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2021 DIGILAW 1587 (PNJ)

Gurnam Singh @ Gola v. State Of Punjab

2021-08-16

VIKAS BAHL

body2021
JUDGMENT Vikas Bahl, J. - This is a first petition filed by the petitioner under Section 438 Cr.P.C for grant of anticipatory bail him in case FIR No.0073 dated 10.08.2020 (Annexure P-1) under Sections 22 and 29 of the NDPS Act, 1985 registered at Police Station Tallewal, District Barnala. 2. On 13.10.2020 when the matter had came up for hearing, a Coordinate Bench of this Court was pleased to pass the following order:- "This is a petition that has been filed for grant of anticipatory bail to the petitioners in the FIR No. 73 dated 10.08.2020 under Sections 22 and 29 of NDPS Act registered at Police Station Tallewal, District Barnala. It is inter-alia contended that the name of the petitioner is not reflected in the FIR and he has been nominated in the present case on the disclosure statement of co-accused from whom all recovery has already been effected and nothing is to be recovered from the petitioner herein while further stating that he is ready and willing to join the investigation. Notice of motion for 18.02.2021. Ms. Monika Jalota, DAG, Punjab appearing through the medium of video conferencing accepts notice on behalf of respondent-State. In the meanwhile, the petitioner is directed to join the investigation within a fortnight and on his doing so, in the event of arrest, the petitioner be released on interim bail, subject to his furnishing requisite bonds to the satisfaction of Arresting/Investigating Officer. However, the petitioner shall continue to join the investigation as and when called upon to do so and shall abide by the conditions incorporated under Section 438(2) Cr.P.C." 3. Learned counsel for the petitioner has submitted that petitioner joined the investigation and there is no other case against him. 4. Learned State counsel, on instructions from ASI Ranjit Singh, has stated that the petitioner has joined the investigation and is not required for custodial interrogation. 5. Learned counsel for the petitioner has relied upon an order passed by Coordinate Bench of this Court in CRM-M-12051-2020 dated 17.06.2020 titled as "Mewa Singh Vs. State of Punjab", in which in a case of recovery of 1.7 Kgs 'Heroin' a similar disclosure statement was made against the petitioner therein to the effect that he had supplied the contraband and in the said situation the petitioner therein was granted anticipatory bail. The relevant portion of the said order is reproduced hereinbelow:- "1. State of Punjab", in which in a case of recovery of 1.7 Kgs 'Heroin' a similar disclosure statement was made against the petitioner therein to the effect that he had supplied the contraband and in the said situation the petitioner therein was granted anticipatory bail. The relevant portion of the said order is reproduced hereinbelow:- "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. 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." 6. Learned counsel for the petitioner has also relied upon order of this Court dated 16.07.2021 passed in CRM-M-12997-2020 titled as "Daljit Singh Vs. State of Haryana". The relevant portion of the said order is reproduced hereinbelow:- "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 coaccused 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. 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. 27.05.2020 (MANJARI NEHRU KAUL) archana JUDGE Thereafter, the case was adjourned for filing detailed reply on behalf of the State. 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. 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 coaccused 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." 7. Learned State counsel has stated that the factum with respect to there being any other case against the petitioner as well as there being no recovery from the petitioner, has not been disputed. 8. In view of the above, the present petition is allowed and interim order dated 13.10.2020 is ordered to be made absolute. 9. However, nothing stated above shall be construed as an expression of opinion on the merits of the case.