Himachal Pradesh High Court
Ajay Kumar vs State Of Himachal Pradesh on 4 March, 2025
Neutral Citation No. ( 2025:HHC:4384 )
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr. MP (M) No. 194 of 2025
Reserved on: 27.02.2024
Date of Decision: 4th March 2025.
Ajay Kumar ...Petitioner
Versus
State of Himachal Pradesh ...Respondent
Coram
Hon’ble Mr Justice Rakesh Kainthla, Judge.
Whether approved for reporting?1 No
For the Petitioner : Mr. Umesh Kanwar, Advocate.
For the Respondent/State. : Ms. Niyati Thakur, Deputy
Advocate General with ASI Deep
Kumar, IO PS Jawali, District
Kangra, H.P.
Rakesh Kainthla, Judge
The petitioner has filed the present petition for seeking
regular bail. It has been asserted that the petitioner was arrested
vide F.I.R. No. 162 of 2024, dated 25.10.2024, registered for the
commission of offences punishable under Sections 20, 25 and 29
of the Narcotic Drugs and Psychotropic Substances Act (in short
NDPS Act) at Police Station Jawali, District Kangra, H.P. The
petitioner is innocent and he was falsely implicated. There are
1
Whether reporters of Local Papers may be allowed to see the judgment? Yes.
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Neutral Citation No. ( 2025:HHC:4384 )
reasonable grounds to believe that the petitioner is not guilty. The
petitioner has no nexus with the contraband. He has been
implicated based on a financial transaction of ₹ 27,000/- The
petitioner has no criminal antecedents. He would abide by all the
terms and conditions, which the Court may impose. Hence, the
petition.
2. The petition is opposed by filing a status report
asserting that the police party was on patrolling duty on
25.10.2024. They stopped a vehicle bearing registration No. HP-
97A-0842 and recovered 6.058 kg of charas from it. They arrested
driver Arjun Singh and occupant Vipin Kumar. The police
interrogated them, and Arjun Singh revealed during the
interrogation that he had purchased Charas from Maheshwar
Singh for ₹ 2,50,000/-. Vipin Kumar revealed during the
interrogation that Arjun Singh had promised to pay ₹5,000/- to
him. The police interrogated the petitioner, and the petitioner
revealed that he was working in the shop of Shubhkaran.
Shubhkaran was arrested in a case of charas. Arjun Singh started
looking after the shop. Arjun Singh asked the petitioner to transfer
the money to various persons as the accounts of Shubhkaran were
seized by the police. The petitioner had transferred ₹27,000/- to
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Neutral Citation No. ( 2025:HHC:4384 )
Maheshwar Singh’s account. The police arrested the petitioner.
Subsequently, police also arrested Maheshwar Singh, who
revealed during the inquiry that he had sold 06 kg of charas to
Arjun Singh through Somdev. The police recovered the bank
details of Maheshwar Singh and found that some vouchers
mentioned the name of the petitioner. The report of analysis
confirmed the substance to be charas; hence, the status report.
3. I have heard Mr. Umesh Kanwar, learned counsel for
the petitioner and Ms. Niyati Thakur, learned Deputy Advocate
General for the respondent/State.
4. Mr Umesh Kanwar, learned counsel for the petitioner,
submitted that the petitioner is innocent and he was falsely
implicated. There is no evidence to connect the petitioner with the
commission of the crime except the statement made by the co-
accused and the transfer of the money. These are insufficient to
connect the petitioner with the commission of crime. The police
have filed the charge sheet before the Court, and the custody of
the petitioner is not required; hence, he prayed that the present
petition be allowed and the petitioner be released on bail.
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Neutral Citation No. ( 2025:HHC:4384 )
5. Ms. Niyati Thakur, learned Deputy Advocate General
for the respondent/State submitted that the statement of the co-
accused is duly corroborated by the financial transaction,
therefore there is sufficient material to connect the petitioner
with the commission of the crime. The police had recovered a
commercial quantity of charas and the petitioner had not satisfied
the rigours laid down under Section 37 of the NDPS Act; hence, she
prayed that the present petition be dismissed.
6. I have given considerable thought to the submissions
made at the bar and have gone through the records carefully.
