Delhi High Court
Prem Singh vs State(Gnct Of Delhi) on 19 December, 2023
Author: Sudhir Kumar Jain
Bench: Sudhir Kumar Jain
$~81 & 82
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: December 19, 2023
+ BAIL APPLN. 3662/2022
PREM SINGH ..... Petitioner
Through: Mr. Sanjay Hegde, Senior
Advocate with Mr. Ankit
Karna, Mr. Randhir Kumar,
Mr. Deepesh Pathak,
Advocates.
versus
STATE(GNCT OF DELHI) ..... Respondent
Through: Ms. Rupali Bandhopadhya,
ASC with Mr. Akshay
Kumar, Mr. Abhijeet
Kumar, Advocates for State
with Insp. Tej Dutt Gaur,
P.S. Bawana.
+ BAIL APPLN. 3374/2023
PREM SINGH ..... Petitioner
Through: Mr. Sanjay Hegde, Senior
Advocate with Mr. Ankit
Karna, Mr. Randhir Kumar,
Mr. Deepesh Pathak,
Advocates.
versus
STATE(GNCT OF DELHI) ..... Respondent
Through: Ms. Rupali Bandhopadhya,
Signature Not Verified
Digitally Signed
By:JITENDRA
Signing Date:21.12.2023 BAIL APPLNs. 3662/2022 & 3374/2023 Page 1
13:48:08
ASC with Mr. Akshay
Kumar, Mr. Abhijeet
Kumar, Advocates for State
with Insp. Tej Dutt Gaur,
P.S. Bawana.
CORAM:
HON'BLE DR. JUSTICE SUDHIR KUMAR JAIN
J U D G M E N T (oral)
1. The court of Sh. Saurav Goyal, MM-05, North, Rohini Courts,
Delhi vide order dated 04.12.2023 has granted interim bail to the
petitioner for a period of thirty days in present FIR bearing no.
0706/2022 . The perusal of order dated 04.12.2023 reflects that in the
said court, the Investigating Officer was not present and the said
court granted interim bail by only calling the Status Report from the
Central Jail-2.
2. It is pertinent to mention that the applications bearing no.
3662/2022 and 3374/2023 were filed on behalf of the petitioner for
grant of regular bail and the extension of the interim bail were
pending for consideration before this Court and after hearing the
arguments, the judgments were reserved on 08.11.2023.
3. The court of Sh. Saurabh Goyal, MM-05, North, Rohini
Courts, Delhi vide order dated 04.12.2023 should not have granted
Signing Date:21.12.2023 BAIL APPLNs. 3662/2022 & 3374/2023 Page 2
interim bail once the judgments in bail applications no. 3662/2022
and 3374/2023 were reserved on 08.11.2023 . In these circumstances,
the interim bail granted to the petitioner stands cancelled and the
petitioner is directed to surrender immediately before the concerned
jail or trial court without any delay. The court of Sh. Saurabh Goyal,
MM-05, North, Rohini Courts, Delhi is also directed to initiate
appropriate proceedings in case the petitioner fails to surrender either
before the concerned court or jail superintendent.
BAIL APPLN. 3662/2022 (Regular Bail)
1. The present bail application is filed under section 439 of the
Code of Criminal Procedure,1973 (hereinafter referred to as the
"Code") on behalf of the petitioner Prem Singh for grant of regular
bail in FIR bearing no.0706/2022 dated 12.09.2022 registered under
section 25 of the Arms Act, 1959 (hereinafter referred as the "Arms
Act") at P.S. Bawana.
2. The factual background of the case is that SI Naveen Sharma
and HC Mandeep on 12.09.2022, while on emergency duty, were
coming back to the police station after attending a PCR call vide DD
no. 141A dated 11.09.2022 and reached at Bhagat Singh Chowk,
Signing Date:21.12.2023 BAIL APPLNs. 3662/2022 & 3374/2023 Page 3
Bawana Industrial Area, where they met with HC Chetan, Ct.
