The petitioner has filed the present petition for seeking regular bail. It has been asserted that the petitioner was arrested vide F.I.R. No. 55 of 2024, dated 12.05.2024 for the commission of offences punishable under Sections 20, 21, 25 and 29 of the Narcotic Drugs and Psychotropic Substances Act (in short ‘NDPS Act’) registered in the Police Station Sarkaghat, District Mandi, H.P. The petitioner was falsely implicated based on the statement made by co-accused. He is a respectable person in the society and he is not involved in any other criminal case. The investigation is complete and the charge sheet has been filed before the Court. No fruitful purpose would be served by detaining the petitioner in judicial custody. The petitioner would abide by all the terms and conditions, which the Court may impose. Hence, the present petition.
2. The petition is opposed by filing a status report asserting that the police party was on patrolling duty on 12.05.2024 when the police received a secret information that accused Kishan Singh was selling charas from his house, and in case of search, the police could recover a huge quantity of charas. The police reduced the information into writing and sent it to the SDPO, Sarkaghat. The police associated Partap Singh and Vandana Devi as independent witnesses and searched the house of Kishan Singh after completing the codal formalities. No charas was recovered from the house of Kishan Singh. The police searched the car of Kishan Singh and found 1.934 kgs of Charas. Police seized the charas and arrested Kishan Singh. He revealed on inquiry that he had purchased the charas from the present petitioner Ravinder Singh for ₹1,60,000/-. The police also checked the call detail records and found that the petitioner was in regular touch with Kishan Singh. Kishan Singh identified the petitioner and police arrested the petitioner. The charas was sent to SFSL, Junga for analysis and it was confirmed to be charas. A charge sheet was prepared and presented before the learned Trial Court. The matter is now listed for consideration of charge on 19.03.2025. The petitioner had sold 1.934 Kgs of Charas. to Kishan Singh. He had also sold charas on earlier occasions. He can intimidate the witnesses and abscond in case of his release on bail. Hence, the status report.
3. I have heard Mr. Vikrant Chandel, learned counsel for the petitioner and Mr. Ajeet Sharma, learned Deputy Advocate General for the respondent/State.
4. Mr. Vikrant Chandel, learned counsel for the petitioner submitted that the petitioner is innocent and he was falsely implicated based on the statement made by the co- accused, such statement is inadmissible in evidence and cannot be used to detain the petitioner in judicial custody. Therefore, he prayed that the present petition be allowed and the petitioner be released on bail.
5. Mr. Ajeet Sharma, learned Deputy Advocate General for the respondent/State submitted that the co-accused was found in possession of 1.934 kgs of charas, which is a commercial quantity. Rigours of Section 37 of the NDPS Act apply to the present case and the petitioner has not satisfied the twin conditions laid down in Section 37 of the NDPS Act, 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.
7. The parameters for granting bail were considered by the Hon’ble Supreme Court in Ajwar v. Waseem (2024) 10 SCC 768: 2024 SCC OnLine SC 974, wherein it was observed as under page 783: -
“Relevant parameters for granting bail
26. While considering as to whether bail ought to be granted in a matter involving a serious criminal offence, the Court must consider relevant factors like the nature of the accusations made against the accused, the manner in which the crime is alleged to have been committed, the gravity of the offence, the role attributed to the accused, the criminal antecedents of the accused, the probability of tampering of the witnesses and repeating the offence, if the accused are released on bail, the likelihood of the accused being unavailable in the event bail is granted, the possibility of obstructing the proceedings and evading the courts of justice and the overall desirability of releasing the accused on bail. [Refer: Chaman Lal v. State of U.P. [Chaman Lal v. State of U.P., (2004) 7 SCC 525: 2004 SCC (Cri) 1974]; Kalyan Chandra Sarkar v. Rajesh Ranjan [Kalyan Chandra Sarkar v. Rajesh Ranjan, (2004) 7 SCC 528: 2004 SCC (Cri) 1977]; Masroor v. State of U.P. [Masroor v. State of U.P., (2009) 14 SCC 286 : (2010) 1 SCC (Cri) 1368]; Prasanta Kumar Sarkar v. Ashis Chatterjee [Prasanta Kumar Sarkar v. Ashis Chatterjee, (2010) 14 SCC 496 : (2011) 3 SCC (Cri) 765]; Neeru Yadav v. State of U.P. [Neeru Yadav v. State of U.P., (2014) 16 SCC 508 : (2015) 3 SCC (Cri) 527]; Anil Kumar Yadav v. State (NCT of Delhi)[Anil Kumar Yadav v. State (NCT of Delhi), (2018) 12 SCC 129 : (2018) 3 SCC (Cri) 425]; Mahipal v. Rajesh Kumar [Mahipal v. Rajesh Kumar, (2020) 2 SCC 118 : (2020) 1 SCC (Cri) 558] .]
