Punjab-Haryana High Court
Samdarsh Kumar Alias Joseph vs State Of U.T.,Chandigarh on 1 December, 2022
CRM-M-21788-2022 (O&M) 1
IN THE HIGH COURT OF PUNJAB & HARYANA AT
CHANDIGARH
Sr. No.201
CRM-M-21788-2022 (O&M)
Reserved on : 23.11.2022
Pronounced on: 01.12.2022
Samdarsh Kumar @ Joseph ..... Petitioner
VERSUS
State of U.T. Chandigarh ..... Respondent
CORAM: HON'BLE MR. JUSTICE SUDHIR MITTAL
Present: Mr. Prateek Gupta, Advocate and
Mr. Rahul Soi, Advocate, for the petitioner.
Mr. A.M. Punchhi, Public Prosecutor with
Mr. Anupam Bansal, Addl. Public Prosecutor
for the respondent-U.T. Chandigarh.
*****
SUDHIR MITTAL, J.
An FIR dated 19.06.2020 was registered against the
petitioner under Section 22 of the NDPS Act, 1985 (hereinafter referred to
as the Act) as well as Section 25 of the Arms Act, 1959 and Section
188 Indian Penal Code, 1860 at Police Station Sector 39, Chandigarh.
Recovery was made of 11 injections of Pheniramine Maleate (10 ml.
each) and 15 injections of Buprenorphine (2 ml. each) as well as one desi
pistol with 06 live cartridges.
First bail application of the petitioner was rejected vide order
dated 15.10.2020 passed in CRM-M-30386-2020 primarily on the ground
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that the accused had been in custody only for 03 months and 19 days and
there were large number of criminal cases pending against him. While
deciding the said case, CRM-M-19523-2020 titled as Prem Singh Bisht
and another Vs. U.T. Chandigarh and others was also decided. The
petitioner therein is the employer of the petitioner herein and he had filed
the said petition for transfer of investigation of the present FIR to the
Central Bureau of Investigation on the ground of false implication. His
case was that the petitioner herein had been falsely implicated as FIR
dated 24.10.2017 was registered against some police personnel under
Section 7 of the Prevention of Corruption Act, 1988 for demanding a
bribe from the complainant of the said FIR. The allegation was that fake
implication was done to coerce him as well as the complainant of FIR
dated 24.10.2017 to turn hostile. Certain evidence was relied upon.
Having taken into consideration all the facts and evidence brought on
record, a finding was returned that false implication was not established.
Second bail application, viz. CRM-M-13196-2021 was also
rejected vide order dated 27.09.2021 after recording a finding that the
conditions prescribed by Section 37 of the Act were not fulfilled.
Custody certificate dated 23.11.2022 issued by Amandeep
Singh (C.P.S.) Addl. Superintendent, Model Jail, Chandigarh has been
filed in Court. The same is taken on record. A perusal thereof shows that
the petitioner has undergone actual custody of 02 years, 05 months and 05
days. One conviction for offence under Section 307 IPC has been
recorded and trial is pending in 05 other criminal cases.
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Learned counsel for the petitioner has submitted that the
status of pending criminal cases mentioned in the aforementioned custody
certificate is incorrect. There is only one case under Sections 420, 467,
468, 120-B IPC and Sections 66-C & 66-D of the Information
Technology Act, 2000 pending. This submission has not been
contradicted by the learned Public Prosecutor and thus, for the purpose of
deciding this case, it is being presumed that there is one previous
conviction and one criminal case is pending trial.
Learned counsel for the petitioner has submitted that Rule 66
of the NDPS Rules, 1985 (hereinafter referred to as the Rules) permits
possession of upto 100 dozes of a psychotropic substance. Recovery of
only 15 dozes has been made from the petitioner which is well within the
permissible limit. The drug Pheniramine Maleate is not a psychotropic
substance and the same has to be ignored for the purpose of grant of bail.
To support this argument, reliance has been placed upon Supreme Court
judgment in Sajan Abraham Vs. State of Kerala, (2004) 4 SCC 441, a
Division Bench judgment of this Court in Saleem Mohd. Vs. State of
Punjab, 2015 (25) RCR (Criminal) 816, a Single Bench judgment of
this Court dated 13.01.2020 passed in CRM-M-36753-2019 titled as
Aruna @Runa Vs. State of U.T Chandigarh, a Single Bench judgment
in Sukhwinder Singh @ Vicky Vs. State of Punjab, 2021 (1) RCR
(Criminal) 177 and Charanjit Kaur Vs. State of Punjab, 2022 (1) Law
Herald 735.
In response, learned Public Prosecutor has submitted that the
petitioner cannot rely upon Rule 66 of the Rules as it is not his case that
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the substance recovered from him was for personal use. From the very
inception, it has been his case that he has been falsely implicated. In the
instant petition also, one of the grounds taken is false implication. The
recovery has not been admitted, therefore, reliance upon the said Rule is
mis-conceived. He places reliance upon judgment dated 25.07.2018
passed in CRM-M-40371-2017 titled as Sarbjit Singh @ Sabbi Vs.
State of Punjab, judgment dated 08.12.2020 passed in CRM-M-50796-
2019 titled as Manpreet Singh Vs. State of Punjab and judgment dated
08.12.2020 passed in CRM-M-24656-2019 titled as Kulwant Rai @
Rana Vs. State of Punjab.
In my considered view, reliance upon Rule 66 (supra) is
patently mis-conceived. There is no evidence on record that the petitioner
had been prescribed the psychotropic substance recovered from him for
some medical condition. It is not even his case that recovery was infact
made. His case has been of to be implication. An argument raised can
only be accepted, if, it is supported by facts. That being not the case, the
argument based upon Rule 66 (supra) is rejected. The judgments relied
upon by learned counsel for the parties are not being discussed as the
argument itself is mis-conceived.
