Advin Alias Tanko Mohammed Ebude ... vs State Of Haryana
2024 Latest Caselaw 14349 P&H

Punjab-Haryana High Court

Advin Alias Tanko Mohammed Ebude ... vs State Of Haryana on 12 August, 2024

Author: Jasjit Singh Bedi

Bench: Jasjit Singh Bedi

                                 Neutral Citation No:=2024:PHHC:103678


CRM-M-37883-2024
(229)
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 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

                                                    CRM-M-37883-2024 (O & M)
                                                    Date of decision: 12.08.2024
Advin @ Tanko Mohammed Ebube Nwankwo
                                                                 .... Petitioner

           V/s

State of Haryana                                                ...Respondent

CORAM: HON'BLE MR. JUSTICE JASJIT SINGH BEDI

Present:     Mr. Vishal Pundir, Advocate,
             for the petitioner.

             Mr. Deepak Grewal, DAG, Haryana.

                 *****

JASJIT SINGH BEDI, J. (Oral)

The prayer in this third petition under Section 439 Cr.P.C. is for

the grant of regular bail to the petitioner in case FIR No.327 dated

01.09.2022 under Sections 21, 27-A and 29 of the NDPS Act, 1985

registered at Police Station Parao, District Ambala.

2. The brief facts of the case are that while the police party was on

patrolling duty, secret information was received that Anjali wife of Akbar

alias Lucky, Anwar alias Abhi son of Shaka and Rekha wife of Shyamlal

alias Shyama were in the business of supplying drugs. All of them had gone

in a rented car bearing No.PB11CM-8500 make Swift DZire to collect

heroin/chitta from Delhi and were roaming around giving supplies. They

would be proceeding to Deha Colony, Ambala City from Shahabad. If a

nakabandi is set-up, they could be apprehended.

Based on the aforementioned information, a nakabandi was set-

up and the Swift DZire car was seen coming from ahead. It was signalled to

stop. The boy sitting on the driver seat disclosed his name as Rajbir Singh 1 of 10

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alias Raju (since granted bail vide order dated 02.08.2023 passed in CRM-

M-28534-2023), the boy sitting on the adjacent seat disclosed his named as

Anwar alias Abhi, the woman sitting behind the driver seat disclosed her

name as Rekha and the other woman sitting with her called herself Anjali.

She had a new born baby on her lap. After complying with the provisions of

the Act regarding search and seizure, the recovery of 300 grams of heroin

came to be effected from Anjali, 300 grams of heroin from Rekha and 400

grams of herion from Anwar alias Abhi.

During the course of investigation, the arrested accused were

interrogated and on the basis of the interrogation, the petitioner-Advin Tanko

Mohammed Ebube Nwankwo son of Mohammed Nwankwo, co-accused

Salochna wife of Bittu and Shashi wife of Shaka were arrested in this case

under Section 29 of the NDPS Act and Section 180 IPC was added. It came

on the record that the petitioner had supplied the narcotic heroin to the

co-accused.

On 20.10.2022, on getting information that the petitioner had

already been arrested in FIR No.514/2022 under Sections 21, 29-61-85 of

the NDPS Act and Sections 13, 14 of the Foreigner Act at Police Station

Ambala City and had suffered a disclosure statement regarding the

commission of the present offence before the Investigating Officer of Police

Station Ambala City, he was joined in the investigation in the present case as

well. As he refused to sign the disclosure statement, Section 180 IPC was

added in this case.

During the course of the investigation, the co-accused had

disclosed that they had purchased the narcotic substance from one person

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named Michel. Similarly, the petitioner also disclosed about his

involvement in the present offence.

