Ankush Kapoor vs State Of Punjab
2021 Latest Caselaw 1967 P&H

                                 In virtual Court


CRM-M-23889-2021                                                       -1-




           IN THE HIGH COURT OF PUNJAB AND HARYANA AT
                          CHANDIGARH


                                                CRM-M-23889-2021 (O&M)
                                                Date of decision: 05.07.2021
Ankush Kapoor
                                                                    ... Petitioner


                                          Vs.


State of Punjab
                                                                   ... Respondent


CORAM: HON'BLE MR. JUSTICE ARVIND SINGH SANGWAN

Present:     Mr. Kanwaljit Singh, Sr. Advocate with
             Mr. Ajaivir Singh, Advocate
             for the petitioner.

             Mr. Joginder Pal Ratra, DAG, Punjab.


                   *******

ARVIND SINGH SANGWAN, J. (ORAL)

This is 2nd petition for grant of regular bail in FIR No.20 dated

29.01.2020 under Sections 21, 25, 27-A, 29/61/85 of NDPS Act and Section

30/54/59 of Arms Act, registered at Police Station Special Task Force, District

STF Wing, SAS Nagar, Mohali; earlier one was dismissed as withdrawn on

25.02.2021, as it was stated by learned State counsel that investigation is still

going on.

Learned senior counsel for the petitioner submits that new ground

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for filing this second petition is that the investigation is complete; the trial is not

proceeding and the petitioner, as on today, is in custody of more than 01 year

and 04 months.

Brief facts of the case are that the FIR was registered on the basis

of a ruqa/written information sent by Randhir Singh, Inspector, STF Border

Range, Amritsar dated 29.01.2020, with the allegations that he along with other

police officials, including DSP, STF Border Range were present in the office,

when a special information was received that one person, whose height is 5' 9"

colour whitish, having beard and hairs, who described his name as Happy,

resident of Amritsar, is roaming in a white coloured Creta car bearing

registration No.PB-02-DM-9518. This person is having intoxicant material and

illegal weapon in his car to supply heroin in Punjab and other States. This man

is having links with big smugglers and if he is nabbed, then a big network of

supply of heroin can be unearthed. On registration of the FIR, aforesaid person

Sukhbir Singh @ Happy was arrested on a special naka, while driving a Brezza

car bearing registration No.PB-02 (DJ)-0279. On his search, 01 revolver of .32

bore with 04 live cartridges along with 06 boxes of heroin weighing 5 kg 690

grams were recovered.

Thereafter, during the interrogation, said Sukhbir Singh @ Happy

suffered a disclosure statement that the car belongs to petitioner Ankush

Kapoor, who has handed over the same for further delivery to a special person

by code name Baba Jani. It was further stated that the petitioner is having a

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shop by the name R.C. Creations at Crystal Chowk, Amritsar and recovery of

heroin can be effected from him. Later on, the petitioner was arrested on

29.01.2020 from his shop and police recorded his disclosure statement that he

has kept three transparent bags of heroin along with a cane containing Amonia

solution and one plastic bag having 500 gms of codiene Charcol Powder and

one plastic bottle of 500 ml of Hydrochlorode Acid and later on got the same

recovered from a wooden almirah from his house. Upon weighing, 3 kg 250 gm

heroin was recovered.

Thereafter, the police, on 07.02.2020, again recorded the second

disclosure statement of the petitioner and recovered a mobile phone and found

that some Whatsapp applications are downloaded. Again third disclosure

statement was recorded on 11.02.2020 and two more mobile phones along with

SIM cards were recovered, which were allegedly used for sending information

by using codes for supplying and receiving heroin.

During the course of investigation, the police arrested another

accused Kuldip Singh and checked the bank record of Sukhbir Singh @ Happy

and Kuldip Singh and found that some amount has been deposited in his

account.

Learned senior counsel for the petitioner has argued that in all, 10

accused have been nominated in this case along with main accused Sukhbir

Singh @ Happy, who was arrested at the spot and other persons, who were

nominated on the basis of successive disclosure statements of other accused

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persons. It is further argued that the petitioner is a young person aged about 27

years and had no previous history of involvement in any such activity prior to

the date of registration of the FIR. It is also submitted that the petitioner is an

Income Tax-Payer and is doing his family business and he had recently joined a

Gym, where he met some persons and he has been trapped in the present case,

without there being any mens rea on his part and his involvement in the present

case is on the basis of disclosure statement of co-accused Sukhbir Singh @

Happy and except for the own successive disclosure statement, wherein some

recovery of narcotics and mobile phone was effected, there is no evidence to

connect him with co-accused, who were part of an active gang, which was

organizing the drug business.

It is further submitted that there are no call details collected during

the investigation, to show that the petitioner has any meeting of mind with the

aforesaid persons. He is neither owner of the car, which was recovered from co-

accused Sukhbir Singh @ Happy nor he is owner of the house, from where the

narcotics were recovered on the basis of disclosure statement dated 03.02.2020.

It is also submitted that even subsequently, on the very next day i.e. 31.01.2020,

another FIR No.23 dated 31.01.2020 was registered by STF Border Range,

Amritsar against the petitioner, so as to involve him in another case. It is next

submitted that as on today, the petitioner is in custody for the last 01 year, 04

months and 17 days and as many as 38 prosecution witnesses have been cited,

however, till date, none has been examined and the trial is delayed due to

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COVID-19 situation.

