Punjab-Haryana High Court
Tirath Nath vs State Of Punjab on 1 September, 2023
Neutral Citation No:=2023:PHHC:115074
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IN THE HIGH COURT OF PUNJAB & HARYANA
AT CHANDIGARH
101
CRM-M-26318-2023 (O&M)
Date of decision: 01.09.2023
Tirath Nath
....Petitioner
Versus
State of Punjab
...Respondent
CORAM: HON'BLE MR. JUSTICE AMAN CHAUDHARY
****
Present : Mr. S.S. Gill, Advocate for the petitioner
Ms. Himani Arora, AAG Punjab
****
AMAN CHAUDHARY, J.
1. The present petition has been filed under Section 438 Cr.P.C. for
grant of anticipatory bail to the petitioner in case FIR no.27 dated 12.02.2022,
registered under Sections 18 and 29 of NDPS Act, 1985 at Police Station Makhu,
District Ferozepur.
2. Briefly put, the facts of the case are that on 12.02.2022, at 1.30 am,
during patrolling duty by the police party, headed by SI Narpinderpal Singh, when
they reached at Kussu Wala turn, one person wearing turban was seen coming
with a back-bag hanging on his back. On seeing the police party he got perplexed
and started running towards the abandoned area on his left side. On being
apprehended, he disclosed his name as Gurjeet Singh and upon his search having
been conducted as per provisions of the Act, 6 kg of opium was recovered from
his back-bag. During investigation, on 14.02.2022, he disclosed that he had bought
11 kg opium from one Ali @Feroze Ali, resident of Guwahati (Assam) and his
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brother-petitioner had been helping him in purchasing the same and had sold 1 kg,
out of the total, to various persons and the remaining 4 kg was got recovered by
him pursuant to his disclosure statement. On the basis of this disclosure statement,
the bank accounts of the petitioner and other evidence were procured.
3. Learned counsel contends that the petitioner has been falsely
implicated in the case. His name surfaced based on disclosure statement of co-
accused-Gurjeet Singh, who is his brother, who has also been falsely implicated,
regarding which he had filed petitions before this Court. He is not involved in any
other case. Only allegation against the petitioner in the report of SIT is that he was
in touch with co-accused Feroze Ali, which is not sufficient to connect to the
alleged recovery, effected from his brother. Since, he was pursuing the case of his
brother, thus he has been involved. He places reliance on the judgment in the case
of Tofan Singh vs. State of Tamil Nadu, (2021) 4 SCC 1. The petitioner is ready
and willing to join the investigation and cooperate with the investigating agency.
Thus, he prays for grant of anticipatory bail to him.
4. Learned State counsel opposes the prayer on the ground that
commercial quantity of contraband was recovered from the co-accused, who is
none other than the brother of the petitioner. In pursuance of his disclosure
statement, 4 kg opium was recovered from their residential house, which the
petitioner has not disputed, that he does not live there. While referring to para 4 of
the order dated 09.05.2023, passed by Judge, Special Court, whereby the
anticipatory bail application of the petitioner was dismissed, submits that during
the period from January, 2022 to 10.02.2022, co-accused Gurjeet Singh had talked
to co-accused Feroze Ali for about 35 times and after his arrest, the petitioner got
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the same number activated vide a new SIM and had also talked to said Feroze Ali
s/o Rokshed Ali, resident of Udiyana Rangia, Guwahati (Assam) on 18.2.2022,
11.05.2022 and 14.05.2022. He further submits by referring to the status report
dated 01.08.2023 filed by way of affidavit of Palwinder Singh, Deputy
Superintendent of Police, that the allegations levelled by the petitioner to the effect
that his brother was illegally retained by the police in civil dress on 11.02.2022 at
Railway Station Jalandhar Cantt. were enquired into by examining the CCTV
footage of said railway station and found to be false by the Special Investigation
Team, constituted on the order of Senior Superintendent of Police, Ferozepur,
headed by Superintendent of Police (Investigation), Ferozepur, Deputy
Superintendent of Police (D) and Deputy Superintendent of Police (NDPS),
Ferozepur. The co-accused has specifically stated that the petitioner helped him in
purchasing the opium. Custodial interrogation of the petitioner is therefore
required in the instant case to find the source of origin, the entire chain of supply
of contraband and the other drug peddlers involved. There is every possibility of
the petitioner fleeing from justice and tampering with the evidence, as the
petitioner has been declared proclaimed offender vide orderated 15.07.2023. The
inadvertent mentioning of two cases in para 11 of the report, was regretted. Thus,
it is prayed that the present petition be dismissed.
