Punjab-Haryana High Court
Teju Singh vs State Of Punjab on 5 October, 2021
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CRM-M-37031-2020
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
(204)
CRM-M-37031-2020.
Date of Decision:-05.10.2021.
Teju Singh
......Petitioner
Versus
State of Punjab
......Respondent
CORAM: HON'BLE MR. JUSTICE VIKAS BAHL
****
Present: None for the petitioner.
Mr. Sarabjit Singh Cheema, AAG, Punjab.
(Through Video Conferencing)
****
VIKAS BAHL, J. (Oral)
This is a first petition under Section 438 Cr.P.C. for grant of
anticipatory bail to the petitioner in FIR No.88 dated 07.06.2020 under
Section 15 of the NDPS Act , 1985 and Section 29 of the NDPS Act, 1985
(added later on), registered at Police Station Nehianwala, District Bathinda.
On 21.12.2020, a Co-ordinate Bench of this Court had passed
the following order:-
"(The case has been taken up for hearing through video
conferencing.)
The petitioner has filed present petition under Section
438 of the Code of Criminal Procedure, 1973 for grant of
anticipatory bail in case FIR No.88 dated 07.06.2020
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registered under Section 15 of the Narcotic Drugs and
Psychotropic Substances Act, 1985 (for short 'the NDPS Act') in
Police Station Nehianwala, District Bathinda to which Section
29 of the NDPS Act was added lateron.
Learned Counsel for the petitioner has submitted that the
petitioner has been falsely implicated in the case. As per the
prosecution allegations co-accused Paramjit Singh son of
Rashpal Singh and Gurmeet Singh were apprehended on the
basis of secret information while transporting 100 sacks of
poppy husk each weighing 19 kg in cater bearing HR-47-B-
2867. In his disclosure statement Paramjit Singh alleged that
they had purchased poppy husk as per directions of Paramjit
Singh alias Pamma son of Balbir Singh and Harnek Singh and
that Paramjit Singh alias Pamma son of Balbir Singh and
Harnek Singh had direct conversation with Teju Singh and
Liyakat from whom the poppy husk was purchased. The
petitioner was not arrested on the spot and no recovery was
made from him. The petitioner has been implicated in the
present case on the basis of disclosure statement made by co-
acussed Paramjit Singh @ Pamma Son of Rashpal Singh which
is of no evidentiary value. The petitioner has not committed any
offence and is not involved in any other case under the NDPS,
Act. Rigors of Section 37(1)(b) of the NDPS Act are not
applicable/stand satisified qua him. The petitioner is ready to
join the investigation.
Short reply by way of affidavit of Ashok Kumar Sharma,
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PPS, DSP, Bhucho (Bathinda) on behlaf of respondent-State
has been filed in the Registry which is taken on record.
Learned State Counsel has opposed the petition and
submitted that the petitioner is accused of having committed
serious offence and does not deserve grant of anticipatory bail.
However, learned State counsel seeks time to file copies of the
relevant documents.
Adjourned to 22.02.2021.
In the meanwhile, in view of the facts and circumstances
of the case, the petitioner is directed to join the investigation as
and when called upon to do so. In the event of his arrest, the
petitioner shall be released on interim anticipatory bail by the
arresting officer/investigating officer on furnishing of bail
bonds by him to the satisfaction of the arresting
officer/investigating officer. The petitioner shall comply with
the conditions enumerated under Section 438(2) of the Cr.P.C.
failing which he shall not be entitled to the protection of interim
anticipatory bail allowed to him.
Thereafter, the matter was adjourned to 22.02.2021 and on that
day, the interim order was ordered to continue.
Learned State counsel, on instructions from ASI Balkar Singh,
has submitted that in pursuance of the above-said orders, the petitioner has
joined the investigation and is not required for any further investigation.