Learned senior counsel for the petitioner has further argued that

even in the entire family of the petitioner, there is no such history of

involvement in any case under NDPS Act, as he belongs to a business family

and the trial Court has wrongly declined bail by observing that no opinion can

be formed in terms of Section 37 of NDPS Act that the petitioner is not likely to

commit offence, while on bail.

On request of learned State counsel, case file of first petition i.e.

CRM-M-24847-2020 filed by the petitioner, was requisitioned, as a status

report was filed by DSP, STF Border Range, Amritsar in the said case.

Learned State counsel submits that during the investigation, when

the recovery of narcotic substance and mobile phone was effected, it was found

that there are certain Whatsapp applications, which were used for sending

messages in codes for receiving consignments. During the investigation, it has

come that 10 persons are named in the FIR, out of which mastermind of the

gang is Simranjit Singh Sandhu who is presently in police custody in Italy and

one person namely Armaan Basarmal, resident of Afganistan was involved to

procure the consignment and identity of a person named as Bhai Jaan is not

ascertained. It is further submitted that co-accused Tanvir Singh Bedi as well as

close associates of the kingpin Simranjit Singh Sandhu and other accused

Sukhbir Singh, Mantej Singh, Tammana Gupta are actively involved in the

smuggling of heroin by taking rented houses and the allegations against the

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petitioner are that he has helped them in obtaining the rented house. It is further

submitted that challan was prepared on 11.06.2020 and submitted before the

Special Judge, Amritsar on 19.07.2020 against the petitioner and other accused

excluding Simranjit Singh Sandhu and Tanvir Singh Bedi, who are residing

abroad. It is thus submitted that considering the fact that commercial quantity of

narcotic substance was recovered from the petitioner, after his name surfaced in

the disclosure statement, present petition may kindly be dismissed.

In reply, learned senior counsel for the petitioner has relied upon a

judgment of the Hon'ble Supreme Court in Prabhakar Tewari Vs. State of

U.P. & Anr., 2020 (2) RCR (Crl.) 831, wherein it is observed that where

several cases are pending against accused, the same cannot be a factor for

refusal of prayer for bail, as discretion is to be exercised by the Court in

granting bail, considering the relevant material. Learned senior counsel has also

relied upon a judgment passed by Coordinate Bench of this Court in Amritpal

Singh Vs. State of Punjab in CRM-M-13752-2020 on 14.07.2020, wherein the

bail was granted to a person booked under NDPS Act, observing that sanctity of

custodial disclosure statement as well as the prosecution version is a matter of

trial.

Learned senior counsel has further relied upon a judgment in Sujit

Tiwari Vs. State of Gujarat and anr., 2020 AIR (SC) 667, wherein the

Hon'ble Supreme Court, considering the antecedents of an accused and also in

view of long custody, granted the concession of bail, noticing the fact that there

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is a possibility that he was unaware of the illegal activities of co-accused.

After hearing learned counsel for the parties, I find merit in the

present petition, for the following reasons: -

(a) The petitioner was not named in the secret information, wherein

only description of co-accused Sukhbir Singh @ Happy was

mentioned along with Creta car bearing registration No.PB-02-

DM-9518, whereas he was found driving Brezza car bearing

registration No.PB-02-DJ-0279.

(b) The petitioner was nominated in the FIR, on the basis of disclosure

statement of aforesaid co-accused Sukhbir Singh @ Happy, from

whom the commercial quantity of heroin was recovered.

(c) The petitioner is not involved in any other case prior to registration

of present FIR and subsequent FIR registered on the very next day

i.e. 31.01.2020.

(d) The defence set up by the petitioner that he is running his family

business of cloth merchant and is Income Tax Payer as well as that

he has recently joined a gym, where he came in contact with some

person and he has been trapped in this case without there being any

mens rea on his part, is yet to be ascertained during the course of

trial.

(e) As per affidavit of DSP, STF filed in CRM-M-24847-2020 (first

bail application of the petitioner), giving the status report, neither it

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is stated that the petitioner is owner of the car recovered from co-

accused Sukbir Singh @ Happy, as in the secret information, there

was reference of Hyundai Creta car, whereas as per status report,

Brezza car was recovered; registration numbers of both these cars

were different nor the affidavit states about ownership of the

house, from where recovery was effected post disclosure by the

petitioner.

(f) The police recorded three successive disclosure statements of the

petitioner, on the basis of which, the alleged narcotics as well as

mobile phones were recovered, however, the affidavit is again

silent about any call details between the petitioner and co-accused,

which may show that there was no meeting of mind among them to

run an organized racket of selling of narcotics.

(g) It is admitted case of the prosecution that the petitioner is in

custody since 30.01.2020; a period of 01 year, 04 months and 17

days has passed despite the fact that challan was presented on

09.07.2020 and despite a lapse of one year, prosecution evidence

has not started and as many as 38 prosecution witnesses have been

sited and it will take long time in conclusion of the trial.

(h) The petitioner will hand over his passport to the police authorities

and will not leave the country without prior permission of the

Court.

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In view of the above, this petition is allowed and the petitioner is

directed to be released on regular bail subject to furnishing his bail/surety bonds

to the satisfaction of the trial Court/Illaqa Magistrate/Duty Magistrate,

concerned.

However, it is made clear that at any subsequent stage, if the

petitioner is found involved in any case under NDPS Act, it will be open for the

prosecution to apply for cancellation of his bail.

                                          [ ARVIND SINGH SANGWAN ]
05.07.2021                                         JUDGE
vishnu


Whether speaking/reasoned : Yes/No

Whether Reportable        : Yes/No




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