Himachal Pradesh High Court
Sumit Kumar vs State Of Himachal Pradesh on 17 April, 2026
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
Cr. MP (M) No.543 of 2026
.
Date of Decision: 17.04.2026
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Sumit Kumar ...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. Vipan Rajta, Advocate.
For the Respondent: Mr. Rajan Kahol & Mr. Vishal Panwar,
Additional Advocate Generals with Mr.
Ravi Chauhan & Mr. Anish Banshtu,
Deputy Advocates General.
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Sandeep Sharma, J. (Oral)
Sequel to order dated 07.04.2026, whereby bail
petitioner was ordered to be enlarged on interim bail in the event of
his arrest 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-State
has filed status report and HC Jai Singh has come present
alongwith the record. Record perused and returned.
2. Close scrutiny of the record/status report reveals that
on 26.12.2025, police party present near Pungh Four-Lane,
stopped car bearing registration No.DL-3C-DD 8275 for checking.
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Whether reporters of the local papers may be allowed to see the judgment?
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Since occupants of the car got perplexed after having seen the
police, police deemed it necessary to cause search of the vehicle
.
as well as its occupants. Allegedly, after having associated
independent witnesses, police recovered one bag from afore car
containing 685 grams of charas. Since, occupants of the car,
namely Gaurav Verma and Nikhil Thakur were unable to render
of
plausible explanation qua intermediate quantity of contraband
recovered from their car, police after completion of necessary
rt
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 Krish
Thakur and Saksham was traveling in car bearing registration No.
HR-95B-1839 and they 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
Mr. Krish Thakur from his ATM and in this background, he
alongwith co-accused Saksham also came to be named in the FIR.
However, all the co-accused named in the FIR, as detailed
hereinabove, already stand enlarged on bail, whereas present bail
petitioner has approached this Court in the instant proceedings
for grant of anticipatory bail. As has been observed hereinabove,
petitioner was granted anticipatory bail vide order dated
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07.04.2026, subject to his joining investigation. Since petitioner has
already joined investigation and nothing remains to be recovered
.
from him, prayer has been made on his behalf to make order dated
07.04.2026 absolute.
3. Mr. Rajan Kahol, learned Additional Advocate
General, on instructions of the Investigating Officer, fairly admits
of
that pursuant to order dated 07.04.2026, petitioner has already
joined the investigation and nothing remains to be recovered from
rt
him. He states that since petitioner is accused of heinous crime
punishable under Section 20, 25, 29 of the Act, he does not
deserve any leniency. He states that there is overwhelming
evidence adduced on record by the prosecution suggestive of the
fact that bail petitioner has been indulging in illegal activity having
adverse impact in the society and as such, it may not be in the
interest of justice to enlarge him 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. However, on the instructions of
the Investigating Officer, he fairly admitted that custodial
interrogation of the petitioner is not required.
4. 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
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to be recovered from the conscious possession of co-accused
Gaurav and Nikhil, who allegedly disclosed to the police that
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petitioner herein alongwith other co-accused, namely Krish Thakur
and Saksham 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
of
touch with above named co-accused through telephone.
Prosecution has also collected evidence to the effect that sum of
rt
Rs. 30,000/- was withdrawn from the bank account of co-accused
Krish Thakur on 25.12.2025 at Axis Bank, Bhaur, Sundernagar.
Financial transaction placed on record also reveals that on
26.12.2025, Krish Thakur paid Rs.1000/- each ten times to co-
accused Saksham, who allegedly made available contraband to
other co-accused. As per status report, bail petitioner also
transferred sum of Rs. 16,200/- in the bank account of Saksham
for purchase of contraband.
5. Though, having taken note of aforesaid facts, this
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
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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
of
relevant paras of the judgment rendered by Hon’ble Apex Court in
Tofan Singh case(supra) herein below:-
rt
“155.Thus, to arrive at the conclusion that a confessionalstatement 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) and21 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 to
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
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::: Downloaded on – 17/04/2026 20:43:14 :::CIS
6statement in the trial of an offence under the NDPS
Act.”
6. 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
of
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
rt
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 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
the trial.
7. Bare reading of aforesaid judgment passed by Hon’ble
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
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releasing them on bail, which was passed by High Court of
Karnataka.
.
8. 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.
of
9. Since in the case at hand, intermediate quantity of
contraband never came to be recovered from the conscious
rt
possession of the bail petitioner and he came to be named in the
case, only on the basis of the statement of co-accused, from
whose conscious possession intermediate quantity of contraband
came to be recovered, prayer for grant of bail, made on behalf of
bail petitioner deserves to be considered.
10. Hon’ble Apex Court in Criminal Appeal No. 227/2018,
Dataram Singh vs. State of Uttar Pradesh & Anr decided on
6.2.2018 has held that freedom of an individual cannot be curtailed
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.
11. Similarly, it was held in Surinder Kumar Khanna vs
Intelligence Officer Directorate of Revenue Intelligence 2018
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12. (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
of
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
rt
can be derived by the prosecution from the confessional statement
made by the co-accused implicating the petitioner.
13. 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.
14. It was laid down by this Court in Saina Devi vs State
of Himachal Pradesh 2022 Law Suit (HP) 211 that where the
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. Taking
into 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::: Downloaded on – 17/04/2026 20:43:14 :::CIS
9considered the existence of a prima facie case against the petitioner
and 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 formaintainability 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
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
rt 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.”
15. 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.
Cr.MP(M) No. 1061 of 2023, decided on 15.05.2023.
16. 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.
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17. 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
of
an indefinite period during trial, especially when nothing remains to
be recovered from him. Apprehension expressed by learned
rt
Additional Advocate General, that in the event of being enlarged
on bail, bail petitioner may flee from justice or indulge in such
offences again, can be best met by putting the bail petitioner to
stringent conditions.
18. 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
bail, rather competing factors are required to be balanced by the
court while exercising its discretion. It has been repeatedly held by
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.
19. In Manoranjana Sinh alias Gupta versus CBI,
(2017) 5 SCC 218, Hon’ble Apex Court has held that the object of
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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
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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,
of
severity of the punishment, which conviction will entail, character of
the accused, circumstances which are peculiar to the accused
rt
involved in that crime.
20. The Apex Court in Prasanta Kumar Sarkar versus
Ashis Chatterjee and another (2010) 14 SCC 496, has laid down
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.
21. In view of the aforesaid discussion as well as law laid
down by the Hon’ble Apex Court, petitioner has carved out a case
for grant of bail, accordingly, the petition is allowed and order
dated 07.04.2026 passed by this Court is made absolute, subject
to 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;
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(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
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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.
of
22. It is clarified that if the petitioner misuses the liberty or
violates any of the conditions imposed upon him, the investigating
rt
agency shall be free to move this Court for cancellation of the bail.
23. 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.
(Sandeep Sharma)
Judge
April 17,2026
(shankar)
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