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2025 DAILYLAW 3737 (HP)

Parvez v. State of H. P.

2025-09-12

Virender Singh

body2025
JUDGMENT : Virender Singh, J. Applicant Parvez has filed the present application, under Section 483 of Bharatiya Nagarik Suraksha Sanhita (hereinafter referred to as ‘the BNSS ’) for releasing him, on bail, during the pendency of the trial, arising out of FIR No. 38 of 2025, dated 22.2.2025, registered under Sections 21 , 27-A and 29 of the Narcotic Drugs and Psychotropic Substances Act (hereinafter referred to as the ‘NDPS’ Act), with Police Station, Puruwala, District Sirmour, H.P. 2. The applicant has pleaded the fact that he is innocent person and has falsely been implicated, in the present case, at the instance of the complainant and has nothing to do with the contraband, allegedly recovered, in the present case. 3. It is the further case of the applicant that Police could not collect any evidence to connect him with the crime in question. 4. According to the applicant, investigation, in the present case, is complete and nothing is to be recovered, from his possession. All these facts have been pleaded to show that custodial interrogation of the applicant is no longer required by the Police. 5. Relief of bail has also been sought on the grounds that ground of arrest were not served upon the applicant. 6. On the basis of above facts, the applicant, through his counsel, has undertaken to abide by the terms and conditions, to be imposed by this Court, in case, he is ordered to be released on bail, during pendency of the trial. 7. On these submissions, a prayer has been made to allow the bail application. 8. When put to notice, the police has filed the status report, disclosing therein, that on 22.5.2025, Constable Dinesh Kumar, No. 342, submitted ruqua, which was sent by HC Rakesh Kumar No. 224 I.O., SIU, Nahan, for registration of the FIR, mentioning therein that on 22.2.2025 I.O., alongwith other police officials, in Govt. vehicle bearing registration No. HP 18A-6236, was on patrolling duty and on duty to detect the crime, relating to excise and narcotics. They had proceeded towards Kolar, Majra, Paonta Sahib, Puruwala, Killod side. vehicle bearing registration No. HP 18A-6236, was on patrolling duty and on duty to detect the crime, relating to excise and narcotics. They had proceeded towards Kolar, Majra, Paonta Sahib, Puruwala, Killod side. At about 10:20 a.m., when, I.O., alongwith police team, was present at Bhuddi road bifurcation Mehruwala, then, he received a secret information that a young man, namely, Soib Khan @ Aazam and Sakib Shah, R/o Jeewangarh, Vikasnagar, are doing business of selling narcotic substance chitta/heroin and they had brought consignment of heroin from Bareilly, Uttar Pradesh and both of them are going on Motorcycle bearing registration No. UK 16C-2210, alongwith consignment of heroin from Dakpathhar to Mehruwala, towards Paonta Sahib. 8.1 As per the information, Soib Khan @ Azam was wearing a white coloured sweater and light blue coloured jeans, whereas, Sakib Shah was wearing a white and black coloured jacket and blue coloured jeans. As per the information, in case, the said persons, alongwith the motorcycle, are nabbed, then, a large quantity of chitta/heroin, could be recovered. 8.2 According to the I.O., in case, search warrants and authorization letter are obtained, in that eventuality, delay would be occurred and the contraband could be removed from there. 8.3 The information was found to be authentic and reliable, upon which, the I.O. complied with the provisions of Section 42 (2) of the NDPS Act. 8.4 In the meanwhile, on the spot, one motorcycle bearing registration No. HP-17E-7073 was noticed. The said motorcycle was signalled to stop and the rider of the motorcycle and the pillion rider were inquired about their names and addresses. On inquiry, the rider disclosed his name as Suresh, S/o Sunder Singh and pillion rider of the motorcycle disclosed his name as Surat Singh. Both of them were apprised about the secret information. After associating both of them in the investigation, picketing was done. Constable Dinesh Kumar was directed to photograph and videograph the proceedings. 