Kashin Kashyap v. State of Himachal Pradesh

SFSL, Junga, and as per the report of analysis, it was confirmed to be a sample of charas. The occupants revealed during interrogation that they had handed over ₹5000/- each to Kashin Kashyap (present petitioner). The petitioner had also accompanied the Co-accused on his motorcycle. They identified the room where they had stayed at Kullu. The bank details of the petitioner showed that an amount of ₹50,000/- was transferred from the account of the petitioner’s mother. CCTV footage was 4 also checked and petitioner was found with other occupants of the vehicle. The police arrested the petitioner. The petitioner made a disclosure statement that he could show the place where he had purchased the charas. He led the police to a bridge constructed on Naulgari Nala at Lag valley. The bank account detail of Rewat Ram also showed the receipt of ₹50,000/-. The police arrested Rewat Ram, who confirmed that he had sold the charas at a place mentioned by the petitioner. No other case has been registered against the petitioner. The mobile phone of the petitioner was found in the vehicle from which the recovery of charas was made. The charas was meant for the sale to students. The investigation is complete and challan is to be prepared. Hence the status report.

4. I have heard Mr. Sunil Kumar Banyal, learned counsel for the petitioner and Mr Lokender Kutlehria, learned Additional Advocate General for the respondent/State.

5. Mr. Sunil Kumar Banyal, learned counsel for the petitioner, submitted that the petitioner is innocent and he was falsely implicated based on the statement made by the co accused. The petitioner is a student and has no criminal antecedents, The 5 investigation is complete and no fruitful purpose would be served by keeping the petitioner in custody. Hence, he prayed that the present petition be allowed and the petitioner be released on bail.

6. Mr. Lokender Kutlehria, learned Additional Advocate General, for the respondent/State submitted that the petitioner is a drug peddler. He had abetted the possession of charas by his co- accused. The charas was meant for sale to students. No leniency should be shown to the petitioner. Hence, he prayed that the present petition be dismissed.

7. I have given considerable thought to the submissions made at the bar and have gone through the record carefully.

8. The parameters for granting bail were considered by the Hon’ble Supreme Court in Pinki v. State of U.P., (2025) 7 SCC 314: 2025 SCC OnLine SC 781, wherein it was observed at page 380: (i) Broad principles for the grant of bail

56. In Gudikanti Narasimhulu v. High Court of A.P., (1978) 1 SCC 240: 1978 SCC (Cri) 115, Krishna Iyer, J., while elaborating on the content of Article 21 of the Constitution of India in the context of personal liberty of a person under trial, has laid down the key factors that should be considered while granting bail, which are extracted as under: (SCC p. 244, paras 7-9) “7. It is thus obvious that the nature of the charge is the vital factor, and the nature of the evidence is also pertinent. The punishment to which the party may be 6 liable, if convicted or a conviction is confirmed, also bears upon the issue.

8. Another relevant factor is whether the course of justice would be thwarted by him who seeks the benignant jurisdiction of the Court to be freed for the time being. [Patrick Devlin, “The Criminal Prosecution in England” (Oxford University Press, London 1960) p. 75 — Modern Law Review, Vol. 81, Jan. 1968, p. 54.]

9. Thus, the legal principles and practice validate the Court considering the likelihood of the applicant interfering with witnesses for the prosecution or otherwise polluting the process of justice. It is not only traditional but rational, in this context, to enquire into the antecedents of a man who is applying for bail to find whether he has a bad record, particularly a record which suggests that he is likely to commit serious offences while on bail. In regard to habituals, it is part of criminological history that a thoughtless bail order has enabled the bailee to exploit the opportunity to inflict further crimes on the members of society. Bail discretion, on the basis of evidence about the criminal record of a defendant, is therefore not an exercise in irrelevance.” (emphasis supplied)

