Punjab-Haryana High Court
Aakash vs State Of Haryana on 5 August, 2022
Author: Vikas Bahl
Bench: Vikas Bahl
CRM-M-34493-2022 -1-
103
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CRM-M-34493-2022
Date of decision : 05.08.2022
Aakash
...Petitioner
Versus
State of Haryana
...Respondent
CORAM: HON'BLE MR. JUSTICE VIKAS BAHL
Present: Mr. Raman Chawla, Advocate for the petitioner.
Mr. Praveen Bhadu, AAG, Haryana.
****
VIKAS BAHL, J. (ORAL)
Prayer in the present petition is for grant of anticipatory bail to the petitioner in FIR No.442 dated 08.06.2022 registered under Sections 21
(b)-61 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter to be referred as "the NDPS Act") at Police Station City Hisar, District Hisar.
Learned counsel for the petitioner has submitted that in the present case, the petitioner has not been named in the FIR and no recovery has been effected from him and the alleged recovery of 6.25 grams of heroin has been effected from co-accused namely, Pooja, who is the wife of the petitioner and it is further submitted that even the said quantity of 6.25 grams of heroin is far lesser than the commercial quantity stipulated as the 1 of 13 ::: Downloaded on - 09-08-2022 02:48:37 ::: CRM-M-34493-2022 -2- commercial quantity of the same starts from 250 grams and thus, bar under Section 37 of the NDPS Act would not apply.
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 Punjab", 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 and statement made by co-accused before the police is inadmissible in evidence.
Learned counsel for the petitioner has further contended that a perusal of the FIR would show that the alleged recovery effected from said Pooja is from a transparent coloured polythene bag and on the said aspect, reliance has been placed upon various orders passed by coordinate Benches of this Court in case titled as "Banti Kaur @ Bhanti Kaur Vs. State of Punjab, Binder Kaur @ Goga Vs. State of Punjab reported as 2021(3) RCR (Criminal) 360, Jaskaran Singh @ Jassu Vs. State of Punjab, reported as 2021(2) RCR (Criminal) 837, order dated 28.02.2020 passed in CRM-M-8026-2020 titled as Lakhwinder Singh @ Lakha Vs. State of Punjab, to contend that it is highly unlikely for a person who has to carry the contraband, to carry the same in a transparent polythene bag. It is further argued that the petitioner is not involved in any other case.
2 of 13 ::: Downloaded on - 09-08-2022 02:48:37 ::: CRM-M-34493-2022 -3- On the other hand, learned State Counsel has submitted that the recovery of 6.25 grams of heroin has been effected from the wife of the petitioner and the wife of the petitioner has named the present petitioner in her disclosure statement.
This Court has heard the learned counsel for the parties and has perused the paper book.
The Hon'ble Supreme Court in Tofan Singh's case (Supra), had observed as under:-
"152. Thus, to arrive at the conclusion that a confessional statement made before an officer designated under section 42 or section 53 can be the basis to convict a person under the NDPS Act, without any non obstante clause doing away with section 25 of the Evidence Act, and without any safeguards, would be a direct infringement of the constitutional guarantees contained in Articles 14, 20(3) and 21 of the Constitution of India."
A Coordinate Bench of this Court 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 ofPolice, 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
3 of 13 ::: Downloaded on - 09-08-2022 02:48:37 ::: CRM-M-34493-2022 -4- 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 4 of 13 ::: Downloaded on - 09-08-2022 02:48:37 ::: CRM-M-34493-2022 -5- 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." Another Coordinate Bench of this Court in Daljit Singh's 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 5 of 13 ::: Downloaded on - 09-08-2022 02:48:37 ::: CRM-M-34493-2022 -6- 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.
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CRM-M-34493-2022 -7-
27.05.2020 (MANJARI NEHRU KAUL)
archana 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.
7 of 13 ::: Downloaded on - 09-08-2022 02:48:37 ::: CRM-M-34493-2022 -8- 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."
