YONAH DOE HARRIS v. STATE OF HP

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18.12.2023 at Police Station Sadar, District Solan, HP with the heroin weighing 21.03 grams. The co-accused Jitender, Vikram and Pardeep Narwal were arrested thereafter. Pardeep revealed on inquiry that he was purchasing heroin from the present petitioner. The police arrested the petitioner from Delhi on 31.12.2023 for the commission of offences punishable under Sections 21 and 29 of the NDPS Act and Section 14 of the Foreigners Act. The petitioner had produced the photocopies of his passport and VISA. He could not produce the original passport because of his immediate arrest. He was brought to Solan and was not granted an opportunity to produce the original passport. The charge sheet has been filed by the Police before the Court. The petitioner filed an application seeking a VISA from jail as per the order of the learned Special Judge dated 17.01.2024 but his application was closed by the Foreign Regional Registration Office without assigning any reason. On inquiry, it was found that the petitioner is ineligible for VISA- related services as long as he is in judicial custody. The petitioner had a valid VISA till 30.01.2024. The petitioner has been arrested based on the suspicion and the statement made by the co-accused. The petitioner has been in judicial custody for

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more than 7 months. He would abide by all the terms and conditions, which the Court may impose. Hence, it was prayed that the present petition be allowed and the petitioner be released on bail.

2. The State has filed a status report asserting that the police party was on patrolling duty on 17.12.2023 when a secret information was received that a vehicle was parked at Solan- Kumarhatti Bye-Pass Road 200 mtrs. ahead of Nature Treat. Two persons were sitting in the vehicle and were in possession of a huge quantity of heroin. Police reduced the information into writing and went to the spot. Sunil Kumar and Sandeep Kumar were found sitting in the vehicle. The police searched the vehicle and recovered 21.03 grams of heroin. The police seized the heroin and arrested the occupants. Sandeep revealed on inquiry that he and the co-accused went to Chandigarh. Sandeep called Pradeep and Pradeep asked Sandeep to send ₹49,000/-. Sandeep asked his cousin Sanjay to transfer the amount. They purchased the heroin from Pradeep. This heroin was to be sold at Nirmand. Police also recovered two mobile phones and found WhatsApp chat and calls in one of the mobile phones. The money was transferred to the account of Jitender. The police arrested

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Jitender Kumar, who revealed on inquiry that he and Pradeep Narwal were selling and purchasing heroin. Pradeep Narwal used to ask the purchaser of the heroin to transfer the money to the accounts of Jitender. Police also seized the mobile of Jitender Kumar and arrested Jitender. The money was found to be transferred to the account of Ajay and Vikram, who were arrested. The bank details were checked and it was found that there were suspicious transactions of ₹31,27,366/- in the account of Vikram. Vikram was also arrested. His mobile phone was checked and it was found that he was in touch with Pradeep Narwal and a huge amount was transferred to his account. Pradeep Narwal was also arrested. Four mobile phones and one vehicle were recovered from him. He revealed on inquiry that he was purchasing heroin from a person known as Doe Harris (present petitioner). He also identified the petitioner, who was apprehended. The heroin was sent to the State Forensic Science Laboratory and the result confirmed the substance to be Diacetylmorphine (Heroin). Sandeep Thakur used to bring heroin from Chandigarh and the petitioner used to pay the money to Sandeep Thakur. He had transferred ₹15,000/- at the instance of Sandeep Thakur. The petitioner belongs to an

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international organization supplying drugs. The petitioner is residing in India without any valid passport or VISA. The petitioner would indulge in the commission of similar offences and intimidate the witnesses in case of release on bail. Hence, the status report.

