Gopal Singh v. State of HP

IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA

Cr. MP (M) No.1730 of 2026

Date of Decision: 22.09.2026 ----------------------------------------------------------------------------------------- Gopal Singh ...Petitioner Versus

State of Himachal Pradesh …Respondent ----------------------------------------------------------------------------------------- Coram: The Hon'ble Mr. Justice Sandeep Sharma, Judge. Whether approved for reporting?1 ------------------------------------------------------------------------------------------------ For the Petitioner: Mr. Manoj Pathak, Senior Advocate with Mr. Parth Sagar and Mr. Vishal Thakur, Advocates. For the Respondent: Mr. Rajan Kahol & Mr. Vishal Panwar, Additional Advocate Generals with Mr. Ravi Chauhan & Mr. Anish Banshtu, Deputy Advocates General.

ASI Tarun Singh, Police Station, Anni, District Kullu, present in person alongwith the record. ------------------------------------------------------------------------------------------------ Sandeep Sharma, J. (Oral)

By way of instant petition filed under Section 482 of Bharatiya Nagarik Suraksha Sanhita, 2023, prayer has been made on behalf of the petitioner for grant of anticipatory bail in case FIR No. 37 of 2026, dated 21.05.2026, registered at Police Station, Anni, District Kullu, Himachal Pradesh under Sections 20, 26 and 29 of the Narcotic Drugs and Psychotropic Substances Act( for short 'Act').

1 Whether reporters of the local papers may be allowed to see the judgment?

2.

Respondent State has filed status report and ASI Tarun Singh has come present along with record. Record perused and returned.

3.

As per prosecution, police intercepted one car bearing registration No. HR 31V-1424 on 21.05.2026 for checking, but since occupants of the car got perplexed and started making excuses, police deemed it necessary to cause search of the car as well as occupants and accordingly, after having associated independent witnesses, conducted search of the car as well as occupants and allegedly recovered 7 Kg. of charas from the boot of the car. Since no plausible explanation ever came to be rendered on record qua possession of aforesaid contraband, police after having completed necessary codal formalities lodged FIR and arrested occupants of the car, namely Manoj Kumar and Rajesh Kumari, who allegedly disclosed that contraband was received by them from Yashwant Singh and present bail petitioner for a total sale consideration of Rs. 3,50,000/-.However, before petitioner as well as co-accused Yashwant Singh could be arrested, Yashwant Singh approached this Court by way of anticipatory bail filed under Section 482 of BNSS i.e. Cr.M.P.(M) No. 1289 of 2026, which came to be allowed vide order dated 10.08.2026. Similarly,present bail petitioner before his arrest approached this Court in the instant proceedings, praying therein for grant of anticipatory bail. Though, this Court did not grant him anticipatory bail at the time of issuance of notice, but called for status report. In the aforesaid background, Investigating Officer has come present alongwith status report, wherein facts, as have been noticed hereinabove, are mentioned.

4.

Mr. Rajan Kahol, learned Additional Advocate General, while fairly admitting factum of enlargement of co-accused Yashwant Singh on bail in terms of order dated

10.08.2026, states that present bail petitioner does not deserve any leniency for the reason that he has been evading his arrest for quite long. He states that in case bail petitioner had not committed any offence, he ought to have come present before Police for investigation, but fact remains that he evaded his arrest. However, Mr. Kahol, fairly admits that after lodging of FIR, petitioner, who at present is confined to bed on account of serious spine injury, has rendered full cooperation during his interrogation at his home. He states that since nothing is to be recovered from the petitioner, coupled with the fact that he is not in a position to be taken into custodial interrogation on account of his having suffered serious spine injury as per medical report of Specialists of IGMC, Shimla, this Court may pass appropriate orders.

5.

Having heard learned counsel for the parties and perused material available on record, this Court finds that contraband never came to be recovered from the conscious possession of the present bail petitioner, rather same was recovered from the conscious possession of persons, namely Manoj Kumar and Rajesh Kumari, who allegedly disclosed that contraband recovered from their possession was actually supplied to them by co-accused Yashwant Singh. Aforesaid co-accused never named the present petitioner, rather they specifically named co-accused Yashwant Singh. Precise allegation against the petitioner is that he facilitated sale and purchase of contraband inter se co-accused Manoj Kumar, Rajesh Kumari and Yashwant Singh.

6.

No evidence, worth credence, has been adduced on record to establish connection, if any, of the petitioner with persons from whose conscious possession contraband came to be recovered, save and except one WhatsApp message, wherein he shared phone number of co-accused Yashwant Singh, but such fact may not be sufficient to conclude complicity of the petitioner in the case at hand.

7.

Leaving everything aside, it is apparent from the record that petitioner has been named in FIR on the basis of confessional statement made by the co-accused. Question, which needs to be determined in the case at hand is "whether confessional statement made by the co-accused can be taken into consideration for arraying another accused in the case?"

8.

Hon'ble Apex Court in case Tofan Singh v. State of Tamil Nadu (2021) 4 SCC 1, has categorically held that statement, if any, made under Section 67 of the ND & PS Act, is inadmissible and same cannot be used as confessional statement in the trial of an offence under ND & PS 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.

¶156The 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.

¶157On the other hand, for the reasons given by us in this judgment, the judgments of Noor Aga (supra) and Nirmal are correct in law.

¶158We 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."

9.

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 ND & PS 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 ND & PS 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.

10.

