Punjab-Haryana High Court
Gurcharan Singh Alias Channi vs State Of Punjab on 29 October, 2024
Author: Anoop Chitkara
Bench: Anoop Chitkara
Neutral Citation No:=2024:PHHC:142394
CRM-M-47036-2024
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CRM-M-47036-2024
Reserved on: 16.10.2024
Pronounced on: 29.10.2024
Gurcharan Singh @ Channi ...Pe oner
Versus
State of Punjab ...Respondent
CORAM: HON'BLE MR. JUSTICE ANOOP CHITKARA
Present: Ms. Riffi Birla, Advocate,
for the pe oner.
Mr. Akshay Kumar, AAG, Punjab.
****
ANOOP CHITKARA, J.
FIR No. Dated Police Sta1on Sec1ons
39 15.03.2024 Sadar Ferozepur 18-A/25/27-A of NDPS Act and Sec ons
25/54/59 of Arms Act (Sec on 29 of NDPS
Act and Sec ons 11 & 12 of Aircra; Act
added later on).
1. The pe oner incarcerated for 100 grams opium, one pistol along with 4 live cartridges and Rs.7 lakh cash termed as drug money by the Police, without any primafacie evidence to such an extent that how the money was proceeds of drug's sale, has come up before this Court under Sec on 483 of Bhara ya Nagarik Suraksha Sanhita, 2023, [BNSS], seeking regular bail.
2. As per paragraph 17 of the bail applica on and as per paragraph 11 of the status report, the accused has the following criminal antecedents:
Sr. No. FIR No. Dated Offenses Police Sta1on 1. 28 18.02.2015 21/25/29/61/85 of NDPS Act Sadar Fazilka
3. The facts and allega ons are taken from para 4 of the status report filed by the State, which reads as follows:
"4. That on 15.03.2024, the Police officers of Police Sta on Sadar, Ferozepur in connec on with patrolling and checking of suspicious persons were on official vehicle bearing NO.PB-05-AB-0868 and were going from CIA Ferozepur to Hussaini Wala, Jhugge Hazara Singh Wala, 1 1 of 8 ::: Downloaded on - 02-11-2024 03:04:01 ::: Neutral Citation No:=2024:PHHC:142394 CRM-M-47036-2024 Ga4 Rajoke, Bas an etc. and when the police party was about one kilometer behind the village Jhugge, they saw an i20 car coming at a high speed and on the basis of suspicion, the Inves ga ng Officer stopped the official vehicle and signalled the said vehicle to stop, the car driver applied the brakes and tried to turn the car back, but due to high speed of the car, it went into the wheat fields and stopped. Whereon, the Inves ga ng Officer with the officials apprehended two youths, who were in the 1-20 Car bearing No.PB-05-AQ-6787 and inquired about their name and addresses. Therea<er, the driver of the car disclosed his name as Gurcharan Singh @ Channi (pe oner) son of Surjit Singh, resident of Village Jhugge Hazara Singh wala, Police Sta on Sadar Ferozepur and the person on conductor seat disclosed his name as Boota Singh son of Jaila Singh, resident of Village Dule ke Nathu Wala, Police Sta on Guru Harsahai, District Ferozepur. The Inves ga ng Officer tried to join the public witness, but no one was found, and on searching the car a cloth bag type polythene color orange was recovered under the driver's seat. On checking the polythene, 14 bundles of Notes of Indian currency were recovered, in each bundle there were notes of Rs.500. Also two transparent polythene wrapped with opium were recovered, the recovered opium was weighed on an electronic scale and yielded 100 grams of opium same was put into a plas c box and prepared the parcel and the Inves ga ng Officer seal with his seal impression 'S.S' and sample seal prepared separately. A<er coun ng the money, which was recovered it was found to be total INR 7,00,000/- lakh (this being a profit from selling opium), was placed in a separate plas c box and the Inves ga ng Officer sealed the parcel with the seal impression of 'S.S.' Beneath the seat of the car a pistol with 'CAL 30 MADE AS CHINA' wriHen on the slide of the pistol was also recovered. On unloading the pistol 4 live cartridges of 30 bore were recovered and on the boHom side of the cartridges '7.62 x 25 22 S&B' was men oned. The sketch of the recovered pistol was drawn and prepared the parcel and it was sealed with a seal impression of 'S.S' of the Inves ga ng Officer. Above three case property parcels were taken into police possession with separate memos. That the apprehended accused had kept the Opium, Drug Money and illegal weapon/ammuni on in their possession and commiHed the offence(s) under sec on 18-A, 25, 27-A of NDPS Act and 25 Arms Act and as per made out offence(s) the case FIR No. 39 dated 15/03/2024 under sec on 18- A, 25, 27-A NDPS Act and sec on 25 of 2 2 of 8 ::: Downloaded on - 02-11-2024 03:04:02 ::: Neutral Citation No:=2024:PHHC:142394 CRM-M-47036-2024 Arms Act was registered at Police Sta on Sadar Ferozepur, District Ferozepur against the Gurcharan Singh @ Channi (pe oner) son of Surjit Singh, resident of Jhugge Hazara Singh Wala, District Ferozepur and Boota Singh son of Jaila Singh resident of Dale Ke Nathu Wala, Guru Harsahai, Ferozepur, District Ferozepur."
