CRMPM/2915/2024 on 31 December 2024

IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA

Cr. MP (M) No.2915 of 2024 Date of Decision: 31.12.2024 -------------------------------------------------------------------------------- Ravi Giri ...Petitioner Versus

State of Himachal Pradesh …Respondent --------------------------------------------------------------------------------

Coram:

The Hon’ble Mr. Justice Sandeep Sharma, Judge.

Whether approved for reporting?1 -------------------------------------------------------------------------------- For the Petitioner: Mr. Manoj Pathak, Advocate.

For the Respondent: Mr. Rajan Kahol and Mr. B.C.Verma, Additional Advocate Generals, with Mr. Ravi Chauhan, Deputy Advocate General. -------------------------------------------------------------------------------- Sandeep Sharma, J. (Oral)

Bail petitioner namely, Ravi Giri, who is behind the bars since 10.07.2024, has approached this Court in the instant proceedings filed under Section 483 of the Bharatiya Nagarik Suraksha Sanhita, for grant of regular bail in case FIR No. 94 of 2024, dated 03.07.2024, under Sections 18 & 29 of the NDPS Act, registered at police Station, Theog, District Shimla, Himachal Pradesh.

2. Respondent-State has filed status report, perusal whereof reveals that on 03.07.2024, police after having received secret information that person, namely Tilak Bohra and Kal Bhadur indulge in illegal trade of narcotics, intercepted car 1 Whether reporters of the local papers may be allowed to see the judgment?

bearing registration No. HP-95-3535 (Alto K 10) being driven by co-accused Tilak Bohra and allegedly recovered one bag kept in the dickey of the car containing 1.516 Kgm of opium in the presence of independent witnesses. Since, no plausible explanation ever came to be rendered on record qua possession of aforesaid commercial quantity of contraband, police after having completed necessary codal formalities, arrested both Tilak Bohra as well as Kal Bahadur. Above named co-accused Kal Bahadur stands enlarged on bail vide order dated 24.12.2024 passed by this Court in Cr.MP(M) No. 2659 of 2024, whereas bail application having been filed by other co-accused has been withdrawn, as a result thereof, afore person is behind bars. Since during investigation, co-accused Tilak Bohra allegedly disclosed to the police that he has been selling opium under instructions of his brother in law Ravi Giri i.e. petitioner herein, police also arrested petitioner and at present he is behind bars.

3. Since, investigation in the case is complete and nothing remains to be recovered from the bail petitioner coupled with the fact that bail petitioner has been arrested on the confessional statement made by the co-accused, prayer has been made on behalf of the petitioner for grant of regular bail.

4. Mr. Manoj Pathak, learned counsel representing the petitioner, while making this Court peruse status report, vehemently argued that petitioner has been falsely implicated. He

states that no contraband was recovered from the conscious possession of the bail petitioner, rather he came to be named on the alleged statement given by the co-accused Tilak Bohra that he had been selling contraband on the instructions of the present bail petitioner. Mr. Pathak states that save and except few bank transactions inter-se bail petitioner and co-accused Tilak Bohra, who is closely related to present bail petitioner, there is nothing to suggest that bail petitioner had been indulging in these activities. Mr. Pathak, further submits that by now it is well settled that confessional statement, if any, made by the co- accused, is not admissible in law and cannot be made basis to conclude the guilt an accused. In this regard, he also placed reliance upon judgment passed by the Hon’ble Apex Court in Tofan Singh v. State of Tamil Nadu (2021) 4 SCC 1.

5. While fairly admitting factum with regard to filing of the challan in the competent Court of law, Mr. Rajan Kahol, learned Additional Advocate General, states 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 states that though commercial quantity of contraband was not recovered from the conscious possession of the bail petitioner, but there is overwhelming evidence adduced on record suggestive of the fact that co-accused Tilak Bohra had been selling contraband in

various districts of Himachal Pradesh on the instructions of the present bail petitioner. To substantiate his aforesaid submission Mr. Kahol specifically invited attention of this court to the record of financial transactions inter-se petitioner and co-accused Tilak Bohra, perusal whereof suggests that considerable amount was transferred in the bank account of the co-accused Tilak Bohra by the present bail petitioner. Lastly, Mr. Kahol, states that present bail petitioner is resident of Nepal and as such, in the event of his being enlarged on bail, he may not only flee from justice, but may again indulge in these activities and as such, prayer for grant of bail may be rejected outrightly.

6. Having heard learned counsel for the parties and perused material available on record, this Court finds that commercial quantity of contraband never came to be recovered from the conscious possession of the petitioner, rather same was recovered from the vehicle being driven by the co-accused Tilak Bohra, who allegedly disclosed to the police that he had been selling contraband in the various Districts of Himachal Pradesh on the instructions of present bail petitioner. On the basis of afore submission made by the accused, petitioner herein came to be named in the FIR.

7. Hon’ble Apex Court in Tofan Singh (supra), 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 67 of the Act. Relevant para of the aforesaid judgment reads as under: “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.

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.

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.

158. We answer the reference by stating:

(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.

(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.”

8. Hon’ble Apex Court in case titled State by (NCB) Bengaluru v. 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 co-accused under Section 67 of the NDPS Act. Apart from above, Hon’ble Apex Court in the aforesaid judgment has held that CDRs 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.

9. No doubt, rigours of Section 37 of the Act, are attracted in the present case, but bare perusal of provisions contained under Section 37 of Act ibid, nowhere suggests that no bail can be granted in cases involving commercial quantity, rather in such cases, court after affording due opportunity of hearing to public prosecutor can proceed to grant bail, if it is satisfied that the bail petitioner has been falsely implicated and in the event of bail being granted, he will not indulge in such activities again. Since in the instant case, no contraband ever came to be recovered from the conscious possession of the petitioner and he has been named in the FIR on the basis of statement made by the co-accused, which is not permissible,

there appears to be no justification for this Court to let the bail petitioner incarcerate in jail for an indefinite period.

10. 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 guilt, if any, of his/her is not proved in accordance with law. In the case at hand also, guilt, if any, of the accused is yet to be proved in accordance with law, by leading cogent and convincing material on record and as such, his incarceration for indefinite period is clear cut violation of Fundamental Right granted under Article 21 of the Constitution of India, especially when he has already suffered for more than five months.

11. No doubt, status report as well as record made available to this court reveals that some amount was transferred by the petitioner in the bank account of the co-accused Tilak Bohra, but that may not be sufficient to conclude guilt, if any, of the petitioner, especially when it is admitted case of the prosecution that co-accused Tilak Bohra is brother in law of the present bail petitioner. Whether amount transferred in the bank account of the co-accused by the present bail petitioner is/was on account of sale and purchase of contraband, is a question to be decided by the court below in the totality of evidence collected by the prosecution but keeping in view the glaring aspect of the matter this Court sees no reason to deny the prayer made by the petitioner for grant of bail. Apprehension expressed by the

learned Additional Advocate General that in the event of petitioner’s being enlarged on bail, he may flee from justice, can be best met by putting the bail petitioner to stringent conditions as has been fairly stated by the learned counsel for the petitioner.

12. 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.

13. 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 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.

14. 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.

15. 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.

16. 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 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:

(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;

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

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

17. 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.

18. 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.

19. The bail petitioner is permitted to produce copy of the order downloaded from the High Court Website and the trial court shall not insist for certified copy of the order, however, it may verify the order from the High Court website or otherwise.

(Sandeep Sharma) Judge December 31, 2024 manjit