Ajay Kumar Vs State of Hp

The petitioner has filed the present petition for seeking regular bail. It has been asserted that the petitioner was arrested vide F.I.R. No. 162 of 2024, dated 25.10.2024, registered for the commission of offences punishable under Sections 20, 25 and 29 of the Narcotic Drugs and Psychotropic Substances Act (in short NDPS Act) at Police Station Jawali, District Kangra, H.P. The petitioner is innocent and he was falsely implicated. There are

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

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reasonable grounds to believe that the petitioner is not guilty. The petitioner has no nexus with the contraband. He has been implicated based on a financial transaction of ₹ 27,000/- The petitioner has no criminal antecedents. He would abide by all the terms and conditions, which the Court may impose. 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 25.10.2024. They stopped a vehicle bearing registration No. HP97A-0842 and recovered 6.058 kg of charas from it. They arrested driver Arjun Singh and occupant Vipin Kumar. The police interrogated them, and Arjun Singh revealed during the interrogation that he had purchased Charas from Maheshwar Singh for ₹ 2,50,000/-. Vipin Kumar revealed during the interrogation that Arjun Singh had promised to pay ₹5,000/- to him. The police interrogated the petitioner, and the petitioner revealed that he was working in the shop of Shubhkaran. Shubhkaran was arrested in a case of charas. Arjun Singh started looking after the shop. Arjun Singh asked the petitioner to transfer the money to various persons as the accounts of Shubhkaran were seized by the police. The petitioner had transferred ₹27,000/- to

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Maheshwar Singh’s account. The police arrested the petitioner. Subsequently, police also arrested Maheshwar Singh, who revealed during the inquiry that he had sold 06 kg of charas to Arjun Singh through Somdev. The police recovered the bank details of Maheshwar Singh and found that some vouchers mentioned the name of the petitioner. The report of analysis confirmed the substance to be charas; hence, the status report.

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I have heard Mr. Umesh Kanwar, learned counsel for the petitioner and Ms. Niyati Thakur, learned Deputy Advocate General for the respondent/State.

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Mr Umesh Kanwar, learned counsel for the petitioner, submitted that the petitioner is innocent and he was falsely implicated. There is no evidence to connect the petitioner with the commission of the crime except the statement made by the coaccused and the transfer of the money. These are insufÏcient to connect the petitioner with the commission of crime. The police have filed the charge sheet before the Court, and the custody of the petitioner is not required; hence, he prayed that the present petition be allowed and the petitioner be released on bail.

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Ms. Niyati Thakur, learned Deputy Advocate General for the respondent/State submitted that the statement of the coaccused is duly corroborated by the financial transaction, therefore there is sufÏcient material to connect the petitioner with the commission of the crime. The police had recovered a commercial quantity of charas and the petitioner had not satisfied the rigours laid down under Section 37 of the NDPS Act; hence, she 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 parameters for granting bail were considered by the Hon’ble Supreme Court in Manik Madhukar Sarve v. Vitthal Damuji Meher, 2024 SCC OnLine SC 2271, wherein it was observed as under: -

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“ 19. Courts, while granting bail, are required to consider relevant factors such as the nature of the accusation, the role ascribed to the accused concerned, possibilities/chances of tampering with the evidence and/or witnesses, antecedents, flight risk, et al . Speaking through Hima Kohli, J., the present coram in Ajwar v. Waseem, 2024 SCC OnLine SC 974 , apropos relevant parameters for granting bail, observed:

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“ 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

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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; Kalyan Chandra Sarkar v. Rajesh Ranjan alias Pappu Yadav (supra) (2004) 7 SCC 528; Masroor v. State of Uttar Pradesh (2009) 14 SCC 286; Prasanta Kumar Sarkar v. Ashis Chatterjee (2010) 14 SCC 496; Neeru Yadav v. State of Uttar Pradesh (2014) 16 SCC 508; Anil Kumar Yadav v. State (NCT of Delhi) (2018) 12 SCC 129; Mahipal v. Rajesh Kumar @ Polia (supra) (2020) 2 SCC 118 .

