Anticipatory Bail Granted as Evidence Based on Co-Accused Disclosure and Informer Information Found Inadmissible Under New Laws

Chandigarh: The Punjab and Haryana High Court, in a significant ruling under the newly enacted Bharatiya Nyaya Sanhita (BNS), Bharatiya Nagarik Suraksha Sanhita (BNSS), and Bharatiya Sakshya Adhiniyam (BSA) , has granted anticipatory bail to an individual nominated in an FIR alleging organised crime. The court held that evidence based solely on a co-accused's disclosure statement made in police custody and privileged informer information lacked legal admissibility under the BSA, thus failing to establish a prima facie case for justifying custodial interrogation, particularly in the context of stringent organised crime provisions.

The judgment was delivered by Mr. Justice Anoop Chitkara , presiding over the anticipatory bail plea filed under Section 482 of the BNSS.

Case Background

The case originates from FIR No. 139 registered on July 11, 2024, at Police Station Islamabad, District Amritsar, under Sections 111, 310(4), 310(5) of BNS and Sections 25, 27 of the Arms Act, 1959. The FIR was lodged based on secret information alleging that six individuals had formed an organised crime gang involved in vehicle theft, extortion, dacoity, drug peddling, and possession of illegal weapons, and were planning a major crime.

A police raid on a hotel room led to the apprehension of five persons, with recoveries including country-made pistols, cartridges, and mobile phones. During police remand, co-accused Karan Singh alias Tinda made a disclosure statement claiming he had purchased a country-made pistol from his friend Pardeep Singh alias Kaka , who had further purchased it from the petitioner, Suraj Singh alias Noni. Karan Singh also stated that the petitioner had frequently borrowed the pistol for committing various snatchings and robberies. Based on this disclosure, the petitioner and Pardeep Singh were nominated as co-accused.

The petitioner, Suraj Singh alias Noni, approached the High Court seeking anticipatory bail, citing the potential for irreversible injustice from pre-trial incarceration. The State opposed the plea, relying on the co-accused's disclosure statement, the petitioner's criminal antecedents (listing two previous FIRs from 2016 and 2024), and the asserted need for custodial interrogation to uncover further crimes allegedly committed using the weapon.

Court's Analysis on Evidentiary Value

Justice Chitkara meticulously examined the evidence presented by the State against the petitioner in light of the new criminal laws, particularly the Bharatiya Sakshya Adhiniyam, 2023.

The court noted that the evidence against the petitioner primarily rested on two pillars: the initial secret information and the disclosure statement of co-accused Karan Singh .

Regarding the disclosure statement, the court referred to Section 23 of the BSA, which deals with the admissibility of confessions made to police officers and while in police custody.

• Section 23(1) BSA: Prohibits the proof of a confession made to a police officer against an accused.
• Section 23(2) BSA: States that a confession made by a person in police custody cannot be proved against them unless made in the immediate presence of a Magistrate.
• Proviso to Section 23(2): Allows so much of information received from a person in police custody as relates distinctly to a fact discovered in consequence of such information to be proved, whether it amounts to a confession or not.

The court observed that the State's reply detailing Karan Singh 's disclosure statement did not point towards the discovery of any 'fact' as defined under Section 2(f) of the BSA. Section 2(f) defines "fact" broadly, including perceived things, mental conditions, arrangements of objects, sensing something, or saying certain words. However, the court found that merely stating where a weapon was obtained or who used it previously, without leading to the actual discovery of the weapon or other corroborating physical evidence directly attributable to the petitioner based on that specific disclosure, did not satisfy the proviso to Section 23.

The court concluded, "A perusal of the reply does not point towards the discovery of any fact, as defined in S. 2(f) BSA, to bring the above-referred confessions within the purview of the Proviso to S. 23 BSA. Thus, the disclosure statement made by the accused, Karan Singh , cannot be proved in evidence and thus has no evidentiary value."

Next, the court addressed the initial secret information received by the police. Referring to Section 131 of the BSA, which provides a privilege to Magistrate or police officers regarding the source of their information about the commission of an offence, the court noted that such officers cannot be compelled to reveal their source. "S. 131 is a privilege granted to the officers... and thus, they cannot be compelled to name their source. Thus, this evidence can also not be proved."

Lack of Prima Facie Admissible Evidence for Organised Crime

The court then turned to the applicability of Section 111 of the BNS, which defines and penalizes 'organised crime'. The court emphasized that to bring an offence within the ambit of organised crime, there must be legally admissible prima facie evidence demonstrating 'continuing unlawful activity' by an 'organised crime syndicate' as defined in Section 111.

The judgment stressed that the State must first gather legally admissible prima facie evidence to establish a case under Section 111 BNS before seeking custodial interrogation. The court unequivocally stated, "Without legally admissible primafacie evidence, the State cannot make any suspect undergo custodial interrogation to hunt for such evidence against the suspect or others... Without legally admissible accusations, allegations, or evidence, the State cannot arrest a suspect to fish evidence against them or use such a suspect as custodial bait... Prima facie evidence must be admissible, and if such evidence is deemed inadmissible, the entire foundation will collapse."

Finding that the evidence presented against the petitioner (co-accused disclosure and informer information) was legally inadmissible under the BSA, the court held, "There is no prima facie legally admissible evidence collected so far to make out an offence against the petitioner punishable under S. 111 of BSA." (Note: The judgment text refers to S. 111 of BSA, but it appears to mean S. 111 of BNS, as BSA deals with evidence, not penal provisions).

Conclusion

Based on the lack of legally admissible prima facie evidence to support the charges invoked against the petitioner, the court found no justification for custodial interrogation or pre-trial incarceration at this stage.

Granting anticipatory bail, the court stipulated several conditions: * The petitioner must furnish bonds to the satisfaction of the Arresting Officer or concerned court/magistrate. * Provide personal identification details like AADHAR , Passport (if available), mobile, and email. * Join the investigation within seven days and whenever called. * Be in deemed custody for the purpose of Section 27 of the Indian Evidence Act (or Proviso to Section 23 of BSA). * Cooperate with the investigation at all stages. * Not tamper with evidence or influence witnesses/police officials. * Abide by statutory bond conditions and appear before the court on all dates.

The court clarified that its observations are not an expression of opinion on the case's merits and should not be considered by the trial court.

This ruling highlights the critical importance of legally admissible evidence under the new criminal laws for establishing a prima facie case, particularly for serious charges like organised crime, and underscores that arrests and custodial interrogation cannot be used merely to gather or "fish" for evidence.