Neutral Citation No. ( 2025:HHC:3024 ) IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. MP(M) No. 180 of 2025 Reserved on: 31.1.2025 Date of Decision: 04.02.2025. Banty Kumar ...Petitioner Versus State of H.P. ...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 : Mr. Manoj Chauhan, Additional Advocate General. Rakesh Kainthla, Vacation Judge. The petitioner has filed the present petition for seeking regular bail. It has been asserted that the petitioner was arrested vide FIR No. 207 of 2024, dated 12.12.2024, regsitered at Police Station, Nurpur for the commission of offences punishable under Sections 20 & 29 of the Narcotic Drugs and Psychotropic Substances Act (in short NDPS Act). As per the prosecution, the police recovered 4.36 kg. of charas from the vehicle bearing registration No. HP-53B-9168. The vehicle’s 1 Whether reporters of Local Papers may be allowed to see the judgment? Yes. 2 Neutral Citation No. ( 2025:HHC:3024 ) occupants ran away and could not be apprehended. Subsequently, they were arrested and revealed their names as Raj Kumar and Shyam Lal. Raj Kumar stated during the interrogation that the contraband was to be delivered to the petitioner. The police arrested the petitioner. The petitioner is not involved in the commission of any offence. No contraband was to be delivered to him. Some FIRs were registered against the petitioner. The petitioner would abide by all the terms and conditions, which the Court may impose. Hence it is prayed that the present petition be allowed and the petitioner be released on bail. 2. The petition is opposed by filing a status report asserting that the police party was on patrolling duty on 12.12.2024. The police received a secret information that Charas was being transported in the vehicle bearing registration No. HP-53B-9168. The police reduced the information into writing and sent it to the Supervisory OfÏcer. The police signalled the vehicle bearing registration No. HP-53B-9168 to stop; however, the driver sped away the vehicle towards Talwara. The vehicle was stopped at a lonely place and the occupants of the vehicle ran away from the spot. The police searched the vehicle and 3 Neutral Citation No. ( 2025:HHC:3024 ) recovered 4.36 kilograms of charas. The police seized the charas. The police arrested Raj Kumar, who revealed on inquiry that he was told by Shyam Lal to take the vehicle towards Jawali. Two persons signalled him to stop the vehicle but he sped away the vehicle at the instance of Shyam Lal. Subsequently, he and Shyam Lal ran away after stopping the vehicle at a lonely place. Shyam Lal accompanied him, who was to deliver the charas to the present petitioner at the instance of Rajesh Kumar alias Raju. The police arrested the petitioner, who admitted that he used to purchase charas from Raj Kumar alias Raju. He also threw away the SIM of his phone. The mobile phones were sent to RFSL, Dharamshala and the result of analysis is awaited. FIR No. 206/2023 dated 14.12.2023 is pending against the petitioner before Gram Panchayat, Paloha. Fine of ₹ 8,000/- each was imposed in FIR No. 53/2016 and FIR No. 142 of 2023 respectively. The quantity of charas is commercial. The petitioner can indulge in the commission of a similar offence and he can destroy the evidence in case he is enlarged on bail. Hence the status report. 3. I have heard Mr. Umesh Kanwar, learned counsel for the petitioner and Mr. Manoj Chauhan, learned Additional Advocate General, for the respondent/State. 4 Neutral Citation No. ( 2025:HHC:3024 ) 4. Mr Umesh Kanwar, learned counsel for the petitioner, submitted that the petitioner is innocent and he was falsely implicated at the instance of the co-accused. The statement made by the co-accused is not admissible in evidence and cannot be used to implicate the petitioner. There is no other material to connect him with the commission of crime. Therefore, he prayed that the present petition be allowed and the petitioner be released on bail. 5. Mr. Manoj Chauhan, learned Additional Advocate General for the respondent/State, submitted that the petitioner had destroyed the SIM showing his guilty intention. The police had recovered a commercial quantity of charas and the rigours of Section 37 of the ND&PS Act apply to the present case. The petitioner is unable to satisfy the twin conditions laid down under Section 37 of the ND&PS Act. Therefore, he 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 5 Neutral Citation No. ( 2025:HHC:3024 ) 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 as to 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 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 6 Neutral Citation No. ( 2025:HHC:3024 ) 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 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 7 Neutral Citation No. ( 2025:HHC:3024 ) 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; (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 arrested the petitioner based on the statement made by the co-accused. It was laid down by the 8 Neutral Citation No. ( 2025:HHC:3024 ) 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 ofÏcer. A confession that is made to a police ofÏcer 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 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 OfÏcer 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 9 Neutral Citation No. ( 2025:HHC:3024 ) 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 ofÏcer 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 that a confession of the co-accused and the phone calls are not sufÏcient 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 10 Neutral Citation No. ( 2025:HHC:3024 ) 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 sufÏcient 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 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. 11 Neutral Citation No. ( 2025:HHC:3024 ) 15. The police asserted that the proceedings arising out of the FIR No. 206 of 2023 are pending in the Gram Panchayat, Paloha. The pendency of the proceedings would have been material, had there been sufÏcient material to connect the petitioner with the commission of the crime. It has already found out above that there is no material against the petitioner except the statement of the co-accused, which is not a legally admissible piece of evidence. Hence, the petitioner cannot be detained in judicial custody merely because of the pendency of the proceedings pending against him. 16. In view of the above, 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 ₹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 12 Neutral Citation No. ( 2025:HHC:3024 ) 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. 17. 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. 18. The observations made hereinabove are regarding the disposal of this petition and will have no bearing whatsoever on the case's merits. 19. The petition stands accordingly disposed of. A copy of this order 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. 20. 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 13 Neutral Citation No. ( 2025:HHC:3024 ) veracity of the downloaded copy of the order presented to it, same may be ascertained from the ofÏcial website of this Court. (Rakesh Kainthla) Vacation Judge 4th February, 2025 (Nikita) Digitally signed by KARAN SINGH GULERIA Date: 2025.02.04 20:33:10 IST