Punjab-Haryana High Court
Jagdeep [email protected] vs State Of Punjab on 6 December, 2022
CRM-M-25671-2022 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
(221)
CRM-M-25671-2022
Date of decision: - 06.12.2022
Jagdeep Singh @ Kakku
....Petitioner
Versus
State of Punjab
.....Respondent
CORAM : HON'BLE MR. JUSTICE VIKAS BAHL
Present:- Mr. Arshdeep Singh Brar, Advocate
for the petitioner.
Mr. Ramdeep Partap Singh, Sr. DAG, Punjab.
****
VIKAS BAHL, J. (ORAL)
This is the first petition under Section 439 Cr.P.C. for grant
of regular bail to the petitioner in FIR No.141 dated 07.10.2021, under
Section 22 of the Narcotic Drugs & Psychotropic Substances Act, 1985
(Section 29 of the NDPS Act has been added later on), registered at
Police Station Badhni Kalan, District Moga.
Learned counsel for the petitioner has submitted that the
petitioner has been in custody since 07.10.2021 and the investigation is
complete and the challan has already been presented and there are total 10
prosecution witnesses, out of which, none have been examined, thus, the
trial is likely to take time and the petitioner is not involved in any other
case. It is further submitted that in the present case there are arguable
points including the point that as per the FIR it has been alleged by the
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prosecution that the petitioner was carrying the intoxicant tablets in a
transparent polythene bag and thus, the police party could see the same
while the petitioner was walking with the said polythene carry bag. It is
stated that it is highly unlikely for a person who has to carry contraband,
to carry the same in a transparent polythene bag and on the basis of the
said point alone, Coordinate Benches of this Court have granted the
concession of bail to the accused persons in such cases. Reference has
been made to the various orders passed by the Coordinate Benches of this
Court i.e., order dated 02.08.2021 passed in CRM-M-4408-2021 titled
Banti Kaur @ Bhanti Kaur Vs. State of Punjab, Binder Kaur @ Goga
Vs. State of Punjab reported as 2021(3) RCR (Criminal) 360, Jaskaran
Singh @ Jassu Vs. State of Punjab, reported as 2021(2) RCR (Criminal)
837, order dated 28.02.2020 passed in CRM-M-8026-2020 titled as
Lakhwinder Singh @ Lakha Vs. State of Punjab. It is also submitted that
the allegation against the accused to the effect that he was carrying the
intoxicant tablets in a transparent polythene bag, has been levelled by the
police in order to avoid the compliance of mandatory provisions of
Section 50 of the NDPS Act, which requires the said procedure to be
followed before any search is made from the petitioner.
Learned State counsel, on the other hand, has opposed the
present petition for regular bail and has submitted that recovery from the
present petitioner falls within the ambit of commercial quantity and thus,
bar under Section 37 of the NDPS Act would apply. It has been further
submitted by the learned State counsel that the police party had seen that
the intoxicant tablets were being carried by the petitioner, since the
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polythene bag was transparent and recovery thereafter was effected from
the said transparent polythene bag.
This Court has heard learned counsel for the parties and has
gone through the paper-book.
A Coordinate Bench of this Court in Banti Kaur @ Bhanti
Kaur's case (Supra) has held as under:-
"1. The petitioner has approached this Court seeking grant
of regular bail in respect of a case registered against her vide FIR
No.191, dated 8.10.2020, Police Station Cantt Bathinda, District
Bathinda, under Section 22 of NDPS Act, wherein it is alleged that the
petitioner was caught red-handed while carrying a transparent plastic
polythene bag which was found to contain 1000 tablets of 'Clovidol'.
2. Learned counsel for the petitioner submits that the
petitioner has falsely been implicated in the instant case and that she
has an unblemished record and is not involved in any other case and it
is highly unlikely that any person who is carrying contraband would
carry the same in a transparent bag so as to invite attention, including
that the police.
3. Opposing the petition, learned State counsel has not
disputed the fact that the contraband is alleged to have been carried in
a transparent plastic polythene bag. He has however, submitted that
the weight of the total recovered contraband works out to 410 grams
of 'Tramadol' which would fall within the category of 'commercial
quantity'. Learned State counsel has however, informed that the
petitioner is not involved in any other case and has presently been
behind bars since the last about 9 months and 17 days.
