The discretionary nature of pre-arrest bail and the admissibility of co-accused's statement were central to the judgment.

JUDGMENT

H.S. Madaan, J. - Case taken up through video conferencing.

2. This petition under Section 438 Cr.P.C. for pre-arrest bail has been filed by the petitioner - Prem Kumar aged about 31 years, an accused in FIR No.99 dated 7.5.2020 for the offences under Sections 21A, 27A (Act No.61) of NDPS Act and Sections 188, 269 IPC and Section 51(b) of Disaster Management Act, 2005, registered with Police Station City, Ratia, District Fatehabad.

3. Briefly stated, the facts of the case as per the prosecution story are that, on 7.5.2020, a police party from Police Station City, Ratia, District Fatehabad led by ASI Kailash Chander while present at T-point on Fatehabad - Ratia road within jurisdiction of P.S. City, Ratia intercepted one Bittu Ram son of Jagir Singh and recovered 5 gms. of heroin from his possession. The recovered contraband was seized. Accused was arrested. Formal FIR was registered. The investigation in the case started, during the course of which, accused Bittu Ram stated that he had purchased the recovered 5 gms. of heroin from the present petitioner for Rs.9,000/- and he further demarcated the place from where the heroin had been recovered.

4. Apprehending his arrest in this case, the petitioner had approached the Court of Sessions seeking grant of pre-arrest bail by filing an application, however, his such request was declined by learned Duty/Additional Sessions Judge, Fatehabad vide order dated 22.5.2020. As such, the petitioner has approached this Court by way of filing the present petition asking for similar relief, which is being opposed by the State counsel.

I have heard learned counsel for the parties besides going through the records.

5. Learned counsel for the petitioner has contended that the petitioner has nothing to do with the crime; no recovery was effected from him; he has been involved in this case in pursuance of disclosure statement of co-accused, which is not admissible in evidence. He further submits that the petitioner has joined the investigation in terms of the order passed by this Court dated 15.6.2020 granting him interim bail, therefore, his custodial interrogation is not required, as such he be granted pre-arrest bail.

6. Whereas learned State counsel has vehemently opposed the request contending that though the petitioner has joined the investigation but he has not rendered full cooperation and has not disclosed from where he had been procuring the drugs and to which persons he had been supplying the same. Therefore, his custodial interrogation is necessary and in case the same is denied to investigating agency, the investigation shall be greatly prejudiced.

7. After hearing the rival contentions and going through the record, I find that there is no merit in the petition. As far as contention of learned counsel for the petitioner that petitioner is innocent, that question is to be decided by the trial Court considering the evidence adduced before it by the prosecution, statement of accused under Section 313 Cr.P.C. and defence evidence, if any, produced by the accused. At this stage, this Court is to see whether there is some material to show involvement of the petitioner in the crime. Of course, there is statement of co-accused Bittu Ram recorded by the police to the effect that he had purchased the contraband from the present petitioner. The contention of learned counsel for the petitioner that such statement is not admissible in view of Section 24 of the Evidence Act, is without any merit. There is nothing on record to show that Bittu Ram had made statement under any threat or having been given any inducement etc.

8. With regard to admissibility of statement of co-accused, Section 30 of the Evidence Act, clarifies that when more person than one are being tried jointly for the same offence, and a confession made by one of such persons affecting himself and other of such persons is proved, the Court may take into consideration such confession as against such other person as well as agai