4. Thus, in addi on to the 100 grams of opium, the police also recovered Rs.700,000, which the police termed as drug money, and based on such self-declara on, inserted S. 27-A along with S. 18 of the NDPS Act. The Inves gator claims to have complied with all the statutory requirements of the NDPS Act, 1985, and CrPC, 1973.
5. The pe oner's counsel prays for bail by imposing any stringent condi ons and contends that further pre-trial incarcera on would cause an irreversible injus ce to the pe oner and his family.
6. The State's counsel opposes bail and refers to the status report.
7. It would be appropriate to refer to the following por ons of the status report, which read as follows:
"ROLE OF PETITIONER
7. That it is most respecNully submiHed that on the basis of the explained circumstances above, it is clear that the pe oner is a habitual offender and indulged in selling the drug substance i.e. heroin/Opium etc. also keeps the illegal weapons and arms ammuni on by ordering and ge4ng the same from the Pakistani smugglers. On the day, when the pe oner alongwith his co-accused were apprehended by the police, the pe oner was driving the car bearing registra on no.PB-05-AQ-6787 from where the recovery of opium, currency notes/drug money, pistol and cartridges were recovered.
EVIDENCE AGAINST PETITIONER
8. That so far as the evidence against the pe oner is concerned, he was apprehended at the spot alongwith co-accused having drug money, ammuni on and opium in their conscious possession.
9. That during interroga on, the pe oner also suffered disclosure statement that the opium, pistol, cartridges and the drug money which was recovered from him and his co-accused Boota Singh, the same was brought by him, Boota Singh, Sunil Kumar son of Hans Raj and a friend of Sunil Kumar from Pakistani Smugglers through Drone."
8. Dealing in 100 grams of opium is a punishable offense under the NDPS Act in the 3 3 of 8 ::: Downloaded on - 02-11-2024 03:04:02 ::: Neutral Citation No:=2024:PHHC:142394 CRM-M-47036-2024 following terms:
Substance Name "Opium"
Quan ty detained 100 Gram
Quan ty type Intermediate
Drug Quan ty in % to upper limit
4.00%
of Intermediate
Specified as small & Commercial in S.2(viia) & 2(xxiiia) NDPS Act, 1985 No fica on No S.O.1055(E) Dated 10/19/2001 Sr. No. 92 Common Name (Name of Narco c Drug and Psy-
chotropic Substance (Interna- Opium
onal non-proprietary name
(INN)
Other non-proprietary name ******
Chemical Name And any prepara on containing opium
Small Quan ty 25 Gram
Commercial Quan ty 2500 Gram
0
Declared as punishable under NDPS Act and as per schedule defined in S.2(xi) & 2(xxiii) NDPS Act, 1985 No fica on No S.18 & S.2(xv) NDPS Act, S.O.821(E) Dated 11/14/1985 Sr. No. S.2(xv) Common Name (Name of Narco c Drug and Psy-
chotropic Substance (Interna- ****** onal non-proprietary name (INN) Other non-proprietary name ****** Chemical Name S.2(xv) "opium" means--
(a) the coagulated juice of the opium poppy; and
(b) any mixture, with or without any neutral material, of the coagulated juice of the opium poppy, but does not include any prepara on containing not more than 0.2 per cent. of morphine; S.2 (xvii) "opium poppy" means--
(a) the plant of the species Papaver somniferum L;
and
(b) the plant of any other species of Papaver from which opium or any phenanthrene alkaloid can be ex- tracted and which the Central Government may, by no fica on in the Official GazeSe, declare to be opium poppy for the purposes of this Act;
