Lihat Ram vs State of Himachal Pradesh

Sandeep Sharma, J

Bail petitioner Lihat Ram, who is behind bars since 18.5.2023, has approached this Court by way of present petition filed under  S. 439 CrPC, for grant of regular bail in case FIR No. 72, dated 22.4.2023, registered at Police Station Dhalli, District Shimla under Ss.20 and 29 of Narcotic Drugs and Psychotropic Substances Act.

Pursuant to order dated 30.5.2024, respondent-State has filed status report. ASI Puran Ram Police Station Dhalli has come present with record. Record perused and returned.

Close security of record reveals that on 22.4.2023, police, after having received secret information, intercepted one vehicle i.e. Honda Amaze bearing registration No. HR-79-3461, coming from Dhalli to Shimla and allegedly recovered 2.311 kg of charas, in the presence of independent witnesses. Since, occupants of the car were unable to render plausible explanation qua possession of aforesaid quantity of contraband, police, after completion of codal formalities, arrested the occupants of car namely Om Prakash and Manoj Kumar and since then, they are behind the bars. It is alleged that the main accused disclosed to the police during investigation that they had purchased the contraband, allegedly recovered from their possession from the present bail petitioner, as such, he came to be named in the present FIR. Bail petitioner was arrested on 18.5.2023 and since then, he is behind the bars. Since, investigation is complete and Challan stands filed in the competent court of law, prayer has been made on behalf of the bail petitioner for grant of regular bail.

While fairly acknowledging the factum with regard to filing 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 gravity of offence alleged to have been committed by the bail petitioner, he does not deserve leniency and his prayer for bail deserves outright rejection. While making this court peruse record, Mr. Kahol, learned Additional Advocate General submits that there is overwhelming evidence available on record suggestive of the fact that the bail petitioner indulges in illegal trade of narcotics and he had actually sold commercial quantity of contraband to the main accused, Om Parkash and Manoj Kumar for a sum of Rs.2,20,000/-. He states that though in the past no case stands registered against bail petitioner but that may not be a ground for this Court to enlarge him on bail, especially when there is concrete evidence adduced on record suggestive of involvement of bail petitioner in case at hand. He states that in case the bail petitioner is enlarged on bail, he may flee from justice and may indulge in such activities again, as such, prayer for grant of bail made by the bail petitioner deserves to be rejected.

Having heard learned counsel for the parties and perused material available on record this court finds that commercial quantity of contraband was never recovered from conscious possession of the bail petitioner rather from the car being driven by co-accused Om Prakash and Manoj Kumar. On the basis of statement of aforesaid co-accused, name of bail petitioner came to be incorporated in the FIR. Though it is averred in status report that commercial quantity of contraband was purchased by co-accused, named herein above, from bail petitioner for Rs.2,20,000/- but such fact is yet to be established on record by the investigating agency, by leading cogent and convincing evidence. Similarly, evidence, if any, with regard to Call Detail Report is also not sufficient to conclude guilt of the bail petitioner.

Hon’ble Apex Court in case Tofan Singh v. State of Tamil Nadu (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 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.

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.

On the other hand, for the reasons given by us in this judgment, the judgments of Noor Aga (supra) and Nirmal are correct in law.

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.”

Recently the 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 CDR 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.

True, it is that keeping in view the commercial quantity of contraband recovered in the case at hand, rigours of S.37 of the Act are attracted but that does not mean that this court is estopped from enlarging the bail petitioner on bail in the case at hand. Bare perusal of S.37 of the Act clearly reveals that there is no complete bar for the court to grant bail in the cases involving commercial quantity, but court while doing so, at the first instance is required to provide adequate opportunity of being heard to the public prosecutor and thereafter, if it has reason to presume and believe that the person, seeking bail, has been falsely implicated and there is no likelihood of his indulging in such activities again, it can proceed to grant bail in cases involving commercial quantity of contraband. Though, aforesaid aspect of the matter is required to be considered and decided by learned trial court, in the totality of evidence collected on record by investigating agency, but keeping in view the aforesaid aspects of the matter, this court sees no reason to let the bail petitioner incarcerate in jail for an indefinite period during trial, especially when nothing remains to be recovered from the bail petitioner.

Hon'ble Apex Court and this Court in a 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. In the case at hand, complicity, if any, of the bail petitioner is yet to be established on record by the investigating agency, as such, this Court sees no reason to let the bail petitioner incarcerate in jail for an indefinite period during trial, especially when nothing remains to be recovered from him. 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.

Needless to say, 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, bail is not to be withheld as a punishment. Otherwise also, normal rule is of bail and not jail. 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.

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.

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.

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.

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.

In view of above, bail petitioner has carved out a case for herself, as such, present petition is allowed. Bail petitioner is ordered to be enlarged on bail, subject to furnishing bail bonds in the sum of Rs.5,00,000/- with one surety in the like amount, to the satisfaction of the learned Trial Court, besides the 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.

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.

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 petition alone. The petition stands accordingly disposed of.

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 order presented to it, same may be ascertained from the official website of this Court.