8.5 At about, 11:00 a.m., as per the information, from Dakpathar side, a motorcycle was noticed coming, which was stopped with the help of police officials. The registration of the same was found to be UK-16C-2210. The I.O. thereafter showed his identity card to the aforesaid persons. On inquiry, the rider of the motorcycle disclosed his name as Soib Khan @ Azam, and the pillion rider disclosed his name as Sakib Shah. The registration of the same was found to be UK-16C-2210. The I.O. thereafter showed his identity card to the aforesaid persons. On inquiry, the rider of the motorcycle disclosed his name as Soib Khan @ Azam, and the pillion rider disclosed his name as Sakib Shah. Both of them were apprised about the secret information and thereafter, the bag carried by Soib Khan was checked. 8.6 On checking the bag, a black coloured plastic envelope, tied with double knot, was found, which, on opening, was found containing a light brown coloured granule shaped substance, which, on weighment, was found to be 323 grams of chitta/heroin. Other codal formalities were completed. 8.7 Further investigation was entrusted to H.C. Jawahar Singh No. 11, Police Post Singhpura, P.S. Puruwala. The spot was visited and spot map was prepared. Both the accused persons were arrested on 22.2.2024 at 7:50 p.m. and 8:00 p.m., respectively. The contraband was produced before the S.I./Addl. SHO Jeet Ram, who resealed the case property. 8.8 On 23.2.2025, accused persons were produced before the Court, from where, they were remanded to Police custody, till 27.2.2025. The inventory proceedings were got conducted by producing the case property, before the JMFC, Paonta Sahib. 8.9. During investigation, it was found that number of cases have been registered against the family members of Soib Khan. 8.10 On 26.2.2025, Sameena @ Gulfaza was arrested. Thereafter, Section 27-A of the NDPS Act was added and accused Sameena @ Gulfaza was arrested. 8.11 During investigation, accused Soib Khan and accused Sameena @ Gulfaza disclosed that the chitta weighing 323 grams, recovered from Soib Khan was delivered to him by Saddam and Reshma, resident of Bareilly, Uttar Pradesh, in the house of Sameena. They had stayed in the house of Sameena. Accused Sameena @ Gulfaza was also remanded to police custody, till 27.2.2025. 8.12 During police custody, she has disclosed that she is working as domestic help in Vikasnagar and her husband Nafeez is labourer. Accused Soib Khan is her real brother. She is having three children (two sons and one daughter). Her younger son is specially- abled and under treatment at Vikasnagar. She has further disclosed that neither she nor her husband deal in chitta. However, for the treatment of their son, at the instance of Soib Khan, Saddam and Reshma were permitted to stay at her residence. She is having three children (two sons and one daughter). Her younger son is specially- abled and under treatment at Vikasnagar. She has further disclosed that neither she nor her husband deal in chitta. However, for the treatment of their son, at the instance of Soib Khan, Saddam and Reshma were permitted to stay at her residence. 8.13 On 21.2.2025, when, she was present at her parents’ house, then, during night time, at about 11- 11:30 p.m., her brother came to her alongwith Soib Khan and Reshma. Saddam is also stated to have stayed at her home and in lieu of that, her brother Soib Khan paid a sum of Rs. 5000/- to her. However, on the second occasion, Saddam has refused to pay a sum of Rs. 6000/-, in lieu of stay of above two persons. 8.14 It is the further case of the Police that Sameena @ Gulfaza has further disclosed that on 22.2.2025, she came to Vikasnagar from Jeewangarh and at 12:30 p.m., when, she came back to her house, Saddam and Reshma were still found there. She inquired from them as to why they have not left, upon which, they apprised her that until or unless Soib Khan pays the amount to them, they won’t leave, upon which, she called Soib Khan. 8.15 Thereafter, at about 2:30 p.m., she had left for her maternal house and at about 4:30 p.m., she came to know that Soib Khan has been arrested. She tried to call Saddam on his mobile phone number 7060218321. According to her, by making said call, she had inquired about her brother. 8.16 In nut-shell, it has been alleged against her that at the instance of her brother, she had given shelter to the main accused, at her residence. 8.17 On 26.2.2025, CDRs of mobile phone numbers of Soib Khan and his family members were analyzed and mobile phone of Saddam, who allegedly supplied chitta to Soib Khan, was found to be switched off. His location was found to be at Kirtinagar, Delhi. 