5. Heard.
6. Hon'ble The Supreme Court in the case of P. Chidambaram vs.
Directorate of Enforcement, (2019) 9 SCC 24, has observed that, "Ordinarily,
arrest is a part of procedure of the investigation to secure not only the presence of
the accused but several other purposes. Power under Section 438 CrPC is an
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extraordinary power and the same has to be exercised sparingly. The privilege of
the pre-arrest bail should be granted only in exceptional cases. The judicial
discretion conferred upon the court has to be properly exercised after application
of mind as to the nature and gravity of the accusation; possibility of applicant
fleeing justice and other factors to decide whether it is a fit case for grant of
anticipatory bail. Grant of anticipatory bail to some extent interferes in the sphere
of investigation of an offence and hence, the court must be circumspect while
exercising such power for grant of anticipatory bail. Anticipatory bail is not to be
granted as a matter of rule and it has to be granted only when the court is
convinced that exceptional circumstances exist to resort to that extraordinary
remedy."
7. It is apposite to refer to the relevant paras of the status report, which
read thus:
"8. That during investigation conducted by Special
Investigating Team (SIT) it is found that Gurjit Singh was
using the mobile number 98140-09015 and through said
mobile number he was regular in touch with Ali @ Feroze Ali
resident of Guwahati (Assam). After arrest of Gurjit Singh,
petitioner who is real brother of main accused Gurjit Singh got
issued another sim of same number 98140-09015 on
01.06.2021 by submitting his documents before the mobile
company and after that he remained in touch with said Feroze
Ali from 18.02.2022 to 14.05.2022. During investigation of the
case it was also found that on 15.02.2022 accused Gurjit Singh
disclosed that he used to brought opium by taking money from
his brother Tirath Nath. During investigation of the case, it was
also found that allegations levelled by the petitioner that his
brother Gurjit Singh was illegally retained by the police in
Civil Dress on 11.02.2022 at Railway Station Jalandhar cantt
wherefrom the police had taken him forcibly in car bearing No.
PN88-4355 were also found to be false and during
investigation the SIT has examined the CCTV footage of said
Railway station deeply. After completion of investigation SIT
petitioner has also been nominated as accused under section 29
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of NDPS Act.
9. That after completion of investigation qua Gurjit Singh @
Jeeta challan against him was presented before the Ld. Court
on 05.08.2022 and now same is fixed for 03.08.2023.
10. That the police tried its level best to arrest the petitioner,
but petitioner succeeded to conceal himself at some secret
place, due to which proclamation proceeding were initiated
against them and vide order dated 15.07.2023 passed by the
Ld. Court of Illaqa Magistrate, Zira."
8. In the case in hand, the petitioner has been named by none other than
his own brother alongwith co-accused Feroze Ali, stating therein that he used to
purchase opium, by taking money from the petitioner and recovery effected from
whom was of 6 kg of opium, when he was apprehended at the spot, whereafter
during investigation, he, pursuant to a disclosure statement, got recovered 4 kg
more, that too from the residential house, where they both live in a joint family, as
stated in the petition. Still further, the mobile number by which there were about
35 calls between co-accused Gurjeet Singh-brother of the petitioner and co-
accused Feroze Ali, from January, 2022 to 10.02.2022, was got reactivated by the
petitioner on 12.02.2022, after arrest of his brother, which remained as such till
27.02.2022 and thereafter, again the petitioner got reactivated the same number on
26.02.2022 and there are call records of the petitioner having talked to co-accused
Feroze Ali on 18.02.2022, 11.05.2022 and 14.05.2022, for which no satisfactory
explanation came forth. In so far as filing of the petitions regarding false
implication of his brother are concerned, the first of which, bearing No.CRM-M-
11791-2022 was disposed of by this Court vide order dated 25.08.2022, Annexure
P-7, by observing that nothing survives in the petition, as the investigation was
complete and the challan had been presented by the SIT and the 2nd CRM-M-
11630-2023, was ordered to be dismissed as withdrawn vide order dated
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09.03.2023, Annexure P-9, after arguing the matter for some time, when the Court
was not inclined to interfere. Furthermore, the SIT having duly enquired into the
allegations levelled by the petitioner and having examined the CCTV footage,
found the same as false.
