Vikas Bahl, J
Prayer in the present petition is for grant of anticipatory bail to the petitioner in FIR No.181 dated 19.11.2021 registered under Section 21 of the Narcotic Drugs and
Psychotropic Substances Act, 1985 (Section 29 of the NDPS Act has been added later on) at Police Station City-1 Mansa, District Mansa.
Learned counsel for the petitioner has submitted that in the present case, no recovery has been effected from the petitioner and the petitioner has solely been implicated on
the basis of disclosure statement made by the co-accused Karan Singh from whom the alleged recovery of 20 grams of heroin, which is non-commercial quantity, has been
recovered. Learned counsel for the petitioner has relied upon the judgment passed by the Hon'ble Supreme Court in Tofan Singh Vs. State of Tamil Nadu, reported as
2021(1) RCR (Criminal) 1, an order passed by Coordinate Bench of this Court dated 17.06.2020 in CRM-M-12051-2020 titled “Mewa Singh Vs. State of Punjabâ€, and
an order of another Coordinate Bench dated 16.07.2021 passed in CRM-M-12997-2020 titled as “Daljit Singh Vs. State of Haryana†to contend that in such like cases
if a person has only been proceeded against on the basis of disclosure statement of co-accused and no recovery has been effected from the petitioner, then he should be
granted the benefit of anticipatory bail.
Notice of motion.
On advance notice, Mr. Sarabjit S. Cheema, AAG, Punjab, appears and accepts notice on behalf of the State and has submitted that he is fully prepared to argue the
matter and assist this Court. He has opposed the present petition for grant of anticipatory bail to the petitioner and has submitted that the petitioner is involved in two other
cases.
Learned counsel for the petitioner, in rebuttal to the abovesaid argument, has submitted that in the first case, i.e. FIR No.146 dated 17.09.2021, the petitioner was also
involved on the basis of statement made by the co-accused and even from the said co-accused, non-commercial quantity of Heroin was recovered i.e. 15 grams and in the
said case, notice of motion had already been issued and the interim protection had also been granted. It is further argued that even with respect to the second case, the
petitioner has been released on regular bail and the alleged recovery was only of 7 grams of heroin, which is very close to the small quantity as stipulated i.e. 5 grams. He
has also placed reliance upon the judgment of Hon'ble Supreme Court in “Maulana Mohd. Amir Rashadi vs. State of U.P. and anotherâ€, reported as 2012 (2) SCC 382
to contend that the facts and circumstances of the present case are to be seen and the bail application of the petitioner cannot be rejected solely on the ground that the
petitioner is involved in another case. The relevant portion of the said judgment is reproduced hereinbelow:-
“As observed by the High Court, merely on the basis of criminal antecedents, the claim of the second respondent cannot be rejected. In other words, it is the duty of the
Court to find out the role of the accused in the case in which he has been charged and other circumstances such as possibility of fleeing away from the jurisdiction of the
Court etc.â€
This Court has considered the arguments raised by learned counsel for the parties and has perused the paper book.
It is not in dispute that no recovery has been effected from the petitioner and the petitioner is sought to be implicated solely on the basis of disclosure statement of co-
accused namely, Karan Singh. Even from the said Karan Singh, recovery of 20 grams of Heroin has been effected, which is far less than the commercial quantity, as the
commercial quantity of heroin is 250 grams.
A Coordinate Bench of this Court in Mewa Singh's case (Supra) had passed the following order:-
“1. The petitioner has approached this Court seeking grant of anticipatory bail in a case registered against him vide FIR No.133 dated 24.11.2019 under
Section 21 NDPS Act Police Station Lohian, District Jalandhar.
2. Reply way of affidavit of Mr. Piara Singh, PPS, Deputy Superintendent of Police, Sub-Division Shahkot, District Jalandhar (Rural) on behalf of the
respondent-State has been filed, which is taken on record.
3. The allegations in nut-shell are that Bachittar Singh was found in possession of 1.7 Kgs. ‘Heroin’. During the course of interrogation, he made a
disclosure statement nominating the petitioner as an accused wherein he stated that the contraband in question had been supplied by the petitioner.
4. Learned counsel for the petitioner has submitted that he has falsely been implicated in the present case and was never arrested at the spot and that the
alleged disclosure statement is not worth credence.
5. Opposing the petition, learned State counsel has submitted that keeping in view the antecedents of the petitioner his complicity is clearly evident inasmuch as
he stands involved in three other cases i.e. FIR No.43 dated 2.4.2016 under Sections 15, 21, 22 NDPS Act, Police Station Sultanpur Lodhi; FIR No.5 dated
5.1.2020 under Sections 307, 186, 332, 353, 224, 225, 427, 148, 149 IPC, Police Station Sultanpur Lodhi & FIR No.193 dated 193 dated 22.11.2019 under
Sections 15, 21, 25, 29 NDPS Act, Police Station Kartarpur.
6. I have considered rival submissions addressed before this Court.
7. It is not disputed that the petitioner was never apprehended at the spot and that the only evidence against him is in the shape of disclosure statement, the
admissibility and veracity of which would be tested during the course of trial. As regards the other three cases which are stated to be pending against the
petitioner, the learned counsel for the petitioner has submitted that even in the said cases he has been falsely implicated and was never arrested at the spot and
has been granted anticipatory bail in all three cases.
