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RAKESH KAINTHLA, J. –

The petitioner has filed the present petition for seeking the grant of regular bail. It has been asserted that FIR No. 87 of 2023, dated 31.7.2023 was registered at Police Station Dharampur against the petitioner for the commission of offences punishable under Sections 21 and 29 of the Narcotic Drugs and Psychotropic Substances Act (in short ‘ND&PS Act’). The petitioner is innocent and he was falsely implicated based on a disclosure statement made by Paramjeet Singh. The petitioner has nothing to do with the commission of the crime. The other co-accused have already been released on bail. The rigours of Section 37 of the ND&PS Act do not apply to the present case. The police have completed the investigation and the matter is now listed for service. The petitioner is a permanent resident of Ludhiana and there is no chance of his absconding. The petitioner was earlier falsely implicated in FIR No. 294/2020, registered in Police Station Model Town, Hoshiarpur (Punjab), FIR No. 142/2021, registered at Police Station Sadar, Ludhiana and FIR No. 103/19, registered at Police Station Dungri, Ludhiana (Punjab). The petitioner will abide by the terms and conditions, which may be imposed by all the Court. Hence, the petition.

2. The petition was opposed by filing a status report, asserting that the police party was on patrolling duty on 30.7.2023. The police received a secret information that a vehicle bearing registration no. HP-63A-5557 was transporting the heroin and in the case of a search, a huge quantity of heroin could be recovered. The information was reduced to writing. The police signalled the driver of the car to stop the vehicle but he reversed the car. Vipul was found driving the vehicle. Yash Pal, Anmol, Vishwakarma and Paramjeet Singh were found present in the vehicle. The police searched the vehicle and recovered 16.01 grams of heroin. The police arrested the occupants and seized the heroin. Paramjeet disclosed in inquiry that he had purchased the heroin from Navi. Navi absconded and he was apprehended on 31.8.2023. Navi disclosed on inquiry that he had purchased the heroin from Suraj. Suraj was arrested and he disclosed that he had purchased the heroin from Akashdeep. Akashdeep was also arrested. The challan has been prepared and presented before the Court. FIR Nos. 294/2020, 142/2021 and 103/2019 have also been registered against the petitioner at different Police Stations at Punjab.

3. I have heard Mr. Ajay Sipahiya, learned Counsel for the petitioner and Ms. Avni Kochhar, learned Deputy Advocate General for the respondent-State.

4. Mr. Ajay Sipahiya, learned Counsel for the petitioner submitted that the petitioner is innocent and he was falsely implicated. There is no evidence against the petitioner except the statement made by the co-accused Paramjeet Singh which is not admissible. Therefore, he prayed that the present petition be allowed and the petitioner be released on bail.

5. Ms Avni Kochhar, learned Deputy Advocate General for the respondent-State submitted that the petitioner has criminal antecedents and he can indulge in the commission of a crime in case he is released on bail. Therefore, she prayed that the present petition be dismissed.

6. I have given considerable thought to the rival submissions at the bar and have gone through the record carefully.

7. The parameters for granting bail were considered by the Hon’ble Supreme Court in Bhagwan Singh v. Dilip Kumar @ Deepu @ Depak, 2023 SCC OnLine SC 1059, wherein it was observed as under:-

12. The grant of bail is a discretionary relief which necessarily means that such discretion would have to be exercised in a judicious manner and not as a matter of course. The grant of bail is dependent upon contextual facts of the matter being dealt with by the Court and may vary from case to case. There cannot be any exhaustive parameters set out for considering the application for a grant of bail. However, it can be noted that;

(a) While granting bail the court has to keep in mind factors such as the nature of accusations, severity of the punishment, if the accusations entail a conviction and the nature of evidence in support of the accusations;

(b) reasonable apprehensions of the witnesses being tampered with or the apprehension of there being a threat for the complainant should also weigh with the Court in the matter of grant of bail.

(c) While it is not accepted to have the entire evidence establishing the guilt of the accused beyond reasonable doubt but there ought to be always a prima facie satisfaction of the Court in support of the charge.

(d) Frivility of prosecution should always be considered and it is only the element of genuineness that shall have to be considered in the matter of grant of bail and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused is entitled to have an order of bail.

