Allowed

Ravi Kumar v. State of Hp

Himachal Pradesh HC2 May 2024CRMPM/276/2024

Case brief

AI extract

What is this about?

Regular bail application in an NDPS case where 1.530 kg charas was recovered from the co-accused's backpack and the petitioner was implicated only through the co-accused's statement and call detail records. Court held such material is inadmissible and insufficient to connect the petitioner, found no prima facie basis for detention, and granted bail with conditions.

What did the court decide?

Petitioner released on bail on bonds of ₹50,000 with two like sureties, subject to conditions on trial attendance, witness non-interference, address notification and providing mobile/social media cont

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

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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

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Cr.MP(M) No.276 of 2024 Reserved on: 22.04.2024 Date of Decision: 2^nd May, 2024

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Ravi Kumar ...Petitioner Versus State of Himachal Pradesh ...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. Vijender Katoch & Ms. Jyoti Dogra, Advocates. For the Respondent : Mr. Baldev Negi, 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 petitioner was arrested for the commission of offences punishable under Sections 20 & 29 of the Narcotic Drugs and Psychotropic Substances Act (in short ND&PS Act), registered vide FIR No. 55/2023, dated 4.4.2023 at Police Station Kangra, District Kangra, H.P. The petitioner is innocent and has nothing to do

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

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with the commission of the offence. No recovery was effected from the conscious and exclusive possession of the petitioner. The investigation is complete and no recovery is to be effected from the petitioner. The petitioner does not have any criminal history. He is a permanent resident of District Mandi and is ready and willing to abide by all the terms and conditions imposed by the Court. Hence, the petition.,

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The petition is opposed by filing a status report asserting that the police party was on patrolling duty on 03.04.2023 when a secret information was received that two persons were moving around New Model Senior Secondary School, New Kangra, who were intending to sell the charas. The information was reduced to writing. The police completed the formalities and reached Botua at about 9:10 pm with the witnesses where two persons were found sitting on the Atiala (platform). They revealed their names as Ravi Kumar and Ajay Kumar. Ajay Kumar had a backpack, which was searched and was found to be containing 1.530 kgs of charas. The police seized the charas and arrested Ravi Kumar and Ajay Kumar. Ajay Kumar revealed on inquiry that he had purchased charas from Sohan Singh @ Tiger. Police subsequently arrested Sohan Singh. The

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call details record shows that Ravi Kumar and Ajay Kumar were talking to each other before the incident and Ravi Kumar was also in touch with Sohan Singh. The result of the analysis confirmed the substance to be charas. The investigation is complete and the matter is pending before learned Additional Sessions Judge-I, Dharamshala for recording the statement of remaining witnesses; hence, the report.

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I have heard Mr Vijender Katoch & Ms Jyoti Dogra, learned Counsel for the petitioner and Mr Baldev Negi, learned Additional 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. No recovery was effected from the petitioner’s possession. He was found sitting on the platform with the co-accused as per the prosecution version, which is insufficient to show his involvement. The call details record is not sufficient to connect the petitioner with the commission of a crime in the absence of the actual conversation that had taken place between the petitioner and the co-accused. Therefore, he

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prayed that the present petition be allowed and the petitioner be released on bail.

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Mr. Baldev Negi, learned Additional Advocate General for the respondent/State submitted that the co-accused was found in possession of 1.530 kgs of charas, which is a commercial quantity. The rigours of Section 37 apply to the present case. The petitioner was in touch with Sohan Singh, who had supplied charas to Ajay Kumar, which shows sufficient involvement of the petitioner with the commission of a crime; hence, he prayed that the present petition be dismissed.

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I have given considerable thought to the submissions 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 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) Frivility 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 of having committed a serious offence. Any order devoid of such reasons

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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

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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 filed by the police shows that petitioner and Ajay Kumar were found sitting in a public place namely an Atiala (platform). The co-accused-Ajay Kumar was found in possession of a backpack containing charas. There is nothing in the status report to show that the petitioner shared the common intention with the co-accused or had instigated him to possess the charas.

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It was submitted that Ravi Kumar and Ajay Kumar are the residents of District Mandi and their presence at Kangra can only lead to an inference that they had come together. It is difficult to accept this submission. Even though Ravi Kumar and

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Ajay Kumar are the residents of District Mandi, but they are residents of different villages. Ravi Kumar is a resident of VPO Ropa and Ajay Kumar is a resident of village Masvahan, Post Office Urla; hence, the submission that they are residents of the same place is not acceptable. Even otherwise, a person cannot be held liable for the commission of an offence simply because he happened to be a resident of the same village as the co-accused.

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Reliance was placed upon the call details record to submit that the petitioner was in touch with the co-accused. Reliance was also placed upon the statement made by coaccused Ajay Kumar 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 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

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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.”

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Similarly, it was held in Surinder Kumar Khanna Versus Intelligence Officer Directorate of Revenue Intelligence 2018

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(8) SCC 271 that a confession made by a co-accused cannot be taken as a substantive piece of evidence against another coaccused 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

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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.

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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 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

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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, 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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It was also submitted that the petitioner was in touch with Sohan Singh, who had supplied charas to Ajay Kumar. There is no evidence that Sohan Singh had supplied charas to Ajay Kumar except the confessional statement made by Ajay Kumar, which is inadmissible as noticed above.

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Thus, there is no prima facie material to connect the petitioner with the commission of the crime and his detention in custody is not justified.

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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 two sureties 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:-

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

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

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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 intending a visit to the SHO, the Police Station concerned and the Trial 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

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or violates any of the conditions imposed upon him, the

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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 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, District and Open Air Jail, Dharamshala, 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 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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2^nd May, 2024

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(saurav pathania)

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Digitally signed by KARAN SINGH GULERIA DN: C=IN, O=HIGH COURT OF HIMACHAL PRADESH, OU=HIGH COURT OF HIMACHAL KARAN PRADESH SHIMLA, Phone=e5d61f6599be410af7c5f0b57379e225878f 23c9ea27b281046985b3b1fe0b75, PostalCode=171001, S=Himachal Pradesh, SINGH SERIALNUMBER=f72cf9165791d55ec939375291 962d0d90d094876bd59591426c0b1ce651f01f, CN=KARAN SINGH GULERIA Reason: I have reviewed this document GULERIA Location: Date: 2024-05-06 15:39:09

Ravi Kumar v. State of Hp

Case brief

What is this about?

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Ravi Kumar v. State of Hp

Case brief

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What did the court decide?

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