Rakesh Kainthla, Judge
1. The petitioner has filed the present petition for seeking regular bail. It has been asserted that the petitioner was arrested vide FIR No. 216 of 2024, dated 25.11.2024, for the commission of offences punishable under Sections 20 and 29 of the Narcotic Drugs and Psychotropic Substances Act (hereinafter referred to as ‘the ND&PS Act’), registered at Police Station Dharamshala, District Kangra, H.P. The petitioner is innocent and he was falsely implicated. Anshuman, the co-accused, disclosed his name by saying that the petitioner had supplied charas to him. The police arrested the petitioner on 27.11.2024. The petitioner was falsely named by the co-accused. The investigation is complete, and the charge sheet has been filed before the Court. Six FIRs have been registered against the petitioner; however, the petitioner was not convicted in any of the FIRs. He would abide by the terms and conditions which the Court may impose. Hence the petition.
2. The petition is opposed by filing a status report asserting that the police party was on patrolling duty on 24.11.2024 near Chinamay Ashram. A vehicle bearing registration No. HP-73-5202 arrived on the spot, where driver tried to reverse the vehicle after seeing the police party. The police stopped the vehicle and searched it in the presence of two independent witnesses. The police recovered 1 kilogram and 108 grams of charas. The driver revealed his name as Anshuman. Another person sitting behind the driver revealed his name as Harshdeep. The police seized the charas and arrested the occupants of the vehicle. Anshuman revealed that he knew the present petitioner-Vickey alias Bango. He and the petitioner sold charas to various people. Harshdeep brought charas from the petitioner, and they were intercepted by the police. Many online transactions were found between the accused and the petitioner. The call detail record showed that the accused frequently called each other. Anshuman and Vickey had talked to each other 24 times on 24.11.2024. Many FIRs are registered against the petitioner. Hence the status report.
3. I have heard Mr. Vijender Katoch, learned counsel for the petitioner and Mr. Prashant Sen, learned Deputy Advocate General, for the respondent-State.
4. Mr Vijender Katoch, 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. The statement made by the co-accused is inadmissible as evidence and cannot be used to implicate the petitioner. Hence, he prayed that the present petition be allowed and the petitioner be released on bail.
5. Mr. Prashant Sen, learned Deputy Advocate General, for the respondent-State, submitted that the petitioner and Anshuman had talked to each other 24 times on 24.11.2024. The call detail record shows that they were present at the same place.
A lot of money was exchanged between Anshuman and the petitioner. All these circumstances prima facie show the abetment of the possession of charas by the present petitioner. 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 Ramratan v. State of M.P., 2024 SCC OnLine SC 3068, wherein it was observed as follows: -
“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 eflective 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 an 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 application for bail 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)
8. The present petition has to be decided as per the parameters laid down by the Hon’ble Supreme Court.
9. The status report shows that Anshuman had named the petitioner as a supplier of the charas. 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.”
10. 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 a 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.
11. 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 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 the aforesaid elucidation, the petitioner is also entitled to the benefit of bail.
13. 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,
14. Therefore, the petitioner cannot be detained in custody based on a statement made by the co-accused, as the same does not constitute a legally admissible piece of evidence.
15. The prosecution has relied upon the financial transaction between the parties. It was laid down by the Kerala High Court in Amal E vs State of Kerala 2023:KER:39393 that financial transactions are not sufficient to connect the accused with the commission of a crime. It was observed:
“From the perusal of the case records, it can be seen that, apart from the aforesaid transactions, there is nothing to show the involvement of the petitioners. It is true that the documents indicate the monetary transactions between the petitioners and some of the accused persons, but the question that arises is whether the said transactions were in connection with the sale of Narcotic drugs. To establish the same, apart from the confession statements of the accused, there is nothing. However, as it is an aspect to be established during the trial, I do not intend to enter into any finding at this stage, but the said aspect is sufficient to record the satisfaction of the conditions contemplated under section 37 of the NDPS Act, as the lack of such materials evokes a reasonable doubt as to the involvement of the petitioner.”
16. It was submitted that the petitioner and Anshuman were found in the same location as per the call detail record. This will not help the prosecution. Petitioner and Anshuman being found in the same location cannot lead to an inference of the culpability of the petitioner in the absence of further evidence that the petitioner is a drug dealer. There is no legally admissible evidence to establish this fact. Hence, this circumstance will not establish the involvement of the petitioner.
17. It was submitted that many FIRs are pending against the petitioner, and the petitioner would indulge in the commission of a similar offence in case of his release on bail. This submission will not help the State. The criminal antecedents become important after a prima facie case is established against the petitioner. As already stated, there is insufficient material to connect the petitioner with the commission of a crime at this stage. Hence, the petitioner cannot be detained in custody because of his criminal antecedents.
18. In view of the above, the present petition is allowed, and the petitioner is ordered to be released on bail in the sum of ₹50,000/- with one surety 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: -
"(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 in case a charge sheet is presented against him 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 SHO, the Police Station concerned and the Trial Court;
(IV) The petitioner will surrender his passport, if any, to the Court; and
(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."
19. 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.
20. The petition stands accordingly disposed of. A copy of this order be sent to the Superintendent of Lala Lajpat Rai Open Air and Correctional Home/District Jail, Dharamshala, District Kangra, H.P. and the learned Trial Court by FASTER.
21. The observation made herein before shall remain confined to the disposal of the instant petition and will have no bearing whatsoever on the merits of the case.