13. We may also profitably refer to a decision of this Court in Kalyan Chandra Sarkar v. Rajesh Ranjan @ Pappu Yadav (2004) 7 SCC 528 where the parameters to be taken into consideration for the grant of bail by the Courts has been explained in the following words:

“11. The law in regard to grant or refusal of bail is very well settled. The court granting bail should exercise its discretion in a judicious manner and not as a matter of course. Though at the stage of granting bail a detailed examination of evidence and elaborate documentation of the merit of the case need not be undertaken, there is a need to indicate in such orders reasons for prima facie concluding why bail was being granted particularly where the accused is charged of having committed a serious offence. Any order devoid of such reasons would suffer from non-application of mind. It is also necessary for the court granting bail to consider among other circumstances, the following factors also before granting bail; they are:

(a) The nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence.

(b) Reasonable apprehension of tampering with the witness or apprehension of threat to the complainant.

(c) Prima facie satisfaction of the court in support of the charge. (See Ram Govind Upadhyay v. Sudarshan Singh [(2002) 3 SCC 598: 2002 SCC (Cri) 688] and Puran v. Rambilas [(2001) 6 SCC 338: 2001 SCC (Cri) 1124].)”

8. A similar view was taken in State of Haryana vs Dharamraj 2023 SCC Online 1085, wherein it was observed:

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;

(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.’

9. The present case has to be decided as per the parameters laid down by the Hon’ble Supreme Court.

10. The police have relied upon the statement made by Paramjeet Singh implicating the petitioner. 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 will be inadmissible because of Section 25 of the Indian Evidence Act. It was observed at page 568:-

44. Such a person viz. 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, which 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 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 Versus 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 coaccused and can only be utilized 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 = (2020) Law Today Live Doc. Id. 15591 that a confession made to the police officer during the investigation is hit by Section 25 of the Indian Evidence Act and will not be saved by the provisions of Section 67 of the NDPS Act. It was laid down in Union of India v. Khalil Uddin, 2022 SCC OnLine SC 2109 = (2022) Law Today Live Doc. Id. 17118 that the benefit of Tofan Singh (supra) can be taken during the bail proceedings. It was observed:

8. The answer to the said question could be the statement recorded of Md. Nizam Uddin. The statement of Md. Jakir Hussain recorded under Section 67 of the Act has also named his owner accused Abdul Hai. We are conscious of the fact that the validity and scope of such statements under Section 67 has been pronounced upon by this Court in Tofan Singh v. State of Tamil Nadu(2021) 4 SCC 1. In State by (NCB) Bengaluru v. Pallulabid Ahmad Arimutta 2022 (12) SCC 633, the rigour of law laid down by this Court in Tofan Singh was held to be applicable even at the stage of grant of bail.

12. Therefore, no advantage can be derived by the prosecution from the confessional statement made by the co-accused implicating the petitioner. This is not a legally admissible piece of evidence and cannot be used against the petitioner.

13. 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.

14. It was laid down by this Court in Saina Devi vs. State of Himachal Pradesh2022 LawSuit(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 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.

15. 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,

16. Therefore, the petitioner cannot be detained in custody based on a statement made by the co-accused and the call details as these do not constitute a legally admissible piece of evidence.

17. In view of the above, the present petition is allowed and the petitioner is ordered to be released on bail, subject to furnishing bail bonds in the sum of ?50,000/- with two sureties to the like amount to the satisfaction of the learned Trial Court. While on bail, the petitioner will abide by the following terms and conditions:-

(i) The petitioner will join the investigation as and when directed to do so by means of a written hukamnama.

(ii) The petitioner will not intimidate the witnesses nor will he influence any evidence in any manner whatsoever.

(iii) The petitioner shall attend the trial in case a charge sheet is presented against him and will not seek unnecessary adjournments.

(iv) The petitioner will not leave the present address for a continuous period of seven days without furnishing the address of intending visit to the SHO, the Police Station concerned and the Trial Court.

(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.

18. 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.

19. The observation made herein before shall remain confined to the disposal of the petition and will have no bearing, whatsoever, on the merits of the case.

Petition allowed.

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