Himachal Pradesh High Court
Saksham Bhardwaj vs State Of Himachal Pradesh on 10 April, 2026
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
Cr. MP (M) No.528 of 2026
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Date of Decision: 10.04.2026
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Saksham Bhardwaj ...Petitioner
Versus
State of Himachal Pradesh ...Respondent
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Coram:
of
The Hon'ble Mr. Justice Sandeep Sharma, Judge.
Whether approved for reporting?1
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For the Petitioner:rt Mr. Lovneesh Thakur, Advocate.
For the Respondent: Mr. Rajan Kahol & Mr. Vishal Panwar,
Additional Advocate Generals with Mr.
Ravi Chauhan, Deputy Advocate
General.
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Sandeep Sharma, J. (Oral)
Bail petitioner namely, Saksham Bhardwaj, who is
behind the bars since 04.03.2026, has approached this Court in
the instant proceedings filed under Section 483 of the Bharatiya
Nagarik Suraksha Sanhita for grant of regular bail in case FIR
No.278 of 2025, dated 26.12.2025, under Sections 20, 25, 29 of
the NDPS Act, registered at police Station, Sundernagar, District
Mandi, Himachal Pradesh, respondent.
2. Pursuant to order dated 06.04.2026, respondent-State
has filed status report and HC Jai Singh has come present
alongwith the record. Record perused and returned.
1
Whether reporters of the local papers may be allowed to see the judgment?
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3. Close scrutiny of the record/status report reveals that
on 26.12.2025, police party present near Pungh Four-Lane,
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stopped car bearing registration No.DL-3C-DD 8275 for checking.
Since occupants of the car got perplexed after having seen the
police, police deemed it necessary to effect search of the vehicle
as well as its occupants. Allegedly, after having associated
of
independent witnesses, police recovered one bag from afore car
containing 685 grams of charas. Since, occupants of the car,
rt
namely Gaurav Verma and Nikhil Thakur were unable to render
plausible explanation qua possession of intermediate quantity of
contraband recovered from their car, police after completion of
necessary codal formalities, lodged the FIR, as detailed
hereinabove. During investigation, above named occupants
allegedly disclosed to the police that present bail petitioner
alongwith co-accused Sumit and Krish Thakur, who were traveling
in car bearing registration No. HR-95B-1839 had collected money
for purchase of aforesaid contraband. On the basis of aforesaid
statements made by co-accused Gaurav and Nikhil, police
conducted the investigation and found that sum of Rs 30,000/- was
withdrawn by the co-accused Krish Thakur from his ATM. Since
investigation in the case is complete and nothing remains to be
recovered from the bail petitioner, he has approached this Court in
the instant proceedings for grant of regular bail.
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4. Mr. Loveneesh Thakur, learned representing the
petitioner, vehemently argued that petitioner has been falsely
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implicated. He states that contraband never came to be recovered
from the conscious possession of the petitioner and as such, there
is no occasion, if any, to keep him behind the bars. He states that
petitioner has been arrayed as an accused on the basis of
of
statement made by co-accused, which is otherwise not permissible
under law. To substantiate his aforesaid submission, he placed
rt
reliance upon judgment passed by Hon’ble Apex Court in Tofan
Singh v. State of Tamil Nadu (2021) 4 SCC 1, wherein it came to
be revealed that confession statement recorded under Section 67
of NDPS Act will remain inadmissible in the trial of an offence
under the NDPS Act
5. Mr. Rajan Kahol, learned Additional Advocate
General, while fairly admitting factum with regard to filing of the
challan in the competent court of law, contends that though nothing
remains to be recovered from the bail petitioner, but keeping in the
gravity of offence alleged to have been committed by him, he does
not deserve any leniency. Learned Additional Advocate General
states that though in the case at hand contraband never came to
be recovered from the conscious possession of the petitioner, but
there is ample evidence adduced on record that petitioner herein
had actually provided money for purchase of contraband. He states
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that though at the time of recovery of contraband from the
conscious possession of the accused, present bail petitioner was
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not travelling in the offending car, but he was travelling in another
car, wherein other two accused were also present. He states that
all the accused, named in the FIR, firstly gathered at Khahar
(Punjab) from where they had hired two cars. He states that though
of
sum of Rs. 30,000/- was withdrawn from the ATM of co-accused
Krish Thakur, but it has come in the evidence that all the accused,
rt
named in the FIR, gave money for purchase of the contraband. He
states that it may not be in the interest of justice to enlarge the
petitioner on bail, because in the event of his being enlarged on
bail, he may not only flee from justice, but may again indulge in
these activities.
