CRMPM/2635/2023 on 29 December 2023

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

Cr.MP(M) No. : 2635 of 2023

Reserved on : 15.12.2023

Decided on : 29.12.2023

Taj Mohammad

.…Petitioner.

Versus

N.C.B.

…Respondent.

Coram

The Hon’ble Mr. Justice Satyen Vaidya, Judge. Whether approved for reporting?1 Yes

For the petitioner : Mr. Yashveer Singh Rathore,

Advocate.

For the respondent : Mr. Ashwani Pathak, Senior

Advocate, with Mr. Dev

Raj, Advocate.

Satyen Vaidya, Judge

Petitioner is accused in case Crime No. 52 of 2022, registered with NCB, Sub Zone, Mandi, District Mandi, H.P. on 21.07.2022. Petitioner is in custody since 09.08.2022.

2. Petitioner has prayed for grant of bail under Section 439 of Cr.P.C., on the ground that

Whether reporters of the local papers may be allowed to see the judgment?

the implication of the petitioner is without any substance. The investigating agency has not been able to collect any legal evidence against the petitioner. It is also submitted that the trial is at initial stage and the petitioner cannot be detained in custody for indefinite period.

3. The NCB has filed its status report. It is revealed that on 21.07.2022, 1.950 Kilograms of ‘Charas’ was recovered from the vehicle bearing registration No. PB-07Y-2385, at Shahpur, District Kangra, HP. The vehicle was occupied by three persons, namely, Vivek Sharma, Rakesh Kumar and Praveen Kumari. The ‘Charas’ was found hidden in the luggage kept on the rear seat of the car. During investigation accused Vivek Sharma is stated to have disclosed that the contraband was supplied by petitioner. Petitioner was accordingly arrested on 09.08.2022. It is further submitted that the petitioner has further disclosed to the investigating agency that the contraband was

supplied to him by another co-accused, namely, Latif Mohammad.

4. The NCB has opposed the prayer for grant of bail, on the grounds that the involvement of the petitioner is in a serious offence. The petitioner is not entitled to bail in view of the bar created by Section 37 of the ND&PS Act. Petitioner, if released on bail, is likely to involve himself in similar activities.

5. I have heard learned counsel for the petitioner as well as learned Senior Counsel for the respondent and have also gone through the status report carefully.

6. The involvement of commercial quantity of ‘Charas’ is there in case registered, vide crime No. 52 of 2022, by the respondent. Rigors of Section 37 will be applicable in the case. It has been argued on behalf of the petitioner that the provisions of Section 37 of NDPS Act cannot be an impediment in grant of bail to the petitioner as

there is no material on record showing prima facie involvement of the petitioner in the case.

7. Though, this Court, while deciding the bail application, will not minutely scan the material collected during investigation, still the same can be looked into for assessing seriousness and gravity of allegations against the petitioner.

8. From the perusal of the reply filed on behalf of the respondent as also record produced by learned counsel for the respondent, it is evident that the petitioner has been implicated on the basis of disclosure statement of co-accused recorded Under Section 67 of NDPS Act and also on the basis of alleged conversation between accused Latif Mohammad, and the petitioner through their respective mobile phones.

9. Except the existence of CDRs and disclosure statement of co-accused no other material appears to have been collected against the petitioner. The disclosure made by co-accused cannot be read against petitioner as per mandate of

Hon’ble Supreme Court in Tofan Singh Vs State of Tamil Nadu (2021) 4 SCC 1. Further, in State by (NCB) Bengaluru vs. Pallulabid Ahmad Arimutta and another, (2022)2 Scale 14, the Hon’ble Supreme Court has held as under:- “10. It has been held in clear terms in Tofan Singh Vs. State of Tamil Nadu, (2021)4 SCC 1,that a confessional statement recorded under Section 67 of the NDPS Act will remain inadmissible in the trial of an offence under the NDPS Act. In the teeth of the aforesaid decision, the arrests made by the petitioner-NCB, on the basis of the confession/voluntary statements of the respondents or the co-accused under Section 67 of the NDPS Act, cannot form the basis for overturning the impugned orders releasing them on bail. The CDR details of some of the accused or the allegations of tampering of evidence on the part of one of the respondents is an aspect that will be examined at the stage of trial. For the aforesaid reason, this Court is not inclined to interfere in the orders dated 16th September, 2019, 14th January, 2020, 16th January, 2020, 19th December, 2019 and 20th January, passed in SLP (Crl.) No@ Diary No. 22702/2020, SLP(Crl.) No. 1454/2021, SLP (Crl.) No. 1465/2021, SLP (Crl.) No. 1773- 74/2021and SLP (Crl.) No.