7. The parameters for granting bail were considered by
the Hon’ble Supreme Court in Manik Madhukar Sarve v. Vitthal
Damuji Meher, 2024 SCC OnLine SC 2271, wherein it was observed
as under: –
“19. Courts, while granting bail, are required to consider
relevant factors such as the nature of the accusation,
the role ascribed to the accused concerned,
possibilities/chances of tampering with the evidence and/or
witnesses, antecedents, flight risk, et al. Speaking through
Hima Kohli, J., the present coram in Ajwar v. Waseem, 2024
SCC OnLine SC 974, apropos relevant parameters for
granting bail, observed:
“26. While considering whether bail ought to be granted
in a matter involving a serious criminal offence, the
Court must consider relevant factors like the nature of the
5
Neutral Citation No. ( 2025:HHC:4384 )accusations made against the accused, the manner in which
the crime is alleged to have been committed, the gravity of
the offence, the role attributed to the accused, the criminal
antecedents of the accused, the probability of tampering of
the witnesses and repeating the offence, if the accused are
released on bail, the likelihood of the accused being
unavailable in the event bail is granted, the possibility of
obstructing the proceedings and evading the courts of justice
and the overall desirability of releasing the accused on bail.
(Refer: Chaman Lal v. State of U.P. (2004) 7 SCC 525;
Kalyan Chandra Sarkar v. Rajesh Ranjan alias Pappu
Yadav (supra) (2004) 7 SCC 528; Masroor v. State of Uttar
Pradesh (2009) 14 SCC 286; Prasanta Kumar Sarkar v. Ashis
Chatterjee (2010) 14 SCC 496; Neeru Yadav v. State of Uttar
Pradesh (2014) 16 SCC 508; Anil Kumar Yadav v. State (NCT
of Delhi) (2018) 12 SCC 129; Mahipal v. Rajesh Kumar @
Polia (supra) (2020) 2 SCC 118.
27. It is equally well settled that bail, once granted, ought
not to be cancelled in a mechanical manner. However, an
unreasoned or perverse order of bail is always open to
interference by the Superior Court. If there are serious
allegations against the accused, even if he has not misused
the bail granted to him, such an order can be cancelled by
the same Court that has granted the bail. Bail can also be
revoked by a Superior Court if it transpires that the courts
below have ignored the relevant material available on
record or not looked into the gravity of the offence or the
impact on the society resulting in such an order. In P v. State
of Madhya Pradesh (supra) (2022), 15 SCR 211 decided by a
three-judge bench of this Court [authored by one of us
(Hima Kohli, J)] has spelt out the considerations that
must be weighed with the Court for interfering in an
order granting bail to an accused under Section 439(1) of
the CrPC in the following words:
“24. As can be discerned from the above decisions, for
cancelling bail once granted, the court must consider
whether any supervening circumstances have arisen or
the conduct of the accused post grant of bail
6
Neutral Citation No. ( 2025:HHC:4384 )demonstrates that it is no longer conducive to a fair trial
to permit him to retain his freedom by enjoying the
concession of bail during trial [Dolat Ram v. State of
Haryana, (1995) 1 SCC 349: 1995 SCC (Cri) 237]. To put
it differently, in ordinary circumstances, this Court
would be loathe to interfere with an order passed by the
court below granting bail, but if such an order is found to
be illegal or perverse or premised on material that is
irrelevant, then such an order is susceptible to scrutiny
and interference by the appellate court.” (emphasis
supplied)
20. In State of Haryana v. Dharamraj, 2023 SCC OnLine SC
1085, speaking through one of us (Ahsanuddin Amanullah,
J.), the Court, while setting aside an order of the Punjab and
Haryana High Court granting (anticipatory) bail, discussed
and reasoned:
“7. A foray, albeit brief, into relevant precedents is
warranted. This Court considered the factors to guide
the grant of bail in Ram Govind Upadhyay v. Sudarshan
Singh (2002) 3 SCC 598 and Kalyan Chandra
Sarkar v. Rajesh Ranjan (2004) 7 SCC 528. In Prasanta
Kumar Sarkar v. Ashis Chatterjee (2010) 14 SCC 496, the
relevant principles were restated thus:
‘9. … It is trite that this Court does not, normally,
interfere with an order passed by the High Court granting
or rejecting bail to the accused. However, it is equally
incumbent upon the High Court to exercise its discretion
judiciously, cautiously and strictly in compliance with the
basic principles laid down in a plethora of decisions of
this Court on the point. It is well settled that, among
other circumstances, the factors to be borne in mind
while considering an application for bail are:
(i) whether there is any prima facie or reasonable
ground to believe that the accused had committed the
offence;
(ii) nature and gravity of the accusation;
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Neutral Citation No. ( 2025:HHC:4384 )
(iii) severity of the punishment in the event of
conviction;
(iv) danger of the accused absconding or fleeing if
released on bail;
(v) character, behaviour, means, position and
standing of the accused;
(vi) likelihood of the offence being repeated;
(vii) reasonable apprehension of the witnesses being
influenced; and
(viii) danger, of course, of justice being thwarted by
grant of bail.'” (emphasis supplied)
8. The present petition has to be decided as per the
parameters laid down by the Hon’ble Supreme Court.