8.18 On 5.3.2025, accused Saddam was nabbed. During investigation, he disclosed that he got the chitta, for a sum of Rs. 3,15,000/-at the instance of Reshma, through Parvez (applicant) from Sarafraz. His location was found to be at Kirtinagar, Delhi. 8.18 On 5.3.2025, accused Saddam was nabbed. During investigation, he disclosed that he got the chitta, for a sum of Rs. 3,15,000/-at the instance of Reshma, through Parvez (applicant) from Sarafraz. On the said date, Saddam was arrested at 5:30 p.m. and Parvez (applicant) was arrested at 5:35 p.m. Sarafraz was arrested at 5:40 p.m. 8.19 Accused Sarafraj, during investigation, has disclosed that his cousin Parvez (applicant), by making a telephonic call, inquired from him if he can provide chitta/heroin, as his friend is requiring that, upon which, he has purchased 323 grams of chitta/heroin, from Tahir @ Bhura and sold the same to accused Saddam, in the presence of applicant Parvez, for a sum of Rs. 3,15,000/-, and a sum of Rs. 2500/- was given to applicant Parvez, as commission. 8.20 Applicant Parvez is stated to have talked from his mobile phone No. 82734-41739 on the mobile phone of accused Sarafraj bearing No. 87550-85029, on 46 occasions. 8.21 On 10.3.2025, accused Saddam, applicant Parvez and accused Sarafraz, were produced before the Court. During investigation, accused Sarafraz disclosed that Parvez (applicant) is his cousin, who is running a chicken shop at Jalif Nagla. On 18.2.2025, applicant Parvez is stated to have put forward his demand to purchase 500 grams of chitta, upon which, he has contacted Bhura, resident of Fatehganj and purchased 323 grams of chitta. 8.22 On 21.2.2025, chitta/heroin was sold to Saddam, in the presence of his cousin. Parvez (applicant), who had called him to jungle near Railway Line and said chitta was sold, for a sum of Rs. 3,20,000/-. Saddam has allegedly paid a sum of Rs. 2500/- to applicant Parvez. He has paid a sum of Rs.3,15,000/-, after selling the chitta to Bhura, and he had been given a sum of Rs. 10,000/- as commission. 8.23 On 17.3.2025, Tahir @ Bhura was associated in the investigation and later on, was arrested. On 18.3.2025, he was produced before the Court, from where, he was remanded to police custody for three days, till 20.3.2025. During investigation, he has disclosed that he has purchased the chitta from some unknown person, at the instance of Sarafraj. The said person met him with the covered face. After purchasing chitta, he has handed over the same to Sarafraj. During investigation, he has disclosed that he has purchased the chitta from some unknown person, at the instance of Sarafraj. The said person met him with the covered face. After purchasing chitta, he has handed over the same to Sarafraj. 8.24 On 24.3.2025, inventory proceedings were got conducted by producing the case property, before the Court and the sample of the remaining case property was deposited with mallkhana, Nahan. One sample was sent to SFSL, Junga, from where, positive report has been received. 8.25 On 16.6.2025, accused Reshma was arrested. 8.26 During investigation, when CDRs of mobile phones of accused persons were obtained, then, it was found that they were in touch, with each other. During investigation, property of Soib Khan @ Azam, Sameena @ Gulfaza and their family members were got seized from the department. However, when statements of account were obtained, then, no financial transactions were found. 8.27 On the analysis of CDRs of accused Soib Khan @ Azam, Sakib Shah, Sameena @ Gulfaza, Saddam, Reshma Begam, Parvez (applicant), Sarafraz and Tahir, all of them are stated to be in touch with each other, in the illegal business of selling and purchasing chitta. 8.28 After investigation of the case, police filed charge-sheet against accused persons and the matter is stated to be pending in the Court of learned Special Judge-II, Nahan, District Sirmour, H.P. for consideration on charge. 8.29 Highlighting the role of applicant Parvez, lastly, it has been pleaded that in the inquiry from Parvez (applicant) and another accused, it was found that accused Saddam had asked applicant Parvez, if he could arrange for the chitta, upon which, he inquired from his cousin Sarafraz, and said Sarafraz, through applicant Parvez, had sold 323 grams of chitta to accused Saddam, for a sum of Rs.3,15,000/-, in the presence of applicant Parvez. Accused Sarafraz is stated to have paid a sum of Rs. 2500/- to applicant Parvez, as commission, for getting the deal finalized. As such, applicant Parvez is stated to have helped in the sale of chitta/heroin. 