respectively. The impugned orders are accordingly, upheld and the Special Leave Petitions filed by the petitioner-NCB seeking cancellation of bail granted to the respective respondents, are dismissed as meritless.”

10. In Pallulabid Ahmad's case (supra), accused were ordered to be released on bail by Karnataka High Court in a case registered against them for commission of offences under NDPS Act involving commercial quantity. In that case also

direct recovery was not affected from the accused person(s) so released on bail. In Special Leave Petition preferred against the order directing the release of accused person(s) on bail in that case, Hon'ble Supreme Court upheld the order of Karnataka High Court and one of the contention regarding availability of CDR details of some of accused person(s) was dispelled as a ground to deny the bail to them.

11. The allegations with respect to the alleged money transactions inter se accused persons are yet to be proved, more particularly, in the context of such transactions being tainted.

12. The trial of the case is at initial stage and the same is not likely to be concluded in near future. Petitioners is already in custody for more than one year. In the light of what has been discussed above, this Court is of the view that the implication of the petitioner in the case is not established prima facie and for such reason, his

pre-trial incarceration cannot be prolonged for indefinite period.

13. No past history of the petitioner regarding his involvement in similar or any other offence has been pointed out, therefore, there is no reason to presume that the petitioner, if enlarged on bail, is likely to commit similar offence. Another co-accused, namely, Latif Mohammad facing identical allegations has already been granted pre-arrest bail by this Court, vide order dated 23.09.2022, passed in Cr.MP(M) No. 2033 of 2022.

14. It is not the case of the respondent that in case of enlargement of petitioner on bail, the trial before learned Special Judge shall be adversely affected. Petitioner is permanent resident of Tarong, P.O. Khusha Nagri, Tehsil Chuhara, Police Station Tissa, District Chamba, H.P. and there is no likelihood of his fleeing from the course of justice.

15. In the light of above discussion and in the peculiar facts and circumstances of the case, the instant petition is allowed. In the event of arrest of the petitioner in case registered, vide Crime No. 52 of 2022 by NCB Sub-Zone Mandi, District Mandi, H.P on 21.7.2022, he shall be released on bail on his furnishing personal bond in the sum of Rs.1,00,000/- with one surety in the like amount to the satisfaction of the learned Trial Court, however, subject to following conditions:-

(i) That the petitioner shall regularly join the investigation as and when required to do so;

(ii) That the petitioner shall not directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer;

(iii) That the petitioner shall not leave the country without the express permission of the Court;

16. However, it is made clear that the observations made hereinabove shall have no bearings on the merit of the case and shall be

construed only for the disposal of the present petition.

(Satyen Vaidya)

Judge 29th December, 2023 (sushma)

Digitally signed by GANGA RAM SHARMA DN: C=IN, O=HIGH COURT OF HIMACHAL PRADESH, OU=HIGH COURT OF HIMACHAL PRADESH SHIMLA, Phone=53d793b89e8f7ed22df51a99c485c 30e69ef93029aa64cf7f7477f3ea023b5fe, PostalCode=171001, S=Himachal Pradesh, SERIALNUMBER=8d8cfd67531d5f7cf98b9 8478b7c873db362a2c10726a8f44f89d8ea 8ad55e1d, CN=GANGA RAM SHARMA Reason: I am approving this document Location: Date: 2023-12-29 18:31:04 GANGA RAM SHARM A