Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2025 Supreme(HP) 1333

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
RAKESH KAINTHLA, J.
Nitish Kumar @Lucky - Petitioner
Versus
State of Himachal Pradesh - Respondent
Cr. MPM No. 2187 of 2025
Decided On : 17-10-2025

Advocates Appeared:
For the Petitioner:Mr. Hitender Thakur, Advocate.
For the Respondent:Mr. Lokender Kutlehria, Additional Advocate General.

Co-accused statements inadmissible in NDPS bail; call records, financial transactions and mobile photos insufficient alone to establish prima facie case or satisfy Section 37 rigours absent direct recovery or possession link.

Headnote:(A) Narcotic Drugs and Psychotropic Substances Act, 1985 - Sections 18, 20, 27A & 29 - Bharatiya Nyaya Sanhita, 2023 - Sections 238 & 249 - Bail - Regular bail in case of commercial quantity contraband recovered from co-accused - No recovery from petitioner - Arrest based on co-accused statements, call detail records showing frequent contacts, financial transaction of Rs.9,00,000/- and photographs of contraband in mobile phone - Co-accused statements inadmissible under Section 25 Evidence Act, Section 162 CrPC and Section 67 NDPS Act - Call records, financial transactions and photographs insufficient to establish prima facie connection with crime or satisfy rigours of Section 37 NDPS Act - Petitioner not shown to have abetted possession - Bail granted subject to conditions. (Paras 10-20)

(B) Bail - Principles - Courts to consider nature of accusation, evidence, punishment severity, tampering risk, antecedents etc. as laid down in Supreme Court judgments - Bail not to be denied mechanically; prima facie satisfaction required. (Para 8)

Facts of the case:
Co-accused apprehended with 3.011 kg charas and 310 grams opium; disclosure led to further 2.109 kg charas recovery. Co-accused named petitioner as associate. Investigation revealed frequent calls between petitioner and another co-accused (416 calls over 17 months), financial transaction and contraband photos in petitioner's phone data. Charge-sheet filed; petitioner claims false implication, no spot recovery or arrest.

Findings of Court:
Material prima facie insufficient to connect petitioner to contraband possession or abetment; further detention not justified.

Issues: Sufficiency of co-accused statements, call records, financial transactions and mobile data to deny bail under NDPS Act rigours; admissibility of such evidence for prima facie case.

Ratio Decidendi: Statements of co-accused during investigation inadmissible as substantive evidence; mere telephonic contacts and financial dealings, absent conversation details or direct recovery, fail to prove involvement or abetment; Section 37 conditions not met where no reasonable grounds to believe accused committed offence.

Result: Petition allowed; petitioner released on bail on furnishing bonds of Rs.1,00,000/- with surety, subject to conditions against tampering, attendance and reporting.

Table of Content
1. ndps bail petition; petitioner implicated by co-accused (Para 1 , 2 , 3)
2. petitioner claims false implication; state invokes section 37 (Para 4 , 5 , 6)
3. bail governed by supreme court parameters on evidence, risk (Para 7 , 8 , 9)
4. co-accused confessions inadmissible under evidence act, crpc (Para 10 , 11 , 12 , 13 , 14 , 15)
5. financial transactions insufficient for ndps connection (Para 16 , 17)
6. no evidence of abetment under section 29 ndps (Para 18 , 19)
7. bail granted lacking prima facie incriminating material (Para 20 , 21 , 22 , 23)

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 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