Punjab-Haryana High CourtVishal@Monu vs State Of Haryana on 6 July, 2022Author:Vikas BahlBench:Vikas BahlCRM-M-27771-2022\n\n\n\n234\n      IN THE HIGH COURT OF PUNJAB AND HARYANA AT\n                     CHANDIGARH\n\n\n                                                 CRM-M-27771-2022.\n                                                 Decided on : July 06, 2022.\n\n\nVishal @ Monu\n\n                                                                     ...Petitioner\n\n                                        Versus\n\nState of Haryana\n\n                                                                   ...Respondent\n\nCORAM: HON'BLE MR. JUSTICE VIKAS BAHL\n\nPresent:    Mr.Parminder Singh Sekhon, Advocate for the petitioner.\n\n            Mr.Munish Sharma, AAG, Haryana.\n\n            ****\n\nVIKAS BAHL, J. (ORAL)This is the first petition filed underSection 439Cr.P.C.,\n\npraying for the grant of regular bail to the petitioner in FIR No.41 dated\n\n13.02.2022, underSections 22-C,27-Aand29of the Narcotic Drugs and\n\nPsychotropic Substances Act, 1985, registered at Police Station Jakhal,\n\nDistrict Fatehabad.Learned counsel for the petitioner has submitted that neither the\n\npetitioner is named in the FIR nor any recovery has been effected from the\n\npetitioner and the alleged recovery is from the co-accused Major Singh and\n\nSandeep Kumar and the present petitioner has been implicated only on the11 of 8::: Downloaded on - 09-07-2022 04:24:08 :::CRM-M-27771-2022\n\n\n\nbasis of disclosure statements made by the other co-accused and even after\n\nthe disclosure statements, no recovery has been effected from the petitioner.It is further submitted that petitioner is not involved in any other case and\n\nthe petitioner has been in custody since 16.2.2022 and since the challan has\n\nnot been presented as yet, thus, the conclusion of trial is likely to take time.Learned counsel for the State, on the other hand, has submitted\n\nthat recovery from the co-accused Major Singh and Sandeep Kumar, is a\n\nheavy quantity and the said persons had made disclosure statements\n\nimplicating the present petitioner and therefore, petitioner does not deserve\n\nthe concession of regular bail.This Court has heard the learned counsel for the parties and has\n\nperused the paper book.The Hon'ble Supreme Court in Tofan Singh's case (Supra), had\n\nobserved as under:-"152. Thus, to arrive at the conclusion that a confessional\n                statement made before an officer designated undersection\n                42orsection 53can be the basis to convict a person under\n                theNDPS Act, without any non obstante clause doing away\n                withsection 25of the Evidence Act, and without any\n                safeguards, would be a direct infringement of the\n                constitutional guarantees contained inArticles 14, 20(3)and21of the Constitution of India."A Coordinate Bench of this Court Mewa Singh's case (Supra),\n\nhad passed the following order-22 of 8::: Downloaded on - 09-07-2022 04:24:09 :::CRM-M-27771-2022\n\n\n\n           "1.    The petitioner has approached this Court seeking\n           grant of anticipatory bail in a case registered against him\n           vide FIR No.133 dated 24.11.2019 underSection 21NDPS\n           Act Police Station Lohian, District Jalandhar.2.     Reply way of affidavit of Mr. Piara Singh, PPS,\n           Deputy Superintendent ofPolice, Sub-Division Shahkot,\n           District Jalandhar (Rural) on behalf of the respondent-State\n           has been filed, which is taken on record.3.     The allegations in nut-shell are that Bachittar Singh\n           was found in possession of 1.7 Kgs. 'Heroin'. During the\n           course of interrogation, he made a disclosure statement\n           nominating the petitioner as an accused wherein he stated\n           that the contraband in question had been supplied by the\n           petitioner.4.     Learned counsel for the petitioner has submitted that\n           he has falsely been implicated in the present case and was\n           never arrested at the spot and that the alleged disclosure\n           statement is not worth credence.5.     Opposing the petition, learned State counsel has\n           submitted that keeping in view the antecedents of the\n           petitioner his complicity is clearly evident inasmuch as he\n           stands involved in three other cases i.e. FIR No.43 dated\n           2.4.2016 underSections 15,21,22NDPS Act, Police Station\n           Sultanpur Lodhi; FIR No.5 dated 5.1.2020 underSections\n           307,186,332,353,224,225,427,148,149IPC, Police\n           Station Sultanpur Lodhi & FIR No.193 dated 193 dated\n           22.11.2019 underSections 15,21,25,29NDPS Act, Police\n           Station Kartarpur.6.     