Dheeraj and Ct. Manoj, who informed SI Naveen Sharma that a
person is staying at premises bearing Khasra no. 112/6/7/8,Block-B,
Vijay Nagar Colony, Village Bawana, Delhi along with a huge
consignment of the illegal arms and ammunition, and he can be
apprehended if the said premises is raided. Accordingly, SI Naveen
Sharma constituted a raiding party, and the raiding party, along with
the secret informer, reached the premises bearing Khasra no.
112/6/7/8, Block-B, VijayNagar Colony, Village Bawana. On the
pointing of secret informer, Ct. Manoj, Ct. Dheeraj and Ct. Mandeep
entered the said premises by scaling the wall, and after seeing police
personnel, one person tried to run away but was apprehended. On
search, one desi katta and one live cartridge was recovered from the
possession of the said person, who was subsequently identified as
Sachin s/o Ram Kumar. During interrogation, Sachin disclosed that
he is staying on the said property along with another person, namely,
Sonu @ Sheenu and both of them are supplying illegal arms. Sonu @
Sheenu was not found over there. Sachin, after further interrogation,
disclosed that illegal arms and ammunition arealso kept in the two
Signing Date:21.12.2023 BAIL APPLNs. 3662/2022 & 3374/2023 Page 4
vehicles, i.e.,the Mahindra Scorpio black color bearing registration
no. DL8CAT0650and the MG hector white color bearing registration
no. DL12CR2195.
3. On search of the two vehicles, the arms and ammunition as
detailed in FIR were recovered. Thereafter, a rukka was prepared,
and an FIR was registered under section 25 of the Arms Act. The
subsequent investigation was handed over to HC Parveen. Sachin
was further investigated, and during the investigation, Sachin stated
that he met with the petitioner, who is the father of Neeraj Bawana
and also met with other boys, namely, Arvind, Sonu@ Sheenu,
Deepak Pakasmiyan. It was also disclosed that in the vehicle, as
detailed hereinabove, the illegal arms and ammunition used to be
kept which were used by other boys at the instance of the petitioner.
Sachin was arrested, and the other boys, namely, Arvind,Sonu@
Sheenu, Deepak Pakasmiyan could not be traced. During further
investigation, the petitioner was found to be the registered owner of
the vehicle bearing registration no. DL8CAT0650. The petitioner
was asked to join the investigation after the issuance of notice under
section 41A of the Code.
Signing Date:21.12.2023 BAIL APPLNs. 3662/2022 & 3374/2023 Page 5
4. The petitioner on 30.09.2022, was called for investigation, and
during investigation, he admitted that the property from which the
arms and ammunition were recovered belonged to him, and the
petitioner was also arrested. During the investigation, the offence
punishable under section 35 of the Arms Act and sections 39/192 of
the Motor Vehicle Act, 1988(hereinafter referred to as "MV Act")
were also added. After the conclusion of the investigation, the
charge-sheet was filed for the offences punishable under sections
25/35 of the Arms Act and under sections 39/192 of the MV Act. The
petitioner was stated to be arrested on 29.09.2022 and has been in
judicial custody since 01.10.2022.
5. The petitioner filed the present bail application and prayed for
grant of bail on the ground that the petitioner is an old man with
clean antecedents and has served as a conductor in Delhi Transport
Corporation for more than 25 years. The petitioner has been falsely
implicated in the case, and he has always cooperated in the
investigation. The petitioner has been arrested for the offences
punishable under sections 25/35 of the Arms Act, which prescribes
the punishment less than 07 years. The petitioner has always been
Signing Date:21.12.2023 BAIL APPLNs. 3662/2022 & 3374/2023 Page 6
available for investigation, but no notice under section 41A of the
Code has ever been served upon the petitioner as per the guidelines
given in Arnesh Kumar V State of Bihar passed in criminal appeal
bearing no. 1277/2014.The vehicle bearing registration no.
DL8CAT0650was transferred in the name of the petitioner on
15.09.2022 i.e., after registration of the present FIR. The charge-sheet
has already been filed after conclusion of investigation. It is prayed
that the petitioner be released on bail.