8.30 Apart from this, on the basis of CDRs, it has been found that accused Saddam and applicant Parvez were in touch with each other, on various occasions. 8.31 On the basis of above facts, a prayer has been made to dismiss the application. 9. The contraband, allegedly recovered in the present case, admittedly, falls within the ‘commercial quantity’. 8.30 Apart from this, on the basis of CDRs, it has been found that accused Saddam and applicant Parvez were in touch with each other, on various occasions. 8.31 On the basis of above facts, a prayer has been made to dismiss the application. 9. The contraband, allegedly recovered in the present case, admittedly, falls within the ‘commercial quantity’. When, the rigors of Section 37 of the NDPS are applicable, in that eventuality, before releasing the applicant on bail, this Court has to satisfy the twin conditions as per Section 37(b) of the NDPS Act by holding that the accused (applicant) has not committed the offence and in case, he is ordered to be released on bail, he is not likely to commit any offence. 10. In this case, whatsoever role has been alleged against the applicant, by the Police, has been alleged, on the basis of revelations, made by his co-accused. 11. Hon’ble Apex Court in a case titled as Vikram Singh and ors versus State of Punjab ; AIR 2010 Supreme Court 1007 has distinguish between the word ‘arrest’ and the word ‘custody’, as used in Section 27 of the Evidence Act. Relevant Paras-12 & 16 of the judgment, are reproduced, as under:- “12. Mr. Sharan has, however, referred us to Section 46(1) of the Code of Criminal Procedure to argue that till the appellants had been arrested in accordance with the aforesaid provision they could not be said to be in police custody. We see that Section 46 deals with 'Arrest how made'. We are of the opinion that word “arrest” used in Section 46 relates to a formal arrest whereas Section 27 of the Evidence Act talks about custody of a person accused of an offence. In the present case the appellants were undoubtedly put under formal, arrest on the 15th February 2005 whereas the recoveries had been made prior to that date but admittedly, also, they were in police custody and accused is an offence at the time of their apprehension on the 14 th February 2005. Moreover, in the light of the judgment in the Constitution Bench and the observation that the words in Section 27 “accused of any offence” are descriptive of a person making the statement, the submission that this Section would be operable only after formal arrest under Section 46(1) of the Code, cannot be accepted. Moreover, in the light of the judgment in the Constitution Bench and the observation that the words in Section 27 “accused of any offence” are descriptive of a person making the statement, the submission that this Section would be operable only after formal arrest under Section 46(1) of the Code, cannot be accepted. This argument does not merit any further discussion. xxx xxx xxx 16. It is also significant that Jasvir Singh also disclosed that he had kept concealed the dead body in the fields of village Daulatpur and that it had been removed from Darshan Kaur's house in the Chevrolet car belonging to him and the three appellants had further revealed that the dead body had been disposed of in the fields of village Daulatpur and the dead body was recovered and taken into possession by Memo Ex.PGGG signed by Manohar Lal as also Sub-Inspector Jeevan Kumar. We are unable to accept Mr. Sharan's bare submission that the evidence of Manohar Lal and Sub-Inspector Jeevan Kumar should not be believed as they were interested in the successful outcome of the prosecution, as no other material adverse circumstance has been brought to our notice.” 