Allowed

Anupam v. State of Hp

Himachal Pradesh HC9 Sept 2024CRMPM/1749/2024

Case brief

AI extract

What is this about?

Regular bail application under the NDPS Act in a case involving recovery of 12.156 kg charas from a vehicle. The court held that co-accused confessional statements, call details and CCTV footage did not constitute admissible or sufficient evidence against the petitioner and granted bail on parity with a co-accused.

What did the court decide?

Petitioner released on bail on furnishing bonds of ₹50,000 with one like surety, subject to conditions on witness contact, trial attendance, address notification and sharing mobile/social media detail

Anupam Vs State of Hp — Narcotics (NDPS) | Himachal Pradesh HC (2024)

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Neutral Citation No. ( 2024:HHC:8131 )

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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

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Cr. MP(M) No. 1749 of 2024 Reserved on: 29.08.2024 Date of Decision: 09.09.2024.

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Anupam ...Petitioner Versus State of H.P. ...Respondent

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Coram

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Hon’ble Mr Justice Rakesh Kainthla , Judge. Whether approved for reporting?¹ No

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For the Petitioner : Mr. N.S. Chandel, Sr. Advocate, with Mr. Kshitiz, Advocate. For the Respondent : Mr. Lokender Kutlehria, Additional Advocate General.

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Rakesh Kainthla, Judge

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The petitioner has filed the present petition for seeking regular bail. It has been asserted that the police registered an FIR No.95 of 2024, dated 24.05.2024 at Police Station Jawali, District Kangra for the commission of offences punishable under Sections 20, 25 and 29 of the Narcotic Drugs and Psychotropic Substances Act (in short NDPS Act). As per the prosecution, the police recovered 12.156 kgs of charas from the

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1 Whether reporters of Local Papers may be allowed to see the judgment? Yes.

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Neutral Citation No. ( 2024:HHC:8131 )

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vehicle being driven by Ramesh. He revealed on inquiry that charas was owned by Balbir Singh and was to be delivered to Anupam (the present petitioner). Balbir, Vishal and the petitioner had accompanied Ramesh Kumar in his vehicle till Kachhiari and had asked him to deliver the charas at Jawali. The petitioner made a statement under Section 67 of the NDPS Act that he had piloted the vehicle bearing registration No. HP-65B0132 till Ranital. The petitioner had parked his vehicle at Kachhiari. Ramesh Kumar also made a statement under Section 67 of the NDPS Act that Balbir Singh and Rajesh Kumar had called him. Ramesh Kumar put the charas in the vehicle. Ramesh Kumar identified the house of Balbir Singh and Rajesh Kumar. He identified the spot where the charas were loaded. The police also checked the CCTV footage and found that the vehicles were moving together. The petitioner is innocent and he was falsely implicated. There is no direct evidence against the petitioner. He is a permanent resident of village Chalwada, Tehsil Jawali, District Kangra, H.P. The petitioner is the sole earner of the family. The detention of the petitioner would not advance the cause of justice. Co-accused Vishal Kumar has been released on

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Neutral Citation No. ( 2024:HHC:8131 )

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bail. The petitioner also deserves to be released on bail based on parity. Hence, the petition.

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The petition is opposed by filing a status report asserting that the police party had gone on patrolling duty on 24.05.2024. The police received information at 1:10 am at Kuthera that a vehicle bearing registration No. HP-65B-0132 was transporting a huge quantity of charas. The police completed the formalities under Section 42(2) of the NDPS Act and intercepted the vehicle. Ramesh was found driving the vehicle. He ran away after stopping the car. The police apprehended him. The police searched the vehicle and recovered 12.156 Kgs of charas. Police arrested him and seized the charas. He revealed on inquiry that the charas was owned by Balbir Singh and was to be delivered to the petitioner and Vishal. Balbir, Vishal and the petitioner had accompanied him in the vehicle bearing registration No. HP-57-4637 till Kachiyari and had asked him to deliver the charas at Jawali. The police conducted the investigation and arrested the petitioner. He made a statement under Section 67 of the NDPS Act that he had piloted the vehicle bearing registration No. HP-65B-0132 till Ranital. Vishal and Balbir were also present in the vehicle. When

