Research › Search › Judgment

Punjab High Court · body

2022 DIGILAW 1474 (PNJ)

Surjit Singh @ Sonu v. State Of Punjab

2022-08-08

VIKAS BAHL

body2022
JUDGMENT Vikas Bahl, J. (Oral). - This is a first petition under Section 439 Cr.P.C. for grant of regular bail in FIR No.239 dated 15.11.2017, registered under Sections 15/25/29/61/85 of the Narcotic Drugs & Psychotropic Substances Act, at Police Station Bagha Purana, District Moga. 2. Learned counsel for the petitioner has submitted that in the present case, the petitioner has been in custody since 31.07.2019 and there are total 15 prosecution witnesses, out of which, nine are yet to be examined and thus, the trial is likely to take time. Learned counsel for the petitioner has further submitted that secret information was received, in which, the petitioner along with five other persons had been named, but the petitioner was not apprehended at the spot nor any recovery has been effected from him. It is also submitted that even the alleged recovery has been effected from a truck, which was being driven by one Harjit Singh and as per the secret information, the petitioner was not in the said truck and was allegedly in a Scorpio car. It is argued that co-accused Harjit Singh had implicated the present petitioner in the case, but even after the arrest of the petitioner, no recovery has been effected from him. It is further submitted that other than the disclosure statement and the secret information, there is no incriminating evidence against the present petitioner and thus, has relied upon the judgment of Supreme Court in case titled as 'Tofan Singh vs. State of Tamil Nadu' reported as 2021(4) SCC 1 and judgment passed in CRM-M-12051-2020, by a Co-ordinate Bench of this Court dated 17.06.2020 titled as 'Mewa Singh Vs. State of Punjab' and the judgment passed in CRM-M-12997-2020 titled as 'Daljit Singh Vs. State of Haryana', to contend that merely on the basis of the disclosure statement, the petitioner cannot be denied the benefit of regular bail. 3. Learned State counsel, on the other hand, has opposed the present petition for regular bail and has submitted that in the present case, the petitioner was declared proclaimed offender and he was arrested after a lapse of 11/2 years. It is further submitted that petitioner is involved in two other cases and the recovery in the present case is of 1180 Kgs of poppy husk, which is a commercial quantity and thus, the bar under Section 37 of the NDPS Act would apply. 4. It is further submitted that petitioner is involved in two other cases and the recovery in the present case is of 1180 Kgs of poppy husk, which is a commercial quantity and thus, the bar under Section 37 of the NDPS Act would apply. 4. Learned counsel for the petitioner, in rebuttal, has submitted that the petitioner has been released on bail in one case and in another case regular bail application is pending and has relied upon the judgment of Hon'ble Supreme Court in 'Maulana Mohd. Amir Rashadi Vs. State of U.P. and another', reported as 2012 (2) SCC 382 to contend that the facts and circumstances of the present case are to be seen while deciding a bail application and the bail application of the petitioner cannot be rejected solely on the ground that the petitioner is involved in other cases. 5. 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.' 6. This Court has heard learned counsel for the parties and has perused the paper book. 7. 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.' 8. The Co-ordinate Bench of this Court in Mewa Singh' case (supra) has held as under: - '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. The Co-ordinate Bench of this Court in Mewa Singh' case (supra) has held as under: - '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.' 9. The relevant portion of Daljit Singh's (supra) judgment 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 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. 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) 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 coaccused. 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. 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.' 10. In the present case, the petitioner has been in custody since 30.07.2019 and there are total 15 prosecution witnesses, out of which, 9 are yet to be examined, thus, the trial is likely to take time. Although, the petitioner was named in the secret information, but he was not apprehended at the spot. Even a perusal of the FIR would show that as per the secret information, it was one Harjit Singh, who was the driver of the truck from which the alleged recovery has been effected and the present petitioner was stated to be in a Scorpio car. The question as to whether the petitioner could be stated to be in conscious possession of the contraband which was recovered from the truck or not, would be a moot point to be finally decided during the course of the trial. The question as to whether the petitioner could be stated to be in conscious possession of the contraband which was recovered from the truck or not, would be a moot point to be finally decided during the course of the trial. The petitioner has been implicated on the basis of disclosure statement of co-accused Harjit Singh, but no recovery has been made from him and even after his arrest on 30.07.2019, he has suffered long incarceration and keeping the petitioner in further incarceration would be violative of his rights under Article 21 of the Constitution of India. 11. Keeping in view the above-said facts and circumstances as well as the above-cited judgments, the present petition is allowed and the petitioner is ordered to be released on bail on his furnishing bail/surety bonds to the satisfaction of the concerned trial Court/ Duty Magistrate and subject to her not being required in any other case. The petitioner shall also abide by the following conditions:- 1. The petitioner will not tamper with the evidence during the trial. 2. The petitioner will not pressurize/intimidate the prosecution witness(s). 3. The petitioner will appear before the trial Court on the date fixed, unless personal presence is exempted. 4. The petitioner shall not commit an offence similar to the offence of which he is accused of, or for commission of which he is suspected. 5. The petitioner shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer or tamper with the evidence. 12. In case of breach of any of the above conditions, the prosecution shall be at liberty to move an application for cancellation of bail before this Court. 13. However, nothing stated above shall be construed as a final expression of opinion on the merits of the case and the trial Court would proceed independently of the observations made in the present case which are only for the purpose of adjudicating the present bail petition.