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27. It is equally well settled that bail, once granted, ought not to be cancelled in a mechanical manner. However, an unreasoned or perverse order of bail is always open to interference by the Superior Court. If there are serious allegations against the accused, even if he has not misused the bail granted to him, such an order can be cancelled by the same Court that has granted the bail. Bail can also be revoked by a Superior Court if it transpires that the courts below have ignored the relevant material available on record or not looked into the gravity of the offence or the impact on the society resulting in such an order. In P v. State of Madhya Pradesh (supra) (2022), 15 SCR 211 decided by a three-judge bench of this Court [authored by one of us (Hima Kohli, J)] has spelt out the considerations that must be weighed with the Court for interfering in an order granting bail to an accused under Section 439(1) of the CrPC in the following words:

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“24. As can be discerned from the above decisions, for cancelling bail once granted, the court must consider whether any supervening circumstances have arisen or the conduct of the accused post grant of bail

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demonstrates that it is no longer conducive to a fair trial to permit him to retain his freedom by enjoying the concession of bail during trial [ Dolat Ram v. State of Haryana, (1995) 1 SCC 349: 1995 SCC (Cri) 237 ]. To put it differently, in ordinary circumstances, this Court would be loathe to interfere with an order passed by the court below granting bail, but if such an order is found to be illegal or perverse or premised on material that is irrelevant, then such an order is susceptible to scrutiny and interference by the appellate court.” (emphasis supplied)

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20. In State of Haryana v. Dharamraj, 2023 SCC OnLine SC 1085 , speaking through one of us (Ahsanuddin Amanullah, J.), the Court, while setting aside an order of the Punjab and Haryana High Court granting (anticipatory) bail, discussed and reasoned:

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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.’” (emphasis supplied)

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The present petition has to be decided as per the parameters laid down by the Hon’ble Supreme Court.

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The police have relied upon the statement made by the co-accused. 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., 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 ofÏcer. A confession that is made to a police ofÏcer would

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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

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Intelligence OfÏcer 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 the police ofÏcer 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 coaccused 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 held

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that a confession of the co-accused and the phone calls are not sufÏcient 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 sufÏcient 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

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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 as the same does not constitute a legally admissible piece of evidence.

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The police have also relied upon the transfer of ₹27,000/- from the account of the petitioner to the account of Maheshwar Singh. This transfer will not help the police in the absence of any evidence that Maheshwar Singh was dealing with charas or had sold the charas to the co-accused. The status report does not show that any recovery was effected from Maheshwar Singh. It is the admitted case of the prosecution that the petitioner was working in the shop of Shubhkaran and was transferring the money at his instance to various persons. Therefore, the transfer of money by the petitioner at the instance of the shopkeeper cannot connect him with the possession of the charas.

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The police also relied upon the vouchers in which the name of the petitioner was mentioned. The status report does not show that Ajay mentioned in the vouchers is the name of the petitioner and not the name of any other person. Ajay is a common name, and in the absence of any material to connect Ajay with the petitioner, he cannot be held to be involved in the commission of the crime merely because his name was mentioned in some of the vouchers.

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It was laid down by the Kerala High Court in Amal E vs State of Kerala 2023:KER:39393 that financial transactions are not sufÏcient to connect the accused with the commission of a crime. It was observed:

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“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 sufÏcient 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.”

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Therefore, prima facie, there is insufÏcient material to connect the petitioner with the commission of crime.

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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 of 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:

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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

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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 will be sent to the Superintendent, Lala Lajpat Rai District and Air Correctional Home Dharamshala, District Kangra, H.P., 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 ofÏcial website of this Court.

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Digitally signed by KARAN SINGH GULERIA Date: 2025.03.04 14:22:25 NPT

Ajay Kumar v. State of Hp

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Ajay Kumar v. State of Hp

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