Jaswant Kaur Vs State of Hp

The petitioner has filed the present petition to seek regular bail. It has been asserted that the petitioner was arrested vide FIR No. 191 of 2023, dated 12.7.2023, for the commission of offences punishable under Sections 21 and 29 of the Narcotic Drugs and Psychotropic Substances Act (ND&PS Act), registered at Police Station Haroli, District Una, H.P., on 31.10.2023. The petitioner is innocent, and he was falsely implicated based on

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

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the statement made by the co-accused. The prosecution has examined nine witnesses, and sixteen witnesses are yet to be examined. There is no hope of an early conclusion of the trial. Two co-accused have been granted bail by the learned Special Judge II. Four FIRs were registered against the petitioner. The petitioner 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 12.7.2023. The police signalled the rider of the motorcycle bearing registration No. PB-07-AL-6576 to stop because he was not wearing a helmet. He stopped the motorcycle. The pillion rider ran towards the alley. He threw something while running. The police apprehended him and checked the article thrown by him in the presence of witnesses. It was found to contain 5.72 grams of heroin. He revealed his name as Vikas Kumar. The police seized the heroin and arrested Vikas Kumar. He revealed on inquiry that the petitioner had supplied heroin to him for ₹11,500/- through Gurlal. Police arrested Gurlal, who revealed that the petitioner was supplying heroin to him. The police arrested the petitioner. Call detail records also confirmed that

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the petitioner was in contact with Gurlal and Vikas. Four FIRs have been registered against the petitioner. She would indulge in the commission of similar offences in case of her release on bail. She would abscond and influence the witnesses. Hence, the status report.

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I have heard M/s Divya Raj Singh and Sahil Thakur, learned counsel for the petitioner and Mr Lokender Kutlehria, learned Additional Advocate General, for the respondent-State.

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Mr Divya Raj Singh, learned counsel for the petitioner, submitted that the petitioner is innocent and she was falsely implicated based on the statement made by the coaccused. No recovery was effected from the petitioner. A statement made by the co-accused is inadmissible in evidence, and there is nothing on record to connect the petitioner with the commission of crime. 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 General for the respondent-State, submitted that the petitioner is a habitual offender. Four FIRs were registered against her. She

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is likely to commit a similar offence in case of her release on bail. Therefore, 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 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: -

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“Relevant parameters for granting bail

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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 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. [ Chaman Lal v. State of U.P . , ( 2004) 7 SCC 525: 2004 SCC (Cri) 1974]; Kalyan Chandra Sarkar v. Rajesh Ranjan [Kalyan Chandra Sarkar v. Rajesh Ranjan, (2004) 7 SCC 528: 2004 SCC (Cri) 1977]; Masroor v. State of U.P. [Masroor v. State of U.P., (2009) 14 SCC 286 : (2010) 1 SCC (Cri) 1368]; Prasanta Kumar Sarkar v. Ashis Chatterjee [Prasanta Kumar Sarkar v. Ashis Chatterjee, (2010) 14 SCC 496 : (2011) 3 SCC (Cri) 765]; Neeru

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Yadav v. State of U.P. [Neeru Yadav v. State of U.P., (2014) 16 SCC 508 : (2015) 3 SCC (Cri) 527]; Anil Kumar Yadav v. State (NCT of Delhi)[Anil Kumar Yadav v. State (NCT of Delhi), (2018) 12 SCC 129 : (2018) 3 SCC (Cri) 425]; Mahipal v. Rajesh Kumar [Mahipal v. Rajesh Kumar, (2020) 2 SCC 118 : (2020) 1 SCC (Cri) 558] . ]

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This position was reiterated in Ramratan v. State of

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M.P., 2024 SCC OnLine SC 3068, wherein it was observed as

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under:-

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“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:

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“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

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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)

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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:—

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“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 circumstance, 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)

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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:

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“ 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

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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)

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This position was reiterated in Shabeen Ahmed versus State of U.P., 2025 SCC Online SC 479.

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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 status report does not show that any recovery was effected from the possession of the petitioner. The petitioner was arrested based on the statement made by the coaccused implicating him. 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 coaccused 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

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indeed be questioned, and the statement is taken by the police ofÏcer. A confession that is made to a police ofÏcer 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 vs

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Intelligence OfÏcer Directorate of Revenue Intelligence 2018 (8) SCC

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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 a 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 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 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 in Tofan Singh Vs 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.

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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 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. 17. It was submitted that four FIRs have been registered against the petitioner, and the petitioner is likely to commit a similar offence in case of her release on bail. The submission that the criminal antecedents are important while considering a bail petition has to be accepted as correct, but before the criminal antecedents are considered, it is essential to establish a prima facie case against the accused. In the present case, the prosecution has relied upon the statement made by the co-

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accused and the call detail record, which is not sufÏcient to establish a prima facie case. Therefore, the petitioner cannot be detained in custody because of the pendency of the FIRs against her.

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In view of the above, the present petition is allowed, and the petitioner is ordered to be released on bail in the sum of ₹50,000/- with one surety 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 will not intimidate the witnesses, nor will she influence any evidence in any manner whatsoever;

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(II) The petitioner shall attend the trial in case a charge sheet is presented against her 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 SHO, the Police Station concerned and the Trial Court;

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(IV) The petitioner will surrender her passport, if any, to the Court; and

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(V) The petitioner will furnish her 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

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intimated to the Police/Court within five days from the date of the change.

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It is expressly made clear that in case of violation of any of these conditions, the prosecution will have the right to file a petition for cancellation of the bail.

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The petition stands accordingly disposed of. A copy of this order be sent to the Superintendent of District Jail, Una at Bangarh, District Una, H.P. and the learned Trial Court by FASTER.

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The observation made herein before shall remain confined to the disposal of the instant petition and will have no bearing whatsoever on the merits of the case.

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(Rakesh Kainthla) Judge

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1^st April, 2025 (Chander)

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Digitally signed by KARAN SINGH GULERIA Date: 2025.04.01 13:08:38 IST

Jaswant Kaur v. State of Hp

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Jaswant Kaur v. State of Hp

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