With respect to the call details, suffice to say that no dates on which the said calls had been allegedly made by the co-accused,
Rakesh Sharma and Ravdeep Singh alias Sheru to the petitioners or vice-versa have been mentioned in the affidavit or in the report under Section 173 Cr.P.C. Moreover, even the transcript of the said conversations are not a part of the record under Section 173 Cr.P.C. A Division Bench of this Court in Narcotics Control Bureau's case (supra), was pleased to observe as under:-
Still further, no conversation detail between accused
Ramesh Kumar Patil and accused Sandeep has been produced
by the prosecution. Mere call details is not sufficient to prove
that Sandeep accused was also involved in the business of
narcotic drugs or he had any connected with Ramesh Kumar
Patil. In view of the above, no case is made out for grant of
leave to appeal against the acquittal of Sandeep accused.”
In judgment of the Gujarat High Court in Yash Jayeshbhai
Champaklal Shah's case (supra), it has been observed as under:-
“Having heard learned advocates for the appearing parties, it
emerges on record that the applicant is not found in
possession of any contraband article. Over and above that,
the call data records may reveal that in an around the time of
incident, he was in contact with the co-accused who were
found in possession of contraband. Since there is no recording
of conversation in between the accused, mere contacts with the
co-accused who were found in possession cannot be treated to
be a corroborative material in absence of substantive material
found against the accused.”
A perusal of the above judgment would show that without the
transcript of the conversations exchanged between the co-accused, mere call details would not be considered to be corroborative material in absence of substantive material found against the accused.
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CRM-M-39657 of 2020 (O&M)
Vikrant Singh Vs. State of Punjab
CORAM:- HON'BLE MR. JUSTICE VIKAS BAHL
Author: VIKAS BAHL, J.
The present order will dispose of three criminal miscellaneous
applications filed under Section 439 Cr.P.C for grant of regular bail in FIR No.160 dated 18.09.2020 registered under Sections 21 and 22/ 22-61-85 of Narcotic Drugs and Psychotropic Substances Act, 1985 at Police Station Division No.1, District Pathankot.
The first Criminal Misc. Application CRM-M-39657 of 2020
is filed by Vikrant Singh. The second CRM-M-28448 of 2021 is filed by
Subash Chander @ Bittu. The third application CRM-M-26760 of 2021 is
filed by Davinder Singh.
Learned counsel for the parties have jointly stated that CRMM-
39657 of 2020 may be taken as the lead case. Thus, the facts are being taken for consideration from the said case.
Learned counsel for the petitioners have 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, and order passed by
Coordinate Bench of this Court dated 17.06.2020 in CRM-M-12051-2020
titled “Mewa Singh Vs. State of Punjab”, to contend that the statement
made before the Police is inadmissible in evidence.
Learned counsel for the petitioners have submitted that in the
present case, no recovery has been made from the petitioners. It is
submitted that the alleged recovery has been made from two persons i.e.
Rakesh Sharma and Ravdeep Singh @ Sheru. It is further submitted that
the petitioners have been implicated solely on the basis of the disclosure
statement of both the co-accused Rakesh Sharma and Ravdeep Singh @
Sheru and has submitted that even subsequent to the disclosure statement,
no recovery has been effected from the petitioners. It is further submitted
that the petitioners are not involved in any other case and they are in
custody since 06.11.2020 (Vikrant Singh), 05.12.2020 (Subash Chander) and 23.04.2021 (Davinder Singh) and in the present case, investigation is
complete and the challan has been presented. There are 32 witnesses, out of
which, one witness has been partially examined and, thus, the trial is likely
to take time.
Learned State Counsel, on the other hand, has opposed the
present petition for regular bail and has submitted that there are call details
of conversations exchanged between the three petitioners and the two coaccused
Rakesh Sharma and Ravdeep Singh alias Sheru, from whom the
recovery has been effected.