6. The Additional Standing Counsel filed the Status Report on
behalf of the respondent/State wherein, besides mentioning the facts
as stated in the FIR, it is stated that the accused Sachin was found in
possession of one desi katta and a live cartridge when he was present
at the property bearing Khasra no. 112/6/7/8, Block-B, VijayNagar
Colony, Village Bawana, Delhi and during his interrogation, the
vehicle Mahindra Scorpio black color bearing registration no.
DL8CAT0650was searched by Ct. Dheeraj and on search, a huge
consignment of illegal arms and ammunition was recovered and the
said vehicle was found registered in the name of the petitioner. The
property bearing Khasra no. 112/6/7/8, Block-B, VijayNagar Colony,
Signing Date:21.12.2023 BAIL APPLNs. 3662/2022 & 3374/2023 Page 7
Village Bawana, Delhi was also found to be in the ownership of the
petitioner.
7. The learned Senior Counsel for the petitioner argued that the
petitioner is aged about 64 years old and without any criminal
antecedents. The petitioner was arrested on 29.09.2022 i.e., after 17
days from the date of registration of FIR. The investigation has
already been completed, and the petitioner is not required for further
investigation.
8. The prosecution again alleged that the petitioner is the owner
of the property bearing Khasra no. 112/6/7/8, Block-B, Vijay Nagar
Colony, Village Bawana, Delhi, from where the co-accused Sachin
was apprehended and illegal arms and ammunition were recovered.
The petitioner was also found to be the owner of the vehicle
Mahindra Scorpio black color bearing registration no.
DL8CAT0650from where arms along with live cartridges were
recovered and seized.
9. As per the disclosure statement made by the accused Sachin,
the petitioner used to regularly visit the house from where illegal
arms and ammunition were recovered and was also found to use the
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Mahindra Scorpio black color bearing registration no. DL8CAT0650.
It is further argued that the case of the prosecution is primarily based
on the disclosure statement given by the petitioner and accused
Sachin. Although the petitioner was not present at the time of seizure,
he was stated to be in the conscious possession of the arms and
ammunition, which was seized on 11.09.2022, from his house and the
car owned by the petitioner. There is no incriminating material
against the petitioner to indicate that he was in conscious possession
of the legal arms and ammunition. The confessional statement given
by the petitioner and the co-accused Sachin, were given in police
custody as such, without any evidentiary value. The learned Senior
Counsel for the petitioner also cited Gunwantlal V State of MP
(1972) 2 SCC 194. The mere recovery of the arms and ammunition
from the properties/premises stated to be owned by the petitioner
does not reflect that he was in conscious possession and control of
the illegal arms and ammunition as per section 25 read with section
35 of the Arms Act. There is serious discrepancy in the documents
prepared during the investigation by the police. It is prayed that the
petitioner be released on bail.
Signing Date:21.12.2023 BAIL APPLNs. 3662/2022 & 3374/2023 Page 9
10. The Additional Standing Counsel for the respondent/State,
besides referring to the contents of FIR and other investigation,
argued that the petitioner was in conscious possession of the arms as
per the subject matter of the present FIR. The term 'conscious
possession' has been discussed by the Supreme Court in case titled as
Gunwantlal V State of MP (1972) 2 SCC 194. The allegations
against the petitioner are serious in nature, and there is sufficient
evidence to believe that the petitioner has committed a serious
offence. The huge consignments of arms, including the customized
magazines, were recovered from the property and car, which were
under the control and occupation of the petitioner. The recovered
arms and ammunition were generally used in organized crime related
activities. The petitioner was served notices under section 41A of the
Code on five occasions but has not complied with the notices. The
petitioner was apprehended due to non-compliance of notice dated
29.09.2022. The co-accused, namely, Sonu @ Sheenu, Arvind and
Deepak, have not been arrested. Proceedings under section 82 of the
Code have already been initiated against them. The petitioners may
Signing Date:21.12.2023 BAIL APPLNs. 3662/2022 & 3374/2023 Page 10
influence the witnesses. It is prayed that the bail application be
dismissed.
11. It is reflected from the perusal of records that a police raiding
party on 12.09.2022, conducted a raid at premises bearing Khasra no.
