Harbhajan Singh vs State Of Haryana
2021 Latest Caselaw 3047 P&H

           IN THE HIGH COURT OF PUNJAB AND HARYANA AT
                          CHANDIGARH
(203)
                                                        CRM-M-23998-2021.
                                                Date of Decision:-27.10.2021.

Harbhajan Singh

                                                              ......Petitioner

                                     Versus

State of Haryana
                                                             ......Respondent

CORAM: HON'BLE MR. JUSTICE VIKAS BAHL

                    ****

Present:      Mr. G.P.S. Bal, Advocate for the petitioner.

              Mr. Praveen Bhadu, AAG, Haryana.

              Mr. Munish Behl, Advocate for
              Mr. Deepak Sharma, Advocate for the complainant.

                    ****

VIKAS BAHL, J. (Oral)

This is a first petition under Section 438 Cr.P.C. for grant of

ad-interim anticipatory bail to the petitioner in case FIR No.0144, dated

09.04.2021 under Sections 382 and 120-B of IPC, registered at Police

Station Baldev Nagar, District Ambala.

On 24.06.2021, a Co-ordinate Bench of this Court was pleased

to pass the following order:-

"The matter has been taken up through Video-

conferencing on account of outbreak of pandemic COVID-19.

Counsel for the petitioner inter-alia contends that the

petitioner is an Executive in a leading company at Zirakpur

while his wife works for a foreign company and that on account

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of third party dispute, they have been falsely implicated and

nothing is to be recovered and the alleged occurrence is

detailed in district Ambala and mere perusal of the FIR denotes

falsehood of the story.

Notice of motion for 13.8.2021.

Meanwhile, in the event of arrest, the petitioner shall be

released on interim bail to the satisfaction of

arresting/investigating officer. The petitioner shall, however,

join the investigation within a period of 15 days and shall also

abide by the conditions specified under section 438 (2)

Cr.P.C."

Learned counsel for the petitioner has argued that in the

present case, the petitioner has been falsely implicated, as the petitioner was

not apprehended on the spot and even the Alto car bearing No.HR-21-M-

7791, which was used in the commission of offence, belongs to the co-

accused Naveen Kumar. It is submitted that the prosecution version is to

the effect that the complainant, who was a scrap dealer was called by three

persons over a distance of about 20 kms and then an amount of Rs.43,000/-,

one ATM card, driving licence, Aadhar card and mobile phone having been

snatched from him is highly doubtful, as a person who would want to

commit such an offence would not call a scrap dealer to a distance of 20

kms. to commit the said theft/snatching. It is argued that even as per the

prosecution version, the mobile phone and an amount of Rs.8,000/- had

been recovered from the accused Aman Kumar and Rs.2,000 was stated to

have been recovered from one Naveen Kumar. It is submitted that the

petitioner is not involved in any other case and reference has been made to

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paragraph 3 and 4 of the bail application filed in the Court of Sessions

Judge, Ambala to state that the petitioner and his wife are placed well in life

and the question of committing the alleged offence, does not arise. The

said paragraphs are reproduced hereinbelow:-

"3. That the accused is a well to do respectable having

attain the qualification of MCA from the leading university in

the country and have scored marks to the tune of 72% and the

applicant has established his business at two different places

and is/was doing extremely well, however, in the due course the

accused also gained an employment (was appointed due to his

academic record and qualification) by concert Jeena Sikho

Lifecare Pvt. Ltd. as Customer Care Executive with a monthly

salary of Rs.14,515/-.

4. That wife of the applicant is very well qualified as

MSc Bio Chemistry (Hons.) from Panjab University,

Chandigarh, and as per her academic record and qualification

Concert Jeena Sikho Lifecare Pvt. Ld. Has appointed her as

Chat Executive with a monthly salary of Rs.15,000/- she is also

working with USA based company Colossus Ventures India as

part time work associate from home as a content writer and

obtain Rs.20,000/- salary per month."

It is further submitted that initially one Rahul was the third

accused but the petitioner has now been implicated on the basis of the

alleged disclosure statement made by the co-accused and also on the basis

of the mobile location of the petitioner. It is argued that merely on the basis

of disclosure statement, the petitioner could not be implicated in the case.