Keeping in view the above facts and circumstances, moreso,
the fact that the petitioner has already joined the investigation and the
petitioner was not apprehended on the spot and that he was made an
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accused only on the basis of disclosure statement of the co-accused and no
recovery was effected from the petitioner and he is not involved in any
other case, the present petition deserves to be allowed.
A Co-ordinate Bench of this Court in judgment passed in
CRM-M-12051-2020, titled as "Mewa Singh Vs. State of Punjab" and the
judgment passed in CRM-M-12997-2020, titled as "Daljit Singh Vs. State
of Haryana", has held that merely on the basis of the disclosure statement
of the co-accused, the petitioner should not be denied the concession of
bail. The relevant portion of Mewa Singh's judgment is reproduced
hereinbelow:-
"1. The petitioner has approached this Court seeking
grant of anticipatory bail in a case registered against
him vide FIR No.133 dated 24.11.2019 under Section 21
NDPS Act Police Station Lohian, District Jalandhar.
2. Reply way of affidavit of Mr. Piara Singh, PPS,
Deputy Superintendent ofPolice, Sub-Division Shahkot,
District Jalandhar (Rural) on behalf of the respondent-
State has been filed, which is taken on record.
3. The allegations in nut-shell are that Bachittar
Singh was found in possession of 1.7 Kgs. 'Heroin'.
During the course of interrogation, he made a
disclosure statement nominating the petitioner as an
accused wherein he stated that the contraband in
question had been supplied by the petitioner.
4. Learned counsel for the petitioner has submitted
that he has falsely been implicated in the present case
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and was never arrested at the spot and that the alleged
disclosure statement is not worth credence.
5. Opposing the petition, learned State counsel has
submitted that keeping in view the antecedents of the
petitioner his complicity is clearly evident inasmuch as
he stands involved in three other cases i.e. FIR No.43
dated 2.4.2016 under Sections 15, 21, 22 NDPS Act,
Police Station Sultanpur Lodhi; FIR No.5 dated
5.1.2020 under Sections 307, 186, 332, 353, 224, 225,
427, 148, 149 IPC, Police Station Sultanpur Lodhi &
FIR No.193 dated 193 dated 22.11.2019 under Sections
15, 21, 25, 29 NDPS Act, Police Station Kartarpur.
6. I have considered rival submissions addressed
before this Court.
7. It is not disputed that the petitioner was never
apprehended at the spot and that the only evidence
against him is in the shape of disclosure statement, the
admissibility and veracity of which would be tested
during the course of trial. As regards the other three
cases which are stated to be pending against the
petitioner, the learned counsel for the petitioner has
submitted that even in the said cases he has been falsely
implicated and was never arrested at the spot and has
been granted anticipatory bail in all three cases.
8. Having regard to the facts and circumstances of
the case and that it is a case where the petitioner has
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been nominated solely on the basis of disclosure
statement, the petition is accepted and it is ordered that
the petitioner in the event of his arrest shall be released
on bail subject to his furnishing personal bonds and
surety bonds to the satisfaction of
Arresting/Investigating Officer. However, the petitioner
shall join the investigation as and when called upon to
do so and cooperate with the Arresting/Investigating
Officer and shall also abide by the conditions as
provided under Section 438 (2) Cr.P.C.
9. It is however clarified that in case the petitioner
does not join investigation, it shall be open to the
investigating agency/prosecution to move for
cancellation of his bail."
The relevant portion of Daljit Singh's (supra) judgment is
reproduced hereinbelow:-
"Petitioner seeks grant of anticipatory bail under
Section 438 Cr.P.C. in case bearing FIR No.188 dated
08.04.2020 registered under Sections 15, 18, 27A, 29 of
NDPS Act, under Sections 140, 188, 216, 419, 420, 467,
468, 471, 474 IPC and under Section 6 of Official Secret
Act at Police Station Pehowa, District Kurukshetra.
Petitioner has been implicated on the basis of
disclosure statement of co-accused from whom 248 kgs
of poppy husk, 1 Kg 500 grams of opium and 199 Kgs
khas khas were recovered.
