Court’s Decision
The Himachal Pradesh High Court allowed the bail petitions under Section 439 CrPC, granting regular bail to the petitioners booked under Sections 21, 27A, and 29 of the NDPS Act and Section 111 of the Bhartiya Nyaya Sanhita. The Court held that mere financial transactions and call detail records without recovery or corroborative material cannot justify continued custody under the stringent provisions of Section 37 of the NDPS Act. The Court also held that the invocation of Section 111 of the BNS was legally untenable as the statutory prerequisites for invoking the organised crime provision were absent.
Facts
The petitioners were arrested in connection with an FIR registered under the NDPS Act and BNS following the recovery of 26.68 grams of heroin from co-accused Sohan Lal and Geeta. The petitioners had financial transactions with Sohan Lal and telephonic contact, leading to their arrest. The prosecution contended these transactions were linked to drug dealings, while the petitioners argued they were falsely implicated, with no recovery made from them, and that financial transactions alone do not establish guilt.
Issues
- Whether call detail records and financial transactions alone can constitute sufficient grounds to deny bail under Section 37 of the NDPS Act.
- Whether the requirements of Section 111 of the BNS are satisfied for its invocation against the petitioners.
- Whether continued detention violates the principles of liberty and proportionality.
Petitioner’s Arguments
The petitioners contended:
- They were falsely implicated based solely on call detail records and financial transactions without any recovery or corroborative evidence.
- Statements of co-accused made to police are inadmissible under Sections 25 and 26 of the Evidence Act.
- No case was made out under Section 27A NDPS Act, and invocation of Section 111 BNS was illegal since no charge sheets in the preceding ten years existed to constitute “continuing unlawful activity”.
- The stringent conditions of Section 37 NDPS Act were not attracted in their case.
Respondent’s Arguments
The State argued:
- The petitioners were part of an organised crime syndicate involved in the sale and purchase of narcotics.
- Financial transactions and call detail records indicated active involvement with Sohan Lal, justifying their arrest and continued detention.
- The invocation of Sections 27A NDPS Act and 111 BNS was proper given the organised nature of the crime.
Analysis of the Law
The Court examined:
- Dipakbhai Jagdishchandra Patel (2019) 16 SCC 547, Tofan Singh (2021) 4 SCC 1, and Surinder Kumar Khanna (2018) 8 SCC 271: Confessional statements of co-accused to police are inadmissible.
- Dinesh Kumar @ Billa (2020 Cri LJ 4564) and Saina Devi (2022): Call records and co-accused statements alone insufficient to deny bail.
- Amal E (Kerala HC 2023): Mere financial transactions cannot establish NDPS liability.
- Rhea Chakraborty (2021 Crl LJ 248) and Nathi Devi (2005) 2 SCC 271: Clarified scope of “financing” under Section 27A NDPS Act.
- Mohd. Hashim (2024 SCC OnLine Ker 5260) and State of Maharashtra v. Shiva alias Shivaji Sonawane (2015) 14 SCC 272: Section 111 BNS requires prior charge sheets within ten years and continuing unlawful activity.
Precedent Analysis
- Tofan Singh and Surinder Kumar Khanna clarified inadmissibility of co-accused statements.
- Dinesh Kumar @ Billa and Saina Devi held that call records and financial transactions alone do not establish prima facie guilt under NDPS.
- Rhea Chakraborty and Amal E clarified that financing requires more than mere transactions.
- Mohd. Hashim and Shiva alias Shivaji Sonawane clarified that Section 111 BNS requires prior charge sheets within ten years.
Court’s Reasoning
The Court reasoned:
- Statements of co-accused are inadmissible under Section 25 Evidence Act.
- Financial transactions and call records, without recovery or corroborative evidence, do not establish guilt under NDPS Act.
- Invocation of Section 27A was unwarranted as there was no evidence of financing drug trafficking.
- Section 111 BNS could not be invoked since no charge sheets within ten years existed against the petitioners to establish “continuing unlawful activity” for organised crime.
Conclusion
The Himachal Pradesh High Court:
- Allowed the bail petitions and granted regular bail to the petitioners.
- Held that the stringent bar of Section 37 NDPS Act was not applicable in this case.
- Directed that petitioners be released on bail subject to conditions ensuring their presence during the trial.
Implications
- Reinforces protection of liberty under Article 21 against mechanical invocation of harsh bail restrictions.
- Clarifies the limitations on using financial transactions and call records to deny bail under NDPS Act.
- Ensures Section 111 BNS is invoked only when statutory conditions are satisfied.
Short Note on Cases Referred
- Tofan Singh, Surinder Kumar Khanna: Confessions to police inadmissible.
- Dinesh Kumar, Saina Devi: Calls and transactions insufficient for NDPS custody.
- Amal E, Rhea Chakraborty: Mere transactions ≠ financing under NDPS Act.
- Mohd. Hashim, Shiva alias Shivaji Sonawane: Section 111 BNS requires prior charge sheets and ongoing unlawful activity.
FAQs
1. Can financial transactions alone justify denial of bail under the NDPS Act?
No, mere transactions without corroborative evidence are insufficient to deny bail under Section 37 NDPS Act.
2. Is a co-accused’s statement to the police admissible against other accused?
No, such statements are inadmissible under Sections 25 and 26 of the Evidence Act.
3. When can Section 111 of the BNS be invoked in narcotics cases?
Only if there are prior charge sheets within ten years proving continuing unlawful activity, which was absent here.