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2025 DAILYLAW 3784 (HP)

Nitish Kumar @Lucky v. State of Himachal Pradesh

2025-10-17

Rakesh Kainthla

body2025
Judgment : Rakesh Kainthla, J. The petitioner has filed the present petition for seeking regular bail in F.I.R. No. 45 of 2025, dated 28.02.2025, registered for the commission of offences punishable under Sections 18, 20, 27A & 29 of the Narcotic Drugs and Psychotropic Substances Act (ND&PS Act) and Sections 238 & 249 of Bharatiya Nyaya Sanhita (BNS) 2023 at Police Station Jogindernagar, District Mandi, H.P. 2. It has been asserted that the petitioner is innocent and that he was falsely implicated. As per the prosecution, co- accused Ganga Ram, Sher Singh and Mani Ram were apprehended with 3.011 kilograms of charas and 310 grams of opium. They named the petitioner. The petitioner was not apprehended on the spot. No contraband was recovered from him. The petitioner was arrested only based on a statement made by the co-accused and a financial transaction with co- accused Gaurav alias Jolly. The police have filed the charge sheet. The petitioner was not informed about the grounds of arrest, and his arrest is illegal. F.I.R. No. 143 of 2014, dated 30.08.2014, was registered against the petitioner. The petitioner would abide by all the terms and conditions which the Court may impose. Hence, the present petition. 3. The petition is opposed by filing a status report asserting that the police party was on patrolling on 28.02.2025 at Jogindernagar Bus Stand, where Constable Bunty Jamwal informed them (patrolling party) that he had apprehended three persons at Gugli Khad in suspicious condition. The police reached the spot where they met Constables Manish Kumar, Bunty Jamwal and Ashok Kumar. They had apprehended three persons, who revealed their names as Ganga Ram, Mani Ram and Sher Singh. Ganga Ram had a black backpack with him. The police searched the backpack in the presence of Rakesh Kumar and Arshad Mohammad and recovered 3 kilograms and 11 grams of charas and 310 grams of opium. The police seized the charas and opium and arrested Ganga Ram, Mani Ram and Sher Singh. The police interrogated them, and Ganga Ram revealed that he had concealed 2.109 Kilograms of Charas, which he could get recovered. He led the police to the spot, and the police recovered 2.109 kilograms of Charas. The police seized the charas. It was found during the investigation that charas was to be delivered to Gaurav alias Jolly. The police interrogated them, and Ganga Ram revealed that he had concealed 2.109 Kilograms of Charas, which he could get recovered. He led the police to the spot, and the police recovered 2.109 kilograms of Charas. The police seized the charas. It was found during the investigation that charas was to be delivered to Gaurav alias Jolly. The police checked the call detail record and found that Ganga Ram was in touch with Gaurav @ Jolly. Ganga Ram had shared a photograph of a sample of opium with him on his WhatsApp number. The police obtained the WhatsApp conversation and seized the mobile phone. Subsequently, Gaurav alias Jolly surrendered before the police. He revealed during the investigation that he and Ravinder alias Shyamu used to purchase charas and opium from Ganga Ram and other persons. He also named Nitish Kumar, the present petitioner, as his associate. Ravinder Kumar used to maintain the record of the charas sold by Ganga Ram to Gaurav alias Jolly. Police also arrested Ravinder Kumar and the petitioner. The police checked their call detail record and found that Ganga Ram and Jolly had talked to each other 304 times between 01.09.2023 and 27.02.2025. Gaurav had talked to Nitish Kuamr 416 times between 04.09.2023 and 27.02.2025. Gaurav had talked to Ravinder 21 times between 23.10.2023 and 25.02.2025. Gaurav and Ravinder had talked to each other on another mobile 115 times. Similarly, Ganga Ram and Jagdish had talked to each other 21 times between 5.04.2024 and 13.02.2025.. The data from the mobile phone of Gaurav alias Jolly and Nitish Kumar (present petitioner) could not be retrieved as one mobile phone was put to factory reset, and the data was deleted from the other mobile phone. However, data from one mobile phone of the petitioner was retrieved. Sixty-four WhatsApp messages were found in the retrieved data. The mobile phone of the petitioner was checked, and a transaction of Rs. 9,00,000/- and photographs of charas were found in it. The police seized the mobile phone, which was sent to the Laboratory, and the result is awaited. Nitish Kumar had provided a vehicle to Gaurav. He had helped Gaurav  to  escape. The  petitioner  would  indulge  in  the commission of a similar offence in case of his release on bail. Hence, the status report. 4. The police seized the mobile phone, which was sent to the Laboratory, and the result is awaited. Nitish Kumar had provided a vehicle to Gaurav. He had helped Gaurav  to  escape. The  petitioner  would  indulge  in  the commission of a similar offence in case of his release on bail. Hence, the status report. 