8. Having regard to the facts and circumstances of the case and that it is a case where the petitioner has been nominated solely on the basis of disclosure
statement, the petition is accepted and it is ordered that the petitioner in the event of his arrest shall be released on bail subject to his furnishing personal
bonds and surety bonds to the satisfaction of Arresting/Investigating Officer. However, the petitioner shall join the investigation as and when called upon to do
so and cooperate with the Arresting/Investigating Officer and shall also abide by the conditions as provided under Section 438 (2) Cr.P.C.
9. It is however clarified that in case the petitioner does not join investigation, it shall be open to the investigating agency/prosecution to move for cancellation
of his bail.â€
Another Coordinate Bench of this Court in Daljit Singh' case (Supra) had passed the following order:-
“Petitioner seeks grant of anticipatory bail under Section 438 Cr.P.C. in case bearing FIR No.188 dated 08.04.2020 registered under Sections 15, 18, 27A,
29 of NDPS Act, under Sections 140, 188, 216, 419, 420, 467, 468, 471, 474 IPC and under Section 6 of Official Secret Act at Police Station Pehowa, District
Kurukshetra. Petitioner has been implicated on the basis of disclosure statement of co-accused from whom 248 kgs of poppy husk, 1 Kg 500 grams of opium
and 199 Kgs khas khas were recovered. FIR was registered on the basis of secret information, but still name of petitioner did not figure in the ruqa of the
police.
Notice of motion was issued on 27.05.2020 alongwith interim directions in favour of the petitioner to join the investigation.
Order dated 27.05.2020 is reproduced here as under:-
“On account of outbreak of covid-19 the instant matter is being taken up through video conferencing.
Instant petition has been filed under Section 438 Cr.PC for grant of anticipatory bail to the petitioner in FIR No.188 dated 8.4.2020 for the offences under
Section 15,18,27-A,29 of NDPS Act, 1985 at Police Station Pehowa, District Kurukshetra.
Learned counsel for the petitioner has inter alia contended that the petitioner is innocent and has been falsely implicated in the case only on the basis of
disclosure statement of co-accused from whom recovery of 248 kgs of poppy husk, 1 kg 500 grams of opium and 199 kgs.of khas khas was recovered. It has
been further contended that the factum of his false implication is further fortified from the fact that the recovery of the aforementioned narcotic contraband
was effected on the basis of secret information and his name did not figure either in the ruka sent by the police nor in the FIR in question coupled with the fact
that nothing was recovered from him. He is not even involved in any other case of similar nature.
Notice of motion for 10.7.2020.
On the asking of the Court, Mr. Saurabh Mohunta, DAG., Haryana accepts notice.
Meanwhile, petitioner is directed to join the investigation and appear before the investigating agency/Investigating Officer. On his appearance, he shall be
released on interim bail to the satisfaction of arresting/investigating officer. The petitioner shall, join the investigation as and when call for and shall abide by
the conditions specified under Section 438(2) Cr.P.C.
27.05.2020Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â
(MANJARI NEHRU KAUL)
Archana         Â
                                                                      Â
JUDGE
Thereafter, the case was adjourned for filing detailed reply on behalf of the State.
The stands of the State is that the petitioner was escorting the canter in which the contraband was present and he was assigned the duty of giving signal in case of
presence of police on the way.
Learned State counsel relies upon call details, tower location of the petitioner and the co-accused and also relies upon bank statement showing deposit of amount in the
account of co-accused. The material on which the learned State counsel relies upon is dependent upon the evidence to be led in that context at the relevant stage.
Petitioner has joined the investigation, but learned
State counsel seeks custody of the petitioner on the aforesaid premise.
Having heard learned counsel for the parties, I find that the petitioner having involved on the basis of disclosure statement of co-accused namely Balbir and Rajinder is hit
by the ratio of Tofan Singh vs State of Tamil Nadu, Criminal Appeal No.152 of 2013 wherein it has been observed that the officers who are invested with powers under
Section 53 of NDPS Act are the police officers within the meaning of Section 25 of the Evidence Act. Any confessional statement made before the police officer would
be hit by Section 25 of the Evidence Act. Statement under Section 67 of NDPS Act cannot be used as a confessional statement in the trial of an offence under NDPS
Act.
In view of aforesaid position, it would be just and appropriate to confirm order dated 27.05.2020, without meaning anything on the merits of the case.
Ordered accordingly.
However, the petitioner shall keep on joining the investigation as and when required to do so by the Investigating Officer and shall abide by the conditions as envisaged
under Section 438(2) Cr.P.C.
Petition stands disposed of.â€
Keeping in view the abovesaid facts and circumstances and also, in view of law laid down in Mewa Singh's case (Supra), Daljit Singh's case (Supra), Tofan Singh's case
(Supra) and Maulana Mohd. Amir Rashadi's case (Supra), the present petition is allowed and in the event of arrest, the petitioner is granted the concession of anticipatory
bail subject to his furnishing personal bonds and surety to the satisfaction of Arresting/Investigating Officer and the conditions envisaged under Section 438(2) of Cr.P.C.
However, the petitioner shall join the investigation as and when called upon to do so.
It is made clear, in case, the petitioner indulges in any criminal activity in future or fails to join the investigation, then the State would be at liberty to move an application for
cancellation of the present anticipatory bail granted to the petitioner.
Nothing stated above shall be construed as an expression of opinion on the merits of the case and the trial would proceed independently of the observations made in the
present case which are only for the purpose of adjudicating the present bail application.
