Punjab-Haryana High Court
Ajay Kumar @ Kaku vs State Of Punjab on 24 February, 2021
Crl. Misc.M-26414 of 2020 1
IN THE HIGH COURT FOR THE STATES OF PUNJAB AND
HARYANA AT CHANDIGARH
(Heard through Video Conferencing)
Crl. Misc.M-26414 of 2020 (O&M)
Date of Decision: February 24, 2021
Ajay Kumar @ Kaku
...Petitioner
Versus
State of Punjab
...Respondent
CORAM:- HON'BLE MS. JUSTICE JAISHREE THAKUR
Present:- Mr. Ruhani Chadha, Advocate
for the petitioner.
Mr. Luvinder Sofat, AAG, Punjab.
JAISHREE THAKUR, J.
1. The petitioner seeks grant of regular bail in FIR No. 22 dated
30.1.2020 registered under Sections 21, 29 of the Narcotics Drugs and
Psychotropic Substances Act 1985, at Police Station Special Task Force
Wing, SAS Nagar.
2. Mr. Ruhani Chadha, Advocate, learned counsel appearing on
behalf of the petitioner, urges that the petitioner was not named in the FIR
and has been falsely implicated only on the basis of a statement given by co-
accused Harjit Singh and Kewal Singh and therefore the petitioner ought to
be allowed bail. It is argued that there was an alleged recovery of 352 gms
heroin from the petitioner's house on the basis of his disclosure statement,
however the recovery memo has not been signed by him. Learned counsel
for the petitioner herein relies upon judgements rendered in CRM-M-No.
5685 of 2016 titled Amandeep Singh Versus State of Punjab, decided on
9.1.2017, where in similar circumstances regular bail was allowed.
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Reference is also made to similar orders passed in Cril. Misc. M 5207 of
2014 titled Saleem Mohd Versus State of Punjab decided on 4.11.2015,
Crl. Misc. M-17069 of 2014 titled Baz Singh @ Baj Versus State of
Punjab decided on 23.5.2014, Crl. Misc. M 19403 of 2014 titled Nirmal
Singh @ Nimma Versus State of Punjab decided on 9.6.2014 and Crl.
Misc. M 44326 of 2015 titled Harwant Singh @ Harbans Singh Versus
State of Punjab decided on 29.1.20216. He also relies upon a judgement
rendered in Sandeep Kumar versus State of Punjab 2020 (1) Cri. CC 46,
where conviction was set aside as the recovery memo had not been signed
by the accused.
3. Whereas, Mr Luvinder Soffat, AAG, Punjab, learned counsel
appearing on behalf of the respondent argues that on the basis of a secret
information received, Harjit Singh and Kewal Singh were apprehended
while they were travelling in a car. There was a recovery of 1 Kg and 28 gm
of heroin along with an electronic scale and 125 empty polythene pouches
from them. Kewal Singh disclosed that the heroin was purchased from the
petitioner who was arrested and on his disclosure statement there was a
recovery of 352 gms of heroin and also `10,00,000/- as drug money. Apart
from the recovery of 352 gms of heroin and drug money, the petitioner also
nominated Mehar Chand as a person who helped him in distribution of
heroin. Thereafter, Mehar Chand was arrested and on his disclosure
statement, recovery of `4,50,000/- was effected from him. It is submitted
that the petitioner is a habitual offender and he has several FIRs pending
against him, one of them being FIR No. 273 of 2017 under Sections 22, 61,
85 of NDPS Act, registered at Police Station Shimlapuri, Ludhiana. He
further submits that there is no provision for getting a recovery memo
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signed from the accused as no person can be made to sign an incriminating
evidence against him. Mr. Soffat also urges that a co-ordinate Bench of this
Court has already dismissed the regular bail application of Mehar Chand,
who had been nominated as an accused by the petitioner herein and from
whom there was a recovery of `4,50,000/-, by an order passed in CRM-M-
No. 30387 of 2020 dated on 7.12.2020.
4. I have heard learned counsel for the parties and with their
assistance and have gone through the pleadings of the case.
5. As per the case set up, the petitioner was not apprehended on
the spot but was named by co-accused who were in custody. On secret
information, a picket was set up and two persons were apprehended with
over 1 kg of heroin, along with an electronic scale and 125 polythene bags.
It was disclosed that the petitioner was the person who supplied heroin to
them. The petitioner was arrested and on his disclosure statement there was
a recovery of 352 gms of heroin from his residence and on his second
disclosure statement a sum of `10 lakhs as drug money was recovered. The
argument raised that the petitioner is entitled to bail, as he was not named in
the FIR and was nominated as an accused on the basis of a disclosure
statement of a co-accused in custody, would be of little relevance, as on his
own disclosure statement there has been a recovery of 352 gms of heroin
from his residence and also an amount of `10 lakhs recovered subsequently.
6. In Golakondas Venkateswara Rao versus State of Andhra
Pradesh (2003) 9 SCC 277, the Supreme Court held that the " provisions of
Section 27 of the Evidence Act are based on the view that if a fact is
actually discovered in consequence of information given, some guarantee is
afforded thereby that the information was true and consequently the said
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information can safely be allowed to be given in evidence because if such
information is further fortified and confirmed by the discovery of articles or
the instrument of crime and which leads to the belief that the information
about the confession made as to the articles of crime cannot be false." It
was further held that merely because the recovery memo was not signed by
the accused, the recovery itself would not be vitiated as every case has to be
decided on its own facts. Further, in State of Rajasthan versus Teja Ram
1999 (2) RCR (Criminal) 285, the Supreme Court concluded "The
resultant position is that the Investigating Officer is not obliged to obtain
the signature of an accused in any statement attributed to him while
preparing seizure memo for the recovery of any article covered by Section
27 of the Evidence Act. But if any signature has been obtained by an
Investigating Officer, there is nothing wrong or illegal about it." The same
ratio was followed in Dr. Sunil Clifford Daniel versus State of Punjab,
(2012) 11 SCC 205.
7. Provisions of Section 37 of the NDPS Act are stringent and
bans the grant of bail until the twin conditions specified in the sub section
(1) are not satisfied i.e (i) there are reasonable grounds for believing that the
accused is not guilty of such offence; and (ii) that he is not likely to commit
any offence while on bail. The bail of the co-accused who was arrested on
the disclosure statement of the petitioner stands rejected as there was a
recovery of `4, 50,000/- from him as drug money. The petitioner is already
involved in another FIR, apart from there being recovery of heroin of
commercial quantity and `10, 00,000/- of drug money. Therefore, at this
stage the involvement of the petitioner cannot be ruled out.
8. The judgments as relied upon by the petitioner would not be
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applicable to the facts of the present case and are distinguishable. In the
case of Sandeep Kumar (supra), the conviction was set aside on
consideration of various factors, one of them being that details of FIR were
mentioned on documents prior to registration of the FIR. The judgement
noticed that all documents prepared, had the signature of the accused other
than the recovery memo, which caused a suspicion about actual recovery. It
was also opined that proper procedure was not followed by tallying the seal
on the parcel with the sample seal chit. However, it appears that the law as
settled in Teja Ram, Golakondas Venkateswara Rao or Dr. Sunil
Clifford Daniel (Supra), regarding an accused signing on the recovery
memo was not cited before the Hon'ble Bench.
9. For the reasons afore-stated, the instant petition is dismissed.
However, nothing stated herein above would be construed as an expression
of opinion on the merits of the case.
February 24, 2021 (JAISHREE THAKUR)
prem JUDGE
Whether speaking/reasoned Yes
Whether reportable No
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