9. The police have relied upon the statement made by the
co-accused. It was laid down by the Hon’ble Supreme Court in
Dipakbhai Jagdishchandra Patel v. State of Gujarat, (2019) 16 SCC
547: (2020) 2 SCC (Cri) 361: 2019 SCC OnLine SC 588 that a
statement made by co-accused during the investigation is hit by
Section 162 of Cr.P.C. and cannot be used as a piece of evidence.
Further, the confession made by the co-accused is inadmissible
because of Section 25 of the Indian Evidence Act. It was observed
at page 568:-
44. Such a person, viz., the person who is named in the FIR,
and therefore, the accused in the eye of the law, can indeed
be questioned, and the statement is taken by the police
officer. A confession that is made to a police officer would
8
Neutral Citation No. ( 2025:HHC:4384 )be inadmissible having regard to Section 25 of the Evidence
Act. A confession, which is vitiated under Section 24 of the
Evidence Act, would also be inadmissible. A confession,
unless it fulfils the test laid down in Pakala Narayana
Swami [Pakala Narayana Swami v. King Emperor, 1939 SCC
OnLine PC 1 : (1938-39) 66 IA 66: AIR 1939 PC 47] and as
accepted by this Court, may still be used as an admission
under Section 21 of the Evidence Act. This, however, is
subject to the bar of admissibility of a statement under
Section 161 CrPC. Therefore, even if a statement contains
admission, the statement being one under Section 161, it
would immediately attract the bar under Section 162 CrPC.”
10. Similarly, it was held in Surinder Kumar Khanna vs
Intelligence Officer Directorate of Revenue Intelligence 2018 (8) SCC
271 that a confession made by a co-accused cannot be taken as a
substantive piece of evidence against another co-accused and can
only be utilised to lend assurance to the other evidence. The
Hon’ble Supreme Court subsequently held in Tofan Singh Versus
State of Tamil Nadu 2021 (4) SCC 1 that a confession made to the
police officer during the investigation is hit by Section 25 of the
Indian Evidence Act and is not saved by the provisions of Section
67 of the NDPS Act. Therefore, no advantage can be derived by the
prosecution from the confessional statement made by the co-
accused implicating the petitioner.
11. A similar situation arose before this Court in Dinesh
Kumar @ Billa Versus State of H.P. 2020 Cri.L.J.4564, and it was held
9
Neutral Citation No. ( 2025:HHC:4384 )
that a confession of the co-accused and the phone calls are not
sufficient to deny bail to a person.
12. It was laid down by this Court in Saina Devi vs State of
Himachal Pradesh 2022 Law Suit (HP) 211 that where the police
have no material except the call details record and the disclosure
statement of the co-accused, the petitioner cannot be kept in
custody. It was observed:-
“[16] In the facts of the instant case also the prosecution,
for implicating the petitioner, relies upon firstly the
confessional statement made by accused Dabe Ram and
secondly the CDR details of calls exchanged between the
petitioner and the wife of co-accused Dabe Ram. Taking
into consideration the evidence with respect to the
availability of CDR details involving the phone number of
the petitioner and the mobile phone number of the wife of
coaccused Dabe Ram, this Court had considered the
existence of a prime facie case against the petitioner and
had rejected the bail application as not satisfying the
conditions of Section 37 of NDPS Act.
[17] Since the existence of CDR details of accused person(s)
has not been considered as a circumstance sufficient to hold
a prima facie case against the accused person(s), in
Pallulabid Ahmad’s case (supra), this Court is of the view
that petitioner has made out a case for maintainability of
his successive bail application as also for grant of bail in his
favour.
[18] Except for the existence of CDRs and the disclosure
statement of the co-accused, no other material appears to
have been collected against the petitioner. The disclosure
made by the co-accused cannot be read against the
petitioner as per the mandate of the Hon’ble Supreme Court
10
Neutral Citation No. ( 2025:HHC:4384 )in Tofan Singh Vs State of Tamil Nadu, 2021 4 SCC 1. Further,
on the basis of aforesaid elucidation, the petitioner is also
entitled to the benefit of bail.