112/6/7/8, Block-B, Vijay Nagar Colony, Village Bawana, Delhi and
during the raid and search, co-accused Sachin was apprehended. The
co-accused Sachin, was found in possession of one desi katta and one
live cartridge. The co-accused Sachin was interrogated, and on
interrogation and on his pointing out, a huge consignment of arms
and ammunition was recovered, as detailed in FIR bearing no.
0706/2022 from the vehicles Mahindra Scorpio black color bearing
registration no. DL8CAT0650, which was found to be registered in
the name of the petitioner and MG hector white color bearing
registration no. DL12CR2195. The petitioner was also found to be
the owner and in occupation/control of the property bearing Khasra
no. 112/6/7/8, Block-B, Vijay Nagar Colony, Village Bawana, Delhi.
The notices under section 41A of the Code were also issued, but the
petitioner had not joined the investigation and was apprehended on
the basis of notice under section 41A of the Code dated 29.09.2022.
Signing Date:21.12.2023 BAIL APPLNs. 3662/2022 & 3374/2023 Page 11
12. The petitioner filed the first bail application in the court of Ms.
Swati Gupta, MM-05, North-East District, Rohini Courts, Delhi,
which was ordered to be dismissed vide order dated 01.10.2022. The
relevant portion of the order reads as under:-
16. This court is of the considered view that the allegations
in the present matter are grave; given the volume of arms
and ammunitions including live rounds recovered. Prima
facie complicity of the accused/applicant is apparent as
ownership of the accused/applicant of the premises and one
of the vehicles i.e. Scorpio car from where the recovery has
been effected is not disputed. It is also apparent that
investigation in the present offence is at a nascent stage and
given the nature of allegations, sustained investigation is
required in the present matter. Perusal of record shows
that the five notices U/s 41A Cr.P.C mentioned by the IO all
bear acknowledgement of the accused/applicant, thus, at
this stage, this court does not find that no notice was served
to the accused prior to his arrest.
13. The petitioner filed the second regular bail application bearing
no. 2685/2022 under section 439 Cr.P.C. for FIR no. 0706/2022,
which was dismissed vide order dated 07.10.2022 passed by the court
of Sh. Satish Kumar, ASJ-03, North, Rohini Courts, Delhi. The
relevant portion of the order dated 07.10.2022 is reproduced as
under: -
...It is worth mentioning that Sachin S/o Raj Kumar R/o
District Shamli, UP was arrested and a country made pistol
with live catridges were recovered from his possession at
Signing Date:21.12.2023 BAIL APPLNs. 3662/2022 & 3374/2023 Page 12
the instance of Sachin S/o Raj Kumar, illegal weapons and
rounds were recobvered from two vehicles i.e., Scorpio
bearing no. DL8C-AT-0650 which is registered in the name
of the applicant/accused Prem Singh and another vehicle
MG Hector bearing no. DL12-CR-2195 registered in the
name of Neeraj Bawana‟s wife Aarti. That Scorpio car has
been modified as bullet proof. Two country made pistols, 68
live rounds and one magazine of sophisticated weapon was
recovered from the said Scorpio and one country made
pistol with 10 live rounds, one magazine and five cleaning
rods were recovered from the vehicle MG Hector. The
applicant/accused is the owner of the premises/plot where
these two vehicles i.e., Scorpio and Mg Hector were parked.
The applicant/accused is allegedly actively involved to keep
illegal weapons and rounds alleged to have been recovered
from the premises to which the accused is the owner.
Therefore, in these facts and circumstances, this court is
not inclined to grant bail to the applicant/accused and the
bail application of the applicant/accused Prem Chand is
hereby dismissed...
14. The petitioner filed the third regular bail application bearing
no. 2806/2022 under section 439 Cr.P.C. for FIR no. 0706/2022,
which was dismissed vide order dated 07.11.2022 passed by the court
of Sh. Satish Kumar, ASJ-03, North, Rohini Courts, Delhi. The
relevant portion of the order dated 07.10.2022 is reproduced as
under: -
...The first bail application being filed by the counsel for
the applicant/accused on the same facts and circumstances
was dismissed by this court vide detailed order dated
07.10.2022 and there is no change of circumstances nor any
fresh ground is made out to allow the bail application of the
Signing Date:21.12.2023 BAIL APPLNs. 3662/2022 & 3374/2023 Page 13
accused. The investigation in the present case FIR is still
going on and the chargesheet is yet to be filed. Therefore, in
these facts and circumstances, no fresh ground is made out
to allow the bailapplication of the accussed. Hence, the bail
application of the accused is hereby dismissed...