Explana on.-- For the purposes of clauses (v) (vi), (xv) and (xvi) the percentages in the case of liquid prepara ons shall be calculated on the basis that a prepara on containing one per cent. of a substance means a prepara on in 4 4 of 8 ::: Downloaded on - 02-11-2024 03:04:02 ::: Neutral Citation No:=2024:PHHC:142394 CRM-M-47036-2024 which one gram of substance, if solid, or one mililitre of substance, if liquid, is contained in every one hundred mililitre of the prepa-
ra on and so on in propor on for any greater or less percentage:
Provided that the Central Government may, having regard to the developments in the field of methods of calcula ng percentages in liquid prepara ons prescribed, by rules, any other basis which it may deem appropriate for such calcula on.
9. Given this, the rigors of S. 37 of the NDPS Act do not apply regarding recovery of heroin.
10. Sec on 2 (vii-a) of the NDPS Act defines commercial quan ty as the quan ty greater than the quan ty specified in the schedule. Sec on 2 (xxiii-a) defines a small quan ty as a quan ty less than the quan ty specified in the table of the NDPS Act. The remaining quan ty falls in an undefined category, generally called an intermediate quan ty. All sec ons in the NDPS Act specify an offence and men on the minimum and maximum sentence, depending upon the quan ty of the substance. The commercial quan ty mandates a minimum sentence of ten years of imprisonment and a minimum fine of Rupees One hundred thousand, and bail is subject to the riders mandated in S. 37 of the NDPS Act. When the quan ty is less than commercial, the restric ons of Sec on 37 of the NDPS Act will not aSract, and the factors for bail become similar to the offence regular statutes.
11. In Sami Ullaha v Superintendent Narco c Control Bureau, (2008) 16 SCC 471, the Hon'ble Supreme Court holds that in intermediate quan ty, the rigors of the provisions of Sec on 37 may not be jus fied.
12. However, the police claim that in addi on to the heroin, the police had also recovered Rs.7,00,000/- drug money.
13. Except for the disclosure statement, the police had no evidence to term such money as drug money, and forgeWng the statutory mandate of S. 23 (1) and (2) of BSA, 2023, invoked the stringent penal provision of S. 27-A just to trigger the legisla ve restric ons placed on bail through S. 37 of NDPS Act. In such a background, S. 37 of the NDPS Act shall neither aSract in law nor through its inclusion in the FIR.
14. S. 27A of the NDPS Act reads as follows:5
5 of 8 ::: Downloaded on - 02-11-2024 03:04:02 ::: Neutral Citation No:=2024:PHHC:142394 CRM-M-47036-2024 27A. Punishment for financing illicit traffic and harbouring offenders.--Whoever indulges in financing, directly or indirectly, any, of the ac vi es specified in sub-clauses (i) to (v) of 3[clause (viiib) of sec on 2] or harbours any person engaged in any of the aforemen oned ac vi es, shall be punishable with rigorous imprisonment for a term which shall not be less than ten years but which may extend to twenty years and shall also be liable to fine which shall not be less than one lakh rupees but which may extend to two lakh rupees:
Provided that the court may, for reasons to be recorded in the judgment, impose a fine exceeding two lakh rupees.
15. At the stage of invoca on of S. 27A, there was no primafacie evidence of financing, directly or indirectly. Thus, the rigors of S. 37 of the NDPS Act shall also not aSract.
16. The remaining offense is under the Arms Act, and the sentence prescribed is less than that under the NDPS Act.
17. The pre-trial incarcera on should not be a replica of post-convic on sentencing.
There is sufficient primafacie evidence connec ng the pe oner with the alleged crime of recovery of heroin. However, given the quan ty of 100 grams of heroin, it is not a case where bail should be denied.