57. In Prahlad Singh Bhati v. State (NCT of Delhi), (2001) 4 SCC 280: 2001 SCC (Cri) 674, this Court highlighted various aspects that the courts should keep in mind while dealing with an application seeking bail. The same may be extracted as follows: (SCC pp. 284-85, para 8) “8. The jurisdiction to grant bail has to be exercised on the basis of well-settled principles, having regard to the circumstances of each case and not in an arbitrary manner. While granting the bail, the court has to keep in mind the nature of accusations, the nature of evidence in support thereof, the severity of the punishment which conviction will entail, the character, behaviour, means and standing of the accused, circumstances which are peculiar to the accused, reasonable possibility of securing the presence of the accused at the trial, reasonable apprehension of the witnesses being tampered with, the larger interests of the 7 public or State and similar other considerations. It has also to be kept in mind that for the purposes of granting the bail the legislature has used the words “reasonable grounds for believing” instead of “the evidence” which means the court dealing with the grant of bail can only satisfy it (sic itself) as to whether there is a genuine case against the accused and that the prosecution will be able to produce prima facie evidence in support of the charge.” (emphasis supplied)

58. This Court in Ram Govind Upadhyay v. Sudarshan Singh, (2002) 3 SCC 598: 2002 SCC (Cri) 688, speaking through Banerjee, J., emphasised that a court exercising discretion in matters of bail has to undertake the same judiciously. In highlighting that bail should not be granted as a matter of course, bereft of cogent reasoning, this Court observed as follows: (SCC p. 602, para 3) “3. Grant of bail, though being a discretionary order, but, however, calls for the exercise of such a discretion in a judicious manner and not as a matter of course. An order for bail bereft of any cogent reason cannot be sustained. Needless to record, however, that the grant of bail is dependent upon the contextual facts of the matter being dealt with by the court and facts do always vary from case to case. While the placement of the accused in society, though it may be considered by itself, cannot be a guiding factor in the matter of grant of bail, the same should always be coupled with other circumstances warranting the grant of bail. The nature of the offence is one of the basic considerations for the grant of bail — the more heinous is the crime, the greater is the chance of rejection of the bail, though, however, dependent on the factual matrix of the matter.” (emphasis supplied)

59. In Kalyan Chandra Sarkar v. Rajesh Ranjan, (2004) 7 SCC 528: 2004 SCC (Cri) 1977, this Court held that although it is established that a court considering a bail application cannot undertake a detailed examination of evidence and an elaborate discussion on the merits of the case, yet the court is required to indicate the prima facie reasons justifying the grant of bail. 8

60. In Prasanta Kumar Sarkar v. Ashis Chatterjee, (2010) 14 SCC 496: (2011) 3 SCC (Cri) 765, this Court observed that where a High Court has granted bail mechanically, the said order would suffer from the vice of non-application of mind, rendering it illegal. This Court held as under with regard to the circumstances under which an order granting bail may be set aside. In doing so, the factors which ought to have guided the Court's decision to grant bail have also been detailed as under: (SCC p. 499, para 9) “9. … It is trite that this Court does not, normally, interfere with an order passed by the High Court granting or rejecting bail to the accused. However, it is equally incumbent upon the High Court to exercise its discretion judiciously, cautiously and strictly in compliance with the basic principles laid down in a plethora of decisions of this Court on the point. It is well settled that, among other circumstances, the factors to be borne in mind while considering an application for bail are: (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.” (emphasis supplied) xxxxxxx

62. One of the judgments of this Court on the aspect of application of mind and requirement of judicious exercise of discretion in arriving at an order granting bail to the accused is Brijmani Devi v. Pappu Kumar, (2022) 4 SCC 497 : 9 (2022) 2 SCC (Cri) 170, wherein a three-Judge Bench of this Court, while setting aside an unreasoned and casual order (Pappu Kumar v. State of Bihar, 2021 SCC OnLine Pat 2856 and Pappu Singh v. State of Bihar, 2021 SCC OnLine Pat 2857) of the High Court granting bail to the accused, observed as follows: (Brijmani Devi v. Pappu Kumar, (2022) 4 SCC 497 : (2022) 2 SCC (Cri) 170]), SCC p. 511, para 35) “35. While we are conscious of the fact that liberty of an individual is an invaluable right, at the same time while considering an application for bail courts cannot lose sight of the serious nature of the accusations against an accused and the facts that have a bearing in the case, particularly, when the accusations may not be false, frivolous or vexatious in nature but are supported by adequate material brought on record to enable a court to arrive at a prima facie conclusion. While considering an application for the grant of bail, a prima facie conclusion must be supported by reasons and must be arrived at after having regard to the vital facts of the case brought on record. Due consideration must be given to facts suggestive of the nature of crime, the criminal antecedents of the accused, if any, and the nature of punishment that would follow a conviction vis-à-vis the offence(s) alleged against an accused.” (emphasis supplied)

