utilized to lend assurance to the other evidence. The Hon'ble Supreme Court subsequently held in Tofan Singh Versus State of Tamil Nadu 2021 (4) SCC 1 that a confession made to the police officer during the investigation is hit by Section 25 of the Indian Evidence Act and will not be saved by the provisions of Section 67 of the NDPS Act. Therefore, no advantage can be derived by the prosecution from the confessional statement made by the co-accused implicating the petitioner.
::: Downloaded on - 22/11/2023 20:33:06 :::CIS 911. 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.
12. It was laid down by this Court in Saina Devi vs. State of Himachal Pradesh 2022 Law Suit (HP) 211, that where the police of have no material except the call details record and the disclosure rt statement of the co-accused, the petitioner cannot be kept in custody. It was observed:-
"[16] In the facts of the instant case also the prosecution, for implicating the petitioner, relies upon firstly the confessional statement made by accused Dabe Ram and secondly the CDR details of calls exchanged between the petitioner and the wife of co-accused Dabe Ram. Taking into consideration, the evidence with respect to the availability of CDR details involving the phone number of the petitioner and the mobile phone number of the wife of coaccused Dabe Ram, this Court had considered the existence of a prime facie case against the petitioner and had rejected the bail application as not satisfying the conditions of Section 37 of NDPS Act.
[17] Since, the existence of CDR details of accused person(s) has not been considered as a circumstance sufficient to hold a prima facie case against the accused person(s), in Pallulabid Ahmad's case (supra), this Court is of the view that petitioner has made out a case for maintainability of his successive bail application as also for grant of bail in his favour.::: Downloaded on - 22/11/2023 20:33:06 :::CIS 10
[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.
13. A similar view was taken by this Court in Dabe Ram of 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 rt 2023, decided on 06.10.2023, Relu Ram vs. State of H.P. Cr.MP(M) No. 1061 of 2023, decided on 15.05.2023,
14. Therefore, the petitioner cannot be detained in custody based on a statement made by the co-accused and the call detail as these do not constitute a legally admissible piece of evidence.
15. Reliance was also placed upon the fact that the co-accused had shown the house where the charas was stated to have been sold by the petitioner to the co-accused. It was submitted that the statement led to the discovery of the fact that the charas were purchased by Ajay Kumar from the accused.
Hence, the same is admissible. This submission is not acceptable. It was laid down in Gajrani vs. Emperor AIR 1933 ::: Downloaded on - 22/11/2023 20:33:06 :::CIS 11 Allahabad 394 that pointing out the place from where the accused had purchased something does not lead to the discovery .
of any fact. It was observed:
"We do not consider that the pointing out of the shop in this statement can be held to amount to the discovery of a fact, and consequently, we do not consider that this evidence is admissible under Section 27, Evidence Act."
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16. Similarly, in H.P. Administration vs. Om Parkash AIR 1972 SC 975, the accused pointed out the witness from whom he rt had purchased the dagger. This was held to be outside the purview of Section 27 of the Indian Evidence Act. It was observed:
12. Thereafter on the information furnished by the accused that he had purchased the weapon from Ganga Singh P. W. 11 and that he would take them to him, they went to the thari of P. W. 11 where the accused pointed him out to them. It is contended that the information given by the accused that he purchased the dagger from P. W. 11 followed by his leading the police to his thari and pointing him out is inadmissible under Section 27 of the Evidence Act. In our view, there is a force in this contention. A fact discovered within the meaning of Section 27 must refer to a material fact to which the information directly relates. In order to render the information admissible, the fact discovered must be relevant and must have been such that it constitutes the information through which the discovery was made. What is the fact discovered in this case? Not the dagger but the dagger hidden under the stone, which is not known to the police. (See PulukuriKottaya v. King-Emperor, 74 Ind App 65 = (AIR 1947 PC 67). But thereafter can it be said that the ::: Downloaded on - 22/11/2023 20:33:06 :::CIS 12 information furnished by the accused that he purchased the dagger from P. W. 11 led to a fact discovered when the accused took the police to the thari of P. W. 11 and pointed .