15. The petitioner as stated hereinabove that on the basis of raid
conducted by the raiding party, the co-accused Sachin was arrested,
who was found in possession of one live cartridge and one desi katta
and thereafter, on pointing of the co-accused Sachin, huge
consignment of arms and ammunition was recovered from two
vehicles, out of which, one vehicle Mahindra Scorpio black color
bearing registration no. DL8CAT0650 was found to be registered in
the name of the petitioner. It was also observed that the terms
'conscious possession' as discussed by the Supreme Court in case
Gunwantlal V State of MP (1972) 2 SCC 194, which reads as
under:-
5. What is meant by possession in the context of this
section? Is it that the person charged should be shown to be
in physical possession or is it sufficient for the purposes of
that provision that he has constructive possession of any
firearm or ammunition in contravention of Section 3 which
prohibits him to be in such possession without a licence. It
may be mentioned that under Section 19 of the Arms Act,
1878, an offence corresponding to Section 25(1)(a) is
committed if a person had in his or under his control any
arms or ammunition in contravention of Sections 14 and 15
Signing Date:21.12.2023 BAIL APPLNs. 3662/2022 & 3374/2023 Page 14
of that Act. The word "control" under Section 25(1)(a) has
been omitted. Does this deletion amount to the Legislature
confining the offence only to the case of a person who has
physical possession or does it mean that a person will be
considered to be in possession of a firearm over which he
has constructive possession or over which he exercises the
power to obtain possession thereof when he so intends? If
the meaning to be given to the word "possession" is that it
should be a physical possession only, then certainly the
charge as framed on the facts of the prosecution case will
not be sustainable but if the meaning to be given to the
word "possession" is wider than that of actual or physical
possession then it is possible, if the evidence produced by
the prosecution is such as would sustain a finding, that he
had constructive possession on September 17, 1966, when
he handed it over to Miroo and Miroo handed it over to
Chhaganlal because if it was not seized from Chhaganlal,
the appellant could have at any time got back the physical
possession of the revolver through Miroo. The possession of
a firearm under the Arms Act in our view must have, firstly
the element of consciousness or knowledge of that
possession in the person charged with such offence and
secondly where he has not the actual physical possession, he
has nonetheless a power or control over that weapon so that
his possession thereon continues despite physical possession
being in someone else. If this were not so, then an owner of
a house who leaves an unlicensed gun in that house but is
not present when it was recovered by the police can plead
that he was not in possession of it even though he had
himself consciously kept it there when he went out.
