The Himachal Pradesh High Court held that per Section 162 of the Criminal Procedure Code, 1973 (CrPC) statements made by co-accused during police investigations cannot be used as evidence against any other accused.

The Court granted bail to an individual indicted under the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act). The Court noted that the police relied on the statement of the co-accused as well as a discovery.

However, the Court emphasized merely identifying the source of an item possessed by the accused does not constitute the discovery of a new fact relevant to the investigation.

The Bench of Justice Rakesh Kainthla observed, “A statement made by co-accused during the investigation is hit by Section 162 of Cr.P.C. and cannot be used as a piece of evidence. Further, the confession made by the coaccused will be inadmissible because of Section 25 of the Indian Evidence Act”.

Advocate Atul Sharma appeared for the Petitioner and Deputy Advocate General Avni Kochhar appeared for the State.

The Petitioner approached the High Court seeking regular bail for offences under Sections 21 and 29 of the NDPS Act. The police stopped a vehicle, recovering 101 grams of heroin, with the driver, Arun Yadav, disclosing that the heroin was supplied by the Petitioner, Satish Kumar.

Relying on the case of Bhagwan Singh v. Dilip Kumar, the Court observed the importance of considering factors such as the nature of accusations, severity of punishment, and supporting evidence. Addressing reasonable apprehensions of witness tampering and threats to the complainant was deemed crucial. The Bench reaffirmed that there should be a prima facie satisfaction of the court supporting the charge and frivolity of prosecution should be taken into account.

Citing Kalyan Chandra Sarkar v. Rajesh Ranjan [(2004) 7 SCC 528], the Court reiterated the necessity for providing reasons and considering multiple factors when granting bail, including the nature of the accusation and the likelihood of witness tampering.

The Court observed that co-accused confessions lack substantive evidence value and are admissible only to bolster other evidence. It highlighted the constraints imposed by Section 25 of the Indian Evidence Act, 1872 (IEA) on confessions made to police officers during investigations.

Consequently, the Bench noted that the detention of the Petitioner based on a co-accused's statement and call details lacked legal admissibility. Furthermore, the Bench emphasized that showing the location of the alleged transaction did not adhere to Section 27 of the IEA, emphasizing that pointing out the place of purchase does not constitute the discovery of a relevant fact.

Regarding Arun Yadav's statement, the Court noted that it was not prima facie admissible, as pointing out the house did not lead to the discovery of any fact. Therefore, the Court held that the conditions outlined in Section 37 of the NDPS Act were met in this case, indicating a lack of material suggesting that the Petitioner would commit the offence if released on bail.

Accordingly, the Court allowed the Petition and granted bail to Petitioner.

Cause Title: Satish Kumar v State of Himachal Pradesh

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