18. Given the penal provisions invoked viz-a-viz pre-trial custody, coupled with the primafacie analysis of the nature of allega ons and the other factors peculiar to this case, there would be no jus fiability for further pre-trial incarcera on at this stage.
19. Without commen ng on the case's merits, in the facts and circumstances peculiar to this case, and for the reasons men oned above, the pe oner makes a case for bail. This order shall come into force from the me it is uploaded on the official webpage of this Court.
20. Given above, provided the pe oner is not required in any other case, the pe oner shall be released on bail in the FIR cap oned above subject to furnishing bonds to the sa sfac on of the concerned Court and due to unavailability before any nearest Illaqa Magistrate/duty Magistrate. Before accep ng the surety, the concerned Court must be sa sfied that if the accused fails to appear, such surety can produce the accused.
21. While furnishing a personal bond, the pe oner shall men on the following personal iden fica on details:
1. AADHAR number
2. Passport number (If available) and when the 6 6 of 8 ::: Downloaded on - 02-11-2024 03:04:02 ::: Neutral Citation No:=2024:PHHC:142394 CRM-M-47036-2024 aSes ng officer/court considers it appropriate or considers the accused a flight risk.
3. Mobile number (If available)
4. E-Mail id (If available)
22. This order is subject to the pe oner's complying with the following terms.
23. The pe oner shall abide by all statutory bond condi ons and appear before the concerned Court(s) on all dates. The pe oner shall not tamper with the evidence, influence, browbeat, pressurize, induce, threaten, or promise, directly or indirectly, any witnesses, Police officials, or any other person acquainted with the facts and circumstances of the case or dissuade them from disclosing such facts to the Police or the Court.
24. The possibility of the accused influencing the inves ga on, tampering with evidence, in mida ng witnesses, and the likelihood of fleeing jus ce can be taken care of by imposing elabora ve and stringent condi ons. In Sushila Aggarwal v. State (NCT of Delhi), 2020:INSC:106 [Para 92], (2020) 5 SCC 1, Para 92, the Cons tu onal Bench held that unusually, subject to the evidence produced, the Courts can impose restric ve condi ons.
25. Given the background of allega ons against the pe oner, it becomes paramount to protect the drug detec on squad, their family members, as well as the members of society, and incapacita ng the accused would be one of the primary op ons un l the filing of the closure report or discharge, or acquiSal. Consequently, it would be appropriate to restrict the possession of firearm(s). [This restric on is being imposed based on the preponderance of evidence of probability and not of evidence of certainty, i.e., beyond reasonable doubt; and as such, it is not to be construed as an intermediate sanc on]. Given the nature of the allega ons and the other circumstances peculiar to this case, the pe oner shall surrender all weapons, firearms, ammuni on, if any, along with the arms license to the concerned authority within fi;een days from release from prison and inform the Inves gator about the compliance. However, subject to the Indian Arms Act, 1959, the pe oner shall be en tled to renew and take it back in case of acquiSal in this case, provided otherwise permissible in the concerned rules. Restric ng firearms would ins ll confidence in the vic m(s), their families, and society; it would also restrain the accused from influencing the witnesses and repea ng the offence.
26. Any observa on made hereinabove is neither an expression of opinion on the case's merits nor shall the trial Court advert to these comments.
27. A cer fied copy of this order would not be needed for furnishing bonds, and any Advocate for the Pe oner can download this order along with case status from the 7 7 of 8 ::: Downloaded on - 02-11-2024 03:04:02 ::: Neutral Citation No:=2024:PHHC:142394 CRM-M-47036-2024 official web page of this Court and aSest it to be a true copy. If the aSes ng officer wants to verify its authen city, such an officer can also verify its authen city and may download and use the downloaded copy for aSes ng bonds.
28. Pe11on allowed in terms men oned above. All pending applica ons, if any, stand disposed of.
(ANOOP CHITKARA)
JUDGE
29.10.2024
Jyo -II
Whether speaking/reasoned: Yes
Whether reportable: YES
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