The inadmissibility of confessional statements made before police officers and the requirement of non obstante clause to convict a person under the NDPS Act without safeguards.

JUDGMENT

Vikas Bahl, J. (Oral). - Prayer in the present petition is for grant of anticipatory bail to the petitioner in FIR No.46 dated 24.04.2022 registered under Sections 21/22 of the Narcotic Drugs and Psychotropic Substances Act, 1985 at Police Station Jhabal, District Tarn Taran.

2. Learned counsel for the petitioner has submitted that in the present case, the petitioner has not been named in the FIR and the petitioner was not even apprehended on the spot and no recovery has been effected from the present petitioner and even the alleged recovery effected from the co-accused Gurjit Singh @ Kaka Bhalwan was of 45 grams of heroin, which is much lesser than the stipulated commercial quantity as the same starts from 250 grams. It is further contended that the petitioner is an Ex-Servicemen and is not involved in any other case and has only been implicated on the basis of the disclosure statement of the co-accused.

3. Learned counsel for the petitioner has relied upon the judgment passed by the Hon'ble Supreme Court in Tofan Singh Vs. State of Tamil Nadu, reported as 2021(1) RCR (Criminal) 1, an order passed by Coordinate Bench of this Court dated 17.06.2020 in CRM-M-12051- 2020 titled 'Mewa Singh Vs. State of Punjab', and an order of another Coordinate Bench dated 16.07.2021 passed in CRM-M-12997-2020 titled as 'Daljit Singh Vs. State of Haryana' 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 and statement made by co-accused before the police is inadmissible in evidence.

4. Notice of motion.

5. On advance notice, Mr. Sarabjit S. Cheema, AAG, Punjab, appears and accepts notice on behalf of the State and has submitted that he is fully prepared to argue the matter and assist this Court. He has opposed the present petition for grant of anticipatory bail to the petitioner and has submitted that the motorcycle which has been recovered from the co-accused was stated by the co-accused to have been given to him by the present petitioner and has further submitted that as per the statement of the said co-accused, it was the present petitioner who had given the contraband to the co-accused for selling.

6. Learned counsel for the petitioner, in rebuttal to the abovesaid argument, has submitted that the said motorcycle is in the ownership of one Somnath and not the present petitioner and the petitioner is sought to be falsely implicated in the case and at any rate, the motorcycle had also been recovered from Gurjit Singh @ Kaka Bhalwan.

7. This Court has heard the learned counsel for the parties and perused the record.

8. 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.'

9. 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 ofPolice, 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