2025 Supreme(Online)(HP) 3647

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Rakesh Kainthla, J
Rakesh Kainthla – Appellant
Versus
State of Himachal Pradesh – Respondent
Cr.MP(M) No. 1894 of 2023 | Cr.MP(M) No. 2355 of 2023 | Cr.MP(M) No. 1061 of 2023

Confessions of co-accused to police are inadmissible under Section 25 of the Evidence Act, and financial transactions alone, without independent evidence, are insufficient to deny bail under the NDPS Act.

Headnote:(A) Narcotic Drugs and Psychotropic Substances Act, 1985 - Sections 21, 27A, 29 - Bail - Confession of co-accused - Financial transactions - Sufficiency of evidence - Confession made to a police officer during investigation is inadmissible under Section 25 of the Indian Evidence Act, 1872, and not saved by Section 67 of NDPS Act - Statement of co-accused under Section 161 CrPC is hit by Section 162 CrPC and cannot be used as substantive evidence against another - Mere financial transfers, without independent corroboration linking them to drug trade, are insufficient to establish involvement under Section 21. (Paras 12, 13, 18, 19)

(B) Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 27A - Financing of illicit traffic - 'Financing' under Section 27A means providing monetary support to make the illicit activity operational or sustainable, not merely paying for a particular sale or purchase - Interpreting 'financing' as synonymous with sale/purchase would render Sections 20, 21, 22, and 23 redundant - Allegations of payment for sale/purchase of drugs do not attract Section 27A. (Paras 20-26)

(C) Bharatiya Nayaya Sanhita, 2023 - Section 111 - Organised Crime - To attract Section 111, there must be a 'continuing unlawful activity' involving more than one charge-sheet filed and cognizance taken within the preceding ten years - Mere financial transactions or inadmissible statements of co-accused do not establish membership in an organised crime syndicate - Absence of prior charge-sheets against the accused makes the section prima facie inapplicable. (Paras 27-33)

(D) Criminal Procedure Code, 1973 - Sections 437, 439 - Bail - Parameters for grant of bail include nature of accusations, gravity of offence, role attributed, criminal antecedents, risk of witness tampering, and likelihood of abscondence - Accused has a right to silence and cannot be compelled to explain transactions; burden of proof lies on prosecution. (Paras 8-10, 34)

Facts of the case:
The petitioner sought regular bail in FIR No. 107 of 2024 under Sections 21, 27A, 29 of NDPS Act and Section 111(2) BNS. The police recovered 6.380 grams of heroin from co-accused Suraj and Rohit Pandey. They disclosed that the heroin was supplied by Sandeep Shah. Investigation revealed the petitioner had transferred amounts (₹11,200/- to Sandeep Shah, ₹16,000/- to Neeraj Kashyap, etc.) to accounts linked to the main accused. The State opposed bail, citing the petitioner's role in financing the drug trade and being part of an organised crime syndicate.

Findings of Court:
The court found insufficient material to connect the petitioner with the offences under the NDPS Act and BNS. It held that the confession of co-accused is inadmissible as evidence, financial transactions alone do not prove involvement in drug trafficking, and 'financing' under Section 27A is not equivalent to sale/purchase. For Section 111 BNS, no prior charge-sheets existed against the petitioner. Thus, the petitioner was granted bail.

Issues: The main issues were whether the confession of co-accused and financial transactions constituted sufficient evidence to deny bail, whether the term 'financing' under Section 27A could be applied to the petitioner's money transfers, and whether the ingredients of organised crime under Section 111 BNS were satisfied.

Ratio Decidendi: The court ruled that a confession made to a police officer by a co-accused is inadmissible and cannot be used to deny bail. Financial transactions, without independent evidence linking them to the drug trade, do not establish a prima facie case. The term 'financing' under Section 27A must be interpreted narrowly as providing operational or sustaining funds for the drug trade, not merely paying for a purchase. For Section 111 BNS, the absence of multiple prior charge-sheets against the accused prevents its invocation.

Result: Petition allowed. The petitioner was ordered to be released on bail upon furnishing bail bonds of ₹1,00,000/- with one surety, subject to conditions including non-interference with witnesses, regular attendance at trial, and surrender of passport. (Paras 36, 37, 38, 39,)