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FIR was registered on the basis of secret
information, but still name of petitioner did not figure in
the ruqa of the police.
Notice of motion was issued on 27.05.2020
alongwith interim directions in favour of the petitioner
to join the investigation.
Order dated 27.05.2020 is reproduced here as
under:-
"On account of outbreak of covid-19 the instant
matter is being taken up through video conferencing.
Instant petition has been filed under Section 438
Cr.PC for grant of anticipatory bail to the petitioner in
FIR No.188 dated 8.4.2020 for the offences under
Section 15,18,27-A,29 of NDPS Act, 1985 at Police
Station Pehowa, District Kurukshetra.
Learned counsel for the petitioner has inter alia
contended that the petitioner is innocent and has been
falsely implicated in the case only on the basis of
disclosure statement of co-accused from whom recovery
of 248 kgs of poppy husk, 1 kg 500 grams of opium and
199 kgs.of khas khas was recovered. It has been further
contended that the factum of his false implication is
further fortified from the fact that the recovery of the
aforementioned narcotic contraband was effected on the
basis of secret information and his name did not figure
either in the ruka sent by the police nor in the FIR in
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question coupled with the fact that nothing was
recovered from him. He is not even involved in any
other case of similar nature.
Notice of motion for 10.7.2020.
On the asking of the Court, Mr. Saurabh
Mohunta, DAG., Haryana accepts notice.
Meanwhile, petitioner is directed to join the
investigation and appear before the investigating
agency/Investigating Officer. On his appearance, he
shall be released on interim bail to the satisfaction of
arresting/investigating officer. The petitioner shall, join
the investigation as and when call for and shall abide by
the conditions specified under Section 438(2) Cr.P.C.
27.05.2020 (MANJARI NEHRU KAUL)
JUDGE
Thereafter, the case was adjourned for filing
detailed reply on behalf of the State.
The stands of the State is that the petitioner was
escorting the canter in which the contraband was
present and he was assigned the duty of giving signal in
case of presence of police on the way.
Learned State counsel relies upon call details,
tower location of the petitioner and the co-accused and
also relies upon bank statement showing deposit of
amount in the account of coaccused. The material on
which the learned State counsel relies upon is
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dependent upon the evidence to be led in that context at
the relevant stage.
Petitioner has joined the investigation, but
learned State counsel seeks custody of the petitioner on
the aforesaid premise.
Having heard learned counsel for the parties, I
find that the petitioner having involved on the basis of
disclosure statement of co-accused namely Balbir and
Rajinder is hit by the ratio of Tofan Singh vs State of
Tamil Nadu, Criminal Appeal No.152 of 2013 wherein
it has been observed that the officers who are invested
with powers under Section 53 of NDPS Act are the
police officers within the meaning of Section 25 of the
Evidence Act. Any confessional statement made before
the police officer would be hit by Section 25 of the
Evidence Act. Statement under Section 67 of NDPS Act
cannot be used as a confessional statement in the trial
of an offence under NDPS Act.
In view of aforesaid position, it would be just and
appropriate to confirm order dated 27.05.2020, without
meaning anything on the merits of the case.
Ordered accordingly.
However, the petitioner shall keep on joining the
investigation as and when required to do so by the
Investigating Officer and shall abide by the conditions
as envisaged under Section 438(2) Cr.P.C.
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Petition stands disposed of."
In view of the above, the present petition is allowed and the
interim order dated 21.12.2020 is made absolute.
It is clarified that in case, the petitioner is involved in any
other case under the NDPS Act, then liberty is granted to the State to move
an application for cancellation of anticipatory bail granted by this Court.
However, nothing stated above shall be construed as a final
expression of opinion on the merits of the case and the trial would proceed
independently of the observations made in the present case which are only
for the purpose of adjudicating the present bail application.
(VIKAS BAHL)
JUDGE
October 05, 2021.
sandeep
Whether speaking/reasoned:- Yes/No
Whether Reportable:- Yes/No
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