12. Full Bench of Hon’ble Lahore High Court in Hakam Khuda Yar versus Emperor; AIR 1940 Lahore 129 , has also defined the word ‘custody’ and held that the police custody does not necessarily means custody after formal arrest. Relevant portion of the judgment, is reproduced, as under:- “......... As regards the first point, the term "custody" is not defined either in the Criminal Procedure Code or in the Evidence Act. There is, of course, no doubt that an accused person will be in the "custody" of the police after his arrest; but the question is whether he can be considered to be in "custody" at any time earlier, when he has not been formally arrested, but is merely detained by the police for the purpose of the investigation. Section 27 is anomalous in so far as it applies only to information leading to a discovery when received from an accused person in the custody of the police, but not if he is not in the custody of the police. Section 27 is anomalous in so far as it applies only to information leading to a discovery when received from an accused person in the custody of the police, but not if he is not in the custody of the police. If the information is relevant when it comes from a person in the custody of the police, there seems no good reason why it should not be so when it comes from an accused person, who is not in the custody of the police and therefore not under the influence of the police. The real intention of the Section very probably is to make information from an accused person which leads to discovery relevant even when the person is in police custody. But the language of, the Section makes such information relevant only when it comes from an accused person in the custody of the police. The language used in the Section thus leads to the curious result probably never intended--that when such information is given by an accused person, who is not in the "custody" of the police it will not be covered by the Section. However, apart from the above anomaly, the intention of the Section seems, I think, clear enough and that is to make information leading to a discovery relevant, even when it comes from an accused person who is in the custody of the police and thus subject to police influence. Ordinarily information coming from an accused person, who is liable to be influenced by the police will be open to suspicion. But if the information leads to the discovery of a relevant fact, that discovery is considered to be a guarantee of the truth of the information as has been pointed out already and hence such information is made relevant by Section 27. Now there can be little doubt, that even before his formal arrest, an accused person, who is detained by the police owing to suspicion against him, is liable to be influenced by the police. This Court has therefore put a wide interpretation on the word "custody" as used in Section 27. Now there can be little doubt, that even before his formal arrest, an accused person, who is detained by the police owing to suspicion against him, is liable to be influenced by the police. This Court has therefore put a wide interpretation on the word "custody" as used in Section 27. In AIR 1933 Lah 609, it was held by a Division Bench of this Court consisting of Sir Shadi Lal and Coldstream J. that 'police custody' does not necessarily mean custody after formal arrest and that it also includes 'some form of police surveillance and restriction on the movements of the person concerned by the police. 13. In view of the above, whatsoever disclosed by the co-accused, was disclosed by them, when, they were in police custody. In view of the law laid down by the Hon’ble Supreme Court in ‘ Tofan Singh versus State of Tamil Nadu ’, (2021) 4 Supreme Court Cases 1, the said statement cannot be taken into account, in order to convict the accused, under the provisions of NDPS Act. Relevant paragraph 158.1 of the judgment is reproduced as under: “158.1 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.” 14. So far as the CDRs, which have heavily been relied upon by the Police, in this case, are concerned, Hon’ble Supreme Court in State by (NCB) Bengaluru versus Pallulabid Ahmad Arimutta & Anr., reported in 2022 (2) SCALE 14 has held that evidentiary value of the CDRs is to be determined, during trial. Relevant portion of the judgment is reproduced as under: “10. It has been held in clear terms in Tofan Singh Vs. State of Tamil Nadu , 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. Relevant portion of the judgment is reproduced as under: “10. It has been held in clear terms in Tofan Singh Vs. State of Tamil Nadu , 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 6 (2021) 4 SCC 1 Page 9 of 12 2022 