Banty Vs State of Hp

2026:HHC:28998

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

Cr.MP(M) No. 1172 of 2026 Date of Decision: 15.7.2026

________________________________________________________________ Banty ……...Petitioner Versus State of Himachal Pradesh …....Respondent Coram Hon’ble Mr. Justice Sandeep Sharma, Judge. Whether approved for reporting? For the Petitioner: Ms. Kanta Thakur, Advocate. For the Respondent: Mr. Rajan Kahol & Mr. Vishal Panwar, Additional Advocates General and Mr. Ravi Chauhan & Mr. Anish Banshtu, Deputy Advocates General, for the State. ___________________________________________________________________________

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Sandeep Sharma, J. (Oral)

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Bail petitioner namely Banty, who is behind the bars since 6.5.2026, has approached this Court in the instant proceedings filed under

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Section 483 of Bharatiya Nagarik Suraksha Sanhita, 2023, for grant of regular bail in case FIR No. 29/26, dated 28.4.2026, registered under Sections 21 and 29 of the NDPS Act, at Police Station Kandaghat, District Solan, Himachal Pradesh.

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2. Pursuant to order dated 2.7.2026, respondent-State has filed status report, perusal whereof reveals that on 28.4.2026, police received secret information that a person namely Naresh Kumar was indulging in

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illegal trade of narcotics and he has come to Kandaghat for selling chitta/heroin to youth of the area. On the basis of aforesaid information, they laid naka at Kandaghat at 1:35 AM and intercepted the bail petitioner, who, at the relevant time, was going on foot. Since he got perplexed after seeing the police and attempted to run away from the spot, police after associating independent witnesses, deemed it necessary to effect his search as well as of the pouch being carried by him at the relevant time and allegedly recovered 18.16 grams of chitta from the pouch. Since no plausible explanation ever came to be on rendered on record qua the possession of the aforesaid quantity of contraband, police after completing all necessary codal formalities, lodged the FIR as detailed herein above. Allegedly, during investigation, it came to the notice of the police that the contraband recovered from the conscious possession of co-accused Naresh Kumar was supplied by one Shri Chandan Kumar, who had asked coaccused Naresh Kumar to make payment through Google Pay QR code. Allegedly, co-accused Naresh Kumar transferred sum of Rs. 32,000/through the QR code sent to him by co-accused Chandan, but since the aforesaid amount was received in the bank account of the present bail petitioner, he also came to be roped in the case at hand. During investigation, the petitioner disclosed to the police that co-accused

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Chandan used to call for money in his bank account using his QR code and in lieu thereof, he used to get some commission. Since the investigation in the case is complete and nothing remains to be recovered from the bail petitioner, he has approached this Court in the instant proceedings for the grant of regular bail.

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3. W hile fairly admitting factum with regard to filing of challan in the competent court of law, Mr. Rajan Kahol, learned Additional Advocate General, contended that though nothing remains to be recovered from the bail petitioner, but keeping in view the gravity of offence alleged to have been committed by him, he does not deserve any leniency. He submitted that there is overwhelming evidence adduced on record suggestive of the fact that bail petitioner is a drug peddler and h e, in connivance with coaccused Chandan, had been selling the contraband in various parts of Himachal Pradesh. He stated that though in the past, no case is registered against the petitioner, but having taken note of his conduct, it can easily be inferred that he is a drug peddler and in the event of his being enlarged on bail, he may not only flee from justice but may again indulge in these activities.

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4. Having heard the learned counsel representing the parties and perused material available on record, this court finds that contraband

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never came to be recovered from the conscious possession of the present bail petitioner, rather same was recovered from the conscious possession of the co-accused Naresh Kumar, who later disclosed that the contraband was supplied to him by co-accused Chandan Kumar and in lieu thereof, he had sent Rs.32,000/- in the bank account of the present petitioner. As has been taken note above, the present petitioner was not the supplier, rather he had only received money qua the supply made by co-accused Chandan in his Google Pay account. Though aforesaid aspect of the matter with regard to the transfer of money in the bank account of the petitioner is yet to be proved by the prosecution by leading cogent and convincing evidence, but even otherwise, by now it is well settled that statement made by co-accused under Section 67 of the NDPS Act is inadmissible.

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5. While registering case against the present bail petitioner, Police has placed heavy reliance upon the alleged deposits made in his bank account, but once it is not in dispute that contraband was not recovered from the conscious possession of the bail petitioner, mere deposit, if any, made in the bank account of the petitioner cannot be a ground to conclude the complicity, if any, of the bail petitioner at this stage, rather same can be established in totality of evidence collected on record by the prosecution. Reliance in this regard is placed upon judgment passed by the High Court

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of Kerala in Amal E Vs. State of Kerala, 2023:KER:39393 , whereby it was categorically held that financial transactions are not sufficient to connect the accused with the commission of a crime. Relevant Para of afore judgment reads as under:

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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 sufficient 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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6. Hon’ble Apex Court in Tofan Singh v. State of Tamil Nadu

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(2021) 4 SCC 1 , has categorically held that disclosure statement, if any, made under Section 67 of the NDPS Act, is inadmissible and same cannot be used as confessional statement in the trial of an offence under Section

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67 of the Act. Relevant para of the aforesaid judgment reads as under:

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“155.Thus, to arrive at the conclusion that a confessional statement made before an officer designated under section 42 or section 53 can be the basis to convict a person under the NDPS Act, without any non obstante clause doing away with section 25 of the Evidence Act, and without any safeguards, would be a direct infringement of the constitutional guarantees contained in Articles 14, 20(3) and 21 of the Constitution of India.