4. I have considered rival submissions addressed before
this Court.
5. It is not disputed that the contraband was alleged to
have been carried by the petitioner in a transparent polythene bag. It
is certainly highly unlikely that a person who is committing an offence
in respect of any contraband would do it in such a manner that his/her
detection is inevitable. Carrying contraband in a transparent
polythene bag making it clearly visible to others would surely invite
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attention of everybody who passes by. In these circumstances the case
of the prosecution is rather rendered suspect particularly in view of
the fact that the petitioner is not even stated to be a previous convict
and is a lady who has been behind bars since the last about 9 months.
In view of the aforesaid discussion particularly the fact that the
petitioner is a lady and is not even a previous convict, the petition is
accepted and the petitioner is ordered to be released on bail subject to
her furnishing bail bonds to the satisfaction of learned trial
Court/Chief Judicial Magistrate/Duty Magistrate concerned.
2.8.2021 Sd/-
(GURVINDER SINGH GILL)
JUDGE"
A perusal of the said judgment would show that although, in
the said case, recovery effected was of commercial quantity but it was
found that since recovery was effected from a transparent polythene bag,
the same made the case of the prosecution doubtful and it was observed
therein that as it was highly unlikely that a person who is committing an
offence with respect to any contraband, would carry the same in a
transparent polythene bag inviting the attention of everybody who passes
by.
Coordinate Bench in Jaskaran Singh @ Jassu's case
(Supra), after considering several judgments on the same issue, had also
granted the concession of regular bail to the petitioner in that case.
Relevant portion of the judgment is reproduced as under:-
"xxx xxx
2. Relies upon the decision of this Court in Lakhwinder
Singh alias Lakha vs. State of Punjab (CRM-M No.8026 of 2020) and
of Co-ordinate Benches in Binder Kaur alias Goga vs. State of Punjab
(CRM-M No.4584 of 2020) and Mandir Singh vs. State of Punjab
(CRM-M No.8035 of 2019) to contend that a person engaged in the
trade of contraband would never be expected to carry the same in any
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transparent bag which would be visible to the naked eyes.
3. Per contra, the bail application is opposed on behalf of
the State by contending that the recovery of commercial quantity of
contraband was made from the car of the petitioner himself.
4. Be that as it may, without prejudice to the merits of the
submission raised on behalf of the petitioner, but considering that he is
admittedly not involved in any other case under the NDPS Act, and
also considering that he has remained in detention well above 05
months since 14.12.2019, at this stage, the petitioner may be released
on regular bail to the satisfaction of the Ld. Trial Court/Duty
Magistrate, concerned subject to imposition of appropriate terms and
conditions.
Xxx xxx"
Coordinate Bench of this Court in Binder Kaur @ Goga's
case (Supra), had held as under:-
"xxx xxx
2. Learned counsel for the petitioner has vehemently
argued that in the present case the petitioner has been falsely
implicated. He has further stated that the petitioner is a young lady of
38 years of age, having a family and has good antecedents. He has
further stated that there is no past history of the petitioner and she is
not involved in any other case till date. He has further contends that
even as per the allegations contained in the FIR, the petitioner was
carrying 1000 tablets containing Tramadol Hydrochloride salt in her
hand, which was in a transparent polythene bag. Learned counsel
states that the story put forward by the police is ex facie concocted
because in case any person wishes to do the trading or to carry the
contraband then it would never be put in a transparent bag. He has
further pointed out that in the FIR it has been repeatedly recorded that
bag was transparent in nature. He has further submitted that the
petitioner is in custody since 08.11.2019.
xxx xxx
4. Learned State counsel has filed the custody certificate of
the petitioner by way of affidavit of Rajdeep Singh Brar, Deputy
Superintendent, Central Prison, Faridkot. Same is taken on record. As
per the custody certificate the petitioner is in custody for a period of
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02 months and 27 days and there is no other case against her. He
further submits that after completion of investigation and presentation
of challan, the charges have also been framed by the trial Court.
