Punjab-Haryana High Court
Vinod Kumar vs State Of Haryana on 13 January, 2025
Neutral Citation No:=2025:PHHC:003288
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CRM-M-48866-2024 (O&M)
201-C
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CRM-M-48866-2024 (O&M)
Date of Decision: 13.01.2025
VINOD KUMAR
.. Petitioner
Vs.
STATE OF HARYANA
..Respondent
CORAM: HON'BLE MR. JUSTICE SUMEET GOEL
Present: Mr. V.P. Sangwan, Advocate for the petitioner.
Ms. Ankita Ahuja, AAG, Haryana.
...
SUMEET GOEL, J. (Oral)
1. Present petition has been filed under Section 482 of BNSS,
2023 for grant of anticipatory bail to the petitioner in FIR No.372 dated
23.07.2024, under Section 15(c) of NDPS Act (Section 29 of NDPS Act
added later on), registered at Police Station Dabwali Sadar, District Sirsa,
Haryana.
2. The case set up in the FIR in question (as set out in the present
petition by the petitioner) is as follows:
"To, the Station House Officer, Police Station Sadar
Dabwali. Jai Hind. Today I ASI along with HC Jaiwardhan No.
56/DWL, EHC Rajwinder Singh No. 446/DWL, C. Mandroop
545/DWL, SPO Harwinder Singh No. 87 boarding Government
vehicle Neo Bolero white Coloured No. HR24GV-2526 driver EHC
Purshottam No. 447/DWL in connection of Patrolling and
investigation of crime of drugs were present during Nakabandi
between Village Lohgarh and Jotanwali near Dera Makhidas
where special informer met myself ASI and told that ahead of
village Jotanwali Haripira Road near Border two youngsters are
standing they are having Motorcycle Hero Splendour Number
RJ13MS-8564 and near the Motorcycle itself one white Sheet
(Tarpaulin) Three/Four black coloured sacks have been kept by
covering the same, that I have full suspicion that in these sacks
there is poppy husk and these persons are trying to sell this poppy
husk to someone, if raid be conducted immediately then these
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persons can be nabbed along with poppy husk at the spot itself,
that since the information being considerable, so myself ASI
prepared notice under section 42 NDPS Act, for information of
senior officers and sent it by hand through EHC Rajwinder Singh
No. 446/DWL to Police Station Sadar Dabwali, that myself ASI
along with HC Jaywardhan No. 56/DWL, C. Mandroop 545/DWL,
SPO Harwinder Singh No. 87 boarding Government Vehicle No.
HR24GV-2526 driver EНС Purshottan No. 447/DWL departed to
the spot as per information and from village Jotanwali reached
towards Rajasthan Border, then to our left side on the side of the
Road two boys were seen near the Motorcycle, that we took our
Government vehicle near them and stopped then both those boys
got nervous and left their Motorcycle there itself and about to flee
then myself ASI on the basis of suspicion with the help of fellow
employees nabbed both those boys after running little distance and
both of them brought near the Motorcycle and near the Motorcycle
in a pit underneath white sheet (tarpaulin) lying sacks asked their
names and address then first one disclosed his name as Sunil
Kumar son of Kaluram resident of Dhani 1 HRP Haripura District
Hanumangarh (Raj.) and second boy disclosed his name as
Radheshyam son of Omparkash son of Aduram Resident of Village
Haripura District Hanumangarh (Raj.), that a sheet lying with in a
pit was removed and saw then underneath the sheet four black
coloured plastic sacks in which some goods were found filled and
inlet of all four sacks was tied and Motorcycle was checked then
number of the Motorcycle was found as RJ13MS-8564 make Hero
Splendour, its Chassis Number MBLHA10BFF4E04239 and
Engine Number HA10ERFE03958 black coloured was found, that
suspects Sunil Kumar and Radheshyam above named told that this
Motorcycle and all four sacks covered with a sheet are ours, that
myself ASI asked about the goods in these sacks then both of them
got nervous and could not give any satisfactory answer "
3. On 16.10.2024, the following order was passed:-
"Status report not filed. Again date is requested. It is pointed out that
connected case is fixed for 06.11.2024.
Learned counsel for petitioner pointed out that no recovery was effected
from petitioner. In-fact, he was named by co-accused.
On queries, learned counsel representing State, on instructions from ASI
Anand Kumar, 169/Sirsa, confirmed that petitioner is not involved in any other
case.
Considering the aforesaid facts, let status report be filed on 06.11.2024.
In the meantime, arrest of petitioner is stayed subject to joining of his
investigation."
4. Learned counsel for the petitioner has argued that the petitioner
has been falsely implicated into the FIR in question. Learned counsel has
further argued that there is no link or connection between the petitioner and
the co-accused (from whom the contraband is alleged to have been
recovered) and the petitioner is sought to be implicated only on the basis of
disclosure statement of the co-accused from whom the contraband is alleged
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to have been recovered. Learned counsel has further submitted that
petitioner has joined the investigation and has cooperated therein. On the
strength of these arguments, learned counsel has sought for grant of
anticipatory bail to the petitioner.
