Punjab-Haryana High Court
Vishal vs State Of Punjab on 6 July, 2022
CRM-M-25223-2022
230
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CRM-M-25223-2022.
Decided on : July 06, 2022.
Vishal
...Petitioner
Versus
State of Punjab
...Respondent
CORAM: HON'BLE MR. JUSTICE VIKAS BAHL
Present: Mr.Ashwani Kumar Antil, Advocate for the petitioner.
Mr.Sukhbeer Singh, AAG, Punjab.
****
VIKAS BAHL, J. (ORAL)
This is the first petition filed under Section 439 Cr.P.C.
Praying for the grant of of regular bail to the petitioner in FIR No.160 dated
18.09.2020, under Sections 20/22/29/61/85 of the Narcotic Drugs and
Psychotropic Substances Act, 1985, registered at Police Station Division
No.1, District Pathankot and DDR entry bearing No.31 dated 29.9.2020
which was made for enhancing offence in this regard.
Learned counsel for the petitioner has submitted that in the
present case the petitioner has not been named in the FIR and no recovery
has been effected from the petitioner. It is submitted that the alleged
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recovery has been effected from two persons i.e. co-accused Rakesh Sharma
and Ravdeep Singh @ Sheru. It is further submitted that the petitioner has
been implicated solely on the basis of the disclosure statements of the co-
accused Rakesh Sharma and Ravdeep Singh @ Sheru and has submitted that
even subsequent to the said disclosure statements, no recovery has been
effected from the petitioner. It is further submitted that the petitioner is not
involved in any other case and is in custody since 10.4.2021 and the
investigation is complete and challan has been presented and there are 32
witnesses out of which only 1 witness has been examined partly and thus,
the trial is likely to take a long time. Learned counsel for the petitioner has
further submitted that co-accused Vikrant Singh, Subash Chander @ Bittu
and Davinder Singh have been granted bail by this Court vide order dated
6.4.2022 passed in a connected matter bearing number CRM-M-39657-
2020.
Learned counsel for the petitioner has relied upon the judgment
passed by the Hon'ble Supreme Court in Tofan Singh Vs. State of Tamil
Nadu, reported as 2021(1) RCR (Criminal) 1, and an order passed by
Coordinate Bench of this Court dated 17.06.2020 in CRM-M-12051-2020
titled "Mewa Singh Vs. State of Punjab", to contend that the statement
made before the Police is inadmissible in evidence and since the petitioner
has been implicated solely on the basis of the disclosure statements of the
co-accused which would be inadmissible in evidence, he deserves the
concession of regular bail.
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Learned counsel for the State, on the other hand, has opposed
the grant of regular bail to the petitioner and has submitted that in the
present case a huge recovery of contraband has been effected from co-
accused Rakesh Sharma and Ravdeep Singh @ Sheru and the said persons
have further named the present petitioner in their disclosure statements as
the person to whom said narcotic drugs had to be sold.
This Court has heard the learned counsel for the parties and has
perused the paper book.
The Hon'ble Supreme Court in Tofan Singh's case (Supra), had
observed as under:-
"152. Thus, to arrive at the conclusion that a confessional
statement made before an officer designated under section
42 or section 53 can be the basis to convict a person under
the NDPS Act, without any non obstante clause doing away
with section 25 of the Evidence Act, and without any
safeguards, would be a direct infringement of the
constitutional guarantees contained in Articles 14, 20(3)
and 21 of the Constitution of India."
A Coordinate Bench of this Court Mewa Singh's case (Supra),
had passed the following order-
"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,
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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.
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
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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 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."
Another Coordinate Bench of this Court in Daljit Singh's case
(Supra), had passed the following order:-
"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
question coupled with the fact that nothing was
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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)
archana 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 co-accused. 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.
Petitioner has joined the investigation, but learned
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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."
In the present case, it is not in dispute that the petitioner is not
named in the FIR and no recovery has been effected from him. The alleged
recovery has been effected from the co-accused of the petitioner namely
Rakesh Sharma and Ravdeep Singh @ Sheru and the petitioner is stated to
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be implicated solely on the basis of the disclosure statements made by the
above said co-accused and even after the petitioner was arrayed as an
accused in pursuance of the disclosure statements, no recovery had been
effected from the petitioner. The petitioner is in custody since 10.4.2021 and
the investigation is complete and the challan has been presented and there
are 32 witnesses out of which only one witness has been examined partially
and thus, the trial is likely to take time. The petitioner is not involved in any
other case.
Keeping in view the above said facts and circumstances and
also in view of law laid down in the above cited judgments, the present
petition is allowed and it is ordered that the petitioner shall be released on
bail on his furnishing bail bonds/surety bonds to the satisfaction of the
learned trial Court/Duty Magistrate in case not required in any other case.
Nothing stated above shall be construed as an 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.
July 06, 2022. (VIKAS BAHL)
raj arora JUDGE
Whether speaking/reasoned:- Yes/No
Whether reportable:- Yes/No
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