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2023 DIGILAW 449 (HP)

Parveen Kumar v. State of Himachal Pradesh

2023-11-08

RAKESH KAINTHLA

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JUDGMENT : Rakesh Kainthla, J. The petitioner has filed the present petition for seeking the pre-arrest bail. It has been asserted that the Police have registered an FIR no. 335 of 2023 dated 18.10.2023 against the petitioner for the commission of offences punishable under Sections 18, 20 and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short ‘NDPS Act’) in Police Station Sadar, Tehsil and District Una. The petitioner is innocent and he was falsely implicated. The petitioner has nothing to do with the commission of the offences. The petitioner was hired by the main accused as a driver saying that he had some urgent work at Tanakpur. The name of the petitioner was disclosed by the main accused during the investigation and there is a reasonable apprehension that the Police would arrest the petitioner. The petitioner would abide by all the terms and conditions, which may be imposed by the Court. Therefore, it was prayed that the petition be allowed and the petitioner be released on pre-arrest bail. 2. The petition was opposed by filing a status report, asserting that the Police party was on patrolling duty on 18.10.2023 when a secret information was received that Kulbhushan had concealed a huge quantity of opium and charas and in case of search of his shanties, huge quantity of charas would be recovered. The information was reduced to writing under Section 42(2) of the ND&PS Act and was sent to the Additional Superintendent of Police. The Police associated Parveen Kumar alias Pamma and Raju and searched the shanties in their presence. One kit containing 509 grams of charas and 1.30 kilograms of opium was recovered. The opium and charas were seized. Kulbhushan was arrested. The Police also searched a vehicle bearing registration no. HP-16C-0203 and recovered 100 grams of opium. The Police also seized the vehicle. The Police conducted the investigation. Kulbhushan disclosed during the interrogation that he and Parveen Kumar, (the present petitioner) had gone to Tanakpur, Nepal Border to purchase the opium. The Police searched for Parveen Kumar but could not find him. The call detail records of Parveen Kumar and Kulbhushan were obtained and it was found that both of them had gone to the Nepal Border. The CCTV Footage was also obtained in which the petitioner and Kulbhushan were found travelling in the vehicle bearing registration HP-16C-0203. The Police searched for Parveen Kumar but could not find him. The call detail records of Parveen Kumar and Kulbhushan were obtained and it was found that both of them had gone to the Nepal Border. The CCTV Footage was also obtained in which the petitioner and Kulbhushan were found travelling in the vehicle bearing registration HP-16C-0203. FIR No. 161/2016, dated 29.6.2016 for the commission of offences punishable under Section 325 read with Section 34 of IPC, FIR No. 4/2021, dated 2.1.2021 for the commission of offence punishable under Section 13A of the Gambling Act and FIR No. 4/2023, dated 2.1.2023 for the commission of offence punishable under Section 13A of the Gambling Act were registered against the petitioner. The petitioner is to be interrogated. The petitioner absconded after the incident. Therefore, it was prayed that the present petition be dismissed. 3. I have heard Mr. Vikas Rathore and Mr. Bhupinder Thakur, learned counsel for the petitioner, and Mr Prashant Sen, learned Deputy Advocate General for the respondent/State. 4. Mr. Vikas Rathore and Mr. Bhupinder Thakur, learned counsel for the petitioner submitted that the only material collected against the petitioner is the statement of co-accused which is not admissible because of the judgment of Hon’ble Supreme Court in Tofan Singh Vs. State of Tamil Nadu (2021) 4 SCC 1 . Hence, they prayed that the present petition be allowed and the petitioner be released on pre-arrest bail. 5. Mr. Prashant Sen, learned Deputy Advocate General submitted that the petitioner had travelled with Kulbhushan to Tanakpur. They had purchased the opium. The petitioner was involved in the commission of an offence punishable under Section 29 read with Sections 18 and 20 of the ND&PS Act. The investigation is at the initial stage and the release of the petitioner on bail, at this stage, will harm the investigation. Hence, he prayed that the present petition be dismissed. 6. I have given considerable thought to the rival submissions at the bar and have gone through the record carefully. 7. It was laid down by the Hon’ble Supreme Court in P. Chidambaram vs. Directorate of Enforcement 2019 (9) SCC 24 that the power of pre-arrest is extraordinary and should be exercised sparingly. It was observed: “67. Ordinarily, arrest is a part of the procedure of the investigation to secure not only the presence of the accused but several other purposes. It was laid down by the Hon’ble Supreme Court in P. Chidambaram vs. Directorate of Enforcement 2019 (9) SCC 24 that the power of pre-arrest is extraordinary and should be exercised sparingly. It was observed: “67. Ordinarily, arrest is a part of the procedure of the investigation to secure not only the presence of the accused but several other purposes. Power under Section 438 Cr.P.C. is an extraordinary power and the same has to be exercised sparingly. The privilege of pre-arrest bail should be granted only in exceptional cases. The judicial discretion conferred upon the court has to be properly exercised after application of mind as to the nature and gravity of the accusation; the possibility of the applicant fleeing justice and other factors to decide whether it is a fit case for grant of anticipatory bail. Grant of anticipatory bail to some extent interferes in the sphere of investigation of an offence and hence, the court must be circumspect while exercising such power for the grant of anticipatory bail. Anticipatory bail is not to be granted as a matter of rule and it has to be granted only when the court is convinced that exceptional circumstances exist to resort to that extraordinary remedy.” 8. The Police have relied upon the statement made by Kulbhushan 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 to the coaccused 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 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, 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 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.” 9. 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 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 NDPS Act. Therefore, no advantage can be derived by the prosecution from the confessional statement made by the co-accused implicating the applicant. This is not a legally admissible piece of evidence and cannot be used against the applicant. 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 V/S State Of Himachal Pradesh 2022 LawSuit(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. 11. It was laid down by this Court in Saina Devi V/S State Of Himachal Pradesh 2022 LawSuit(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. 12. Therefore, no advantage can be derived from the statement made by the accused Kulbhushan against the petitioner. 13. The petitioner has not disputed that he had travelled with Kulbhushan to Tanakpur. He stated that he was hired by Kulbhushan to drive the vehicle. The Police had recovered 100 grams of opium from the vehicle. The Police had also found from the call details record and the CCTV Footage that the petitioner and Kulbhushan were travelling together in the vehicle. He stated that he was hired by Kulbhushan to drive the vehicle. The Police had recovered 100 grams of opium from the vehicle. The Police had also found from the call details record and the CCTV Footage that the petitioner and Kulbhushan were travelling together in the vehicle. The recovery of the opium from the vehicle which was being driven by the petitioner will, prima facie, show at this stage that the petitioner was involved in the transportation of the opium. The investigation is at an initial stage and releasing the petitioner on pre-arrest bail will hamper the investigation adversely. 14. Kulbhushan was found in possession of 1.30 kilograms of opium and 509 grams of charas, which is a huge quantity. It is trite to say that the offences involving narcotics not only affect an individual but society at large and should not be viewed lightly. Keeping in view the gravity of the offence, no case is made for the grant of pre-arrest bail at this stage. 15. In view of the above, the present petition fails and the same is dismissed. 16. The observation made hereinabove shall confined to the disposal of the petition and will have no bearing, whatsoever, on the merits of the case.