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Neutral Citation No. ( 2024:HHC:8131 )

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the vehicle bearing registration No. HP-65B-0132 was intercepted by the police, he parked his vehicle bearing registration No. HP-57-4637 at Kachiyari. Similarly, Ramesh Kumar made a statement under Section 67 of the NDPS Act that Balbir Singh and Rajesh Kumar had called him. He put the bag of charas in his vehicle bearing registration No. HP-65B-0132 at Nai Da Van Ropa Nalla. He identified the house of Balbir Singh and Rajesh Kumar, as well as the spot where the charas was loaded. The police checked the CCTV footage and found that a vehicle bearing registration No. HP-57-4637 went towards Joginder Nagar from Baijnath at 4:59 pm and returned at 7:30 pm. The vehicle bearing registration No. HP-65B-0132 followed it at 7:31:35 pm. The vehicle bearing registration No. HP-574637 was found going towards Joginder Nagar from Chobin Chowk at 4:39:45 pm and was found going towards Palampur at 7:36 pm. The vehicle bearing registration No. HP-65B-0132 had crossed Chobin Chowk at 7:37:38 pm. The police preserved the CCTV footage in a pen drive. Police interrogated Vishal and arrested him on 14.06.2024. Police also arrested Balbir on 24.06.2024. Petitioner also disclosed that he had piloted the vehicle bearing registration No. HP-57-4637 ahead of vehicle

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Neutral Citation No. ( 2024:HHC:8131 )

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bearing registration No. HP-65B-0132 in which the charas was transported. The police obtained the call details record and found that all the accused were in touch with each other. The location of the mobile phone of the Vishal was found to be between Padhar and Kangra. The offence committed by the petitioner is heinous; hence, it was prayed that the present petition be dismissed.

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I have heard Mr. N.S. Chandel learned Senior Counsel assisted by Mr Kshitiz, learned counsel for the petitioner and Mr Lokender Kutlehria, learned Additional Advocate General, for the respondent/State.

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Mr. N.S. Chandel, learned Senior Counsel for the petitioner submitted that the petitioner is innocent and he was falsely implicated. He was arrested based on the statement made by the co-accused, which is inadmissible. The police also recorded the statement of the petitioner under Section 67 of the NDPS Act but the same cannot be read in evidence. Hence, he prayed that the present petition be allowed and the petitioner be released on bail.

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Mr. Lokender Kutlehria, learned Additional Advocate

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General, for the respondent/State submitted that the petitioner was named by the co-accused. His vehicle bearing registration No. HP-57-4637 was found going ahead of another vehicle bearing registration No. HP-65B-0132 from which the recovery was effected. This fact is corroborated by the CCTV footage seized by the police and the statement made by the co-accused. The quantity of charas recovered from the vehicle is commercial and rigours of Section 37 of NDPS apply to the present case. Hence, he prayed that the present petition be dismissed.

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I have given considerable thought to the submissions made at the bar and have gone through the records carefully.

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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: -

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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;

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(a) While granting bail the court has to keep in mind factors such as the nature of accusations, severity of the

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punishment, if the accusations entail a conviction and the nature of evidence in support of the accusations;

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(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.

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(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 always a prima facie satisfaction of the Court in support of the charge.

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(d) Frivolity of prosecution should always be considered and it is only the element of 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.

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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:

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“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 with 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 consider among other circumstances, the following factors also before granting bail; they are:

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( a ) The nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence.

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(b) Reasonable apprehension of tampering with the witness or apprehension of threat to the complainant.

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(c) Prima facie satisfaction of the court in support of the charge. (See Ram Govind Upadhyay v. Sudarshan Singh [(2002) 3 SCC 598: 2002 SCC (Cri) 688] and Puran v. Rambilas [(2001) 6 SCC 338: 2001 SCC (Cri) 1124] .)”