him out. A single Bench of the Madras High Court in Public Prosecutor v. India China Lingiah, AIR 1954 Mad 433, and In re Vellingiri, AIR 1950 Mad 613, seems to have taken the view that the information by an accused leading to the discovery of a witness to whom he had given stolen articles is a discovery of a fact within the meaning of Section 27. In Emperor v. RamanujaAyyanger, AIR 1935 of Mad 528 a full Bench of three Judges by a majority held that the statement of the accused "I purchased the mattress from this shop and it was this Woman (another witness) that carried the mattress" as proved by the rt witness who visited him with the police was admissible because the word 'fact' is not restricted to something which can be exhibited as a material object. This judgement was before PulukuriKattaya's case when as far as the Presidency of Madras was concerned law laid down by the Full Bench of the Court, In Re AthappaGoundan, ILR (1937) Mad 695 = (AIR 1937 Mad 618) prevailed. It held that where the accused's statement connects the fact discovered with the offence and makes it relevant, even though the statement amounts to a confession of the offence. It must be admitted because it is that that has led directly to the discovery. This view was overruled by the Privy Council in PulukariKottaya's case and this Court had approved the Privy Council case in RamkishanMithanlal Sharma v. The State of Bombay, (1955) 1 SCR 903 = (AIR 1955 SC 104).
13. In the Full Bench Judgment of Seven Judges in Sukhan v. The Crown, ILR 10 Lah 283 = (AIR 1929 Lah 344) (FB) which was approved by the Privy Council in PulukuriKotaya's case, 74 Ind App 65 = (AIR 1947 PC
67)Shadi Lal C.J, as he then was speaking for the majority pointed out that the expression 'fact' as defined by Section 3 of the Evidence Act includes not only the physical fact which can be perceived by the senses but ::: Downloaded on - 22/11/2023 20:33:06 :::CIS 13 also the psychological fact or mental condition of which any person is conscious and that it is in the former sense that the word used by the Legislature refers to material .
and not to a mental fact. It is clear therefore that what should be discovered is the material fact and the information that is admissible is that which has caused that discovery so as to connect the information and the fact with each other as the cause and effect.' That information, which does not distinctly connect with the fact discovered or that portion of the information, which of merely explains the material thing discovered is not admissible under Section 27 and cannot be proved. As explained by this Court as well as by the Privy Council, normally Section 27 is brought into operation where a rt person in police custody produces from some place of concealment some object said to be connected with the crime of which the informant is the accused. The concealment of the fact which is not known to the police is what is discovered by the information and lends assurance that the information was true. No witness with whom some material fact, such as the weapon of murder, stolen property or other incriminating article is not hidden, sold or kept and which is unknown to the police can be said to be discovered as a consequence of the information furnished by the accused. These examples, however, are only by way of illustration and are exhaustive. What makes the information leading to the discovery of the witness admissible is the discovery from him of the thing sold to him or hidden or kept with him, which the police did not know until the information was furnished to them by the accused. A witness cannot be said to be discovered if nothing is to be found or recovered from him as a consequence of the information furnished by the accused and the information which disclosed the identity of the witness will not be admissible.
17. Therefore, the statement made by Ajay Kumar that ::: Downloaded on - 22/11/2023 20:33:06 :::CIS 14 he had purchased charas from the petitioner is not prima facie admissible and since the pointing out of the house did not lead .
to the discovery of any fact, therefore, no advantage can be derived from the same.
18. Hence, there is force in the submission of learned counsel for the petitioner that there is prima-facie no legally of admissible evidence against the petitioner and there are rt reasonable grounds to believe that he is prima facie not involved in the commission of the offence.
19. There is no material on record to show that the petitioner would commit the similar offence in case he is released on bail. Thus, the twin conditions laid down under Section 37 of the ND&PS Act are duly satisfied in the present case.
20. In view of the above, the present petition is allowed and the petitioner is ordered to be released on bail subject to his furnishing bail bonds in the sum of ₹50,000/- with two sureties of the like amount to the satisfaction of the learned Trial Court while on bail. The petitioner will abide by the following terms and conditions:-
::: Downloaded on - 22/11/2023 20:33:06 :::CIS 15(i) The petitioner will join the investigation as and when directed to do so by means of a written hukamnama.
(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 of address of intending visit to the SHO, the Police Station concerned and the Trial Court.
(v) The petitioner will furnish his mobile number, and social rt 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.
21. 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.
22. 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 22nd November, 2023 (Chander) ::: Downloaded on - 22/11/2023 20:33:06 :::CIS