4. I have heard Mr Hitender Thakur, learned counsel for the petitioner and Mr Lokender Kultheira, learned Additional Advocate General, for the respondent/State. 5. Mr Hitender Thakur, learned counsel for the petitioner, submitted that the petitioner is innocent and he was falsely implicated based on the statement made by the co- accused, which is legally inadmissible. The call detail record and the payment of money by themselves are not sufficient to connect the petitioner with the commission of crime. The grounds of arrest were not communicated to the petitioner, and his arrest is illegal. Therefore, he prayed that the present petition be allowed and the petitioner be released on bail. 6. Mr Lokender Kutlehira, learned Additional Advocate General for the respondent/State, submitted that the petitioner is involved in the sale and purchase of opium and charas. The police recovered commercial charas and opium in the present case, and the rigours of Section 37 of the NDPS Act apply to the present case. The petitioner would intimidate the witnesses and influence the investigation if he is released on bail. The grounds of arrest were duly communicated to him. Hence, he prayed that the present petition be dismissed. 7. I have given considerable thought to the submissions made at the bar and have gone through the records carefully. 8. The parameters for granting bail were considered by the Hon’ble Supreme Court in Pinki v. State of U.P., (2025) 7 SCC 314 : 2025 SCC OnLine SC 781, wherein it was observed at page 380: - (i) Broad principles for the grant of bail 56. In Gudikanti Narasimhulu v. High Court of A.P., (1978) 1 SCC 240 : 1978 SCC (Cri) 115, Krishna Iyer, J., while elaborating on the content of Article 21 of the Constitution of India in the context of personal liberty of a person under trial, has laid down the key factors that should be considered while granting bail, which are extracted as under: (SCC p. 244, paras 7-9) “7. It is thus obvious that the nature of the charge is the vital factor, and the nature of the evidence is also pertinent. The punishment to which the party may be liable, if convicted or a conviction is confirmed, also bears upon the issue. 8. Another relevant factor is whether the course of justice would be thwarted by him who seeks the benignant jurisdiction of the Court to be freed for the time being. [Patrick Devlin, “The Criminal Prosecution in England” (Oxford University Press, London 1960) p. 75 — Modern Law Review, Vol. 81, Jan. 1968, p. 54.] 9. Thus, the legal principles and practice validate the Court considering the likelihood of the applicant interfering with witnesses for the prosecution or otherwise polluting the process of justice. It is not only traditional but rational, in this context, to enquire into the antecedents of a man who is applying for bail to find whether he has a bad record, particularly a record which suggests that he is likely to commit serious offences while on bail. In regard to habituals, it is part of criminological history that a thoughtless bail order has enabled the bailee to exploit the opportunity to inflict further crimes on the members of society. Bail discretion, on the basis of evidence about the criminal record of a defendant, is therefore not an exercise in irrelevance.” (emphasis supplied) 57. In Prahlad Singh Bhati v. State (NCT of Delhi), (2001) 4 SCC 280 : 2001 SCC (Cri) 674, this Court highlighted various aspects that the courts should keep in mind while dealing with an application seeking bail. The same may be extracted as follows: (SCC pp. 284-85, para 8) “8. The jurisdiction to grant bail has to be exercised on the basis of well-settled principles, having regard to the circumstances of each case and not in an arbitrary manner. While granting the bail, the court has to keep in mind the nature of accusations, the nature of evidence in support thereof, the severity of the punishment which conviction will entail, the character, behaviour, means and standing of the accused, circumstances which are peculiar to the accused, reasonable possibility of securing the presence of the accused at the trial, reasonable apprehension of the witnesses being tampered with, the larger interests of the public or State and similar other considerations. It has also to be kept in mind that for the purposes of granting the bail the legislature has used the words “reasonable grounds for believing” instead of “the evidence” which means the court dealing with the grant of bail can only satisfy it (sic itself) as to whether there is a genuine case against the accused and that the prosecution will be able to produce prima facie evidence in support of the charge.” (emphasis supplied) 58. This Court in Ram Govind Upadhyay v. Sudarshan Singh, (2002) 3 SCC 598 : 2002 SCC (Cri) 688, speaking through