3. Respondent No.3 filed a short affidavit asserting that the petitioner is in judicial custody and as per the record, the petitioner arrived in India on 08.08.2023 on the strength of a Nigerian Passport valid from 17.02.2023 till 17.02.2028 and an Indian Business VISA valid from 31.07.2023 till 30.01.2024. The petitioner had a valid VISA on the date of his arrest. He was under obligation to produce the valid documents at the time of the arrest but he failed to do so. The application for the extension of VISA was closed because the petitioner was in jail. As per Section 5(2)(B) of the Foreigners Order, 1948, a VISA cannot be granted to a foreign national if his presence is required to answer a criminal charge. Such a VISA can be granted as per the order of the Court for facing criminal charges. He is not permitted to indulge in other activities like employment, business, study etc. It was noticed that legal matters take time to complete and many foreign nationals were misusing the visas

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issued to them for continuing illegal activities. The petitioner can be kept at the Restriction Centre specifically created by the orders of the Central Government to restrict his movement during the pendency of the trial. When the presence of the foreigner is not required, he is deported to his country. No person can remain in India without a valid VISA; therefore, it was prayed that the present petition be dismissed.

4. I have heard Mr Yuyutsu Thakur and Mr Munish Kumar, learned counsel for the petitioner, Mr. Jitender Sharma, learned Additional Advocate General for respondent No.1/State and Mr. Balram Sharma, and learned DSGI for respondents No.2 & 3.

5. Mr. Yuyutsu Thakur, learned counsel for the petitioner submitted that the petitioner is innocent and he was falsely implicated. No recovery was effected from the petitioner and he has been apprehended based on the statement made by the co-accused. Such a statement is inadmissible in evidence. Therefore, he prayed that the present petition be allowed and the petitioner be released on bail.

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6. Mr. Jitender Sharma, learned Additional Advocate General for respondent No.1/State submitted that the petitioner was the main supplier of the heroin, which is affecting the young generation adversely. The petitioner would indulge in the commission of a similar offence in case of his release on bail. The petitioner does not have any valid VISA with him, therefore, he prayed that the present petition be dismissed.

7. Mr. Balram Sharma, learned DSGI for respondents No. 2 and 3 submitted that the petitioner had valid documents on the date of his arrest. He applied for the extension of the VISA but the same was refused as per the Rules. The petitioner is involved in the commission of a heinous offence and no VISA can be granted to him; therefore, he prayed that the present petition be dismissed.

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

9. The parameters for granting bail were considered by the Hon'ble Supreme Court in Bhagwan Singh v. Dilip Kumar @ Deepu @ Depak, 2023 SCC OnLine SC 1059, wherein it was observed as under:-

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"12. The grant of bail is a discretionary relief which necessarily means that such discretion would have to be exercised in a judicious manner and not as a matter of course. The grant of bail is dependent upon contextual facts of the matter being dealt with by the Court and may vary from case to case. There cannot be any exhaustive parameters set out for considering the application for a grant of bail. However, it can be noted that;

(a) While granting bail the court has to keep in mind factors such as the nature of accusations, severity of the punishment, if the accusations entail a conviction and the nature of evidence in support of the accusations;

(b) reasonable apprehensions of the witnesses being tampered with or the apprehension of there being a threat for the complainant should also weigh with the Court in the matter of granting bail.

(c) While it is not accepted to have the entire evidence establishing the guilt of the accused beyond reasonable doubt there ought to be always a prima facie satisfaction of the Court in support of the charge.

(d) Frivolity of prosecution should always be considered and it is only the element of genuineness that shall have to be considered in the matter of grant of bail and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused is entitled to have an order of bail.

13. We may also profitably refer to a decision of this Court in Kalyan Chandra Sarkar v. Rajesh Ranjan @ Pappu Yadav (2004) 7 SCC 528 where the parameters to be taken into consideration for the grant of bail by the Courts have been explained in the following words:

"11. The law in regard to grant or refusal of bail is very well settled. The court granting bail should exercise its discretion in a judicious manner and not

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as a matter of course. Though at the stage of granting bail a detailed examination of evidence and elaborate documentation of the merit of the case need not be undertaken, there is a need to indicate in such orders reasons for prima facie concluding why bail was being granted particularly where the accused is charged of having committed a serious offence. Any order devoid of such reasons would suffer from non-application of mind. It is also necessary for the court granting bail to consider among other circumstances, the following factors also before granting bail; they are:

(a) The nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence.

(b) Reasonable apprehension of tampering with the witness or apprehension of threat to the complainant.

