Vikas Bahl, J. (Oral):— This is the first petition under Section 438 Cr.P.C. for grant of anticipatory/pre-arrest bail to the petitioner in FIR No. 169 dated 06.12.2021, registered under Sections 21 & 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (Section 29 of the NDPS Act added later on), at Police Station Boha, District Mansa.
2. Learned counsel for the petitioner has submitted that in the present case no recovery has been effected from the petitioner and he has only been implicated on the basis of disclosure statement made by co-accused, namely, Surjit Singh and Lakhpreet Singh, from whom the recovery of 10 grams of heroin has been made. It is submitted that the petitioner is not even remotely linked with the said recovery and he is not involved in any other case under the NDPS Act. It is also submitted that even the alleged recovery from the co-accused would not fall in the category of commercial quantity and in fact is marginally higher than the small quantity.
3. Learned counsel for the petitioner has relied upon an order passed by a Coordinate Bench of this Court dated 17.06.2020 in CRMM-12051-2020 titled “Mewa Singh v. 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. 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.”
4. Learned counsel for the petitioner has also relied upon order of a Co-ordinate Bench of this Court dated 16.07.2021 passed in CRM-M-12997-2020 titled as “Daljit Singh v. 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 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.
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.
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 v. 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.”
5. Learned counsel for the petitioner has relied upon the two abovesaid judgments 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.
6. Notice of motion.
7. On advance notice, Mr. K.S. Aulakh, DAG, Punjab, appears and accepts notice on behalf of the respondent-State and is fully prepared in the matter to assist the Court. He, on instructions from ASI Sukhdev Singh, has opposed the anticipatory bail application by stating that the source of the drugs is to be investigated from the petitioner and thus, his custodial interrogation is required. It is further submitted that the petitioner is involved in one more case under Sections 420 and 120 IPC, however, the fact that the petitioner is not involved other case under the NDPS Act and there is no material against the petitioner other than the disclosure statement of the co-accused, have not been disputed.
8. This Court has heard the learned counsel for the parties.
9. Keeping in view the above-said facts and circumstances, moreso, the fact that no recovery has been effected from the petitioner and he has only been involved on the basis of disclosure statement made by co-accused without there being any other connecting evidence and even the alleged recovery from the co-accused is 10 grams of heroin would not fall in the category of commercial quantity inasmuch as commercial quantity of heroin is 250 grams and in fact the said recovery of 10 grams of heroin is marginally higher than the small quantity of 5 grams of heroin and also keeping in view the law laid down by a Co-ordinate Bench of this Court in Mewa Singh's case (Supra) and Daljit Singh's case (Supra), this Court deems it appropriate that the present petition deserves to be allowed.
10. Accordingly, the present petition is allowed and in the event of arrest, the petitioner shall be released on bail subject to furnishing personal bonds and surety to the satisfaction of Arresting/Investigating Officer. The petitioner shall join the investigation as and when called upon to do so and shall abide by the conditions as provided under Section 438(2) of Cr.P.C.
11. However, nothing stated above shall be construed as a final 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.
12. It is further made clear that in case the petitioner does not cooperate with the investigation, then it will be open for the State to move an application for cancellation of the present bail.