13. A similar view was taken by this Court in Dabe Ram vs.
State of H.P., Cr.MP(M) No. 1894 of 2023, decided on 01.09.2023,
Parvesh Saini vs State of H.P., Cr.MP(M) No. 2355 of 2023, decided on
06.10.2023 and Relu Ram vs. State of H.P. Cr.MP(M) No. 1061 of 2023,
decided on 15.05.2023,
14. Therefore, the petitioner cannot be detained in custody
based on a statement made by the co-accused as the same does
not constitute a legally admissible piece of evidence.
15. The police have also relied upon the transfer of
₹27,000/- from the account of the petitioner to the account of
Maheshwar Singh. This transfer will not help the police in the
absence of any evidence that Maheshwar Singh was dealing with
charas or had sold the charas to the co-accused. The status report
does not show that any recovery was effected from Maheshwar
Singh. It is the admitted case of the prosecution that the petitioner
was working in the shop of Shubhkaran and was transferring the
money at his instance to various persons. Therefore, the transfer
of money by the petitioner at the instance of the shopkeeper
cannot connect him with the possession of the charas.
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Neutral Citation No. ( 2025:HHC:4384 )
16. The police also relied upon the vouchers in which the
name of the petitioner was mentioned. The status report does not
show that Ajay mentioned in the vouchers is the name of the
petitioner and not the name of any other person. Ajay is a common
name, and in the absence of any material to connect Ajay with the
petitioner, he cannot be held to be involved in the commission of
the crime merely because his name was mentioned in some of the
vouchers.
17. It was laid down by the Kerala High Court in Amal E vs
State of Kerala 2023:KER:39393 that financial transactions are not
sufficient to connect the accused with the commission of a crime.
It was observed:
“From the perusal of the case records, it can be seen that,
apart from the aforesaid transactions, there is nothing to
show the involvement of the petitioners. It is true that the
documents indicate the monetary transactions between the
petitioners and some of the accused persons, but the
question that arises is whether the said transactions were in
connection with the sale of Narcotic drugs. To establish the
same, apart from the confession statements of the accused,
there is nothing. However, as it is an aspect to be
established during the trial, I do not intend to enter into any
finding at this stage, but the said aspect is sufficient to
record the satisfaction of the conditions contemplated
under section 37 of the NDPS Act, as the lack of such
materials evokes a reasonable doubt as to the involvement
of the petitioner.”
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Neutral Citation No. ( 2025:HHC:4384 )
18. Therefore, prima facie, there is insufficient material to
connect the petitioner with the commission of crime.
19. In view of the above, the present petition is allowed,
and the petitioner is ordered to be released on bail subject to his
furnishing of bail bonds in the sum of ₹1,00,000/- with one surety
in the like amount to the satisfaction of the learned Trial Court.
While on bail, the petitioner will abide by the following
conditions:
(i) The petitioner will not intimidate the witnesses, nor will he
influence any evidence in any manner whatsoever.
(ii) The petitioner shall attend the trial and will not seek
unnecessary adjournments.
(iii) The petitioner will not leave the present address for a
continuous period of seven days without furnishing the
address of the intended visit to the concerned Police Station
and the Court.
(iv) The petitioner will furnish his mobile number and social
media contact to the Police and the Court and will abide by
the summons/notices received from the Police/Court
through SMS/WhatsApp/Social Media Account. In case of
any change in the mobile number or social media accounts,
the same will be intimated to the Police/Court within five
days from the date of the change.
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Neutral Citation No. ( 2025:HHC:4384 )
20. 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 the Court for
cancellation of the bail.
21. The observations made hereinabove are regarding the
disposal of this petition and will have no bearing, whatsoever, on
the case’s merits.
22. The petition stands accordingly disposed of. A copy of
this order will be sent to the Superintendent, Lala Lajpat Rai
District and Air Correctional Home Dharamshala, District Kangra,
H.P., and the learned Trial Court by FASTER.
23. 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 the order presented to it, same may be
ascertained from the official website of this Court.
(Rakesh Kainthla)
4th March, 2025 Judge
(Saurav Pathania)
Digitally signed by
KARAN SINGH
GULERIA
Date: 2025.03.04
14:22:25 NPT
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