Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2025 Supreme(HP) 1665

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Rakesh Kainthla, J.
Gaurav Kumar @ Jolly - Petitioner
Versus
State of Himachal Pradesh - Respondent
Cr. MPM No. 2563 of 2025
Decided On : 01-12-2025

Advocates:
Advocate Appeared:
For the Petitioner:Mr Nand Lal Thakur, Advocate
For the Respondent- State:Mr Lokender Kutlehria, Additional Advocate General

Co-accused confessional statements inadmissible for bail denial; call records, unreplied contraband photos via WhatsApp, and financial transactions insufficient to establish prima facie case under NDPS Section 37 twin conditions.

Headnote:(A) Narcotic Drugs and Psychotropic Substances Act, 1985 - Sections 18, 20, 27A, 29 and 37 - Bharatiya Nyaya Sanhita, 2023 - Sections 238 and 249 - Bail - Commercial quantity of charas and opium recovered from apprehended persons - Disclosure by one leading to further recovery - Petitioner named as recipient - Call detail records showing frequent contacts - WhatsApp chats with photographs of contraband sent to petitioner but no response - Financial transaction of Rs.9,00,000/- - Data from petitioner’s phones factory reset/deleted - Co-accused statements inadmissible under Evidence Act Section 25 and CrPC Section 162 - Call records, transactions and one-way chats insufficient to satisfy twin conditions of Section 37 - Further detention not justified - Bail granted subject to conditions. (Paras 10-18)

(B) Bail - Principles - Courts to consider nature of accusation, evidence, punishment severity, risk of repetition, witness tampering - No detailed evidence examination but prima facie satisfaction required - Rigours of Section 37 NDPS apply to abetment/possession cases. (Paras 8-9)

Facts of the case:
Petition for regular bail post charge-sheet in case involving recovery of over 5 kgs charas and 310 grams opium from apprehended persons. One disclosed further concealment naming petitioner as intended recipient. Investigation revealed call records, WhatsApp messages with contraband photos sent to petitioner without reply, financial transaction and deleted phone data.

Findings of Court:
Prosecution material prima facie insufficient to connect petitioner to crime - No reliance on co-accused disclosure - Other links do not establish involvement satisfying Section 37 conditions.

Issues: Sufficiency of co-accused disclosure, call records, digital chats and transactions to deny bail under NDPS Section 37; applicability of Evidence Act and CrPC bars.

Ratio Decidendi: Confessional statements by co-accused to police inadmissible against petitioner; mere receipt of contraband photos without response, frequent calls and transactions do not prima facie prove involvement in commercial quantity offence warranting Section 37 denial.

Result: Petition allowed; bail granted on Rs.1,00,000/- bond with surety and conditions.

Table of Content
1. recovery of charas and opium from co-accused ganga ram. (Para 1 , 2 , 3)
2. petitioner claims false implication; state cites ndps section 37. (Para 4 , 5 , 6)
3. bail guided by sc factors: offence nature, evidence strength. (Para 7 , 8 , 9)
4. co-accused confessions inadmissible under evidence act, crpc. (Para 10 , 11 , 12 , 13 , 14 , 15)
5. financial transactions insufficient to connect accused. (Para 16)
6. no response to charas photos fails to implicate. (Para 17)
7. insufficient prima facie material justifies bail grant. (Para 18 , 19 , 20 , 21)

JUDGMENT :
Rakesh Kainthla, Judge

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 (NDPS 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, as per the prosecution, Constable Bunty Jamwal informed the police on 28.02.2025 regarding the apprehension of three persons at Gugli Khad in suspicious condition. The police went to the spot and found that Ganga Ram, Mani Ram and Sher Singh were apprehended by the police. Ganga Ram had a black backpack with him, which was searched in the presence of Rakesh Kumar and Arshad Mohammad. The police recovered 3 kgs and 11 grams of charas and 310 grams of opium. The police arrested Ganga Ram, Mani Ram and Sher Singh. Ganga Ram revealed during the interrogation that he could get recovered 2.109 kgs of charas. He led the police to the spot and got recovered 2.109 kgs of charas. He stated that the charas was to be delivered to Gaurav @ Jolly, the present bail petitioner. The police checked the call detail record and found that Ganga Ram was in touch with Gaurav @ Jolly. He had shared a photograph of a sample of opium on his WhatsApp number. The police arrested Gaurav @ Jolly, who named Ravinder Kumar and Nitish Kumar. The police also arrested Ravinder Kumar and found that Ganga Ram and Jolly had talked to each other 304 times between 01.09.2023 and 27.02.2025. Gaurav @ Jolly had talked to Nitish Kumar 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. Ganga Ram and Jagdish had talked to each other 21 times between 05.04.2024 and 13.02.2025. The data from the mobile phone could not be retrieved as one mobile phone was put into factory reset, and the data was deleted from the other mobile phone. The police retrieved 64 WhatsApp messages from one mobile phone. A transaction of Rs. 9,00,000/- and photographs of charas were found in it. These allegations are false. The petitioner is innocent, and he was falsely implicated. The investigation is complete, and the police have filed the charge sheet before the Court. No fruitful purpose would be served by detaining the petitioner in custody. Hence, it was prayed that the present petition be allowed and the petitioner be released on bail.

3. The petition is opposed by filing a status report asserting the police party was patrolling on 28.02.2025 at Jogindernagar Bus Stand, where Constable Bunty Jamwal informed them that he had apprehended three persons at Gugli Khad in suspicious conditions. The police reached the spot where they met Constables Manish Kumar 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 got 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 recovere