Narender Kumar vs State Of Haryana
2022 Latest Caselaw 1230 P&H

          CRM-M-8650-2022 (O&M)                                1

        IN THE HIGH COURT OF PUNJAB AND HARYANA
                     AT CHANDIGARH
106+208
                                 CRM-M-8650-2022(O&M)
                                 Decided on : 07.03.2022
Narender Kumar
                                                   . . . Petitioner
                          Versus
State of Haryana
                                               . . . Respondent
CORAM:       HON'BLE MR. JUSTICE VIKAS BAHL
PRESENT: Mr. Balvinder Sangwan, Advocate and
         Ms. Mallika Dhillon, Advocate
         for the petitioner.

             Mr. Praveen Bhadu, AAG, Haryana.
                                 ****
VIKAS BAHL, J. (Oral)

CRM-8282-2022

Present appellation has been filed for placing on record

Annexure P-10 and for exemption from filing certified/true typed copy

thereof.

For the reasons mentioned in the application, same is

allowed subject to all just exceptions and Annexure P-10 is taken on

record.

Main Case

The present petition has been filed under Section 439

Cr.P.C. for grant of regular bail to the petitioner in case FIR No. 334

dated 03.06.021 under Sections 22 of Narcotics Drugs and Psychotropic

Substances Act, 1985 and Section 27(B) (ii) and 27 of the Drugs and

Cosmetics Act, 1940 registered at Police Station City Palwal, District

Palwal.

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Learned counsel for the petitioner has submitted that the

petitioner was neither named in the FIR nor any recovery was effected

from him and the alleged recovery was effected from co-accused

Gautam and Rahul. It is further submitted that the present petitioner has

been implicated on the basis of the disclosure statement of Gautam. It is

argued that the present petitioner had himself surrendered before the

trial Court and is not involved in any other case and has been in custody

since 24.01.2022 and the trial is likely to take time, moreso, in view of

the present COVID-19 pandemic situation. It is further submitted that

all the witnesses in the said case are the police officials and thus, the

question of influencing the witnesses upon being granted the concession

of bail, does not arise.

Learned counsel for the petitioner has further 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, 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 concession of regular

bail.

Learned State counsel, on the other hand, has opposed the

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present petition for regular bail and has submitted that the recovery

effected from the co-accused is of commercial quantity and the challan

in the present case has been prepared on 28.02.2022 and is likely to be

submitted in the near future.

This Court has heard the learned counsel for the parties and

has perused the record.

It is not in dispute that the petitioner was neither named in

the FIR nor any recovery had been effected from him. It was Gautam

and Rahul who had been named in the FIR from whom the recovery had

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

the disclosure statement of Gautam. The petitioner had surrendered

before the trial Court and even after surrender, no recovery has been

effected from the petitioner. The challan has already been prepared on

28.02.2022 and is likely to be submitted in the near future and thus, the

investigation is complete. The petitioner is stated to be not involved in

any other case and he has been in custody since 24.01.2022. The trial is

likely to take time inasmuch as till date, even charges have not been

framed against the petitioner, moreso, in view of the present COVID-19

pandemic situation.

A Coordinate Bench of this Court vide order dated

17.06.2020 in CRM-M-12051-2020 titled "Mewa Singh Vs. State of

Punjab", in which in a case of recovery of 1.7 Kgs 'Heroin' a similar

disclosure statement was made against the petitioner therein to the effect

that he had supplied the contraband and in the said situation the

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petitioner therein was granted anticipatory bail. The relevant portion of

the said order 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, 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.

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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."

Further, in the order of a coordinate Bench of this Court

dated 16.07.2021 passed in CRM-M-12997-2020 titled as "Daljit Singh

Vs. State of Haryana" has held as under:-

"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,

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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

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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 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.

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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."

Keeping in view the abovesaid facts and circumstances and

also the ratio of law in the abovesaid judgements, the present petition is

allowed and the petitioner is ordered to be released on regular bail on

his furnishing bail/surety bonds to the satisfaction of the trial Court /

Duty Magistrate, subject to his not being required in any other case. The

petitioner shall also abide by the following conditions:-

1. The petitioner will not tamper with the evidence during the

trial.

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2. The petitioner will not pressurize / intimidate the prosecution

witness(s).

3. The petitioner will appear before the trial Court on the date fixed,

unless personal presence is exempted.

4. The petitioner shall not commit an offence similar to the offence

of which he is accused, or for commission of which he is

suspected.

5. The petitioner shall not directly or indirectly make any

inducement, threat or promise to any person acquainted with the

facts of the case so as to dissuade him from disclosing such facts

to the Court or to any police officer or tamper with the evidence.

In case of breach of any of the above conditions, the

prosecution shall be at liberty to move an application for cancellation of

bail before this Court.

However, nothing stated above shall be construed as a final

expression of opinion on the merits of the case and the trial Court 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
March 7th, 2022
Mehak
                          Whether reasoned/speaking?         Yes/No
                          Whether reportable?                Yes/No




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