Similary, if he goes out of the house during the day and in
the meantime some one conceals a pistol in his house and
during his absence, the police arrives and discovers the
pistol, he cannot be charged with the offence unless it can
be shown that he had knowledge of the weapon being
placed in his house. And yet again if a gun or firearm is
given to his servant in the house to clean it, though the
physical possession is with him nonetheless possession of it
Signing Date:21.12.2023 BAIL APPLNs. 3662/2022 & 3374/2023 Page 15
will be that of the owner. The concept of possession is not
easy to comprehend as writers of Jurisprudence have had
occasions to point out. In some cases under Section 19(1)(f)
of the Arms Act, 1878 it has been held that the word
"possession" means exclusive possession and the word
"control" means effective control but this does not solve the
problem. As we said earlier, the first precondition for an
offence under Section 25(1)(a) is the element of intention,
consciousness or knowledge with which a person possessed
the firearm before it can be said to constitute an offence
and secondly that possession need not be physical
possession but can be constructive, having power and
control over the gun, while the person to whom physical
possession is given holds it subject to that power and
control. In any disputed question of possession, specific
facts admitted or proved will alone establish the existence
of the de facto relation of control or the dominion of the
person over it necessary to determine whether that person
was or was not in possession of the thing in question. In this
view it is difficult at this stage to postulate as to what the
evidence will be and we do not therefore venture to
speculate thereon. In the view we have taken, if the
possession of the appellant includes the constructive
possession of the firearm in question then even though he
had parted with physical possession on the date when it was
recovered, he will nonetheless be deemed to be in possession
of that firearm. If so, the charge that he was in possession
of the revolver on September 17, 1966, does not suffer from
any defect particularly when he is definitely informed in
that charge that he had control over that revolver. It is also
apparent that the words "on or before" were intended to
bring home to the accused that he was not only in
constructive possession of it on September 17, 1966, but
that he was in actual physical possession of it prior to that
date when he gave it to Miroo. It is submitted, however,
that the word "on or before" might cause embarrassment
and prejudice to the defence of the accused because he will
not be in a position to know what the prosecution actually
Signing Date:21.12.2023 BAIL APPLNs. 3662/2022 & 3374/2023 Page 16
intends to allege. From a reference of Form XXVIII of
Schedule 5 of the Code of Criminal Procedure, the mode of
charging a person is that he "on or about"... did the act
complained of. In view of the forms of the charge given in
the Schedule to the Code, we think that it would be fair to
the appellant if the charge is amended to read „on or about‟
instead of „on or before‟ which we accordingly order.
16. As reiterated by the two-Judge Bench of the Supreme Court in
Prasanta Kumar Sarkar Vs. Ashish Chatterjee And Another
(2010) 14 SCC 496, it is well-settled that the factors to be borne in
mind while considering an application for bail which are:
1. whether there is any prima facie or reasonable ground
to believe that the accused had committed the offence;
2. nature and gravity of the accusation;
3. severity of the punishment in the event of conviction;
4. danger of the accused absconding or fleeing, if released
on bail;
5. character, behaviour, means, position and standing of
the accused;
6. likelihood of the offence being repeated;
7. reasonable apprehension of the witnesses being
influenced; and
8. danger, of course, of justice being thwarted by grant of
bail.
17. A two-Judge Bench of the Hon'ble Supreme Court in Mahipal
Vs. Rajesh Kumar Alias Polia And Another (2020) 2 SCC 118
observed: -
14. The provision for an accused to be released on bail
touches upon the liberty of an individual. It is for this
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reason that this Court does not ordinarily interfere with an
order of the High Court granting bail. However, where the
discretion of the High Court to grant bail has been
exercised without the due application of mind or in
contravention of the directions of this Court, such an order
granting bail is liable to be set aside. The Court is required
to factor, amongst other things, a prima facie view that the
accused had committed the offence, the nature and gravity
of the offence and the likelihood of the accused obstructing
the proceedings of the trial in any manner or evading the
course of justice. The provision for being released on bail
draws an appropriate balance between public interest in
the administration of justice and the protection of
individual liberty pending adjudication of the case.
However, the grant of bail is to be secured within the
bounds of the law and in compliance with the conditions
laid down by this Court. It is for this reason that a court
must balance numerous factors that guide the exercise of
the discretionary power to grant bail on a case by case
basis. Inherent in this determination is whether, on an
analysis of the record, it appears that there is a prima facie
or reasonable cause to believe that the accused had
committed the crime. It is not relevant at this stage for the
court to examine in detail the evidence on record to come to
a conclusive finding.
18. Hence, in view of the above mentioned facts and
circumstances, it is appearing that the petitioner was having the
conscious possession of the arms and ammunition as per the subject
matter of the present FIR. The allegations against the petitioner are
serious in nature and the petitioner cannot be released on bail.
Hence, the present bail application stands dismissed.
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19. A copy of this judgment be sent to the court of Sh. Saurabh
Goyal, MM-05, North, Rohini Courts, Delhi for information and to
take appropriate measures so that the petitioner can be arrested and
be sent to the concerned jail.
DR. SUDHIR KUMAR JAIN
(JUDGE)
DECEMBER 19, 2023
N/ABK
Signing Date:21.12.2023 BAIL APPLNs. 3662/2022 & 3374/2023 Page 19
