Recently, the Punjab and Haryana High Court granted anticipatory bail to a petitioner accused under the NDPS Act, observing that mere silence or failure to make self-incriminating disclosures cannot be equated with non-cooperation warranting custodial interrogation. The Court emphasized that the constitutional right against self-incrimination cannot be compromised merely to satisfy investigative convenience.
The petitioner was booked in connection with an FIR registered under Sections 21(c) and 29 of the NDPS Act at Police Station Ferozepur Jhirka, District Nuh. He approached the Court seeking anticipatory bail under Section 482 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023.
On a previous hearing, the Court had granted interim protection to the petitioner after being informed that the petitioner had no prior criminal record and was not named in any secret information or original disclosure statements. The case against him arose two months after the initial recovery of a large quantity of codeine-based cough syrup from a co-accused, who later named another individual. That individual, in turn, allegedly named the petitioner in a subsequent disclosure statement.
The petitioner’s counsel argued that his client had been falsely implicated and pointed out that there was no evidence of prior involvement in drug trafficking. It was contended that the petitioner had joined the investigation as directed by the Court and fully cooperated with the Investigating Officer. Therefore, the interim relief granted earlier deserved to be made absolute.
The State opposed the bail plea, asserting that while the petitioner had formally joined the investigation, he had not fully cooperated. It was argued that the petitioner failed to disclose the source of the contraband and did not reveal the identities of others involved, thereby justifying custodial interrogation.
The Court rejected the State’s plea for custodial interrogation, stating, “Mere silence or failure to make self-incriminating disclosures cannot be equated with non-cooperation warranting custodial interrogation. The right against self-incrimination is a constitutionally protected facet of personal liberty, and any demand for custodial interrogation merely to compel such disclosures stands on precarious legal footing.”
The Court reiterated that cooperation in an investigation does not require a person to incriminate themselves. It further noted, “It is well settled by the Hon’ble Supreme Court that the purpose of joining investigation is to make oneself available to the Investigating Agency and to respond to lawful queries, and not to compulsorily divulge self-incriminating information.”
The Court emphasized that the petitioner’s conduct, by joining investigation and responding to inquiries, met the legal threshold of cooperation. It also noted that there was no record of any prior criminal activity on part of the petitioner.
In view of the above, the Court allowed the petition and made the interim bail order dated 07.03.2025 absolute, subject to the conditions laid down under Section 438(2) CrPC/482(2) BNSS, 2023. It clarified, however, that nothing in the order should be construed as an expression of opinion on the merits of the case.
Case Title: Makul @ Mohamad Makul vs. State of Haryana
Case No: CRM-M-12998-2025
Coram: Justice Manjari Nehru Kaul
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