Yog Raj vs State Of Himachal Pradesh

Sushil Kukreja, J

By way of instant petition, filed under Section 438 of the Criminal Procedure Code, the petitioner is seeking anticipatory bail in case F.I.R. No. 102/2023, dated 08.07.2023, registered at Police Station Aut, District Mandi, H.P., under Sections 18 & 29 of the Narcotic Drugs and Psychotropic Substances Act (hereinafter referred to as “NDPS Act”).

The prosecution story, in brief, is that on 08.07.2023, while the police party was on routine patrolling duty and reached near Duada, they saw a person coming from Aut side, who was carrying a bag with him. On seeing the police party, the person got perplexed and tried to run away, however, at some distance, he was nabbed by the police party. On asking, the person disclosed his name as Jawahar Lal. Since it was an isolated place, no independent witness could be found, as such, Constable Dinesh Geer and HHC Atul Sharma have been associated as witnesses in the proceedings. In presence of the aforesaid witnesses when the bag of Jawahar Lal was checked, it was found containing opium. On weighment, the recovered opium was found to be 3 kgs and 84 grams. Thereafter, the police completed all the codal formalities and FIR was registered against the accused and he was arrested. During investigation, the accused disclosed that he had purchased the opium from Yog Raj (petitioner herein).

The bail petition has been filed on the ground that the petitioner is innocent and has been falsely implicated in this case. Learned counsel for the petitioner has contended that investigation in this case is complete and nothing remains to be recovered at the instance of the petitioner, as such, he deserves to be enlarged on bail.

Per contra, learned Additional Advocate General opposed the bail application on the ground that keeping in view the gravity of the offence alleged to have been committed by the petitioner, he is not entitled to be enlarged on bail.

I have heard the learned counsel for the petitioner as well as learned Additional Advocate General and have also gone through the record of the case. From the perusal of the status report filed on behalf of the respondent/state, it is evident that the petitioner has been implicated on the basis of disclosure statement of the accused and also on the basis of alleged call details record between the accused and the petitioner through their respective mobile phones. It is not in dispute that the opium in question never came to be recovered from the conscious possession of the petitioner, rather it was recovered from accused Jawahar Lal.

The Hon'ble Apex Court in Tofan Singh Vs State of Tamil Nadu (2021) 4 SCC 1, has categorically held that the disclosure statement, if any, made under Section 67 of the Act, is inadmissible. The relevant paragraph 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 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.”

Recently, the Hon’ble Apex Court in 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 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. The relevant portion of the judgment reads 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. 2080/2021 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.”

In the present case, except for the existence of CDRs and disclosure statement of the accused, no other material has been collected against the petitioner. Therefore, in view of the aforesaid mandate of the Hon’ble Supreme Court in Tofan Singh & Pallulabid Ahmad’s cases (supra), the disclosure statement made by the accused cannot be read against the petitioner. There is also no past history of the petitioner regarding his involvement in the similar offence.

Accordingly, the bail application is allowed and order dated 02.08.2023 is made absolute. The petitioner is ordered to be released on anticipatory bail in case FIR No. 102/2023, dated 08.07.2023, registered at Police Station Aut, District Mandi, H.P., under Sections 18 & 29 of NDPS Act, subject to the following conditions:-

“(i) That the petitioner will appear before the Court and the Investigating Officer whenever required;

(ii) That he will 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/her from disclosing any facts to the Court or the police;

(iii) That he will not tamper with the prosecution evidence nor they will try to win over the prosecution witnesses in any manner;

(iv) That he will not leave India without prior permission of the Court.”

Needless to say that the Investigating agency shall be at liberty to move this Court for cancellation of the bail, if any of the aforesaid conditions is violated by the petitioner.