Banerjee, J., emphasised that a court exercising discretion in matters of bail has to undertake the same judiciously. In highlighting that bail should not be granted as a matter of course, bereft of cogent reasoning, this Court observed as follows: (SCC p. 602, para 3) “3. Grant of bail, though being a discretionary order, but, however, calls for the exercise of such a discretion in a judicious manner and not as a matter of course. An order for bail bereft of any cogent reason cannot be sustained. Needless to record, however, that the grant of bail is dependent upon the contextual facts of the matter being dealt with by the court and facts do always vary from case to case. While the placement of the accused in society, though it may be considered by itself, cannot be a guiding factor in the matter of grant of bail, and the same should always be coupled with other circumstances warranting the grant of bail. The nature of the offence is one of the basic considerations for the grant of bail — the more heinous is the crime, the greater is the chance of rejection of the bail, though, however, dependent on the factual matrix of the matter.” (emphasis supplied) 59. In Kalyan Chandra Sarkar v. Rajesh Ranjan, (2004) 7 SCC 528 : 2004 SCC (Cri) 1977, this Court held that although it is established that a court considering a bail application cannot undertake a detailed examination of evidence and an elaborate discussion on the merits of the case, yet the court is required to indicate the prima facie reasons justifying the grant of bail. 60. 60. In Prasanta Kumar Sarkar v. Ashis Chatterjee, (2010) 14 SCC 496 : (2011) 3 SCC (Cri) 765, this Court observed that where a High Court has granted bail mechanically, the said order would suffer from the vice of non-application of mind, rendering it illegal. This Court held as under with regard to the circumstances under which an order granting bail may be set aside. In doing so, the factors which ought to have guided the Court's decision to grant bail have also been detailed as under: (SCC p. 499, para 9) “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; (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) xxxxxxx 62. One of the judgments of this Court on the aspect of application of mind and requirement of judicious exercise of discretion in arriving at an order granting bail to the accused is Brijmani Devi v. Pappu Kumar, (2022) 4 SCC 497 : (2022) 2 SCC (Cri) 170, wherein a three-Judge Bench of this Court, while setting aside an unreasoned and casual order (Pappu Kumar v. State of Bihar, 2021 SCC OnLine Pat 2856 and Pappu Singh v. State of Bihar, 2021 SCC OnLine Pat 2857) of the High Court granting bail to the accused, observed  as  follows:  (Brijmani  Devi v. Pappu  Kumar, (2022) 4 SCC 497 : (2022) 2 SCC (Cri) 170]), SCC p. 511, para 35) “35. While we are conscious of the fact that liberty of an individual is an invaluable right, at the same time while considering an application for bail courts cannot lose sight of the serious nature of the accusations against an accused and the facts that have a bearing in the case, particularly, when the accusations may not be false, frivolous or vexatious in nature but are supported by adequate material brought on record so as to enable a court to arrive at a prima facie conclusion. While considering an application for the grant of bail, a prima facie conclusion must be supported by reasons and must be arrived at after having regard to the vital facts of the case brought on record. Due consideration must be given to facts suggestive of the nature of crime, the criminal antecedents of the accused, if any, and the nature of punishment that would follow a conviction vis-à-vis the offence(s) alleged against an accused.” (emphasis supplied) 9. The present petition has to be decided as per the parameters laid down by the Hon’ble Supreme Court. 10. The police arrested Ganga Ram, Mani Ram and Sher Singh and recovered 3 kilograms and 11 grams of charas and 310 grams of opium from Ganga Ram. Ganga Ram also made a disclosure statement, which led to the recovery of 2.109 kilograms of charas. He named Gaurav alias Jolly. The police arrested Gaurav alias Jolly, and he named Ravinder alias Shyamu and the present petitioner. The police obtained the call detail record and found that they were in touch with each other, and Jolly was in touch with Ganga Ram. The police also found a transaction of Rs. 9,00,000/- between the petitioner and Gaurav alias Jolly and photographs of charas in the mobile phone of the petitioner. Thus, as per the police, the statement made by co- accused Gaurav @ Jolly, the conversation, financial transactions between them and the photographs are material to connect the petitioner with the commission of crime. 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 a co-accused during the investigation is hit by Section 162 of Cr.P.C. and cannot be used as a piece of evidence. 