Learned Counsel for the petitioners, in rebuttal have submitted
that as per the affidavit and report under Section 173 Cr.P.C., there are no
details as to on what date, the alleged calls had been exchanged and at any
rate, there is no transcript of the said call details and have relied upon the
judgment of the Division Bench in CRM-A-1065-MA of 2016 – Narcotics
Control Bureau Vs. Sandeep , decided on 01.08.2018 as well as the
judgment of the Gujarat High Court reported in Yash Jayeshbhai
Champaklal Shah Vs. State of Gujarat, 2022 SCC Online Guj 271, to
contend that where there are no recordings of conversations exchanged
between the accused, then the same cannot be treated as corroborative
material in absence of substantive material found against the accused.
Reliance has also been placed on judgment of the Hon'ble Supreme Court in
Bharat Chaudhary Vs. Union of India – 2021 SCC Online SC 1235, to
argue that reliance placed on Whatsapp messages cannot be treated as
sufficient material to establish a live link between the accused in the case
when most of the scientific reports with respect to the said evidence are still
awaited.
This Court has heard learned counsel for the parties and
perused the record.
It is not in dispute that the petitioners have not been named in
the FIR. No recovery has been effected from the petitioners and the alleged
recovery has been effected from two co-accused Rakesh Sharma and
Ravdeep Singh alias Sheru. The petitioners are sought to be implicated
solely on the basis of the disclosure statement made by the co-accused
Rakesh Sharma and Ravdeep Singh @ Sheru and even after the petitioners
were arrayed as accused in pursuance of the disclosure statements, no
recovery had been made from the petitioners.
The petitioners have been in custody since 06.11.2020 (Vikrant
Singh), 05.12.2020 (Subash Chander) and 23.04.2021 (Davinder Singh) and
challan in the present case has already been presented and there are 32
witnesses, out of whom only one has been examined and thus, the trial is
likely to take time on account of Covid-19 Pandemic. The petitioners are
not involved in any other case. With respect to the call details, suffice to
say that no dates on which the said calls had been allegedly made by the coaccused,
Rakesh Sharma and Ravdeep Singh alias Sheru to the petitioners
or vice-versa have been mentioned in the affidavit or in the report under Section 173 Cr.P.C. Moreover, even the transcript of the said conversations are not a part of the record uner Section 173 Cr.P.C. A Division Bench of this Court in Narcotics Control Bureau's case (supra), was pleased to observe as under:-
Still further, no conversation detail between accused
Ramesh Kumar Patil and accused Sandeep has been produced
by the prosecution. Mere call details is not sufficient to prove
that Sandeep accused was also involved in the business of
narcotic drugs or he had any connected with Ramesh Kumar
Patil. In view of the above, no case is made out for grant of
leave to appeal against the acquittal of Sandeep accused.”
In judgment of the Gujarat High Court in Yash Jayeshbhai
Champaklal Shah's case (supra), it has been observed as under:-
“Having heard learned advocates for the appearing parties, it
emerges on record that the applicant is not found in
possession of any contraband article. Over and above that,
the call data records may reveal that in an around the time of
incident, he was in contact with the co-accused who were
found in possession of contraband. Since there is no recording
of conversation in between the accused, mere contacts with the
co-accused who were found in possession cannot be treated to
be a corroborative material in absence of substantive material
found against the accused.”
A perusal of the above judgment would show that without the
transcript of the conversations exchanged between the co-accused, mere call details would not be considered to be corroborative material in absence of substantive material found against the accused. In the present case, there is no other material against the petitioners. Keeping in view the above-said facts and circumstances, as well as law laid down in the judgments noticed hereinabove, the present petitions are allowed and the petitioners are ordered to be released on bail on their furnishing bail/surety bonds to the satisfaction of the concerned trial Court/Duty Magistrate and subject to their not being required in any other case.
However, nothing stated above shall be construed as a final
expression of opinion on the merits of the case and the trial would proceed
independently of the observations made in the present case which are only
for the purpose of adjudicating the present bail application.
All the pending applications, if any, stand disposed of.
April 06, 2022 ( VIKAS BAHL )
No comments:
Post a Comment