Live Law (SC) 63 Petition for Special Leave to Appeal (Criminal) No. 1569 OF 2021 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, 2020 passed in SLP (Crl.) No@ Diary No. 22702/2020, SLP (Crl.) No. 1454/2021, SLP (Crl.) No. 1465/2021, SLP (Crl.) No. 1773-74/2021 and 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.” (self emphasis supplied) 15. The CDRs can only provide information like Caller ID, duration and Cell Tower Details, however, they do not capture the substance of the conversation itself. These are the call record details, which are the metadata (data about data) about the call and the same is totally different from call recording, which offers direct evidence of the communication, including specific words spoken and context of the conversation, which can be crucial, for deciding the matter. 16. No financial transaction has been found to have taken place, in this case and the alleged revelation, made by his co-accused that a sum of Rs. 2500/- was given to the applicant, on the ground of finalizing the deal of the alleged contraband, which was allegedly sold for a sum of Rs. 3,15,000/-, is too short to connect the accused, with the crime in question, at this stage. 17. 2500/- was given to the applicant, on the ground of finalizing the deal of the alleged contraband, which was allegedly sold for a sum of Rs. 3,15,000/-, is too short to connect the accused, with the crime in question, at this stage. 17. Considering all these facts, this Court is of the view that the applicant is able to make out a case, where this Court can record the findings, which are more than the prima-facie case, about the fact that on the basis of aforesaid evidence, it can be said that accused is not guilty of such offence and while on bail, he is not likely to commit any offence. 18. In view of above, the bail application is liable to be allowed and the same is accordingly allowed. 19. Consequently, the applicant is ordered to be released on bail in case FIR No. 38 of 2025, dated 22.2.2025, registered under Sections 21 , 27-A and 29 of the NDPS Act, with Police Station, Puruwala, District Sirmour, H.P. on his furnishing personal bond in the sum of Rs. 1,00,000/-, with two sureties in the like amount, to the satisfaction of learned trial Court. 20. This order, however, shall be subject to the following conditions:- a) Applicant shall 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) Applicant shall not tamper with the prosecution evidence nor hamper the investigation of the case in any manner whatsoever; c) Applicant shall not make any inducement, threat or promises to any person acquainted with the facts of the case so as to dissuade them from disclosing such facts to the Court or the Police Officer, and d) Applicant shall not leave the territory of India without the prior permission of the Court. f) The applicant shall furnish affidavit, in the first week of every month, before the learned trial Court, disclosing therein that he has not been named, as accused, in any crime, during that period. 21. Any of the observations, made herein above, shall not be taken, as an expression of opinion, on the merits of the case, as these observations are confined, only to the disposal of the present bail application. 22. 21. Any of the observations, made herein above, shall not be taken, as an expression of opinion, on the merits of the case, as these observations are confined, only to the disposal of the present bail application. 22. It is made clear that the respondent-State is at liberty to move an appropriate application, in case, any of the bail conditions is found to be violated by the applicant. 23. The Registry is directed to forward a soft copy of the bail order to the Superintendent of Model Central Jail, Nahan, through e-mail, with a direction to enter the date of grant of bail in the e-prison software. 24. In case, the applicant is not released within a period of seven days from the date of grant of bail, the Superintendent of Model Central Jail, Nahan is directed to inform this fact to the Secretary, DLSA, Sirmour. The Superintendent of the Model Central Jail, Nahan is further directed that if the applicant fails to furnish the bail bonds, as per the order passed by this Court within a period of one month from today, then, the said fact be submitted to this Court. 25. Record be returned back to the quarter concerned.