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156.The judgment in Kanhaiyalal (supra) then goes on to follow Raj Kumar Karwal (supra) in paragraphs 44 and 45. For the reasons stated by us hereinabove, both these judgments do not state the law correctly, and are thus overruled by us. Other judgments that expressly refer to and rely upon these judgments, or upon the principles laid down by these judgments, also stand overruled for the reasons given by us.

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157.On the other hand, for the reasons given by us in this judgment, the judgments of Noor Aga (supra) and Nirmal Singh Pehlwan v. Inspector, Customs (2011) 12 SCC 298 are correct in law.

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158.We answer the reference by stating:

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(i) That the officers who are invested with powers under section 53 of the NDPS Act are “police officers” within the meaning of section 25 of the Evidence Act, as a result of which any confessional statement made to them would be barred under the provisions of section 25 of the Evidence Act, and cannot be taken into account in order to convict an accused under the NDPS Act.

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(ii) That a statement recorded under section 67 of the NDPS Act cannot be used as a confessional statement in the trial of an offence under the NDPS Act.”

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7. Hon’ble Apex Court in case titled State by (NCB) Bengaluru v.

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Pallulabid Ahmad Arimutta and Anr , Special Leave to Appeal (Crl) No. 242 of 2022 (arising out of diary No. 22702 of 2020) decided on 10.1.2022, again reiterated that confessional statement recorded under Section 67 of the NDPS Act, will remain inadmissible in the trial of an offence under the Act. Hon’ble Apex Court in this case upheld the order/judgment passed by the High Court of Karnataka granting bail to the accused arrested by the petitioner NCB on the basis of confessional/ voluntary statement of the coaccused under Section 67 of the NDPS Act. Apart from above, Hon’ble Apex Court in the aforesaid judgment has held that CDR details of some of the accused or the allegations of tempering of evidence on the part of the respondents is an aspect that will be examined at the stage of the trial.

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8. Leaving everything aside, this Court finds that rigors of Section 37 in the case at hand are not attracted on account of recovery of

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intermediate quantity of contraband. Hon'ble Apex Court as well as this Court in catena of cases have repeatedly held that one is deemed to be innocent, till the time, he/she is proved guilty in accordance with law. Since, guilt, if any, of the bail petitioner is yet to be established on record by leading cogent and convincing evidence and as such, there appears to be no justification to let the bail petitioner incarcerate in jail for an indefinite period during trial. Apprehension expressed by learned Deputy Advocate General, that in the event of being enlarged on bail, bail petitioner may flee from justice or indulge in such offences again, can be best met by putting the bail petitioner to stringent conditions.

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9. Hon'ble Apex Court in Criminal Appeal No. 227/2018, Dataram Singh vs. State of Uttar Pradesh & Anr decided on 6.2.2018 has held that freedom of an individual cannot be curtailed for indefinite period, especially when his/her guilt is yet to be proved. It has been further held by the Hon'ble Apex Court in the aforesaid judgment that a person is believed to be innocent until found guilty.

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10. Hon’ble Apex Court in Sanjay Chandra versus Central Bureau of Investigation (2012)1 Supreme Court Cases 49 has held that gravity alone cannot be a decisive ground to deny bail, rather competing factors are required to be balanced by the court while exercising its discretion. It has

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been repeatedly held by the Hon’ble Apex Court that object of bail is to secure the appearance of the accused person at his trial by reasonable amount of bail. The object of bail is neither punitive nor preventative.

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11. In Manoranjana Sinh alias Gupta versus CBI, (2017) 5 SCC 218 , Hon'ble Apex Court has held that the object of the bail is to secure the attendance of the accused in the trial and the proper test to be applied in the solution of the question whether bail should be granted or refused is whether it is probable that the party will appear to take his trial. Otherwise also, normal rule is of bail and not jail. Apart from above, Court has to keep in mind nature of accusations, nature of evidence in support thereof, severity of the punishment, which conviction will entail, character of the accused, circumstances which are peculiar to the accused involved in that crime.

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12. The Apex Court in Prasanta Kumar Sarkar versus Ashis Chatterjee and another (2010) 14 SCC 496 , has laid down various principles to be kept in mind, while deciding petition for bail viz. prima facie case, nature and gravity of accusation, punishment involved, apprehension of repetition of offence and witnesses being influenced.

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13. In view of the aforesaid discussion as well as law laid down by the Hon’ble Apex Court, bail petitioner has carved out a case for grant of

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bail. Accordingly, the petition is allowed and the petitioner is ordered to be enlarged on bail in aforesaid FIR, subject to his furnishing personal bond in the sum of Rs. 2,00,000/- with two local sureties in the like amount to the satisfaction of concerned Chief Judicial Magistrate/trial Court, with following conditions:

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(a) He shall make himself available for the purpose of interrogation, if so required and regularly attend the trial Court on each and every date of hearing and if prevented by any reason to do so, seek exemption from appearance by filing appropriate application;

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(b) He shall not tamper with the prosecution evidence nor hamper the investigation of the case in any manner whatsoever;

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(c) He shall not make any inducement, threat or promises to any person acquainted with the facts of the case so as to dissuade him/her from disclosing such facts to the Court or the Police Officer; and

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(d) He shall not leave the territory of India without the prior permission of the Court.

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14. 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 this Court for cancellation of the bail.

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15. Any observations made hereinabove shall not be construed to be a reflection on the merits of the case and shall remain confined to the disposal of this application alone. The petition stands accordingly disposed of.

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16. The bail petitioner is permitted to produce copy of the order downloaded from the High Court Website and the trial court shall not insist

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for certified copy of the order, however, it may verify the order from the

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High Court website or otherwise.

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July 15, 2026 ( Sandeep Sharma ) (manjit) Judge

Banty v. State of Hp

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Banty v. State of Hp

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