On checking of the antecedents of the petitioner, it transpired

that he did not have any permanent residence in India. At the time of his

arrest, he had given his address as resident of House No.29, Didier Drgba

Layout, Abidjan Lvory Coast, at present near Sant Kabir Modal School,

Chander Vihar New Delhi. However, at the time of filing of his bail

application before the Sessions Judge, Ambala, he gave his address as Gali

No.16, Krishna Park, Extension Tilak Nagar, Vikas Puri, New Delhi. On

verification of the said address, the same was found to be false. It was also

found that the petitioner was a habitual offender and was involved in three

other cases i.e. FIR No. 514/2022 dated 21.09.2022 under Sections

21/29/61/85 of the NDPS Act and Section 13,14 of Foreigner Act at Police

Station Ambala City, Ambala, FIR No.288/2022 dated 16.09.2022 under

Sections 21/29/61/85 of the NDPS Act at Police Station Barara, District

Ambala and FIR No.224/2022 dated 30.08.2022 under Section 21/29/61/85

of the NDPS Act, Police Station Sadar Ambala, Ambala.

On the conclusion of the investigation, the report under Section

173 Cr.P.C. was presented against the petitioner and his co-accused citing 24

witnesses in the list of prosecution witnesses.

3. The learned counsel for the petitioner contends that the

petitioner is in custody 20.10.2022 and none of the 23 prosecution witnesses

had been examined so far. Therefore, the trial of the case is not likely to be

concluded anytime soon. He contends that in the instant case, the petitioner

has been named in the disclosure statement of his co-accused. As he has

been named in the disclosure statement alone without any corroborative

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evidence, he was entitled to the concession of regular bail, moreso, as he had

been granted the similar concession in the other two cases. Reliance is

placed on the judgments in the cases of Tofan Singh Versus State of Tamil

Nadu, 2020 AIR (Supreme Court) 5592, Rakesh Kumar Singla Versus

Union of India, 2021(1) RCR (Criminal) 704, Surinder Kumar Khanna

Versus Intelligence Officer Directorate of Revenue Intelligence, 2018(3)

RCR (Criminal) 954, State by (NCB) Bengaluru Versus Pallulabid Ahmad

Arimutta & Anr. 2022(1) RCR (Criminal) 762, Sanjeev Chandra Agarwal

& Anr. Versus Union of India 2021(4) RCR (Criminal) 590, Vijay Singh

Versus The State of Haryana, bearing Special Leave to Appeal (Crl.) No.

(s).1266/2023 decided on 17.05.2023 and Vikrant Singh Versus State of

Punjab, CRM-M-39657-2020.

4. On the other hand, the learned State counsel contends that the

petitioner is a habitual offender. Apart from the present case, he is involved

in three other cases i.e. FIR No. 514/2022 dated 21.09.2022 under Sections

21/29/61/85 of the NDPS Act and Section 13,14 of Foreigner Act at Police

Station Ambala City, Ambala, FIR No.288/2022 dated 16.09.2022 under

Sections 21/29/61/85 of the NDPS Act at Police Station Barara, District

Ambala and FIR No.224/2022 dated 30.08.2022 under Section 21/29/61/85

of the NDPS Act, Police Station Sadar Ambala, Ambala. He, therefore,

contends that the antecedents of the petitioner did not entitle him to the grant

of regular bail in the peculiar facts and circumstances of the present case.

5. I have heard the learned counsel for both the parties.

6. The Hon'ble Supreme Court in the case of State of Haryana

Versus Samarth Kumar 2022 (3) RCR (Criminal) 991, held as under:-

"4. The High Court decided to grant pre-arrest bail to the respondents on the only ground that no recovery was 4 of 10

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effected from the respondents and that they had been implicated only on the basis of the disclosure statement of the main accused Dinesh Kumar. Therefore, reliance was placed by the High Court in the majority judgment of this Court in Tofan Singh v. State of Tamil Nadu reported in (2021) 4 SCC 1.

5. But, it is contended by the learned Additional Advocate General appearing on behalf of the State of Haryana that on the basis of the anticipatory bail granted to the respondents, the Special Court was constrained to grant regular bail even to the main accused-Dinesh Kumar and he jumped bail. Fortunately, the main accused-Dinesh Kumar has again been apprehended. According to the learned Additional Advocate General, the respondent in the second of these appeals is also a habitual offender.

6. Learned counsel appearing on behalf of the respondent in the first of these Appeals contends that the State is guilty of suppression of the vital fact that the respondent was granted regular bail after the charge-sheet was filed and that therefore, nothing survives in the appeal. But,we do not agree.

