Punjab-Haryana High Court
Dinesh Kumar Yadav vs Union Of India on 20 February, 2024
Author: Jasjit Singh Bedi
Bench: Jasjit Singh Bedi
Neutral Citation No:=2024:PHHC:023675
2024:PHHC:023675
CRM-M-42695-2023 ::1::
(227-a)
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
CRM-M-42695-2023 (O & M)
Date of decision: 20.02.2024
Dinesh Kumar Yadav .... Petitioner
V/s
Union of India through Intelligence Officer, NCB, Amritsar
...Respondent
CORAM: HON'BLE MR. JUSTICE JASJIT SINGH BEDI
Present: Mr. K.B.S. Mann, Advocate, for the petitioner.
Ms. Gurmeet Kaur Gill, Sr. Panel Counsel,
for UOI-NCB.
*****
JASJIT SINGH BEDI, J. (Oral)
The prayer in the present petition under Section 439 Cr.P.C. is for the grant of regular bail to the petitioner in case NCB Crime No.18/2023 dated 08.07.2023 under Sections 8, 18, 23, 25, 27-A, 29 and 60 of the NDPS Act, 1985 registered at NCB Sub Zone, Amritsar, District Amritsar.
2. The brief facts of the case are that on 08.07.2023, a team of NCB, Amritsar seized 03.860 kgs. Of opium from a Toyota Corolla Altis Car bearing Registration No.HR-44-H-9628 and arrested two persons, namely, Rajesh Kumar Yadav son of Sita Ram Yadav and Kulwinder Singh son of Angrej Singh. A case bearing NCB Crime No.18/2023 dated 08.07.2023 under Sections 8, 18, 23, 25, 27-A, 29 and 60 of the NDPS Act, 1985 came to be registered.
3. During investigation, the statements under Section 67 of the NDPS Act were recorded of both the accused persons i.e. Rajesh Kumar 1 of 9 ::: Downloaded on - 22-02-2024 04:48:20 ::: Neutral Citation No:=2024:PHHC:023675 2024:PHHC:023675 CRM-M-42695-2023 ::2::
(227-a) Yadav and Kulwinder Singh on 08.07.2023 itself. Rajesh Kumar Yadav disclosed that he was a trafficker of opium and used to purchase the same from one Inderdev resident of District Chatra of Sherghati of Bihar and used to sell the same in Punjab.
During remand, Rajesh Kumar Yadav escaped from the custody of the NCB on 10.07.2023 and an Fir No.184/2023 dated 11.07.2023 was registered at Police Station Civil Lines, Bathinda regarding the escape. Ultimately, he was found alongwith his associates Vikram Kumar Yadav and Dinesh Kumar Yadav (petitioner) and were all arrested on 14.07.2023.
During remand, all the four accused got recorded their statements under Section 67 of the NDPS Act from 15.07.2023 to 18.07.2023 and disclosed that the recovered contraband was to be delivered to Kuldeep Singh resident of Mukatsar and the seized vehicle also belonged to him.
It was also found during investigation that Dinesh Kumar Yadav (petitioner) had given shelter to Rajesh Kumar Yadav at his home and had also cut his handcuff with the help of a cutter. The handcuffs were also recovered from the residence of Dinesh Kumar Yadav.
On the basis of the CDR analysis from 01.03.2023 to 14.07.2023, all the mobile phones used by the accused Rajesh Kumar Yadav, Kulwinder Singh, Vikram Kumar Yadav, Kuldeep Singh and Dinesh Kumar Yadav were in contact with each other.
4. The learned counsel for the petitioner contends that the petitioner had been falsely implicated in the present case. He contends that the name of the petitioner figured in the disclosure statement of his co-accused which has little evidentiary value. Reliance is placed on the 2 of 9 ::: Downloaded on - 22-02-2024 04:48:21 ::: Neutral Citation No:=2024:PHHC:023675 2024:PHHC:023675 CRM-M-42695-2023 ::3::
(227-a) judgments in the cases of Tofan Singh 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, State of Haryana versus Samarth Kumar 2022 (3) RCR (Criminal) 991 and 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 in custody since 15.07.2023, none of the 23 prosecution witnesses had been examined so far and in the one other case registered against him vide FIR No.142 dated 25.07.2022 under Sections 18/61/85 NDPS Act, Police Station Kotbhai, he had been granted the concession of bail, he was entitled to the concession of bail in this case as well.
5. The learned counsel for the State has filed a reply dated 20.02.2024 which is taken on record. While referring to the said reply, she contends that in view of the serious nature of allegations levelled against the petitioner, he was not entitled to the concession of bail. She, however, concedes that the petitioner was named in the disclosure statement of his co-accused, is in custody since 15.07.2023, none of the 23 prosecution
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(227-a) witnesses had been examined so far and that in the one other case registered him, he had been granted the concession of bail.
6. I have heard the learned counsel for the parties.
7. 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.
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(227-a)
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 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."
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(227-a) (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 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
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(227-a) 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 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
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(227-a) 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 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)
8. 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 .
9. In the instant case, the petitioner is named in the disclosure statement of his co-accused. He is in custody since 15.07.2023 and none of 8 of 9 ::: Downloaded on - 22-02-2024 04:48:21 ::: Neutral Citation No:=2024:PHHC:023675 2024:PHHC:023675 CRM-M-42695-2023 ::9::
(227-a) the 23 prosecution witnesses have been examined so far. Therefore, the Trial of the present case is not likely to be concluded anytime soon. Hence, the further incarceration of the petitioner is not required as a prima facie satisfaction under Section 37 NDPS Act can be recorded in the aforementioned factual scenario.
10. Thus without commenting on the merits of the case, the present petition is allowed and the petitioner-Dinesh Kumar Yadav 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.
11. 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 cases mentioned in this order.
12. In addition, the petitioner (or anyone on his behalf) shall prepare an FDR in the sum of Rs.1,00,000/- 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.
13. The petition stands disposed of.
( JASJIT SINGH BEDI) JUDGE February 20, 2024 sukhpreet Whether speaking/reasoned : Yes/No Whether reportable : Yes/No Neutral Citation No:=2024:PHHC:023675 9 of 9 ::: Downloaded on - 22-02-2024 04:48:21 :::