The second link of the argument of the petitioner is that even
though, recovery is of commercial quantity, keeping in view the custody
period, the petitioner is entitled to grant of regular bail without reference
to Section 37(1)(b) of the Act. For this purpose, reliance has been placed
upon judgment dated 07.09.2021 passed in Crl. Appeal No.965 of 2021
(arising out of SLP (Criminal) No.4432 of 2021) titled as Dheeren
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Kumar Jaina Vs. Union of India decided by the Supreme Court as well
as order dated 01.08.2022 passed in SLP (Criminal) No.5769-2022 titled
as Nitish Adhikary @ Bapan Vs. The State of West Bengal also passed
by the Supreme Court.
Learned counsel for the petitioner has also relied upon
judgment dated 07.12.2021 passed in CRM-M-50518-2021 titled as
Naveen Vs. State of Haryana, 2022 (1) RCR (Criminal) 553, judgment
dated 23.09.2022 passed in CRM-M-13795-2022 titled as Charanjit
Singh @ Amritpal Vs. State of Punjab as well as judgment dated
06.09.2022 passed in CRM-M-14227-2021 titled as Harpartap Singh
Vs. State of Punjab. He has also relied upon Ankush Kumar @ Sonu
Vs. State of Punjab, Law Finder Doc Id #1139114, Pankaj Vs. State of
Punjab, Law Finder Doc Id # 2013404 and judgment dated 20.05.2022
passed in CRM-M-20943-2022 titled as Gurjant Singh Vs. The State of
Punjab.
On the other hand, learned Public Prosecutor has argued that
in case of recovery of commercial quantity, the twin conditions laid down
in Section 37(1)(b) of the Act must be complied with. Moreover, the
second bail application of the petitioner was rejected on ground of
non-fulfillment of conditions laid down in Section 37(1)(b) of the Act. No
new evidence has come on record which would establish that the
petitioner was likely to be acquitted and that he would not commit any
offence while on bail. Thus, the argument is mis-conceived. He relies
upon order dated 21.10.2022 passed in Criminal Appeal Nos.1841 &
1842 of 2022 (arising out of SLP (Criminal) Nos. 5505 & 5506 of 2022)
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titled as Union of India (NCB) Etc. Vs. Khalil Uddin Etc. as well as
order dated 07.05.2022 passed in CRM-M-43795-2020 tilted as Satnam
Singh Vs. State of Punjab. It has also been submitted that the trial is
nearing completion and only 02 prosecution witnesses remain to be
examined.
It has been noted hereinabove that the second bail application
of the petitioner had been rejected as he had not been able to show that
the twin conditions placed by Section 37(1)(b) of the Act were fulfilled.
No new evidence has been brought on record to take a different view and
thus, the judgments relied upon by the petitioner do not help him. None
of these judgments say that in a subsequent bail application, a different
view can be taken, even if, there are no changed circumstances.
Despite the above, since learned counsel for the petitioner has
referred to a large number of judgments, I deem it appropriate to make a
reference thereto. In Dheeren Kumar Jaina (supra), a perusal of Para
No.5 thereof shows that only 0.23 grams of ganja was recovered from the
appellant therein. The same not being commercial quantity, the judgment
is distinguishable. In Nitish Adhikary @ Bapan (supra), quantity
recovered has not been mentioned and it is thus, presumed that the
recovery therein was not of commercial quantity. Thus, the said
judgment is also distinguishable. That leaves us with various Single
Bench judgments passed by this Court. These can be divided into two
sets. In the first set, are the judgments of Ankush Kumar (supra) and
Gurjant Singh (supra). In these judgments, even though, the
practicability of returning findings as prescribed by Section 37(1)(b) of
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the Act have been adversely committed upon, bail has been granted only
after recording satisfaction regarding the twin conditions prescribed
therein. These judgments do not help the petitioner as I am unable to
record my satisfaction, keeping in view the observations made
hereinabove. The second set comprises judgments in Naveen (supra),
Harpartap Singh (supra) and Charanjit Singh @ Amritpal (supra). In
these judgments, it is respectfully noted that reliance upon Dheeren
Kumar Jaina (supra) is mis-placed because recovery was only of 0.23
grams ganja. The other Supreme Court judgments referred to in the said
cases are contrary to the judgment passed in Khalil Uddin (supra),
wherein, it has been held 'in our considered view, in the face of the
mandate of Section 37 of the Act, the High Court could not and ought not
to have released the accused on bail.' Thus, I am respectfully unable to
subscribe to the view taken in this set of cases.
In view of the difference of opinion referred to hereinabove,
let this matter be placed before Hon'ble the Chief Justice for constituting
a Larger Bench to settle the issue of fulfillment of the twin conditions
prescribed in Section 37(1)(b) of the Act before grant of bail in a case of
recovery of commercial quantity under the Act.
So far as this case is concerned, because the petitioner cannot
rely upon Rule 66 of the Rules nor can he pray for taking a different view
regarding satisfaction of the conditions prescribed under Section 37(1)(b)
of the Act, the petition is dismissed. Keeping in view the fact that the
trial is nearing completion, I deem it appropriate to direct the trial Court
to complete the trial as expeditiously as possible, in any case, not later
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than nine months from the date of receipt of certified copy of this
judgment.
(SUDHIR MITTAL)
JUDGE
01.12.2022
Ramandeep Singh
Whether speaking / reasoned Yes / No
Whether Reportable Yes/ No
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