Paridutt @ Pari vs State of Himachal Pradesh

Sandeep Sharma, J

By way of instant petition filed under Section 439 Cr.P.C, prayer has been made on behalf of the petitioner namely, Paridutt @ Pari for grant of regular bail in case FIR No. 148 of 2023, dated 25.10.2023, under Sections 20 and 29 of the ND & PS Act (hereinafter to be referred to as ‘Act’), registered at PS Nadaun, District Hamirpur, H.P.

Respondent-State has filed the status report, perusal whereof reveals that on 25.10.2023 police after having received secret information that co-accused Bachan Singh indulges in illegal trade of Narcotics laid a nakka near link road village Khoar and at about 05:30 a.m. stopped car having registration No. HP-22C-7473 being driven by co-accused namely Ashok Kumar. Since both the  accused named hereinabove sitting in the car at the relevant time started making excuses, police after having associated independent witnesses conducted search of the car as well as person of the co-accused and allegedly recovered two carry bags kept in the car containing 663 grams charas and 828 grams charas, in total 1491. Since, no plausible explanation ever came to be rendered on record qua the possession of aforesaid quantity of contraband, police after completion of necessary codal formalities, lodged the FIR, as detailed hereinabove, against both the accused and since then they are behind the bars. Since during investigation, petitioner allegedly disclosed to the police that contraband recovered by them was purchased by them from present bail petitioner for a sum of Rs. 80,000/-, investigating agency after having collected evidence in the shape of call detail report, arrested the bail petitioner on 28.10.2023 and since then, he is also behind the bars. Since, investigation in the case at hand is complete and nothing remains to be recovered from the bail petitioner, he has approached this Court in the instant proceedings, praying therein for grant of regular bail.

Mr. B.C.Verma, learned Additional Advocate General, while fairly admitting factum with regard to filing of the challan in the competent court of law, states that though nothing remains to be recovered from the bail petitioner, but keeping in the gravity of offence alleged to have been committed by him, he does not deserve any leniency. Mr. Verma, further states there is overwhelming evidence adduced on record suggestive of the fact that bail petitioner is a drug peddler and he had been indulging in these activities in past also. While referring to the call detail report, Mr. Verma, states that on the date of alleged incident bail petitioner herein telephonically contacted co-accused for eleven times and as such, it cannot be said that he has been falsely implicated. He states that in the event of bail petitioner enlarged on bail, he may not only flee from the justice, but may again indulging in these activities and as such, his plea of grant of bail may be rejected.

To the contrary, Mr. Maan Singh, learned counsel for the petitioner submits that since no recovery ever came to be effected from the conscious possession of the bail petitioner, rather he came to be named in the FIR on the basis of statement, if any, made by the co-accused, prayer made on behalf of the bail petitioner for grant of bail deserves to be allowed in light of judgment passed by Hon'ble Apex Court in Tofan Singh v. State of Tamil Nadu (2021) 4 SCC 1, wherein it has been categorically held that confessional statement recorded under Section 67 of the Act by co-accused cannot be made ground to lodge a case against other person.

Mr. Maan Singh, further states that as per the own case of prosecution only one case was registered against the bail petitioner under ND&PS Act, but in that case petitioner stands acquitted.

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 bail petitioner, rather same was recovered from the car, as detailed hereinabove, being driven by co-accused Ashok Kumar. As per the own case of the prosecution, on the date of alleged incident Police had received information that co-accused Bachan Singh indulges in illegal trade of Narcotics, from whose conscious possession ultimately commercial quantity of contraband was recovered. It is not in dispute that bail petitioner came to be named in the FIR on the basis of statement made by the aforesaid co-accused, who allegedly disclosed to the Police that they purchased commercial quantity of contraband from bail petitioner for a sum of Rs. 80,000/-. Though, there is nothing on record to prove transaction of Rs. 80,000/-, if any, but heavy reliance has been placed by learned Additional Advocate General on the call detail report, which suggests that on the date of alleged incident, bail petitioner herein called co-accused Bachan Singh for eleven times. Mere telephonic conversation, if any, may not be sufficient to conclude guilty, if any, of the bail petitioner, rather for that purpose, cogent and convincing evidence is required to be adduced on record by the prosecution.

Leaving everything aside, once it is not in dispute that bail petitioner named in the FIR on the basis of statement made by the co-accused, prayer made on his behalf deserves to be considered in light of judgment passed by Hon'ble Apex Court in Tofan Singh’s case (supra), wherein it has been categorically held that confessional statement under Section 37 of the Act will remain inadmissible in the trial of an offence under the Act. Relevant paras of afore 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.

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.

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.”

Subsequently, 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.

No doubt, in the case at hand, rigours of Section 37 of the Act are attracted on account of commercial quantity of contraband, but bare perusal of Section 37 of the Act nowhere suggests that there is complete bar for court to consider the prayer made on behalf of the accused for for grant of bail in the cases involving commercial quantity of contraband, rather, aforesaid provision of law clearly reveals that court can proceed to consider the prayer made in the cases involving commercial quantity of contraband, but subject to his satisfaction that accused has been falsely implicated in the case and in the event of his/ her enlarged on bail, he/she may not indulge in these activities again. Since, in the case at hand, no recovery of contraband ever came to be effected from the petitioner, coupled with the fact that bail petitioner was named in the FIR on the basis of confessional statement made by the co-accused, this court sees no reason to curtailed his freedom for indefinite period during trial. Simply, there is nothing on record suggestive of the fact that in the event of bail petitioner enlarged on bail, he may flee from justice. Petitioner already stands acquitted in a case registered in the past under ND & PS Act and as such, as of today, there is nothing to suggest that bail petitioner is a drug peddler and in the event of his being enlarged on bail, he may again indulging in these activities.

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 Additional 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 the aforesaid discussion as well as law laid down by the Hon’ble Apex Court, 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. 5,00,000/- 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.

(e) He shall surrender his passport, if any, before the investigating agency.

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 application alone. The petition stands accordingly disposed of.