7. The order of the Special Court granting regular bail to the respondents shows that the said order was passed in pursuance of the anticipatory bail granted by the High Court. Therefore, the same cannot be a ground to hold that the present appeals have become infructuous.

8. In cases of this nature, the respondents may be able to take advantage of the decision in Tofan Singh v. State of Tamil Nadu (supra), perhaps at the time of arguing the regular bail application or at the time of final hearing after conclusion of the trial.

9. To grant anticipatory bail in a case of this nature is not really warranted. Therefore, we are of the view that the High Court fell into an error in granting anticipatory bail to the respondents.

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10. In view of the above, the appeals are allowed. The impugned orders are set-aside. As a consequence, the Appellant-State is entitled to take steps, in accordance with law.

[emphasis supplied]

7. In Vijay Singh Versus The State of Haryana, bearing Special

Leave to Appeal (Crl.) No.(s).1266/2023 decided on 17.05.2023, it was held

as under:-

"The petitioner is alleged to have committed offences under Sections 15 and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter called the NDPS Act". His application for anticipatory bail was rejected by the High Court. The allegations in the FIR are that 1.7 Kg of Poppy Straw (Doda Post) was recovered from the co-accused. The petitioner concededly was not present at the spot but was named by the co-accused. That apart there is no other material to implicate the petitioner. The prosecution urges that another case with allegations of commission of offence under the NDPS Act are pending against the petitioner. It is not denied that in those proceedings he was granted bail.

Having regard to these circumstances, the petitioner is directed to the enlarged on anticipatory bail, subject to such terms and conditions as the trial Court may impose.

The petition is allowed.

All pending applications are disposed of."

(emphasis supplied)

8. This Court in the case of Vikrant Singh Versus State of Punjab,

CRM-M-39657-2020, held as under:-

"It is not in dispute that the petitioners have not been named in the FIR. No recovery has been effected from the petitioners and the alleged recovery has been effected from two co-accused Rakesh Sharma and Ravdeep Singh alias Sheru. The petitioners are sought to be implicated solely on

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the basis of the disclosure statement made by the co- accused Rakesh Sharma and Ravdeep Singh @ Sheru and even after the petitioners were arrayed as accused in pursuance of the disclosure statements, no recovery had been made from the petitioners.

The petitioners have been in custody since 06.11.2020 (Vikrant Singh), 05.12.2020 (Subash Chander) and 23.04.2021 (Davinder Singh) and challan in the present case has already been presented and there are 32 witnesses, out of whom only one has been examined and thus, the trial is likely to take time on account of Covid-19 Pandemic. The petitioners are not involved in any other case. With respect to the call details, suffice to say that no dates on which the said calls had been allegedly made by the coaccused, Rakesh Sharma and Ravdeep Singh alias Sheru to the petitioners or vice-versa have been mentioned in the affidavit or in the report under Section 173 Cr.P.C.

Moreover, even the transcript of the said conversations are not a part of the record under Section 173 Cr.P.C. A Division Bench of this Court in Narcotics Control Bureau's case (supra), was pleased to observe as under:-

Still further, no conversation detail between accused Ramesh Kumar Patil and accused Sandeep has been produced by the prosecution. Mere call details is not sufficient to prove that Sandeep accused was also involved in the business of narcotic drugs or he had any connected with Ramesh Kumar Patil.

In view of the above, no case is made out for grant of leave to appeal against the acquittal of Sandeep accused."

In judgment of the Gujarat High Court in Yash Jayeshbhai Champaklal Shah's case (supra), it has been observed as under:-

"Having heard learned advocates for the appearing parties, it emerges on record that the applicant is not found in possession of any contraband article. Over

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and above that, the call data records may reveal that in an around the time of incident, he was in contact with the co-accused who were found in possession of contraband. Since there is no recording of conversation in between the accused, mere contacts with the co- accused who were found in possession cannot be treated to be a corroborative material in absence of substantive material found against the accused."

