2026:HHC:37786 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CrMP(M) No.1640 of 2026 Decided on:7.9.2026 _______________________________________________________________ Abhishek Thakur @ Abu ………..Petitioner Versus State of Himachal Pradesh ………..Respondent _______________________________________________________________ Coram: Hon’ble Mr. Justice Sandeep Sharma, Judge. Whether approved for reporting? 1 For the Petitioner : Mr. Devender K. Sharma, Advocate. For the Respondent : Mr. Rajan Kahol & Mr. Vishal Panwar, Additional Advocates General, with Mr. Ravi Chauhan and Mr. Anish Banshtu, Deputy Advocates General, for State. _______________________________________________________________ Sandeep Sharma, Judge (oral): By way of instant petition filed under Section 483 of Bharatiya Nagrik Suraksha Sanhita, prayer has been made on behalf of petitioner, who is behind bars since 19.02.2026, for grant of regular bail in case FIR No.29 of 2026, dated 17.02.2026, under Sections 21, 25, 29-61-85 of Narcotic Drugs and Psychotropic Substances Act, 1985 and Section 111 of the Bharatiya Nyaya Sanhita, 2023, registered at Police Station Sarkaghat, District Mandi, Himachal Pradesh. 1 Whether the reporters of the local papers may be allowed to see the judgment? 2 2026:HHC:37786 2. Pursuant to directions issued by this Court, respondent/State has filed status report and ASI Anil Kumar, has come present with record. Record perused and returned. 3. Close scrutiny of status report/record reveals that on 17.02.2026, police received secret information that person namely Amit Kumar @ T.T. indulges in illegal trade of narcotics and at present, is transporting huge quantity of contraband in car bearing No.HP-28C-2212, make Alto 800. On the basis of aforesaid secret information, Police laid naka and intercepted the afore vehicle, which at relevant time was being driven by co- accused Amit Kumar, who after having seen the Police, swallowed something kept in polythene bag. After having noticed suspicious conduct of above named co-accused, police deemed it necessary to cause search of the vehicle as well as occupant and accordingly, after having associated independent witnesses, effected search and allegedly recovered 9 grams of heroin from the car. Since afore person was unable to render plausible explanation qua possession of aforesaid intermediate quantity of contraband, Police, after having completed necessary codal formalities, lodged FIR against him. Allegedly, during investigation, above named person disclosed to the police that he had been purchasing the narcotics from Punjab and Delhi. On the basis of aforesaid information shared by above named Amit Kumar, police 3 2026:HHC:37786 conducted further investigation and found that petitioner was also in touch with the co-accused Amit Kumar and there were certain financial transactions inter-se them. In the aforesaid background, bail petitioner also came to be named in the FIR under Section 29 of the NDPS Act and since 19.02.2026, he is behind bars. Since investigation in the case at hand is complete and nothing remains to be recovered from the bail petitioner, he has approached this Court in the instant proceedings for grant of regular bail. 4. Mr. Devender K. Sharma, learned counsel representing the petitioner, states that petitioner has been falsely implicated and as such, deserves to be enlarged on bail. He states that contraband was never recovered from the conscious possession of bail petitioner, rather the same was recovered from co-accused Amit Kumar, who allegedly disclosed that he had been purchasing contraband from bail petitioner. He states that there is no material adduced on record suggestive of the fact that there was any kind of transaction between petitioner and co-accused Amit Kumar coupled with the fact that statement of co-accused is inadmissible under law, there was no occasion, if any, for the investigating agency to arrest the petitioner. To substantiate his aforesaid plea, he placed reliance upon judgment passed by the Hon’ble Apex Court in Tofan Singh v. State of Tamil Nadu (2021) 4 SCC 1, wherein 4 2026:HHC:37786 Hon’ble Apex Court has categorically ruled that disclosure statement, if any, made under Section 67 of the Act, is not admissible. 5. While fairly acknowledging factum with regard to filing of challan in the competent court of law, Mr. Rajan Kahol, learned Additional Advocate General, states that though nothing remains to be recovered from the bail-petitioner, but keeping in view the gravity of offence alleged to have been committed by him, he does not deserve any leniency. He states that there is overwhelming evidence adduced on record suggestive of the fact that bail petitioner is a drug peddler and in the event of his being enlarged on bail, he may not only flee from justice, but may again indulge in such activities. To substantiate his aforesaid plea, he specifically referred to the status report, wherein it stands recorded that in past, three cases under the Act stand registered against the petitioner. Mr. Kahol, further states that police has been able to collect the record of financial transactions, which clearly reveals that bail petitioner and co- accused Amit Kumar, from whose possession, contraband came to be recovered, had been dealing in sale and purchase of the drugs. 6. Having heard learned counsel for the parties and perused material available on record, this Court finds that quantity of contraband, which is of intermediate quantity, never 5 2026:HHC:37786 came to be recovered from the conscious possession of the bail petitioner, rather same was recovered from the conscious possession of co-accused namely Amit Kumar, who allegedly disclosed to the police that he had some kind of dealings with the present bail petitioner. No doubt, bail petitioner is accused of heinous crime punishable under the relevant provisions of Act, but this court cannot lose sight of the fact that contraband was never recovered from his conscious possession, rather he came to be named in FIR on the basis of disclosure statement of the co-accused. 