(c) Prima facie satisfaction of the court in support of the charge. (See Ram Govind Upadhyay v. Sudarshan Singh [(2002) 3 SCC 598: 2002 SCC (Cri)

688] and Puran v. Rambilas [(2001) 6 SCC 338: 2001 SCC (Cri) 1124].)"

10. A similar view was taken in State of Haryana vs Dharamraj 2023 SCC Online 1085, wherein it was observed:

7. A foray, albeit brief, into relevant precedents is warranted. This Court considered the factors to guide the grant of bail in Ram Govind Upadhyay v. Sudarshan Singh, (2002) 3 SCC 598 and Kalyan Chandra Sarkar v. Rajesh Ranjan, (2004) 7 SCC 528. In Prasanta Kumar Sarkar v. Ashis Chatterjee, (2010) 14 SCC 496, the relevant principles were restated thus:

'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

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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.'

11. The present case has to be decided as per the parameters laid down by the Hon'ble Supreme Court.

12. The petitioner had earlier filed a bail petition bearing Cr.MP(M) No. 261 of 2024 titled Doe Harris versus State of Himachal Pradesh decided on 07.03.2024, which was dismissed on the ground that the petitioner has been involved in the commission of an offence punishable under the Foreigners Act and the petitioner cannot be released on bail in view of the

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judgment of this Court in Imtizor Imamova versus the State of H.P. [2010 (2) Shim. LC 63 = Latest HLJ 2010(2) 754 (HP) = 2010(2) Him. L.R. 801]. The Hon'ble Supreme Court expressed its reservations about the grant of bail to a non-citizen in Onyeka Samuel versus State of H.P. in SLP (Criminal) No. 26692 of 2024 decided on 12.08.2024 in a matter arising out of the denial of bail to a foreign national based on the judgment of Imtizor Imamova

(supra). Thus, the authority of the judgment in Imtizor Imamova

(supra) has been shaken by the observations made by the Hon'ble Supreme Court. Since this Court is bound by the judgment of the Hon'ble Supreme Court, therefore, it has to accept the judgment passed by the Hon'ble Supreme Court in

Onyeka Samuel (supra) rather than the judgment in Imtizor Imamova (supra).

13. The status report shows that the petitioner was apprehended as per the statement made by the co-accused under Section 67 of the NDPS Act. It was held in Tofan Singh Versus State of Tamil Nadu 2021 (4) SCC 1 that a confession made to the 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 can be

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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.

15. 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 coaccused Dabe Ram, this Court had considered the existence of a prime facie case against the petitioner and had rejected the bail application as not satisfying the conditions of Section 37 of 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

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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 Court in Tofan Singh Vs State of Tamil Nadu, 2021 4 SCC 1. Further, on the basis of 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. Cr.MP(M) No. 1061 of 2023, decided on 15.05.2023.

17. Therefore, there is no legally admissible evidence against the petitioner and he cannot be detained because of the statement made by the co-accused implicating him.

18. Consequently, the present petition is allowed and the petitioner is ordered to be released on bail subject to his furnishing bail bonds in the sum of ₹ 1,00,000/- with two sureties in the like amount each to the satisfaction of the learned Trial Court. While on bail, the petitioner will abide by the following conditions:

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(i) The petitioner will not intimidate the witnesses nor will he influence any evidence in any manner whatsoever.

(ii) The petitioner shall attend the trial 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 concerned Police Station and the Court.

(iv) The petitioner will surrender his passport.

(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.

19. It is clarified that if the petitioner misuses the liberty or violates any of the conditions imposed upon him, the

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21. The petition stands accordingly disposed of. A copy of this order be sent to the Superintendent, District Jail Solan, H.P. and the learned Trial Court by FASTER.

22. A downloaded copy of this order shall be accepted by the learned Trial Court while accepting the bail bonds from the petitioner and in case, said Court intends to ascertain the veracity of the downloaded copy of the order presented to it, same may be ascertained from the official website of this Court.

(Rakesh Kainthla) Judge

26^thSeptember, 2024

(saurav pathania)