9. Hon’ble Supreme Court held in State of Rajasthan v. Balchand, (1977) 4 SCC 308: 1977 SCC (Cri) 594: 1977 SCC OnLine SC 261 that the normal rule is bail and not jail, except where the gravity of the crime or the heinousness of the offence suggests otherwise. It was observed at page 308:

2. The basic rule may perhaps be tersely put as bail, not jail, except where there are circumstances suggestive of fleeing from justice or thwarting the course of justice or creating other troubles in the shape of repeating offences or intimidating witnesses and the like, by the petitioner who 10 seeks enlargement on bail from the Court. We do not intend to be exhaustive but only illustrative.

3. It is true that the gravity of the offence involved is likely to induce the petitioner to avoid the course of justice and must weigh with us when considering the question of jail. So also, the heinousness of the crime….”

10. The present petition has to be decided as per the parameters laid down by the Hon’ble Supreme Court.

11. Perusal of the status report shows that the petitioner was not travelling in the vehicle from which the recovery was made. The police connected the petitioner to the commission of crime based on the statement made by co-accused and the financial transaction between him and Rewat Ram. It was laid down by the Hon’ble Supreme Court in Dipakbhai Jagdishchandra Patel v. State of Gujarat, (2019) 16 SCC 547: (2020) 2 SCC (Cri) 361: 2019 SCC OnLine SC 588 that a statement made by a co-accused during the investigation is hit by Section 162 of Cr.P.C. and cannot be used as a piece of evidence. It was also held that the confession made by the co-accused is inadmissible under Section 25 of the Indian Evidence Act. It was observed at page 568: -

44. Such a person, viz., the person who is named in the FIR, and therefore, the accused in the eye of the law, can indeed be questioned, and the statement is taken by the police ofÏcer. A confession that is made to a police ofÏcer would be inadmissible, having regard to Section 25 of the 11 Evidence Act. A confession, which is vitiated under Section 24 of the Evidence Act, would also be inadmissible. A confession, unless it fulfils the test laid down in Pakala Narayana Swami [Pakala Narayana Swami v. King Emperor, 1939 SCC OnLine PC 1 : (1938-39) 66 IA 66: AIR 1939 PC 47] and as accepted by this Court, may still be used as an admission under Section 21 of the Evidence Act. This, however, is subject to the bar of admissibility of a statement under Section 161 CrPC. Therefore, even if a statement contains an admission, the statement being one under Section 161, it would immediately attract the bar under Section 162 CrPC.”

12. Similarly, it was held in Surinder Kumar Khanna vs Intelligence OfÏcer 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 utilised 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 ofÏcer 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 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 12 held that a confession of the co-accused and the phone calls are not sufÏcient 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 considered 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 sufÏcient 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 Supreme 13 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. Therefore, the petitioner cannot be detained in custody based on a statement made by the co-accused or the confession made by him, as they are not legally admissible.

17. The police have relied upon the financial transaction between Rewat Ram and the petitioner; this is not sufÏcient. It was laid down by the Kerala High Court in Amal E vs State of Kerala 2023:KER:39393 that financial transactions are not sufÏcient to connect the accused with the commission of crime. It was observed: “From the perusal of the case records, it can be seen that, apart from the aforesaid transactions, there is nothing to show the involvement of the petitioners. It is true that the documents indicate the monetary transactions between the petitioners and some of the accused persons, but the question that arises is whether the said transactions were in connection with the sale of Narcotic drugs. To establish the same, apart from the confession statements of the 14 accused, there is nothing. However, as it is an aspect to be established during the trial, I do not intend to enter into any finding at this stage, but the said aspect is sufÏcient to record the satisfaction of the conditions contemplated under section 37 of the NDPS Act, as the lack of such materials evokes a reasonable doubt as to the involvement of the petitioner.”