8. This position was reiterated in Ramratan v. State of M.P., 2024 SCC OnLine SC 3068, wherein it was observed as under: -
“12. The fundamental purpose of bail is to ensure the accused's presence during the investigation and trial. Any conditions imposed must be reasonable and directly related to this objective. This Court in Parvez Noordin Lokhandwalla v. State of Maharastra (2020) 10 SCC 77 observed that though the competent court is empowered to exercise its discretion to impose “any condition” for the grant of bail under Sections 437(3) and 439(1)(a) CrPC, the discretion of the court has to be guided by the need to facilitate the administration of justice, secure the presence of the accused and ensure that the liberty of the accused is not misused to impede the investigation, overawe the witnesses or obstruct the course of justice. The relevant observations are extracted herein below:
“14. The language of Section 437(3) CrPC, which uses the expression “any condition … otherwise in the interest of justice” has been construed in several decisions of this Court. Though the competent court is empowered to exercise its discretion to impose “any condition” for the grant of bail under Sections 437(3) and 439(1)(a) CrPC, the discretion of the court has to be guided by the need to facilitate the administration of justice, secure the presence of the accused and ensure that the liberty of the accused is not misused to impede the investigation, overawe the witnesses or obstruct the course of justice. Several decisions of this Court have dwelt on the nature of the conditions which can legitimately be imposed both in the context of bail and anticipatory bail.” (Emphasis supplied)
13. In Sumit Mehta v. State (NCT of Delhi) (2013) 15 SCC 570, this Court discussed the scope of the discretion of the Court to impose “any condition” on the grant of bail and observed in the following terms:—
“15. The words “any condition” used in the provision should not be regarded as conferring absolute power on a court of law to impose any condition that it chooses to impose. Any condition has to be interpreted as a reasonable condition acceptable in the facts permissible in the circumstance and effective in the pragmatic sense and should not defeat the order of grant of bail. We are of the view that the present facts and circumstances of the case do not warrant such extreme condition to be imposed.” (Emphasis supplied)
14. This Court, in Dilip Singh v. State of Madhya Pradesh (2021) 2 SCC 779, laid down the factors to be taken into consideration while deciding the bail application and observed:
“4. It is well settled by a plethora of decisions of this Court that criminal proceedings are not for the realisation of disputed dues. It is open to a court to grant or refuse the prayer for anticipatory bail, depending on the facts and circumstances of the particular case. The factors to be taken into consideration while considering an application for bail are the nature of the accusation and the severity of the punishment in the case of conviction and the nature of the materials relied upon by the prosecution; reasonable apprehension of tampering with the witnesses or apprehension of threat to the complainant or the witnesses; the reasonable possibility of securing the presence of the accused at the time of trial or the likelihood of his abscondence; character, behaviour and standing of the accused; and the circumstances which are peculiar or the accused and larger interest of the public or the State and similar other considerations. A criminal court, exercising jurisdiction to grant bail/anticipatory bail, is not expected to act as a recovery agent to realise the dues of the complainant, and that too, without any trial.” (Emphasis supplied)
9. The present petition has to be decided as per the parameters laid down by the Hon’ble Supreme Court.
10. Perusal of the status report shows that the petitioner was arrested based on the statement made by the co-accused that he had purchased the charas from the present petitioner in the sum of ₹1,60,000/-. The police also relied upon the call detail records, which show that the petitioner and Kishan Singh were in touch with each other. 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 is inadmissible because of Section 25 of the Indian Evidence Act. It was observed at page 568:-
"44. Such a person, viz., the 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 police officer. A confession that 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 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.”
11. Similarly, it was held in Surinder Kumar Khanna vs 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 utilised 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 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.
12. 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.
13. 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 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.
14. 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,
15. Therefore, the petitioner cannot be detained in custody based on a statement made by the co-accused and the call details record, as the same do not constitute a legally admissible piece of evidence.
16. There is no other material to connect the petitioner with the sale of the charas, hence, the involvement of the petitioner is not prima facie made out, therefore, the first condition that there are reasonable grounds for believing that the petitioner has not committed the offence is satisfied.
17. There is no legally admissible evidence on record to show that the petitioner had sold the charas to anyone, therefore, it cannot be said that the petitioner is likely to commit a similar offence in case of his release on bail. Hence, the second condition is also satisfied.
18. 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 ₹1,00,000/- with two sureties in the like amount to the satisfaction of the learned Trial Court. The petitioner, while on bail, will abide by the following terms and conditions: -
"i) The petitioner will not intimidate the witnesses nor will he influence any evidence in any manner whatsoever.
ii) The petitioner shall attend the trial and will not seek unnecessary adjournments.
(iii) The petitioner will not leave the present address for a continuous period of seven days without furnishing the address of the intended visit to the concerned Police Station and the Court.
(iv) The petitioner will surrender his passport, if any, to the Court; and
(v) Petitioner shall not tamper with the prosecution evidence, in any manner, whatsoever and shall not dissuade any person from speaking the truth in relation to the facts of the case in hand.
(vi) 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."
19. It is expressly made clear that in case of violation of any of these conditions, the prosecution will have a right to file a petition for cancellation of the bail.
20. 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
21. The petition stands accordingly disposed of. A copy of this order be sent to the Superintendent, District Jail Mandi, H.P., and the learned Trial Court by FASTER.
22. A downloaded copy of this order shall be accepted by the learned Trial Court while accepting the bail bonds from the petitioner, and in case said Court intends to ascertain the veracity of the downloaded copy of the order presented to it, same may be ascertained from the official website of this Court.