A perusal of the above judgment would show that without the transcript of the conversations exchanged between the co-accused, mere call details would not be considered to be corroborative material in absence of substantive material found against the accused. In the present case, there is no other material against the petitioners.

Keeping in view the above-said facts and circumstances, as well as law laid down in the judgments noticed hereinabove, the present petitions are allowed and the petitioners are ordered to be released on bail on their furnishing bail/surety bonds to the satisfaction of the concerned trial Court/Duty Magistrate and subject to their not being required in any other case.

(emphasis supplied)

9. This Court in the case of Ranjit Singh Versus State of Punjab,

CRM-M-25526-2023, decided on 17.07.2023, held as under:-

"8. Coming back to the facts of the present case, it is pertinent to note here that other than the instant FIR in which the petitioner has been nominated as an accused on the basis of the disclosure statement of the arrested accused, the petitioner is also an accused in two other cases under the NDPS Act. In addition, he had been an accused in three other cases, though he has been acquitted in the said cases. It is highly unlikely that the petitioner would have been implicated in multiple FIRs at the whims and fancies of the Investigating Agency.

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9. When there are multiple FIRs against a person over a significant period of time (in this case 18 years), then even though he may have been acquitted in some of those cases, the twin conditions as envisaged under Section 37 of the NDPS Act that he has not committed an offence and was not likely to commit an offence cannot be satisfied.

10. Keeping in view the conduct of the petitioner and his criminal antecedents, his custodial interrogation would certainly be necessary to effect necessary recoveries and to take the investigation to its logical conclusion.

11. In view of the above, I find no merit in the present petition. Therefore, the same stands dismissed.

(emphasized supplied)

10. In Samarth Kumar (supra) the Hon'ble Supreme Court had

clearly held that an accused who had been named in the disclosure statement of

a co-accused was not entitled to the grant of anticipatory bail but could be

granted regular bail. However, in Vijay Singh (supra) a somewhat contrary

view was taken and the accused therein was granted the concession of

anticipatory bail even though he had been an accused in another case under the

NDPS Act in which he was on bail. In Vikrant Singh (supra) this Court held

that where an accused had been named in the disclosure statement of his co-

accused and there were CDRs/WhatsApp calls/chats between the arrested

accused and the person named in a disclosure statement then in the absence of

the contents of the conversation/chats bail could not be denied to the said

accused. In Ranjit Singh (supra) it has been held by this Court that where there

were multiple FIRs against an accused over a period of time then, even though

he had been named in a disclosure statement, he was not entitled to the

concession of bail.

11. Coming back to the facts of the present case, it is relevant to

mention here that other than the present FIR, there are three other cases vide

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FIR No. 514/2022 dated 21.09.2022 under Sections 21/29/61/85 of the

NDPS Act and Section 13,14 of Foreigner Act at Police Station Ambala City,

Ambala, FIR No.288/2022 dated 16.09.2022 under Sections 21/29/61/85 of

the NDPS Act at Police Station Barara, District Ambala and FIR

No.224/2022 dated 30.08.2022 under Section 21/29/61/85 of the NDPS Act,

Police Station Sadar Ambala, Ambala, stand registered against him. It is

highly unlikely that the petitioner would have been implicated in multiple

FIRs at the whims and fancies of the Investigating Agency, moreso, when he

is a foreign national.

12. In fact, when there are multiple FIRs against an accused over a

significant period of time, then the twin conditions as envisaged under

Section 37 of the NDPS Act that he had not committed an offence and was

not likely to commit an offence cannot be satisfied.

13. Keeping in view the conduct of the petitioner, his criminal

antecedents and the fact that being a foreign national, he could abscond from

the trial, no ground is made out to grant the concession of regular bail to the

petitioner, moreso, when his last bail application was argued and withdrawn

as recently as on 27.05.2024.

14. In view of the above, I find no merit in the present petition.

Therefore, the same stands dismissed.

                                                    ( JASJIT SINGH BEDI)
                                                           JUDGE
August 12, 2024
sukhpreet
                    Whether speaking/reasoned           : Yes/No
                    Whether reportable                  : Yes/No




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