Since bail petitioner is bedridden, coupled with the fact that police has already interrogated him and no recovery is to be effected from him, there appears to be no justification for custodial interrogation of the petitioner, rather, he can be bound to make himself available for investigation as and when required by investigating agency.

11.

By now it is well settled that freedom of an individual is of utmost importance and cannot be curtailed for indefinite period. Till the time guilt of accused is not proved, in accordance with law, he is deemed to be innocent. In the case at hand, the guilt, if any, of the bail petitioners is yet to be proved, in accordance with law.

12.

The Hon'ble Apex Court in Criminal Appeal No.227/2018, Dataram Singh vs. State of Uttar Pradesh & Anr decided on 6.2.2018 has categorically held that freedom of an individual is of utmost importance and same cannot be curtailed merely on the basis of suspicion. Hon'ble Apex Court has further held that till the time guilt of accused is not proved, in accordance with law, he is deemed to be innocent. The relevant paras No.2 to 5 of the judgment are reproduced as under:-

¶2A fundamental postulate of criminal jurisprudence is the presumption of innocence, meaning thereby that a person is believed to be innocent until found guilty. However, there are instances in our criminal law where a reverse onus has been placed on an accused with regard to some specific offences but that is another matter and does not detract from the fundamental postulate in respect of other offences. Yet another important facet of our criminal jurisprudence is that the grant of bail is the general rule and putting a person in jail or in a prison or in a correction home (whichever expression one may wish to use) is an exception. Unfortunately, some of these basic principles appear to have been lost sight of with the result that more and more persons are being incarcerated and for longer periods. This does not do any good to our criminal jurisprudence or to our society.

¶3There is no doubt that the grant or denial of bail is entirely the discretion of the judge considering a case but even so, the exercise of judicial discretion has been circumscribed by a large number of decisions rendered by this Court and by every High Court in the country. Yet, occasionally there is a necessity to introspect whether denying bail to an accused person is the right thing to do on the facts and in the circumstances of a case.

¶4While so introspecting, among the factors that need to be considered is whether the accused was arrested during investigations when that person perhaps has the best opportunity to tamper with the evidence or influence witnesses. If the investigating officer does not find it necessary to arrest an accused person during investigations, a strong case should be made out for placing that person in judicial custody after a charge sheet is filed. Similarly, it is important to ascertain whether the accused was participating in the investigations to the satisfaction of the investigating officer and was not absconding or not appearing when required by the investigating officer. Surely, if an accused is not hiding from the investigating officer or is hiding due to some genuine and expressed fear of being victimised, it would be a factor that a judge would need to consider in an appropriate case. It is also necessary for the judge to consider whether the accused is a first-time offender or has been accused of other offences and if so, the nature of such offences and his or her general conduct. The poverty or the deemed indigent status of an accused is also an extremely important factor and even Parliament has taken notice of it by incorporating an Explanation to Section 436 of the Code of Criminal Procedure, 1973. An equally soft approach to incarceration has been taken by Parliament by inserting Section 436A in the Code of Criminal Procedure, 1973.

¶5To put it shortly, a humane attitude is required to be adopted by a judge, while dealing with an application for remanding a suspect or an accused person to police custody or judicial custody. There are several reasons for this including maintaining the dignity of an accused person, howsoever poor that person might be, the requirements of Article 21 of the Constitution and the fact that there is enormous overcrowding in prisons, leading to social and other problems as noticed by this Court in In Re-Inhuman Conditions in 1382 Prisons.

13.

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.

14.

The Hon'ble Apex Court in Sanjay Chandra versus Central Bureau of Investigation (2012)1 Supreme Court Cases 49; held as under:- "The 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. Deprivation of liberty must be considered a punishment, unless it can be required to ensure that an accused person will stand his trial when called upon. The Courts owe more than verbal respect to the principle that punishment begins after conviction, and that every man is deemed to be innocent until duly tried and duly found guilty. Detention in custody pending completion of trial could be a cause of great hardship. From time to time, necessity demands that some unconvicted persons should be held in custody pending trial to secure their attendance at the trial but in such cases, "necessity" is the operative test. In India , it would be quite contrary to the concept of personal liberty enshrined in the Constitution that any person should be punished in respect of any matter, upon which, he has not been convicted or that in any circumstances, he should be deprived of his liberty upon only the belief that he will tamper with the witnesses if left at liberty, save in the most extraordinary circumstances. Apart from the question of prevention being the object of refusal of bail, one must not lose sight of the fact that any imprisonment before conviction has a substantial punitive content and it would be improper for any court to refuse bail as a mark of disapproval of former conduct whether the accused has been convicted for it or not or to refuse bail to an unconvicted person for the propose of giving him a taste of imprisonment as a lesson."

15.

The Hon'ble Apex Court in Prasanta Kumar Sarkar v. Ashis Chatterjee and Another (2010) 14 SCC 496, has laid down the following principles to be kept in mind, while deciding petition for bail:

(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.

16.

Consequently, in view of the above, the present petition is allowed and petitioner is ordered to be enlarged on anticipatory bail in aforesaid FIR, subject to his furnishing personal bond in the sum of Rs. 5,00,000/- with two local sureties in the like amount to the satisfaction of the Investigating Officer, with 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.

(e) He shall surrender his passport, if any, before the investigating agency.

17.

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.

18.

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 application alone. The petition stands accordingly disposed of.

19.

The petitioner is permitted to produce copy of the order downloaded from the High Court Website and the trial court shall not insist for certified copy of the order, however, it may verify the order from the High Court website or otherwise.

(Sandeep Sharma) Judge September 22, 2026 (shankar)