Sunil vs State Of Haryana
2022 Latest Caselaw 1118 P&H

CRM-M-8910-2022                                                        1

        IN THE HIGH COURT OF PUNJAB & HARYANA AT
                     CHANDIGARH

                                               CRM-M-8910-2022
                                               Date of decision : 03.03.2022

Sunil

                                                      ... Petitioner

                    Versus

State of Haryana

                                                      ... Respondent

CORAM:       HON'BLE MR.JUSTICE VIKAS BAHL

Present:     Mr.V.B.Godara, Advocate
             for the petitioner.

             Mr.Praveen Bhadu, AAG, Haryana.

VIKAS BAHL, J.(ORAL)

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

anticipatory bail to the petitioner in FIR no.38 dated 05.02.2022 registered

under Sections 21(b)/27-A of the Narcotic Drugs and Psychotropic

Substances Act, 1985 (in short 'NDPS Act') at Police Station Bhuna, District

Fatehabad.

Learned counsel for the petitioner has submitted that the

petitioner has not been named in the FIR and no recovery has been effected

from the petitioner. The petitioner has only been implicated on the basis of

statement of co-accused Amarjeet @ Amni from whom the alleged recovery

of 30 grams 45 milligrams of heroin has been effected. It has been stated

that even the said recovery from Amarjeet @ Amni is of non-commercial

quantity as the commercial quantity of heroin is stipulated at 250 grams.

Reliance has been placed upon the judgment of the Hon'ble Supreme Court

in case titled as "Tofan Singh vs. State of Tamil Nadu" reported as 2021 1 of 8

(4) SCC 1 and upon the judgment passed in CRM-M-12051-2020, by a

coordiante Bench of this Court dated 17.06.2021 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.

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, 2 of 8

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 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

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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 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 4 of 8

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 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.

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 5 of 8

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."

Notice of motion.

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

appears and accepts notice on behalf of the respondent-State and has

submitted that he is fully prepare to argue the matter and assist this Court.

He has opposed the present petition for anticipatory bail and has submitted

that co-accused Amarjeet @ Amni in his disclosure statement had stated

that it is the present petitioner who had sold said heroin to him. It has

further been submitted that the petitioner has been involved in two more

cases out of which, one case is under the NDPS Act.

Learned counsel for the petitioner, in rebuttal, has submitted

that the petitioner has been granted concession of bail in both the cases.

Reliance has also been placed upon the judgment of the Hon'ble Supreme

Court in "Maulana Mohd. Amir Rashadi vs. State of U.P. and another",

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reported as 2012 (2) SCC 382 to contend that the facts and circumstances of

the present case are to be seen while deciding a bail application and the bail

application of the petitioner cannot be rejected solely on the ground that the

petitioner is involved in other cases. The relevant portion 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 learned counsel for the parties and has

perused the paper book.

It is not in dispute that the petitioner is not named in the FIR and

no recovery is stated to have been effected from the present petitioner. The

petitioner has been solely implicated on the basis of the disclosure statement of

co-accused Amarjeet @ Amni from whom, the recovery of 30 grams 45

milligrams of heroin has been effected, which is not a commercial quantity.

Keeping in view the above said facts and circumstances and also

in view of the law laid down in the above said judgments, the present petition

for anticipatory bail is allowed and in the event of arrest, the petitioner is

ordered to be released on bail subject to his furnishing personal bonds and

surety to the satisfaction of Arresting / Investigating Officer. The petitioner

shall join the investigation as and when called upon to do so and shall abide

by the conditions as provided under Section 438(2) of Cr.P.C.

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

investigation, then the State would be at liberty to move an application for

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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 petition.

                                                    (VIKAS BAHL)
                                                       JUDGE
March 03, 2022
Davinder Kumar

                 Whether speaking / reasoned                       Yes/No
                 Whether reportable                                Yes/No




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