In the present case, it is not dispute that the petitioner has not been named in the FIR and no recovery has been effected from him. The petitioner is stated to be not involved in any other case and the recovery effected from the wife of the petitioner namely, Pooja is 6.25 grams of heroin which is far lesser than the commercial quantity stipulated, as the commercial quantity of the same starts from 250 grams. The petitioner has been implicated only on the basis of disclosure statement of said Pooja. Moreover, there are arguable points involved in the present case inasmuch as the recovery from the said Pooja is stated to have been effected from a transparent polythene.
The coordinate Bench of this Court in Banti Kaur @ Bhanti Kaur's case (supra) has held as under:-
"1. The petitioner has approached this Court seeking grant of regular bail in respect of a case registered against her vide FIR No.191, dated 8.10.2020, Police Station Cantt Bathinda, District Bathinda, under Section 22 of NDPS Act, wherein it is alleged that the petitioner was caught red-handed while carrying a transparent plastic polythene bag which was found to contain 1000 tablets of 'Clovidol'.
2. Learned counsel for the petitioner submits that the petitioner has falsely been implicated in the instant case and that she has an unblemished record and is not involved in any other case and it is highly unlikely that any person who is carrying contraband would carry the same in a transparent bag so as to invite attention, including that the police.
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3. Opposing the petition, learned State counsel has not disputed the fact that the contraband is alleged to have been carried in a transparent plastic polythene bag. He has however, submitted that the weight of the total recovered contraband works out to 410 grams of 'Tramadol' which would fall within the category of 'commercial quantity'. Learned State counsel has however, informed that the petitioner is not involved in any other case and has presently been behind bars since the last about 9 months and 17 days.
4. I have considered rival submissions addressed before this Court.
5. It is not disputed that the contraband was alleged to have been carried by the petitioner in a transparent polythene bag. It is certainly highly unlikely that a person who is committing an offence in respect of any contraband would do it in such a manner that his/her detection is inevitable. Carrying contraband in a transparent polythene bag making it clearly visible to others would surely invite attention of everybody who passes by. In these circumstances the case of the prosecution is rather rendered suspect particularly in view of the fact that the petitioner is not even stated to be a previous convict and is a lady who has been behind bars since the last about 9 months. In view of the aforesaid discussion particularly the fact that the petitioner is a lady and is not even a previous convict, the petition is accepted and the petitioner is ordered to be released on bail subject to her furnishing bail bonds to the satisfaction of learned trial Court/Chief Judicial Magistrate/Duty Magistrate concerned.
2.8.2021 (GURVINDER SINGH GILL) JUDGE"
A perusal of the said judgment would show that although, in the said case, recovery was of commercial quantity but it was found that since recovery was effected from a transparent polythene bag, the same made the case of the prosecution doubtful and it was observed therein that as it was highly unlikely that a person who is committing an offence with 9 of 13 ::: Downloaded on - 09-08-2022 02:48:37 ::: CRM-M-34493-2022 -10- respect to some contraband, would carry said contraband in a transparent polythene bag.
A Coordinate Bench in Jaskaran Singh @ Jassu's case (supra), after considering several judgments on the same issue, had granted the concession of bail to the petitioner in that case. Relevant portion of the judgment is reproduced as under:-
"2. Relies upon the decision of this Court in Lakhwinder Singh alias Lakha vs. State of Punjab (CRM-M No.8026 of 2020) and of Co-ordinate Benches in Binder Kaur alias Goga vs. State of Punjab (CRM-M No.4584 of 2020) and Mandir Singh vs. State of Punjab (CRM-M No.8035 of 2019) to contend that a person engaged in the trade of contraband would never be expected to carry the same in any transparent bag which would be visible to the naked eyes.
3. Per contra, the bail application is opposed on behalf of the State by contending that the recovery of commercial quantity of contraband was made from the car of the petitioner himself.
4. Be that as it may, without prejudice to the merits of the submission raised on behalf of the petitioner, but considering that he is admittedly not involved in any other case under the NDPS Act, and also considering that he has remained in detention well above 05 months since 14.12.2019, at this stage, the petitioner may be released on regular bail to the satisfaction of the Ld. Trial Court/Duty Magistrate, concerned subject to imposition of appropriate terms and conditions."
