The court emphasized that a person's involvement based solely on a co-accused's disclosure statement may not be sufficient to deny anticipatory bail under the NDPS Act.

JUDGMENT

Vikas Bahl, J. (Oral). - This is a first petition under Section 438 Cr.P.C. for grant of anticipatory bail to the petitioner in FIR no.224 dated 04.08.2022 registered under Section 15 of the Narcotic Drugs and Psychotropic Substances, Act, 1985 (in short 'NDPS Act') at Police Station Kalanwali, District Sirsa.

2. Learned counsel for the petitioner has submitted that the petitioner is a farmer and is doing agriculture work for the survival of his family and has to take care of his minor children as well as his aged mother and is the sole bread winner of his family after the death of his father. It is further submitted that in the present case, the petitioner has not been named in the FIR and no recovery has been effected from the petitioner and the alleged recovery of 3 kgs. of poppy husk, which is far lesser than the commercial quantity stipulated, as the commercial quantity starts from 50 kgs., has been effected from co-accused Ram Singh and thus, bar under Section 37 of the NDPS Act is not attracted in the present case and has submitted that the petitioner is sought to be implicated on the basis of disclosure statement of the said co-accused Ram Singh. Learned counsel for the petitioner has relied upon the judgment of the Hon'ble 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 coordinate Bench of this Court dated 17.06.2021 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 disclosure statement made before the police is inadmissible in evidence.

3. Learned State counsel, on the other hand, has opposed the present petition for anticipatory bail and has submitted that the co-accused Ram Singh, from whom recovery has been effected, had named the present petitioner in his disclosure statement and has further submitted that the petitioner is involved in one more case under the NDPS Act in FIR no.23 dated 02.03.2017 registered at Police Station Sadar Mansa.

4. Learned counsel for the petitioner, in rebuttal, has submitted that the petitioner is on bail in the said case 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. 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