6. Having heard learned counsel for the parties and
perused the material available on record, this Court finds that
contraband, which is of intermediate quantity was never recovered
from the conscious possession of the petitioner, rather same came
to be recovered from the conscious possession of co-accused
Gaurav and Nikhil, who allegedly disclosed to the police that
petitioner herein alongwith other co-accused, namely Sumit and
Krish Thakur was travelling in another car and they all had actually
collected the money for purchase of aforesaid contraband. It also
emerges from the status report that bail petitioner was in touch with
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above named co-accused through telephone. Prosecution has also
collected evidence to the effect that sum of Rs. 30,000/- was
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withdrawn from the bank account of co-accused Krish Thakur on
25.12.2025 at Axis Bank, Bhaur, Sundernagar. Financial
transaction placed on record reveals that on 26.12.2025, co-
accused Krish Thakur paid Rs.1000/- each ten times to petitioner,
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who allegedly made available contraband to other co-accused.
7. Though, having taken note of aforesaid facts, this
rt
Court is not persuaded to agree with learned counsel representing
the petitioner that petitioner has been falsely implicated, but having
taken note of the fact that he has been arrayed as an accused on
the basis of confessional statement made by co-accused, coupled
with the judgment passed by Hon’ble Apex Court in Tofan Singh
case(supra), wherein it has been ruled that confession statement
recorded under Section 67 of the Act will remain inadmissible in
the trial of an offence under the Act, this Court is persuaded to
consider the prayer made on behalf of the petitioner for grant of
bail. Moreover, on account of recovery of intermediate quantity of
contraband, rigours of Section 37 of the Act are not attracted in the
present case. At this stage, it would be profitable to reproduce
relevant paras of the judgment rendered by Hon’ble Apex Court in
Tofan Singh case(supra) herein below:-
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“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 theconstitutional guarantees contained in Articles 14, 20(3) and
21 of the Constitution of India.
156.The 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 toof
and rely upon these judgments, or upon the principles laid
down by these judgments, also stand overruled for the
reasons given by us.
157.On the other hand, for the reasons given by us in this
judgment, the judgments of Noor Aga (supra) and Nirmal
rt
Singh Pehlwan v. Inspector, Customs (2011) 12 SCC 298
are correct in law.
158.We 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.”
8. Recently 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 NDPS
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
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arrested by the petitioner NCB on the basis of
confessional/voluntary statement of the co-accused under Section
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67 of the NDPS Act. Apart from above, Hon’ble Apex Court in the
aforesaid judgment has held that CDR details 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
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the trial.
9. Bare reading of aforesaid judgment passed by Hon’ble
rt
Apex Court clearly reveals that arrest made by NCB in that case on
the basis of confessional/voluntary statement of the co-accused
under Section 67 of the Act was not found to be in accordance with
law and Hon’ble Apex Court specifically ordered that statement of
the respondents or the co-accused under Section 67 of the Act
cannot form the basis for overturning the impugned orders
releasing them on bail, which was passed by High Court of
Karnataka.
10. Similarly, Hon’ble Apex Court categorically ruled that
the CDR details of some of the accused or the allegations of
tampering of evidence on the part of one of the respondents is an
aspect that will be examined at the stage of trial.
11. Since in the case at hand, commercial quantity of
contraband never came to be recovered from the conscious
possession of the bail petitioner and he came to be named in the
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case, only on the basis of the statement of co-accused, who had
actually delivered consignment to the persons, from whose
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conscious possession commercial quantity of contraband came to
be recovered, prayer for grant of bail, made on behalf of bail
petitioner deserves to be considered.
