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2025 DIGILAW 633 (HP)

Pradeep Chand v. State of Himachal Pradesh

2025-04-04

RAKESH KAINTHLA

body2025
JUDGMENT : Rakesh Kainthla, J. 1. The petitioner has filed the present petition for seeking regular bail. It has been asserted that an FIR No. 69/2024 dated 06.08.2024 was registered against the petitioner for the commission of offences punishable under Sections 18 and 29 of the Narcotic Drugs and Psychotropic Substances (NDPS) Act at Police Station, Kandaghat District, Solan, HP. As per the prosecution, 4.12 kg of opium was recovered from the co-accused, and the police did not make any recovery from the petitioner. The petitioner was arrested based on the telephonic conversation with the co-accused. The police relied upon the Customer Application Form (CAF) of another person by asserting that the petitioner was using the number. There is no money transaction or financial transaction between the petitioner and the co-accused. The petitioner has an aged father, brother, wife and six children. He is the sole breadwinner of the family. The petitioner would abide by all 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 06.08.2024. The Police received a secret information at 10:30 that one person was transporting a huge quantity of opium. The information was credible. The police reduced it to writing and sent it to the Supervisory Officer. The police apprehended one person, who identified himself as Jai Bahadur, in the presence of independent witnesses. He opted to be searched before a Gazetted Officer. A search of his backpack was conducted, and 4.12 Kg of opium was found in it. The Police seized the opium and arrested Jai Bahadur. He revealed during the interrogation that he and the petitioner, Pradeep Chand, had brought opium from Nepal. The Police analysed the call details record and found that the petitioner had stayed at Kullu with effect from 10.07.2024 till 28.07.2024. The petitioner called Jai Bahadur every hour on the date of the incident to know about his destination. He switched off his mobile phone after Jai Bahadur was arrested. Police arrested the petitioner and sent the opium to FSL. It was confirmed to be opium after analysis. The police conducted the investigation and filed a chargesheet before the learned Special Judge, Solan. The matter was listed for consideration of a charge on 06.03.2025; hence, the status report. 3. He switched off his mobile phone after Jai Bahadur was arrested. Police arrested the petitioner and sent the opium to FSL. It was confirmed to be opium after analysis. The police conducted the investigation and filed a chargesheet before the learned Special Judge, Solan. The matter was listed for consideration of a charge on 06.03.2025; hence, the status report. 3. I have heard Ms Deeksha Thakur, learned counsel for the petitioner and Mr Ajit Sharma, learned Deputy Advocate General for the respondent/state. 4. Ms Deeksha Thakur, learned counsel for the petitioner, submitted that the petitioner is innocent and he was falsely implicated based on the call detail record of some Govind. The police have failed to connect Govind with the petitioner. The call detail record is not sufficient to connect the petitioner with the commission of a crime. Therefore, she prayed that the present petition be allowed and the petitioner be released on bail. 5. Mr. Ajit Sharma, learned Deputy Advocate General for the respondent/State, submitted that the petitioner was in constant touch with the co-accused. The co-accused was found in possession of a commercial quantity of opium. Rigours of Section 37 of the NDPS Act apply to the present case, and the petitioner has failed to satisfy the twin conditions laid down under Section 37 of the NDPS Act; hence, he prayed that the present petition be dismissed. 6. I have given a 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 at page 783: - “Relevant parameters for granting bail 26. 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 at page 783: - “Relevant parameters for granting bail 26. While considering 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., ( 2004) 7 SCC 525 : 2004 SCC (Cri) 1974; Kalyan Chandra Sarkar vs. Rajesh Ranjan, (2004) 7 SCC 528 : 2004 SCC (Cri) 1977; Masroor v. State of U.P., (2009) 14 SCC 286 : (2010) 1 SCC (Cri) 1368; Prasanta Kumar Sarkar v. Ashis Chatterjee, (2010) 14 SCC 496 : (2011) 3 SCC (Cri) 765; Neeru Yadav v. State of U.P., (2014) 16 SCC 508 : (2015) 3 SCC (Cri) 527; Anil Kumar Yadav v. State (NCT of Delhi), (2018) 12 SCC 129 : (2018) 3 SCC (Cri) 425; 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 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 circumstances and effective in the pragmatic sense, and should not defeat the order of grant of bail. Any condition has to be interpreted as a reasonable condition acceptable in the facts permissible in the circumstances 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 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 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. This position was reiterated in Shabeen Ahmed vs. State of U.P., 2025 SCC Online SC 479. 10. The present petition has to be decided as per the parameters laid down by the Hon’ble Supreme Court. 11. The status report shows that the petitioner was arrested based on the statement made by Jai Bahadur that he and the petitioner had brought the opium from Nepal. The police also relied upon the call details record to connect the petitioner with the commission of a crime. 11. The status report shows that the petitioner was arrested based on the statement made by Jai Bahadur that he and the petitioner had brought the opium from Nepal. The police also relied upon the call details record to connect the petitioner with the commission of a crime. 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 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.” 12. Similarly, it was held in Surinder Kumar Khanna vs. Intelligence Officer Directorate of Revenue Intelligence , 2018 (8) SCC271 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. Similarly, it was held in Surinder Kumar Khanna vs. Intelligence Officer Directorate of Revenue Intelligence , 2018 (8) SCC271 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 vs. 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. 13. A similar situation arose before this Court in Dinesh Kumar @ Billa vs. 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. 14. It was laid down by this Court in Saina Devi v. State of Himachal Pradesh, 2022 Law Suit (HP) 21 1 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 v. 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. 15. 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. 16. 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. 17. 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 one surety in the like amount to the satisfaction of the learned Trial Court. While on bail, the petitioner will abide by the following 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. (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. 18. 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 the Court for cancellation of the bail. 19. 18. 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 the Court for cancellation of the bail. 19. The observations made hereinabove are regarding the disposal of this petition and will have no bearing whatsoever on the case's merits. 20. The petition stands accordingly disposed of. A copy of this order be sent to the Superintendent, District Jail Solan, H.P., and the learned Trial Court by FASTER. 21. 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, the same may be ascertained from the official website of this Court.