Punjab-Haryana High Court
Surender @ Gabdu vs State Of Haryana on 22 January, 2025
Author: Jasjit Singh Bedi
Bench: Jasjit Singh Bedi
Neutral Citation No:=2025:PHHC:009025
CRM-M-51892-2024 #1#
IN THE HIGH COURT OF PUNJAB & HARYANA AT
CHANDIGARH.
CRM-M-51892-2024
Date of Decision:-22.01.2025
Surender @ Gabdu.
......Petitioner.
Vs.
State of Haryana.
......Respondent.
CORAM:- HON'BLE MR. JUSTICE JASJIT SINGH BEDI
Present:- Mr. Paramjeet Phor, Advocate for the Petitioner.
Mr. Viney Phogat, Deputy Advocate General, Haryana.
***
JASJIT SINGH BEDI, J.(ORAL)
The Prayer in this petition under Section 483 of the Bhartiya
Nagarik Suraksha Sanhita, 2023 is for the grant of regular bail in case FIR
No.304 dated 16.08.2022 under Sections 20(b)(ii)(c) of the NDPS Act 1985
(later on Section 27(a), 29/61/85 of the NDPS Act, 1985 were added)
registered at Police Station Badshahpur, District Gurugram (Haryana).
2. The brief facts of the case are that while the police party was on
patrolling duty, secret information was received that Pammi wife of Arun
Kumar and Chaitram son of Mangal Singh had built many rooms in Fazilpur
Ki Dhani and had given those rooms on rent. Out of these rooms, Arun's
wife Pammi had also kept a room on rent on the first-floor in which a large
amount of Ganja was kept. The same was to be sold. If a raid was
conducted, she could be nabbed along with Ganja.
Based on the said information, the raiding party was prepared
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and reached Fazilpur Ki Dhani Village. One lady was overpowered who
disclosed her name as Pammi. A white bag being carried by her was found
to contain Ganja. She stated that more Ganja had been kept in a rented room.
In the said room, two plastic bags were found containing Ganja. A total of
47 Kgs 90 grams Ganja was recovered.
Pammi was arrested on 16.08.2022 and her disclosure statement
was recorded.
Accused Arun Kumar was arrested on 21.09.2022 and his
disclosure statement was recorded. He got recovered the transaction slip of
transfer of Rs.1,30,000/- in the Account No.33303515457 and his Aadhar
Card. He got demarcated the place of occurrence from where he had taken
Ganja from Mohit @ Lala (since granted bail vide order dated 25.01.2024 in
CRM-M-59058-2023).
Accused Mohit @ Lala was arrested on 23.09.2022 and his
disclosure statement was recorded and he got demarcated the place where he
had handed over 50 Kgs Ganja to accused Arun. The bank statement of
Account No.333035155452 was obtained. The said account was found in the
name of Devender Pal Singh (since granted bail vide order dated 08.11.2023
in CRM-M-46969-2023). In the said account, accused Arun Kumar had
transferred an amount of Rs.1,30,000/- for the purchase of Ganja. On
04.11.2022, the ID CAF and call details of Mobile Nos.7042189304,
8950006081 and 9416901660 were obtained. Mobile No.9416901660
belonged to the complainant-SI Balwant. The mobile No.7042189304 was
found in the name of Ravita and was being used by accused Arun Kumar.
The calls were made from aforementioned mobile numbers to mobile
No.9991043821 of accused Mohit @ Lala on 13.08.2022 and 15.08.2022.
Mobile No.8950006081 was in the name of Devender Pal Singh. The
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accused Mohit @ Lala had been found to have conversed with the said
mobile number on 14.08.2022 and 18.08.2022. The CDR and ID CAF of
Mobile Nos.8930930067, 9991043821 and 9540613108 were also obtained.
Mobile No.9540613108 belonged to the Duty Magistrate i.e. Anil Kumar,
Deputy Director, Agriculture Department, Gurugram in whose presence the
search was conducted. The Mobile No.8930930067 belonged to Rajesh wife
of Mangat Ram which was being used by accused Yogender @ Monu (since
granted bail vide order dated 06.12.2023 in CRM-M-60351-2023). The
Mobile No.9991043821 belonged to accused Mohit @ Lala and was found
to have been in contact with Arun Kumar and Devender Pal Singh. The
tower locations of the mobile numbers were obtained and the locations were
found to be near the KMP Flyover, Bahadurgarh-Rohtak Road i.e. the place
where Ganja was handed over by the accused to Arun Kumar.
Devender Pal Singh and co-accused Yogender @ Monu were
arrested on 22.12.2022. The vehicle No.HR-18-D-8887 was taken into
police possession. Devender Pal Singh got recovered a mobile phone used
by him in the supply of Ganja and an amount of Rs.7,000/- out of the sale
amount of Ganja. The accused Yogender @ Monu got recovered a mobile
phone used by him and an amount of Rs.13,000/- out of the sale amount of
Ganja. They also recovered a Swift Dzire bearing No.HR-55-AH-0757 used
in the present case. They both suffered their disclosure statements naming
Surender @ Gabdu (petitioner).
3. The learned counsel for the petitioner contends that the
petitioner has been falsely implicated in the present case. He contends that
the name of the petitioner figured in the disclosure statement of his co-
accused. Pursuant to his arrest, no recovery of any contraband have been
effected. Reliance is placed on the judgments in the cases of Tofan Singh
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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 & Vikrant Singh Versus State of Punjab, CRM-M-39657-
2020", wherein it has been held that the accused can be granted the
concession of regular bail where he has been named in the disclosure
statement of his co-accused and there is no other corroborative evidence
against the accused. As the petitioner was an accused in only one other case
bearing FIR No.33/2012 under Section 8, 12 of the NDPS Act 1985 P.S.