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Learned counsel for the petitioner has relied upon the

judgment passed in CRM-M-12051-2020, by a Co-ordiante Bench of this

Court dated 17.06.2020 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", to contend 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

and was never arrested at the spot and that the alleged

disclosure statement is not worth credence.

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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

been nominated solely on the basis of disclosure

statement, the petition is accepted and it is ordered that

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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.

FIR was registered on the basis of secret

information, but still name of petitioner did not figure in

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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

question coupled with the fact that nothing was

recovered from him. He is not even involved in any

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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

dependent upon the evidence to be led in that context at

the relevant stage.

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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.

Petition stands disposed of."

Even with respect to the mobile location, learned counsel for

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the petitioner has submitted that a perusal of the reply dated 01.06.2021

(Annexure P-4), moreso, paragraph 9 and 17 which has been filed by the

CIA Staff, Ambala City, would in fact show that the petitioner was asked

by the co-accused to come to the place of the alleged incident. It is

submitted that to show his bona fide, the petitioner is ready to pay an

amount of Rs.33,000/- to the complainant without prejudicing his rights to

claim innocence in the present case. It is also submitted that even as per the

case of the prosecution, the ATM card has not been used and in case the

intent was to steal the ATM card, then surely, the petitioner would have

used the same. The driving licence and the Aadhar card are of no use to the

petitioner and, thus, in case the same were in his possession, the same

would have been handed over to the police.

Learned State counsel as well counsel for the complainant,

have opposed the bail application pointing out that the other co-accused

have conspired together and the petitioner should not be granted the benefit

of anticipatory bail. It is further submitted that although some amount and

the mobile phone have been recovered but the ATM card, driving licence,

Aadhar card and the balance amount of Rs.33,000/- are yet to be recovered

from the petitioner. It is further submitted that the petitioner had come to

join the investigation and he was identified by the complainant to be the

person involved in the incident. It has been argued that the tower location

of the mobile phone of the petitioner also indicated that he was present on

the spot of the incident.

This Court has heard the learned counsel for the parties.

The petitioner is a duly qualified professional and worked as

an Executive in a Company at Zirakpur and has done Masters in Computer

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Applications and even the wife of the petitioner is well qualified and she is

stated to have done M.Sc. Bio Chemistry (Hons.) from Panjab University,

Chandigarh and has been appointed as a Chat Executive with a monthly

salary of Rs.15,000/- and is also working with a U.S. based company as a

part-time work associate from home at the post of a content writer and is

stated to draw a salary of Rs.20,000/- per month, in lieu of the same. The

petitioner is not involved in any other case. The recovery of the mobile

phone of the complainant as well as the amount of Rs.10,000/- has already

been effected from the co-accused. The fact that as to whether the case set

up by the complainant to the effect that he was a scrap dealer and was

called on his mobile phone and was made to travel for 20 kms before the

theft was committed, in which the petitioner who has no criminal

antecedents, was involved or not is a matter of trial. Even with respect to

the mobile location of the petitioner, the reply dated 01.06.2021 (Annexure

P-4) filed by the CIA Staff is self-contradictory and not very clear and

moreover, at one stage, the reference has been made to the call details and

on the other arguments have been made with respect to the tower location.

The petitioner in order to show his bona fide is ready to pay the amount of

Rs.33,000/- to the complainant, without prejudice to his rights.

Keeping in view the above-said facts and circumstances, the

present petition for anticipatory bail is allowed and the interim order dated

24.06.2021 is made absolute.

The petitioner, as has been submitted, would furnish a draft of

Rs.33,000/- in the name of the complainant within a period of one week

from the date of receipt of certified copy of this order, to the learned

counsel for the complainant and the learned counsel for the complainant

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will hand over the same to the complainant. The complainant would be at

liberty to encash the same.

The said payment is without prejudice to the right of the

petitioner in the trial to claim innocence. It is, however, made clear that in

case, the said demand draft is not given within the stipulated period, then

the present petition shall be deemed to have been dismissed.

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 27, 2021.

sandeep
Whether speaking/reasoned:-                                      Yes/No
Whether Reportable:-                                             Yes/No




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