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 a co-accused during the investigation is hit by Section 162 of Cr.P.C. and cannot be used as a piece of evidence. It was also held that the confession made by the co-accused is inadmissible under 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 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 an admission, the statement being one under Section 161, it would immediately attract the bar under Section 162 CrPC.” 11. 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 a 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. 12. A similar situation arose before this Court in Dinesh Kumar @ Billa Versus State of H.P. 2020 Cri. Therefore, no advantage can be derived by the prosecution from the confessional statement made by the co-accused implicating the petitioner. 12. 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 that a confession of the co-accused and the phone calls are not sufficient to deny bail to a person. 13. 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 co-accused Dabe Ram, this Court had considered the existence of a prima facie case against the petitioner and had rejected the bail application as not satisfying the conditions of Section 37 of the 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 in Tofan Singh Vs State of Tamil Nadu, 2021 4 SCC 1 . Further, on the basis of the aforesaid elucidation, the petitioner is also entitled to the benefit of bail. 14. The disclosure made by the co-accused cannot be read against the petitioner as per the mandate of the Hon'ble Supreme Court in Tofan Singh Vs State of Tamil Nadu, 2021 4 SCC 1 . Further, on the basis of the aforesaid elucidation, the petitioner is also entitled to the benefit of bail. 14. 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, 15. Therefore, the petitioner cannot be detained in custody based on a statement made by the co-accused or the confession made by him, as they are not legally admissible. 16. The police have relied upon the financial transaction between Gaurav alias Jolly and the petitioner; this is not sufficient. 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 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.” 17. Therefore, the material collected by the police is, prima facie, insufficient to connect the petitioner to the recovered charas and opium. 18. The police arrested the petitioner for the commission of an offence punishable under Section 29 of the NDPS Act, which punishes abetment and criminal conspiracy to commit an offence punishable under the Act. 19. As per the prosecution, the offence was committed on 28.02.2025. 18. The police arrested the petitioner for the commission of an offence punishable under Section 29 of the NDPS Act, which punishes abetment and criminal conspiracy to commit an offence punishable under the Act. 19. As per the prosecution, the offence was committed on 28.02.2025. The call detail record does not show that the petitioner had even talked to Ganga Ram on 28.02.2025 or before that; therefore, he could not have abetted the possession of Charas by Ganga Ram. Further, the call detail record shows that the petitioner had talked to Gaurav alias Jolly 416 times between 04.09.2023 and 27.02.2025. In the absence of any evidence regarding the details of the conversation, it is difficult to conclude that the petitioner had talked to Gaurav about abetting the commission of the offence by Ganga Ram and others. The financial transaction between the petitioner and Gaurav alias Jolly is not sufficient to show the abetment of the commission of the offence by Ganga Ram. Thus, this evidence, even taken to be correct, does not connect the petitioner with the commission of a crime. 20. Therefore, there is insufficient material to connect the petitioner with the commission of crime, and his further detention is not justified. Hence, the present petition is allowed, and the petitioner is ordered to be released on bail, subject to his furnishing bail bonds in the sum of Rs. 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 on each and every hearing 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 SHO concerned, the Police Station concerned and the Trial Court. (IV) The petitioner will surrender his passport, if any, to the Court; and (V) 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. (IV) The petitioner will surrender his passport, if any, to the Court; and (V) 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. 21. It is expressly made clear that in case of violation of any of these conditions, the prosecution will have the right to file a petition for cancellation of the bail. 22. The petition stands accordingly disposed of. A copy of this order be sent to the Jail Superintendent Mandi, District Mandi, H.P. and the learned Trial Court by FASTER. 23. The observations made hereinabove are regarding the disposal of this petition and will have no bearing, whatsoever, on the case's merits.