In CRM-M-10926-2023-PUNJ HC- P&H HC grants bail to accused in NDPS case as contraband was not recovered from his conscious possession & he was confined in jail when recovery was effected
Justice Deepak Gupta [24-03-2023]

Read Order: MOHIT ALIAS DHANDI VS. STATE OF PUNJAB

Mansimran Kaur

Chandigarh, March 25, 2023: The Punjab and Haryana High Court has allowed a petition seeking regular bail under Section 439 of Cr.P.C., while observing that at the time when recovery of 500 grams of heroine and the weapons were effected, the petitioner was confined in Bhondsi Jail, Gurgaon and recovery was not effected from the conscious possession of the petitioner.

A  Single-Judge Bench of Justice Deepak Gupta allowed the present petition instituted by the petitioner in the present case,  seeking regular bail by way of this petition preferred under Section 439 Cr.P.C in case  of FIR registered under Section 120-B of IPC; Section 21 & 29 of NDPS Act and Section 25 of the Arms Act .

After completion of investigation, report under Section 173 Cr.P.C. was filed against petitioner Mohit alias Dandi and co-accused Pawan Nehra, though remaining accused namely Tilak Singh, Harkesh and Vinod Yadav were  yet to be arrested.

After considering the submissions from both the sides, the Court noted,   It is admitted position that at the time when recovery of 500 grams of heroine and the weapons was effected, the petitioner was confined in Bhondsi Jail, Gurgaon and thus, recovery   was not effected from the conscious possession of the petitioner.

 Even as per investigation carried out by the police, it emerged that contraband and the weapons were arranged by co-accused Pawan Nehra, who also intentionally leaked the information to the police. In these circumstances, whether on the basis of conspiracy, petitioner can be assumed to be in conscious possession of the contraband will be a moot point and subject matter of trial, the Court noted. 

Further reference was placed on the case Maulana Mohd Amir Rashadi v. State of U.P. wherein it was held that merely on the basis of criminal antecedents, the claim of the petitioner for grant of bail cannot be rejected and that 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 his fleeing away from the jurisdiction of the Court etc.

Another reference was placed on the case Tofan Singh v. State of Tamil Nadu, wherein it was held, “a confessional statement recorded under Section 67 of NDPS Act will remain inadmissible in trial of an offence under the NDPS Act. In view of the said legal position, the bail cannot be denied to the petitioner simply on the basis of disclosure statements suffered by him or his co-accused”. 

Further reference was made to judgment in Surinder Kumar Khanna v. Intelligence Officer Directorate of Revenue Intelligence, wherein it was held that confessional statement of co-accused recorded under Section 67 of the NDPS Act cannot by itself be taken as substantive piece of evidence and can at best be used or utilized in order to lend assurance to Court.

Thus, having regard to all the aforesaid facts and circumstances, particularly, the role attributed to the petitioner in the crime to the effect that contraband was not recovered from his conscious possession and at that time he was confined in jail, hence, without commenting anything further on the merits of the case, the Court opined that the petitioner should be admitted to bail on his furnishing bail bonds/surety bonds to the satisfaction of the Trial Court/Duty Magistrate concerned. 

Hence, in view of the observations stated above, the petition was accordingly allowed.