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A similar view was taken in State of Haryana vs Dharamraj 2023 SCC Online 1085, wherein it was observed:

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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:

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‘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:

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(i) whether there is any prima facie or reasonable ground to believe that the accused had committed the offence;

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(ii) nature and gravity of the accusation;

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(iii) severity of the punishment in the event of conviction;

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(iv) danger of the accused absconding or fleeing if released on bail;

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(v) character, behaviour, means, position and standing of the accused;

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(vi) likelihood of the offence being repeated;

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(vii) reasonable apprehension of the witnesses being influenced; and

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(viii) danger, of course, of justice being thwarted by grant of bail.’

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The status report shows that the petitioner was implicated based on the statements made by the co-accused under Section 67 of the NDPS Act. The police have also relied upon the call details record to show the involvement of the petitioner. It was laid down by the Hon’ble Supreme Court in Dipakbhai Jagdishchandra Patel v. State of Gujarat, (2019) 16 SCC

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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:-

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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, that is made to a police officer, would be inadmissible having regard to Section 25

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Neutral Citation No. ( 2024:HHC:8131 )

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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.”

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Similarly, it was held in Surinder Kumar Khanna vs.

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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 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.

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A similar situation arose before this Court in Dinesh Kumar @ Billa Versus State of H.P. 2020 Cri.L.J.4564 and it was

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held that a confession of the co-accused and the phone calls are not sufficient to deny bail to a person.

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It was laid down by this Court in Saina Devi vs. 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:-

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“ [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.

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[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.

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[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

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Neutral Citation No. ( 2024:HHC:8131 )

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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.

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A similar view was taken by this Court in Dabe Ram vs.

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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,

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Therefore, the petitioner cannot be detained in custody based on a statement made by the co-accused and the call details; as these do not constitute a legally admissible piece of evidence.

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The police have also relied upon the CCTV footage to connect the petitioner with the commission of crime. The status report shows that Scorpio vehicle bearing registration No.HP57-4637 was moving ahead of the vehicle bearing registration No. HP-65B-0132. The status report does not show that the occupants of the Scorpio vehicle were identified in the CCTV footage and the petitioner was one of the occupants. Assuming that this evidence is admissible and constitutes incriminating evidence, without deciding this question at this stage, it is not

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sufficient to connect the petitioner with the commission of the crime.

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There is no other evidence connecting the petitioner with the commission of an offence punishable under Section 20 (b)(ii)(C) of the NDPS Act.

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The other accused has been released on bail; therefore, the petitioner is entitled to bail on the principle of parity.

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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 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:

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(i) The petitioner will not intimidate the witnesses nor will he influence any evidence in any manner whatsoever.

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(ii) The petitioner shall attend the trial and will not seek unnecessary adjournments.

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(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.

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(iv) 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.

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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.

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The observations made hereinabove are regarding the disposal of this petition and will have no bearing, whatsoever, on the case's merits.

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The petition stands accordingly disposed of. A copy of this order be sent to the Superintendent Lala Lajpat Rai, District and Air Correctional Home, Dharamshala, District Kangra and the learned Trial Court by FASTER.

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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

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veracity of the downloaded copy of the order presented to it, same may be ascertained from the official website of this Court.

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( Rakesh Kainthla) Judge

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9^th September, 2024 (saurav pathania)

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KARAN SINGH GULERIA

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Digitally signed by KARAN SINGH GULERIA DN: C=IN, O=HIGH COURT OF HIMACHAL PRADESH, OU=HIGH COURT OF HIMACHAL PRADESH SHIMLA, Phone=e5d61f6599be410af7c5f0b57379e22587 8f23c9ea27b281046985b3b1fe0b75, PostalCode=171001, S=Himachal Pradesh, SERIALNUMBER=f72cf9165791d55ec9393752 91962d0d90d094876bd59591426c0b1ce651f01 f, CN=KARAN SINGH GULERIA Reason: I have reviewed this document Location: Date: 2024-09-09 16:36:55

Anupam v. State of Hp

Case brief

What is this about?

What did the court decide?

Anupam v. State of Hp

Case brief

What is this about?

What did the court decide?

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