Sukhdev Singh vs State Of Haryana
2022 Latest Caselaw 6316 P&H

CRM-M-28433-2022                                              -1-

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       IN THE HIGH COURT OF PUNJAB AND HARYANA AT
                      CHANDIGARH

                                                  CRM-M-28433-2022
                                                  Date of decision : 07.07.2022

Sukhdev Singh

                                                                       ...Petitioner

                                         Versus

State of Haryana

                                                                     ...Respondent

CORAM: HON'BLE MR. JUSTICE VIKAS BAHL

Present:     Mr. D.S. Virk, Advocate for the petitioner.

             Mr. Praveen Bhadu, AAG, Haryana.

             ****

VIKAS BAHL, J. (ORAL)

Prayer in the present petition is for grant of anticipatory bail to

the petitioner in FIR No.249 dated 20.06.2022 registered under Sections

21/29/61/85 of the Narcotic Drugs and Psychotropic Substances Act, 1985 at

Police Station Ellenabad, District Sirsa.

Learned counsel for the petitioner has submitted that in the

present case, no recovery has been effected from the present petitioner and he

has been implicated solely on the basis of the disclosure statement of the co-

accused namely Jabbar Singh from whom the recovery of 15 grams of heroin

has been effected. It is further submitted that recovery from the said Jabbar

Singh is far less than the commercial quantity stiulated as the commercial

quantity starts from 250 grams.

Learned counsel for the petitioner has relied upon the judgment

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passed by the Hon'ble Supreme Court in Tofan Singh Vs. State of Tamil

Nadu, reported as 2021(1) RCR (Criminal) 1, 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", and an order of another Coordinate Bench dated

16.07.2021 passed in CRM-M-12997-2020 titled as "Daljit Singh Vs. State

of Haryana" to contend that in such like cases if a person has only been

proceeded against on the basis of disclosure statement of co-accused and no

recovery has been effected from the petitioner, then he should be granted the

benefit of anticipatory bail and statement made by co-accused before the

police is inadmissible in evidence.

Notice of motion.

On advance notice, Mr. Praveen Bhadu, AAG, Haryana, appears

and accepts notice on behalf of the State and has submitted that he is fully

prepared to argue the matter and assist this Court. He has opposed the present

petition for grant of anticipatory bail to the petitioner on the ground that the

petitioner is involved in three other cases.

Learned counsel for the petitioner, in rebuttal to the abovesaid

argument, has submitted that in all the other cases, the petitioner has been

granted anticipatory bail and the petitioner has been implicated on the basis of

disclosure statement of co-accused from whom the recovery has been effected

and has relied upon the judgment of Hon'ble Supreme Court in "Maulana

Mohd. Amir Rashadi vs. State of U.P. and another", reported as 2012 (2)

SCC 382 to contend that the facts and circumstances of the present case are to

be seen and the bail application of the petitioner cannot be rejected solely on

the ground that the petitioner is involved in another case. The relevant portion

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of the said judgment is reproduced hereinbelow:-

"As observed by the High Court, merely on the basis of criminal antecedents, the claim of the second respondent cannot be rejected. In other words, it is the duty of the Court to find out the role of the accused in the case in which he has been charged and other circumstances such as possibility of fleeing away from the jurisdiction of the Court etc."

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, 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

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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 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

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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.

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

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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 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

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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 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."

It is not in dispute that no recovery has been effected from the

present petitioner. The petitioner has been implicated solely on the basis of the

disclosure statement of co-accused namely Jabbar Singh from whom the

alleged recovery of 15 grams of heroin has been effected. The said recovery

from the co-accused is far less than the commercial quantity stipulated as the

commercial quantity starts from 250 grams.

Keeping in view the abovesaid facts and circumstances and also

in view of law laid down in the abovecited judgments, the present petition is

allowed and in the event of arrest, the petitioner is granted the concession of

anticipatory bail subject to his furnishing personal bonds and surety to the

satisfaction of Arresting/Investigating Officer and the conditions envisaged

under Section 438(2) of Cr.P.C. However, the petitioner shall join the

investigation as and when called upon to do so.

It is made clear, in case, the petitioner fails to join the

investigation or does not cooperate with the investigation, then the State

would be at liberty to move an application for cancellation of the present

anticipatory bail granted to the petitioner.

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.

07.07.2022                                             (VIKAS BAHL)
Pawan                                                     JUDGE

             Whether speaking/reasoned:- Yes/No

             Whether reportable:-              Yes/No



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