Xxx xxx
6. At the time of deciding bail application there are various
relevant factors, which can be taken into consideration. Prima facie
probability of influencing witnesses is one of the element factor and
also as to whether the petitioner is particularly involved in any other
case is also a relevant factor. It is also relevant in any case for
deciding the bail application as to what is the stage of the case. In the
present case the investigation is already over and the petitioner is in
custody for about three months and this Court while deciding the bail
application would not go into the merits of the case. Nothing is
apparent to show that petitioner may influence the witnesses.
Therefore, without meaning any expression of opinion on the merits of
the case, it is ordered that the petitioner be released on regular bail
subject to her furnishing requisite bail bonds/surety bonds to the
satisfaction of the trial Court.
Xxx xxx"
A perusal of the above judgment would show that in fact, bail
was granted on the said point in a case where the accused was in custody
only for a period of three months. Similarly, in Lakhwinder Singh @
Lakha's case (supra), Coordinate Bench of this Court had held has
under:-
"xxx xxx
2. Ld. Counsel for the Petitioner relies on a decision of a
Co-ordinate Bench of this Court in 'CRM-M No.4584 of 2020 - Binder
Kaur alias Goga vs. State of Punjab', to contend that it is unbelievable
that a person engaged in the business of Drug Smuggling, will carry
the contraband in a transparent Bag. The applicant, in the aforesaid
case, in the given circumstances, considering that she was not
involved in any other case under the NDPS Act and challan against
her had already been submitted, was therefore released on bail by the
Bench after she had remained in detention for 02 months and 27 days.
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3. The detention undergone by the present Petitioner is
much more being 08 months, and he is also not stated to be involved in
any other case under the NDPS Act.
4. Challan against the Petitioner has already been
submitted and the trial is still pending.
5. As such, considering the long detention already
undergone by the present Petitioner and without commenting on other
merits of the case, he is ordered to be released on bail to the
satisfaction of the Ld. Trial Court concerned.
6. Disposed off."
In the present case, a perusal of the FIR would show that
even as per the case of the prosecution, the petitioner was carrying
intoxicant tablets in a transparent polythene bag and thus, the law laid
down in the above said judgments would also apply in the present case.
The petitioner has been in custody since 07.10.2021 and the investigation
is complete and the challan has already been presented and there are total
10 prosecution witnesses, out of which, none have been examined, thus,
the trial is likely to take time. The petitioner is stated to be not involved in
any other case.
Keeping in view the above said facts and circumstances, this
Court is of the opinion that in the present case, there are several arguable
points involved, which would be determined during the course of trial and
thus, the petitioner is entitled to grant of regular bail. Further, this Court
proposes to impose such conditions that would meet object of Section 37
of the NDPS Act.
Accordingly, the present petition is allowed and the
petitioner is ordered to be released on bail on his furnishing bail / surety
bonds to the satisfaction of the concerned trial Court/ Duty Magistrate
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and subject to him not being required in any other case. The petitioner
shall also abide by the following conditions:-
1. The petitioner will not tamper with the evidence during the
trial.
2. The petitioner will not pressurize / intimidate the prosecution
witness(s).
3. The petitioner will appear before the trial Court on the date
fixed, unless personal presence is exempted.
4. The petitioner shall not commit an offence similar to the
offence of which he is accused of, or for commission of
which he is suspected.
5. The petitioner shall not directly or indirectly make any
inducement, threat or promise to any person acquainted with
the facts of the case so as to dissuade him from disclosing
such facts to the Court or to any police officer or tamper with
the evidence.
In case of breach of any of the above conditions, the
prosecution shall be at liberty to move an application for cancellation of
bail before this Court.
However, nothing stated above shall be construed as a final
expression of opinion on the merits of the case and the trial Court would
proceed independently of the observations made in the present case which
are only for the purpose of adjudicating the present bail petition.
( VIKAS BAHL )
December 06, 2022 JUDGE
naresh.k
Whether reasoned/speaking? Yes/No
Whether reportable? Yes/No
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