Coordinate Bench of this Court in Binder Kaur @ Goga's case (supra), had held as under:-
"2. Learned counsel for the petitioner has vehemently argued that in the present case the petitioner has been falsely implicated. He has further stated that the petitioner is a young lady of 38 years of age, having a family and has good antecedents. He has further stated that there is no past history of the petitioner and she is not involved in any other case till
10 of 13 ::: Downloaded on - 09-08-2022 02:48:37 ::: CRM-M-34493-2022 -11- date. He has further contends that even as per the allegations contained in the FIR, the petitioner was carrying 1000 tablets containing Tramadol Hydrochloride salt in her hand, which was in a transparent polythene bag. Learned counsel states that the story put forward by the police is ex facie concocted because in case any person wishes to do the trading or to carry the contraband then it would never be put in a transparent bag. He has further pointed out that in the FIR it has been repeatedly recorded that bag was transparent in nature. He has further submitted that the petitioner is in custody since 08.11.2019.
xxx xxx xxx
4. Learned State counsel has filed the custody certificate of the petitioner by way of affidavit of Rajdeep Singh Brar, Deputy Superintendent, Central Prison, Faridkot. Same is taken on record. As per the custody certificate the petitioner is in custody for a period of 02 months and 27 days and there is no other case against her. He further submits that after completion of investigation and presentation of challan, the charges have also been framed by the trial Court.
xxx xxx xxx
6. At the time of deciding bail application there are various relevant factors, which can be taken into consideration. Prima facie probability of influencing witnesses is one of the element factor and also as to whether the petitioner is particularly involved in any other case is also a relevant factor. It is also relevant in any case for deciding the bail application as to what is the stage of the case. In the present case the investigation is already over and the petitioner is in custody for about three months and this Court while deciding the bail application would not go into the merits of the case. Nothing is apparent to show that petitioner may influence the witnesses. Therefore, without meaning any expression of opinion on the merits of the case, it is ordered that the petitioner be released on regular bail subject to her furnishing requisite bail bonds/surety bonds to the satisfaction of the trial Court."
A perusal of the above judgment would show that in fact, bail was granted on the said point in a case where the accused was in custody 11 of 13 ::: Downloaded on - 09-08-2022 02:48:37 ::: CRM-M-34493-2022 -12- only for a period of three months. Similarly, in Lakhwinder Singh @ Lakha's case (supra), Coordinate Bench of this Court had held has under:-
"2. Ld. Counsel for the Petitioner relies on a decision of a Co- ordinate Bench of this Court in 'CRM-M No.4584 of 2020- Binder Kaur alias Goga vs. State of Punjab', to contend that it is unbelievable that a person engaged in the business of Drug Smuggling, will carry the contraband in a transparent Bag. The applicant, in the aforesaid case, in the given circumstances, considering that she was not involved in any other case under the NDPS Act and challan against her had already been submitted, was therefore released on bail by the Bench after she had remained in detention for 02 months and 27 days.
3. The detention undergone by the present Petitioner is much more being 08 months, and he is also not stated to be involved in any other case under the NDPS Act.
4. Challan against the Petitioner has already been submitted and the trial is still pending.
5. As such, considering the long detention already undergone by the present Petitioner and without commenting on other merits of the case, he is ordered to be released on bail to the satisfaction of the Ld. Trial Court concerned.
6. Disposed off."
Keeping in view the abovesaid facts and circumstances and also in view of law laid down in the abovecited judgments, 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 fails to join the investigation or does not cooperate with the investigation, then the State would be at liberty to move an application for cancellation of the present 12 of 13 ::: Downloaded on - 09-08-2022 02:48:37 ::: CRM-M-34493-2022 -13- 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.
05.08.2022 (VIKAS BAHL)
Pawan JUDGE
Whether speaking/reasoned:- Yes/No
Whether reportable:- Yes/No
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