7. Question which needs to be determined in the case at hand is “whether statement, if any, made by co-accused Amit Kumar could be made basis by investigating agency to name the present bail petitioner in the FIR.” 8. Since petitioner herein has been roped in the present FIR merely on the basis of disclosure statement of co- accused, coupled with the judgment passed by the Hon’ble Apex Court in Tofan Singh (supra), this Court is persuaded to agree with learned counsel representing the petitioner that petitioner herein could not be arrested merely on the statement made by co-accused. Moreover, this Court finds that on account of recovery of intermediate quantity of contraband, rigors of Section 37 of the Act are not attracted. 6 2026:HHC:37786 9. Hon’ble Apex Court in case Tofan Singh (supra), has categorically held that disclosure statement, if any, made under Section 67 of the NDPS Act, is inadmissible and same cannot be used as confessional statement in the trial of an offence under Section 67 of the Act. Relevant para 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.” 7 2026:HHC:37786 10. The Hon’ble Apex Court in case titled 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 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. 11. Hon'ble Apex Court and this Court in a catena of cases have repeatedly held that one is deemed to be innocent, till the time, he/she is proved guilty in accordance with law. In the case at hand, complicity, if any, of the bail petitioner is yet to be established on record by the investigating agency, as such, this Court sees no reason to let the bail petitioner incarcerate in jail for an indefinite period during trial, especially when nothing remains to be recovered from him. Apprehension expressed by learned Deputy Advocate General that in the event of bail 8 2026:HHC:37786 petitioner being enlarged on bail, he may flee from justice or indulge in such offences again, can be best met by putting the bail petitioner to stringent conditions. 12. Needless to say, object of the bail is to secure the attendance of the accused in the trial and the proper test to be applied in the solution of the question whether bail should be granted or refused is whether it is probable that the party will appear to take his trial. Otherwise, bail is not to be withheld as a punishment. Otherwise also, normal rule is of bail and not jail. Court has to keep in mind nature of accusations, nature of evidence in support thereof, severity of the punishment which conviction will entail, character of the accused, circumstances which are peculiar to the accused involved in that crime. 13. Hon'ble Apex Court in Criminal Appeal No. 227/2018, Dataram Singh vs. State of Uttar Pradesh & Anr, decided on 6.2.2018 has held that freedom of an individual cannot be curtailed for indefinite period, especially when his/her guilt is yet to be proved. It has been further held by the Hon'ble Apex Court in the aforesaid judgment that a person is believed to be innocent until found guilty. 14. Hon’ble Apex Court in Sanjay Chandra versus Central Bureau of Investigation (2012)1 Supreme Court Cases 49 has held that gravity alone cannot be a decisive ground to deny bail, rather competing factors are required to be balanced 9 2026:HHC:37786 by the Court while exercising its discretion. It has been repeatedly held by the Hon’ble Apex Court that object of bail is to secure the appearance of the accused person at his trial by reasonable amount of bail. The object of bail is neither punitive nor preventative. 15. In Manoranjana Sinh alias Gupta versus CBI, (2017) 5 SCC 218, Hon'ble Apex Court has held that the object of the bail is to secure the attendance of the accused in the trial and the proper test to be applied in the solution of the question whether bail should be granted or refused is whether it is probable that the party will appear to take his trial. Otherwise also, normal rule is of bail and not jail. Apart from above, Court has to keep in mind nature of accusations, nature of evidence in support thereof, severity of the punishment, which conviction will entail, character of the accused, circumstances which are peculiar to the accused involved in that crime. 16. The Apex Court in Prasanta Kumar Sarkar versus Ashis Chatterjee and another (2010) 14 SCC 496, has laid down various principles to be kept in mind, while deciding petition for bail viz. prima facie case, nature and gravity of accusation, punishment involved, apprehension of repetition of offence and witnesses being influenced. 17. In view of above, bail petitioner has carved out a case for himself, as such, present petition is allowed. Bail 10 2026:HHC:37786 petitioner is ordered to be enlarged on bail, subject to furnishing bail bonds in the sum of Rs.2,00,000/- with one surety in the like amount, to the satisfaction of the learned trial Court, besides the following conditions: (a) He shall make himself available for the purpose of interrogation, if so required and 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) He shall not tamper with the prosecution evidence nor hamper the investigation of the case in any manner whatsoever; (c) He shall not make any inducement, threat or promises to any person acquainted with the facts of the case so as to dissuade him/her from disclosing such facts to the Court or the Police Officer; and (d) He shall not leave the territory of India without the prior permission of the Court. 18. 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 this Court for cancellation of the bail. 19. Any observations made hereinabove shall not be construed to be a reflection on the merits of the case and shall remain confined to the disposal of this petition alone. The petition stands accordingly disposed of. 20. A downloaded copy of this order shall be accepted by the learned trial Court, while accepting the bail bonds 11 2026:HHC:37786 from the petitioner and in case, said court intends to ascertain the veracity of the downloaded copy of order presented to it, same may be ascertained from the official website of this Court. (Sandeep Sharma) Judge September 7, 2026 (manjit)