I have considered rival submissions addressed before\n           this Court.33 of 8::: Downloaded on - 09-07-2022 04:24:09 :::CRM-M-27771-20227.     It is not disputed that the petitioner was never\n               apprehended at the spot and that the only evidence against\n               him is in the shape of disclosure statement, the admissibility\n               and veracity of which would be tested during the course of\n               trial. As regards the other three cases which are stated to be\n               pending against the petitioner, the learned counsel for the\n               petitioner has submitted that even in the said cases he has\n               been falsely implicated and was never arrested at the spot\n               and has been granted anticipatory bail in all three cases.8.     Having regard to the facts and circumstances of the\n               case and that it is a case where the petitioner has been\n               nominated solely on the basis of disclosure statement, the\n               petition is accepted and it is ordered that the petitioner in\n               the event of his arrest shall be released on bail subject to his\n               furnishing personal bonds and surety bonds to the\n               satisfaction of Arresting/Investigating Officer. However, the\n               petitioner shall join the investigation as and when called\n               upon      to    do       so   and      cooperate    with     the\n               Arresting/Investigating Officer and shall also abide by the\n               conditions as provided under Section 438 (2) Cr.P.C.9.     It is however clarified that in case the petitioner does\n               not join investigation, it shall be open to the investigating\n               agency/prosecution to move for cancellation of his bail."\n            Another Coordinate Bench of this Court in Daljit Singh's case\n\n(Supra), had passed the following order:-"Petitioner seeks grant of anticipatory bail underSection 438Cr.P.C. in case bearing FIR No.188 dated\n               08.04.2020 registered underSections 15,18,27A,29of\n               NDPS Act, under Sections 140, 188, 216, 419, 420, 467,44of 8::: Downloaded on - 09-07-2022 04:24:09 :::CRM-M-27771-2022\n\n\n\n           468, 471, 474IPCand underSection 6of Official Secret Act\n           at Police Station Pehowa, District Kurukshetra.Petitioner has been implicated on the basis of\n           disclosure statement of co-accused from whom 248 kgs of\n           poppy husk, 1 Kg 500 grams of opium and 199 Kgs khas\n           khas were recovered.FIR was registered on the basis of secret information,\n           but still name of petitioner did not figure in the ruqa of the\n           police.Notice of motion was issued on 27.05.2020 alongwith\n           interim directions in favour of the petitioner to join the\n           investigation.Order dated 27.05.2020 is reproduced here as under:-"On account of outbreak of covid-19 the\n                        instant matter is being taken up through video\n                        conferencing.Instant petition has been filed underSection 438Cr.PC for grant of anticipatory bail\n                        to the petitioner in FIR No.188 dated 8.4.2020\n                        for the offences underSection 15,18,27-A,29of\n                        NDPS Act, 1985 at Police Station Pehowa,\n                        District Kurukshetra.Learned counsel for the petitioner has\n                        inter alia contended that the petitioner is\n                        innocent and has been falsely implicated in the\n                        case only on the basis of disclosure statement of\n                        co-accused from whom recovery of 248 kgs of\n                        poppy husk, 1 kg 500 grams of opium and 199\n                        kgs.of khas khas was recovered. It has been\n                        further contended that the factum of his false55 of 8::: Downloaded on - 09-07-2022 04:24:09 :::CRM-M-27771-2022\n\n\n\n                        implication is further fortified from the fact that\n                        the recovery of the aforementioned narcotic\n                        contraband was effected on the basis of secret\n                        information and his name did not figure either\n                        in the ruka sent by the police nor in the FIR in\n                        question coupled with the fact that nothing was\n                        recovered from him. He is not even involved in\n                        any other case of similar nature.Notice of motion for 10.7.2020.On the asking of the Court, Mr. Saurabh\n                        Mohunta, DAG., Haryana accepts notice.Meanwhile, petitioner is directed to join\n                        the investigation         and      appear     before   the\n                        investigating agency/Investigating Officer. On\n                        his appearance, he shall be released on interim\n                        bail to the satisfaction of arresting/investigating\n                        officer.       