18. A heavy reliance was placed on the petitioner’s disclosure of the place where he had purchased the charas from Rewat Ram. This disclosure will not assist the prosecution. It is undisputed that no recovery was effected pursuant to the petitioner’s disclosure statement. It was laid down in Gajrani vs. Emperor, AIR 1933 Allahabad 394, that where the disclosure of the place from where the accused had purchased something does not lead to the discovery of any fact. It was observed: “We do not consider that the pointing out of the shop in this statement can be held to amount to the discovery of a fact, and consequently, we do not consider that this evidence is admissible under Section 27, Evidence Act.”

19. Similarly, in H.P. Administration vs. Om Parkash, AIR 1972 SC 975, the accused pointed out the witness from whom he had purchased the dagger. This was held to be outside the purview of Section 27 of the Indian Evidence Act. It was observed: “12. Thereafter, on the information furnished by the accused that he had purchased the weapon from Ganga Singh, P. W. 11, and that he would take them to him, they went to the thari of P. W. 11, where the accused pointed him 15 out to them. It is contended that the information given by the accused that he purchased the dagger from P. W. 11, followed by his leading the police to his thari and pointing him out, is inadmissible under Section 27 of the Evidence Act. In our view, there is a force in this contention. A fact discovered within the meaning of Section 27 must refer to a material fact to which the information directly relates. To render the information admissible, the fact discovered must be relevant and must have been such that it constitutes the information through which the discovery was made. What is the fact discovered in this case? Not the dagger, but the dagger hidden under the stone, which is not known to the police. (See Pulukuri Kottaya v. King- Emperor, 74 Ind App 65 = (AIR 1947 PC 67). But thereafter, can it be said that the information furnished by the accused that he purchased the dagger from P. W. 11 led to a fact discovered when the accused took the police to the thari of P. W. 11 and pointed him out. A single Bench of the Madras High Court in Public Prosecutor v. India China Lingiah, AIR 1954 Mad 433, and In re Vellingiri, AIR 1950 Mad 613, seems to have taken the view that the information by an accused leading to the discovery of a witness to whom he had given stolen articles is a discovery of a fact within the meaning of Section 27. In Emperor v. Ramanuja Ayyanger, AIR 1935 Mad 528 a full Bench of three Judges by a majority held that the statement of the accused "I purchased the mattress from this shop and it was this Woman (another witness) that carried the mattress" as proved by the witness who visited him with the police was admissible because the word 'fact' is not restricted to something which can be exhibited as a material object. This judgement was before Pulukuri Kattaya's case, when, as far as the Presidency of Madras was concerned law laid down by the Full Bench of the Court, In Re Athappa Goundan, ILR (1937) Mad 695 = (AIR 1937 Mad 618) prevailed. It held that where the accused's statement connects the fact discovered with the offence and makes it relevant, even though the statement amounts to a confession of the offence. It must be admitted because it is what has led directly to the discovery. This view was 16 overruled by the Privy Council in Pulukari Kottaya's case, and this Court had approved the Privy Council case in Ramkishan Mithanlal Sharma v. The State of Bombay, (1955) 1 SCR 903 = (AIR 1955 SC 104).

13. In the Full Bench Judgment of Seven Judges in Sukhan v. The Crown, ILR 10 Lah 283 = (AIR 1929 Lah 344) (FB) which was approved by the Privy Council in Pulukuri Kotaya's case, 74 Ind App 65 = (AIR 1947 PC 67) Shadi Lal C.J, as he then was speaking for the majority pointed out that the expression 'fact' as defined by Section 3 of the Evidence Act includes not only the physical fact which can be perceived by the senses but also the psychological fact or mental condition of which any person is conscious and that it is in the former sense that the word used by the Legislature refers to material and not to a mental fact. It is clear, therefore, that what should be discovered is the material fact, and the information that is admissible is that which has caused that discovery to connect the information and the fact with each other as cause and effect.' That information, which does not distinctly connect with the fact discovered, or that portion of the information, which merely explains the material thing discovered, is not admissible under Section 27 and cannot be proved. As explained by this Court as well as by the Privy Council, normally Section 27 is brought into operation where a person in police custody produces from some place of concealment some object said to be connected with the crime of which the informant is the accused. The concealment of the fact, which is not known to the police, is what is discovered by the information and lends assurance that the information was true. No witness with whom some material fact, such as the weapon of murder, stolen property or other incriminating article is not hidden, sold or kept and which is unknown to the police, can be said to be discovered as a consequence of the information furnished by the accused. These examples, however, are only by way of illustration and are exhaustive. What makes the information leading to the discovery of the 17 witness admissible is the discovery from him of the thing sold to him, hidden, or kept with him, which the police did not know until the information was furnished to them by the accused. A witness cannot be said to be discovered if nothing is to be found or recovered from him as a consequence of the information furnished by the accused, and the information that disclosed the identity of the witness will not be admissible.

