Rajesh Alias Mustafa Ansari vs State Of Punjab
2022 Latest Caselaw 6480 P&H

CRM-M No. 30869 of 2021                                            -1-


Sr. No. 209
      IN THE HIGH COURT OF PUNJAB AND HARYANA AT
                     CHANDIGARH

                                        CRM-M No.30869 of 2021
                                        Date of Decision: 11.07.2022

Rajesh @ Mustafa Ansari
                                                     .......Petitioner
                   Vs.

State of Punjab
                                                     ........Respondent

CORAM: HON'BLE MR. JUSTICE JASGURPREET SINGH PURI

Present:-   Mr. S.S. Gill, Advocate,
            for the petitioner.

            Mr. Davinder Bir Singh, DAG, Punjab.

                   *****

JASGURPREET SINGH PURI, J. (ORAL)

The present petition has been filed under Section 438 of the

Code of Criminal Procedure for the grant of anticipatory bail to the

petitioner in FIR No.48 dated 31.03.2021, under Sections 18 & 29 of the

NDPS Act, 1985, registered at Police Station Shambhu, District Patiala.

It has been submitted by learned counsel for the petitioner that

the petitioner was granted interim bail by this Court on 04.08.2021 and in

pursuance of the aforesaid order, the petitioner has already joined the

investigation and he has already cooperated with the investigation process.

He submitted that the petitioner was falsely implicated in the present case

on the basis of a disclosure statement of the co-accused namely Shifali. He

submitted that the alleged opium of 3.5 kg. was confiscated from the co-

accused Shifali and on her disclosure statement, the name of the petitioner

1 of 4

was nominated. He submitted that Shifali and the petitioner had bad

relations with each other and due to that reason, his name has been

nominated. He submitted that it is a settled law that a disclosure statement

of the co-accused is not admissible in evidence unless it is supported by the

other substantial evidence and also referred to judgment of the Supreme

Court in Tofan Singh Vs. State of Tamil Nadu, 2021 (1) RCR (Criminal) 1

He has submitted that in the present case, there is no substantial material

available with the police to connect the petitioner with the alleged recovery.

Learned counsel further submitted that the petitioner has got clean

antecedents and is not involved in any other case except one case in Uttar

Pradesh under Sections 3 & 25 of the Arms Act and it was only because of

sour relationship between the petitioner and Shifali that his name has been

nominated in the present case. He further submitted that be that as it may,

he has already joined the investigation and undertakes to further cooperate

with the investigation process.

On the other hand, learned State counsel has submitted that an

affidavit has been filed by the State and while referring to the affidavit he

also submitted categorically that the petitioner in pursuance of the orders

passed by this Court on 04.08.2021 has joined the investigation. He has,

however, stated that the prayer of the petitioner for grant of anticipatory bail

is barred by the provisions of Section 37 of the NDPS Act since the

confiscated quantity from the co-accused is of commercial in nature. He

further submitted that there are some telephonic conversations between the

petitioner and the other co-accused namely Jaspal Singh.

At this stage, learned counsel for the petitioner has stated that

2 of 4

the main accused namely Shifali and the other co-accused namely Jaspal

Singh have already been granted regular bail on the ground that the police

official by noticing the presence of contraband even in the case of chance

recovery did not comply with the provisions of Section 50 of the NDPS Act

even after giving offer.

I have heard learned counsel for the parties.

As per the learned counsel for the State, the petitioner in

pursuance of the aforesaid order, has already joined the investigation.

However, he has opposed bail on the ground that the prayer of the petitioner

is hit by the bar contained under Section 37 of the NDPS Act. It is not

disputed that the main accused namely Shifali and the other co-accused

namely Jaspal Singh are already on regular bail. The petitioner is not

involved in any other case except in one case in Uttar Pradesh under

Sections 3 and 25 of the Arms Act. On a specific query being raised during

the course of arguments to the learned State counsel as to whether there is

any substantial material available with the police to connect the petitioner

with the present recovery of 3.5 kg of opium from the co-accused, he

submitted that there are some telephonic conversation between the

petitioner and the co-accusel namely Jaspal Singh. However, the same

detail does not find mention in the affidavit filed by the State. It is a settled

law that the disclosure statement of a co-accused is per se not admissible in

evidence. However, in the present case, nothing has been brought on record

to show that as to how the petitioner was connected with the present case

apart from the disclosure statement. Nothing has been mentioned in the

affidavit with regard to the telephonic conversation between the petitioner

3 of 4

and the co-accused. Therefore, this Court is of the view that at least at this

stage, there are reasons to believe that the petitioner is not guilty of offence

and therefore, the first ingredient for making departure from Section 37 of

the NDPS Act has been fulfilled. So far as the second ingredient is

concerned, it is not the case of the State nor it has been argued by the

learned State counsel that in case the petitioner is granted bail then he may

abscond from justice or repeat the offence. Therefore, the second ingredient

for making a departure from Section 37 of the NDPS Act also stands

fulfilled.

Apart from the same, as per the learned State counsel, the

petitioner has already joined the investigation process and therefore, in view

of aforesaid circumstances, the bar contained under Section 37 of the NDPS

Act would not apply in the present case at least at this stage.

Therefore, considering the aforesaid facts and circumstances of

the case, this Court is of the considered opinion that the petitioner deserves

the grant of anticipatory bail. Consequently, the present petition is allowed.

Order dated 04.08.2021 is hereby made absolute.

However, anything observed hereinabove shall not be treated as

an expression of opinion on merits of the case and is meant for the purpose

of deciding the present petition only.

11.07.2022                                (JASGURPREET SINGH PURI )
monika                                             JUDGE
                    Whether speaking/reasoned Yes/No
                    Whether reportable        Yes/No




                                4 of 4