Kanpur Nagar, was in custody since 05.03.2024 and only 04 out of the 33
prosecution witnesses had been examined so far, he was entitled to the
concession of bail.
4. A reply dated 20.01.2025 by way of an affidavit of Mr.
Abhilaksh Joshi, HPS, Assistant Commissioner of Police, Sohna, Gurugram
has been filed on behalf of the State by the learned counsel for the State. The
same is taken on record. He contends that in view of the serious nature of
allegations levelled against the petitioner, he was not entitled to the
concession of bail. While admitting that the petitioner was named in the
disclosure statement of his co-accused and that no recovery of any
contraband has been effected from him, he contends that the petitioner was
an accused in FIR No.33/2012 under Section 8, 12 of the NDPS Act 1985
P.S. Kanpur Nagar as well as that he had remained a PO for sometime. He,
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however, concedes that the petitioner was in custody since 05.03.2024 and
only 04 out of the 33 prosecution witnesses had been examined so far.
5. I have heard the learned counsel for both the parties at length.
6. The Hon'ble Supreme Court in the case of State of Haryana
Versus Samarth Kumar (supra), held as under:-
"4. The High Court decided to grant pre-arrest bail to the
respondents on the only ground that no recovery was 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
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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.
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]
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)
The Hon'ble Supreme Court in the case of State by (NCB)
Bengaluru Vs. Pallulabid Ahmad Arimutta & Anr. (supra), held as under:-
" 9. Having gone through the records alongwith the tabulated
statement of the respondents submitted on behalf of the petitioner-NCB
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and on carefully perusing the impugned orders passed in each case, it
emerges that except for the voluntary statements of A-1 and A-2 in the
first case and that of the respondents themselves recorded under
Section 67 of the NDPS Act, it appears, prima facie, that no substantial
material was available with the prosecution at the time of arrest to
connect the respondents with the allegations levelled against them of
indulging in drug trafficking. It has not been denied by the prosecution
that except for the respondent in SLP (Crl.) No. 1569/2021, none of the
other respondents were found to be in possession of commercial
quantities of psychotropic substances, as contemplated under the
NDPS Act.
10. It has been held in clear terms in Tofan Singh Vs. State of
Tamil Nadu, (2021) 4 SCC 1, that a confessional statement recorded
under Section 67 of the NDPS Act will remain inadmissible in the trial
of an offence under the NDPS Act. In the teeth of the aforesaid
decision, the arrests made by the petitioner-NCB, on the basis of the
confession/voluntary statements of the respondents or the co-accused
under Section 67 of the NDPS Act, cannot form the basis for
overturning the impugned orders releasing them on bail. The CDR
details of some of the accused or the allegations of tampering of
evidence on the part of one of the respondents is an aspect that will be
examined at the stage of trial. For the aforesaid reason, this Court is
not inclined to interfere in the orders dated 16th September, 2019, 14th
January, 2020, 16th January, 2020, 19th December, 2019 and 20th
January, 2020 passed in SLP (Crl.) No@ Diary No. 22702/2020, SLP
(Crl.) No. 1454/2021, SLP (Crl.) No. 1465/2021, SLP (Crl.) No. 1773-
74/2021 and SLP (Crl.) No. 2080/2021 respectively. The impugned
orders are, accordingly, upheld and the Special Leave Petitions filed
by the petitioner-NCB seeking cancellation of bail granted to the
respective respondents, are dismissed as meritless.
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
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petitioners are sought to be implicated solely on 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 co-accused, 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 and
above that, the call data records may reveal that in an
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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)
7. A perusal of the aforementioned judgments would show that
bail can be granted to an accused where he has been named in a disclosure
statement of his co-accused but there is no recovery from him on his arrest
and the CDRs do not disclose the actual conversation that transpired
between the accused from whom the recovery was effected and the one
named in the disclosure statement.
8. In the instant case, the petitioner is named in the disclosure
statement of his co-accused and no recovery of any contraband has been
effected from him. He is an accused in only one more case under Sections
8, 12 of the NDPS Act, 1985. The petitioner is in custody 05.03.2024 and
only 04 out of the 33 prosecution witnesses had been examined so far.
Therefore, the Trial in the present case will not conclude anytime soon.
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Hence, the further incarceration of the petitioner is not required as a prima
facie satisfaction under Section 37 NDPS can be recorded in the
aforementioned factual scenario, moreso when co-accused Devender Pal
Singh, Yogender and Mohit @ Lala have already been granted the
concession of bail.
9. Thus without commenting on the merits of the case, the present
petition is allowed and the petitioner-Surender @ Gabdu son of Sh.
Mahaveer is ordered to be released on bail subject to his furnishing bail
bonds and surety bonds to the satisfaction of learned CJM/Duty Magistrate,
concerned.
10. The petitioner shall appear before the police station concerned
on the first Monday of every month till the conclusion of the trial and inform
in writing each time that he is not involved in any other crime other than the
case(s) mentioned in this order.
11. In addition, the petitioner (or anyone on his behalf) shall
prepare an FDR in the sum of Rs.2,00,000/- and deposit the same with the
Trial Court. The same would be liable to be forfeited as per law in case of
the absence of the petitioner from trial without sufficient cause.
12. The petition stands disposed of.
( JASJIT SINGH BEDI )
JUDGE
January 22, 2025
Vinay
Whether speaking/reasoned Yes/No
Whether reportable Yes/No
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