12. Hon’ble Apex Court in Criminal Appeal No. 227/2018,
of
Dataram Singh vs. State of Uttar Pradesh & Anr decided on
6.2.2018 has held that freedom of an individual cannot be curtailed
rt
for indefinite period, especially when his/her guilt is yet to be
proved. It has been further held by the Hon’ble Apex Court in the
aforesaid judgment that a person is believed to be innocent until
found guilty.
13. Similarly, it was held in Surinder Kumar Khanna vs
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 co-
accused 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 that a
confession made to a police officer during the investigation is hit by
Section 25 of the Indian Evidence Act and is not saved by the
provisions of Section 67 of the NDPS Act. Therefore, no advantage
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can be derived by the prosecution from the confessional statement
made by the co-accused implicating the petitioner.
.
14. 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.
of
15. It was laid down by this Court in Saina Devi vs State
of Himachal Pradesh 2022 Law Suit (HP) 211 that where the
rt
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. Takinginto 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 co-accused Dabe Ram, this Court had
considered the existence of a prima facie case against the petitionerand had rejected the bail application as not satisfying the conditions of
Section 37 of the 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
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Supreme Court in Tofan Singh Vs State of Tamil Nadu, 2021 4 SCC 1.
Further, on the basis of the aforesaid elucidation, the petitioner is also
entitled to the benefit of bail.”
.
16. 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.
of
Cr.MP(M) No. 1061 of 2023, decided on 15.05.2023.
17. rt Though the case at hand, is to be decided by learned
court below in the totality of evidence led on record by Investigating
Agency, but having taken note of the aforesaid glaring aspects of
the matter, this court sees no reason to let the present bail
petitioner incarcerate in jail for an indefinite period during trial,
especially when guilt of the present bail petitioner is yet to be
established.
18. Hon’ble Apex Court and this Court in a catena of
cases have repeatedly held that one is deemed to be innocent, till
the time, he/she is proved guilty in accordance with law. In the
case at hand, complicity, if any, of the bail petitioner is yet to be
established on record by the investigating agency, as such, this
Court sees no reason to let the bail petitioner incarcerate in jail for
an indefinite period during trial, especially when nothing remains to
be recovered from him. Apprehension expressed by learned
Additional Advocate General, that in the event of being enlarged
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on bail, bail petitioner may flee from justice or indulge in such
offences again, can be best met by putting the bail petitioner to
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stringent conditions.
19. Hon’ble Apex Court in Sanjay Chandra versus
Central Bureau of Investigation (2012)1 Supreme Court Cases
49 has held that gravity alone cannot be a decisive ground to deny
of
bail, rather competing factors are required to be balanced by the
court while exercising its discretion. It has been repeatedly held by
rt
the Hon’ble Apex Court that 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.
20. In Manoranjana Sinh alias Gupta versus CBI,
(2017) 5 SCC 218, Hon’ble Apex Court has held that the 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 also, normal rule is of
bail and not jail. Apart from above, 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.
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21. The Apex Court in Prasanta Kumar Sarkar versus
Ashis Chatterjee and another (2010) 14 SCC 496, has laid down
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various principles to be kept in mind, while deciding petition for bail
viz. prima facie case, nature and gravity of accusation, punishment
involved, apprehension of repetition of offence and witnesses
being influenced.
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22. In view of the aforesaid discussion as well as law laid
down by the Hon’ble Apex Court, petitioner has carved out a case
rt
for grant of bail, accordingly, the petition is allowed and the
petitioner is ordered to be enlarged on bail in aforesaid FIR,
subject to his furnishing personal bond in the sum of Rs. 1,00,000/-
with two local sureties in the like amount to the satisfaction of
concerned Chief Judicial Magistrate/trial Court, 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 exemptionfrom 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.
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23. It is clarified that if the petitioner misuses the liberty or
violates any of the conditions imposed upon him, the investigating
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agency shall be free to move this Court for cancellation of the bail.
24. 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
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petition stands accordingly disposed of.
rt (Sandeep Sharma)
Judge
April 10,2026
(shankar)
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