20. It was held in State of Maharashtra Versus Damu Gopinath Shinde, AIR 2000 S.C. 169, that where the statement of the accused did not lead to the discovery of any fact, the same is not admissible. It was observed:- “The information permitted to be admitted in evidence is confined to that portion of the information which 'distinctly relates to the fact thereby discovered." But the information to get admissibility need not be so truncated as to make it insensible or incomprehensible. The extent of the information admitted should be consistent with understandability. In this case, the fact discovered by P.W. 44 is that A-3 Mukinda Thorat had carried the dead body of Dipak to the spot on the motorcycle.

38. How particular information led to the discovery of the fact? No doubt, the recovery of the dead body of Dipak from the same canal was antecedent to the information, which P.W. 44 obtained. If nothing more was recovered pursuant to and subsequent to obtaining the information from the accused, there would not have been any discovery of any fact at all. But when the broken glass piece was recovered from that spot, and that piece was found to be part of the tail lamp of the motorcycle of A-2 Guruji, it can safely be held that the Investigating OfÏcer discovered the fact that A-2 Guruji had carried the dead body on that particular motorcycle up to the spot.” (Emphasis supplied) 18

21. In the present case, nothing was recovered pursuant to the statement made by the petitioner; therefore, the statement is, prima facie, inadmissible.

22. The police also relied upon the fact that the petitioner and co-accused were found together in the CCTV footage and the petitioner’s mobile phone was found in the car from which the recovery was effected. The mere fact that the petitioner was with the co-accused before the incident or his mobile phone was found in the vehicle are not sufÏcient to connect the petitioner with the possession of contraband or its abetment. The petitioner is a classmate of the occupants of the vehicle and his presence with the co-accused or the recovery of his mobile phone will not connect him to the commission of crime.

23. The investigation is complete and no fruitful purpose would be served by detaining the petitioner in custody. The petitioner is a student and keeping him behind the bars would adversely affect his studies.

24. In view of above, there is insufÏcient material on record to connect the petitioner with the commission of crime. Hence, the present petition is allowed, and the petitioner is 19 ordered to be released on bail, subject to his furnishing bail bonds in the sum of ₹1,00,000/- with one surety in the like amount to the satisfaction of the learned Trial Court. While on bail, the petitioner will abide by the following conditions: - (I) (II) The petitioner will not intimidate the witnesses, nor will he influence any evidence in any manner whatsoever. The petitioner shall attend the trial on each and every hearing and will not seek unnecessary adjournments. (III) The petitioner will not leave the present address for a continuous period of seven days without furnishing the address of the intended visit to the SHO concerned, the Police Station concerned and the Trial Court. (IV) The petitioner will surrender his passport, if any, to the Court; and (V) The petitioner will furnish his mobile number and social media contact to the Police and the Court and will abide by the summons/notices received from the Police/Court through SMS/WhatsApp/Social Media Account. In case of any change in the mobile number or social media accounts, the same will be intimated to the Police/Court within five days from the date of the change.

25. It is expressly made clear that in case of violation of any of these conditions, the prosecution will have the right to file a petition for cancellation of the bail.

26. The petition stands accordingly disposed of. A copy of this order be sent to the District Jail Superintendent, Mandi, District Mandi, H.P., and the learned Trial Court through FASTER. 20

27. The observations made hereinabove are regarding the disposal of this petition and will have no bearing, whatsoever, on the case's merits. 9th January, 2026 (ravinder) (Rakesh Kainthla) Judge CHANDER SHEKHAR CHANDER SHEKHAR