5. Learned State counsel (on instructions from SI Anand Kumar)
has submitted that the petitioner has joined investigation in terms of interim
order/protection earlier afforded to the petitioner and is not required for
custodial interrogation. He has, however, submitted that since the FIR in
question is under NDPS Act of 1985, the petitioner ought not to be extended
the concession of anticipatory bail.
6. I have heard learned counsel for the rival parties and have
perused the available record.
7 At this juncture, it would be apposite to refer herein to a
judgment passed by the Hon'ble Supreme Court titled as 'Tofan Singh vs.
State of Tamil Nadu, AIR 2020 Supreme Court 5592', relevant whereof
reads as under:
"155. We answer the reference by stating:
(i) That the officers who are invested with powers under section 53
of the NDPS Act are "police officers within the meaning of section 25 of
the Evidence Act, as a result of which any confessional statement made to
them would be barred under the provisions of section 25 of the Evidence
Act, and cannot be taken into account in order to convict an accused
under the NDPS Act
(ii) That a statement recorded under section 67 of the NDPS Act
cannot be used as a confessional statement in the trial of an offence under
the NDPS ACL"
More recently, the Hon'ble Supreme Court in a judgment titled
as 'Smt. Najmunisha, Abdul Hamid Chandmiya @ Ladoo Bapu Vs. State
of Gujrat, Narcotics Control Bureau' 2024 INSC 290', has reiterated the
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ratio decidendi of the judgment of Hon'ble Supreme Court in the case of
Tofan Singh (supra).
7.1 Further, the Hon'ble Supreme Court; while dealing with a plea
for bail in a case under NDPS Act, 1985; in a judgment titled as 'State by
(NCB) Bengaluru vs. Pallulabid Ahmad Arimutta & Anr.', 2022(1) RCR
(Criminal) 762, has held as under:-
"9. Having gone through the records alongwith the tabuluted
statement of the respondents submitted on behalf of the petitioner-NCB
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 un
offence under the NDPS Act. In the teeth of the aforesaid decision, the
arresis 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."
7.2 Still further, the Hon'ble Supreme Court; while dealing with a
plea for grant of anticipatory bail in a case under NDPS Act, 1985; in a
judgment titled as 'Vijay Singh vs. The State of Haryana, bearing Special
Leave to Appeal (Crl.) No.(s) 1266/2023 decided on 17.05.2023', has held
as under:
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"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."
7.3 It is a well established principle of law that at the incipient
stage of investigation, when the investigation is still ongoing, the Court
must restraint and refrain from undertaking a meticulous examination of
evidence collected thus far. The process of investigation is dynamic, and
evidence may evolve or be corroborated, as the investigation progresses.
However, as anticipatory bail pertains to life and liberty of individual,
courts are obligated to strike a balance between safeguarding personal
liberty and ensuring the effective administration of justice as also
investigation.
The final evidentiary value and admissibility of the disclosure
statement made by a co-accused fall within the domain of the trial Court and
are to be adjudicated during the course of the trial in accordance with
established principles of law. However, while adjudicating a plea for
anticipatory bail, this court cannot remain oblivious to the circumstances
under which the petitioner has been arraigned or implicated, including the
nature of the allegations, the evidence linking the petitioner to the offence
as well as the specific role attributed to the petitioner in the commission of
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the alleged offence. A prima facie examination of these factors is essential
to ensure that the process of law is not misused, abused or misdirected.
8. The petitioner is sought to be arraigned as an accused in the
FIR in question, solely, on the basis of disclosure statement made by co-
accused from whom there is recovery of contraband. As per the prosecution
version, there is no other material available to connect the petitioner with
the contraband in question. It is not in dispute that the petitioner was not
present at the spot. The veracity and weightage required to be attached to
the disclosure statement made by the co-accused will be fully tested at the
time of trial. However, the same cannot be construed as sufficient by itself
to decline the concession of anticipatory bail to the petitioner especially
when the petitioner has joined the investigation in terms of the interim
protection earlier afforded by this Court and has cooperated therein.
Furthermore, the petitioner is not involved in any other FIR/criminal case.
9. In view of above, the petition is allowed and interim order
dated 16.10.2024 passed by this Court is made absolute, subject to the
conditions as enumerated under Section 482(2) BNSS, 2023.
10. This order should not be treated as "blanket" order. It will not
be interpreted as granting petitioner indefinite protection from arrest. It
shall be confined to the FIR mentioned ibid and will not operate in respect
of any other incident that involves commission of an offence.
11. Liberty is reserved in favour of State to move for
cancellation/recall of this order in case the petitioner violates any condition
stipulated under Section 482(2) BNSS, 2023 or upon showing any other
sufficient cause.
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12. Needless to say that anything observed herein above shall not
be construed to be an opinion on the merits of the case.
13. Pending applications, if any, shall also stand disposed off.
13.01.2025 (SUMEET GOEL)
Jasmine Kaur JUDGE
Whether speaking/reasoned Yes No
Whether reportable Yes No
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