The    petitioner     shall,    join    the\n                        investigation as and when call for and shall\n                        abide by the conditions specified underSection\n                        438(2)Cr.P.C.27.05.2020              (MANJARI NEHRU KAUL)\n                        archana                               JUDGEThereafter, the case was adjourned for filing detailed\n           reply on behalf of the State.The stands of the State is that the petitioner was\n           escorting the canter in which the contraband was present\n           and he was assigned the duty of giving signal in case of\n           presence of police on the way.Learned State counsel relies upon call details, tower\n           location of the petitioner and the co-accused and also relies66 of 8::: Downloaded on - 09-07-2022 04:24:09 :::CRM-M-27771-2022\n\n\n\n           upon bank statement showing deposit of amount in the\n           account of co-accused. The material on which the learned\n           State counsel relies upon is dependent upon the evidence to\n           be led in that context at the relevant stage.Petitioner has joined the investigation, but learned\n           State counsel seeks custody of the petitioner on the aforesaid\n           premise.Having heard learned counsel for the parties, I find\n           that the petitioner having involved on the basis of disclosure\n           statement of co-accused namely Balbir and Rajinder is hit\n           by the ratio of Tofan Singh vs State of Tamil Nadu,\n           Criminal Appeal No.152 of 2013 wherein it has been\n           observed that the officers who are invested with powers\n           underSection 53of NDPS Act are the police officers within\n           the meaning ofSection 25of the Evidence Act. Any\n           confessional statement made before the police officer would\n           be hit bySection 25of the Evidence Act. Statement underSection 67of NDPS Act cannot be used as a confessional\n           statement in the trial of an offence underNDPS Act.In view of aforesaid position, it would be just and\n           appropriate to confirm order dated 27.05.2020, without\n           meaning anything on the merits of the case.Ordered accordingly.However, the petitioner shall keep on joining the\n           investigation as and when required to do so by the\n           Investigating Officer and shall abide by the conditions as\n           envisaged under Section 438(2) Cr.P.C.Petition stands disposed of."In the present case, it is not in dispute that the petitioner is not77 of 8::: Downloaded on - 09-07-2022 04:24:09 :::CRM-M-27771-2022\n\n\n\nnamed in the FIR and no recovery has been effected from him. The alleged\n\nrecovery has been effected from the co-accused of the petitioner namely\n\nMajor Singh and Sandeep Singh and it is only on the basis of disclosure\n\nstatements of co-accused that the petitioner has been implicated in the\n\npresent case. Ever after the disclosure statements of co-accused, no recovery\n\nhas been effected from the petitioner. The petitioner is stated to be not\n\ninvolved in any other case. The petitioner is in custody since 16.2.2022 and\n\nthe investigation of the case and conclusion of trial is likely to take time.Keeping in view the above said facts and circumstances and\n\nalso in view of law laid down in the above cited judgments, the present\n\npetition is allowed and it is ordered that the petitioner shall be released on\n\nbail on his furnishing bail bonds/surety bonds to the satisfaction of the\n\nlearned trial Court/Duty Magistrate in case not required in any other case.Nothing stated above shall be construed as an expression of\n\nopinion on the merits of the case and the trial would proceed independently\n\nof the observations made in the present case which are only for the purpose\n\nof adjudicating the present bail application.July 06, 2022.                                  (VIKAS BAHL)\nraj arora                                           JUDGE\n\n             Whether speaking/reasoned:- Yes/No\n             Whether reportable:-        Yes/No88 of 8::: Downloaded on - 09-07-2022 04:24:09 :::