9. Yet another fact that disentitles the petitioner from grant of
concession of anticipatory bail is that he has, vide order dated 15.07.2023, passed
by the Court of Illaqa Magistrate, Zira, declared him a proclaimed offender, to
which the learned counsel for the petitioner pleaded ignorance. In Lavesh v. State
(NCT of Delhi), (2012) 8 SCC 730, Hon'ble The Supreme Court observed and
held that, when the accused is 'absconding' and declared as a 'proclaimed
offender', there is no question of granting anticipatory bail. Further in Vipan
Kumar Dhir v. State of Punjab and another, (2021) 15 SCC 518, Hon'ble The
Supreme Court held that, "Even if there was any procedural irregularity in
declaring the Respondent Accused as an absconder, that by itself was not a
justifiable ground to grant pre-arrest bail in a case of grave offence..."
10. Hon'ble The Supreme Court in CBI vs. Santosh Karnani, (2023)
SCC Online SC 427, Sadhna Chaudhary vs. State of Rajasthan, (2022) SCC
OnLine SC 869, Dr. Naresh Kumar Mangla vs. Smt. Anita Agarwal and Ors.,
2020 SCC Online SC 1089, while expounding the law on anticipatory bail relied
on Siddharam Satlingappa Mhetre vs. State of Maharashtra, (2011) 1 SCC
694, which after due deliberation on the parameters evolved by the Constitutional
Bench in Gurbaksh Singh Sibbia vs. State of Punjab, (1980) 2 SCC 565 held
thus:
"i. The nature and gravity of the accusation and the exact
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role of the accused must be properly comprehended before
arrest is made;
ii. The antecedents of the applicant including the fact as to
whether the accused has previously undergone imprisonment
on conviction by a Court in respect of any cognizable offence;
iii. The possibility of the applicant to flee from justice;
iv. The possibility of the accused's likelihood to repeat
similar or the other offences.
xx xx xx"
11. It is manifestly clear that anticipatory bail is not a right that may be
granted in every other case. The Court has to take into consideration all the facts
and circumstances and after its utmost satisfaction, grant it only in exceptional
circumstances, where all the factors and parameters are met and there is no
possibility of him interfering in the path of justice.
12. In State represented by the C.B.I. vs. Anil Sharma, 1997(4)
R.C.R.(Criminal) 268, Hon'ble The Supreme Court had observed that in cases
where serious allegations have been alleged and the truth needs to be elicited from
the accused, the same can only be done through the custodial interrogation as
compared to questioning a suspect, who is already on anticipatory bail.
13. Considering the facts and circumstances of the case and the
judgments referred to above, an element of criminality cannot be ruled out at this
stage and the allegations being of such nature, the permission to join the
investigation with a protective umbrella of pre-arrest bail will hamper the
thorough and effective investigation to discover the modus operandi and elicit the
truth; there being an apprehension of him influencing and threatening the
witnesses or tampering with the evidence and fleeing from justice, more
pertinently, when he has already been declared a proclaimed offender; his
custodial interrogation is also stated to be imperative so as to complete the chain
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of supply and also to ascertain the persons who may be involved in this nexus, this
Court is not inclined to grant such relief to the petitioner.
14. The stringent provisions as contained in the statute, are to deal with
the drug menace plaguing the society, as the youth are being led on a path having
deleterious effects, thereby destroying the very social fabric.
15. In view of the forgoing discussion, the present petition being devoid
of merits is hereby dismissed.
16. The observations made hereinabove are meant only for the purpose
of deciding the present petition and in no manner are to be construed as an
expression of opinion on the merits of the case.
(AMAN CHAUDHARY)
JUDGE
September 01, 2023
M.Kamra
Whether speaking/reasoned : Yes / No
Whether reportable : Yes / No
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