Balvir Singh @ Kaddu vs State Of Punjab
2022 Latest Caselaw 16128 P&H

CRM-M-7473-2022 (O&M)                                                -1-

215
       IN THE HIGH COURT OF PUNJAB AND HARYANA AT
                      CHANDIGARH

                                                 CRM-M-7473-2022 (O&M)
                                                 Date of decision : 08.12.2022
Balvir Singh @ Kaddu                                                 ...Petitioner

                                        Versus

State of Punjab                                                    ...Respondent

CORAM: HON'BLE MR. JUSTICE VIKAS BAHL

Present:     Mr. Prateek Pandit, Advocate for the petitioner.

             Mr. Ramdeep Partap Singh, Sr. DAG, Punjab.

             ****

VIKAS BAHL, J. (ORAL)

Prayer in the present petition is for grant of regular bail to the

petitioner in FIR No. 264 dated 29.09.2020 registered under Sections 21(a)

and 22 of the Narcotic Drugs and Psychotropic Substances Act, 1985 at

Police Station Kotwali Kapurthala, District Kapurthala.

Learned counsel for the petitioner has submitted that as per the

custody certificate, the petitioner has undergone actual custody of one year &

26 days and there are 7 prosecution witnesses, out of which, none have been

examined and thus, the conclusion of trial is likely to take time. It is further

submitted that there are several arguable points in the present case including

the point that the alleged recovery cannot be stated to be from the conscious

possession of the present petitioner inasmuch as even as per the case of the

prosecution, the petitioner had thrown the polythene bag on the side of the

road and it was the SI, who picked up the polythene bag thrown by the

petitioner from the side of the road. It is further contended that in such a

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situation, it cannot be said that the petitioner was in conscious possession of

the contraband and for the said argument, the petitioner has relied upon the

decision of a Coordinate Bench of this Court in CRM-M-16150-2021 dated

19.07.2021 titled as 'Balwinder Singh Vs. State of Punjab', and CRM-M-

33733-2020 dated 15.03.2021 titled as 'Manjit Singh Vs. State of Punjab',

alongwith connected matters and also upon judgment reported as 2019(4)

RCR (Criminal) 714 titled as 'Ravi Kumar Vs. State of Punjab.

Learned State counsel, on the other hand, has opposed the

present petition for grant of regular bail to the petitioner and has submitted

that it was in the presence of the police party that the petitioner had thrown

the bag containing the contraband and thus, it cannot be said that the

petitioner was not in conscious possession of the intoxicants tablets. He has

further submitted that petitioner is involved in two other cases.

Learned counsel for the petitioner, in rebuttal to the abovesaid

argument, has relied upon the judgment of Hon'ble Supreme Court in

"Maulana Mohd. Amir Rashadi vs. State of U.P. and another", reported as

2012 (2) SCC 382 to contend that the facts and circumstances of the present

case are to be seen and the bail application of the petitioner cannot be

rejected solely on the ground that the petitioner is involved in another case.

The relevant portion of the said judgment is reproduced hereinbelow:-

"As observed by the High Court, merely on the basis of criminal antecedents, the claim of the second respondent cannot be rejected. In other words, it is the duty of the Court to find out the role of the accused in the case in which he has been charged and other circumstances such as possibility of fleeing away from the jurisdiction of the Court etc."

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This Court has heard learned counsel for the parties and has

perused the paper-book.

In Balwinder Singh's case (Supra), a Coordinate Bench of this

Court has held as under:

"Briefly stated, case of the prosecution against the petitioner is that on 04.03.2019 police party headed by ASI Ravinder Singh on patrolling duty were coming to Tehang Octroi via Saiflabad. When they reached near Civil Hospital, Phillour they saw the petitioner coming on foot who on seeing the police party threw one heavy weight black coloured polythene bag and tried to run away. The police apprehended the petitioner and on search as per prescribed procedure recovered 55 intoxicant injections containing Buprenorhpine 2 ml each and 55 injections containing Avil 10 ml each from the polythene bag.

XXX---XXX---XXX On the other hand, learned State Counsel has argued that the petitioner kept in his conscious possession commercial quantity of intoxicant injections. Rigors of Section 37(1)(b) are fully applicable to the case of the petitioner. The petitioner does not deserve the concession of regular bail. Therefore, the petition may be dismissed.

However learned State Counsel has conceded that the petitioner is not involved in any other case under the NDPS Act.

In CRM-M-13662-2020 titled as 'Niranjan Kumar @ Kaka Vs. State of Punjab' decided on 06.07.2020; CRM- M14474- 2020 titled as 'Dharminder Singh Vs. State of Punjab' decided on 24.06.2020; CRM-M-21020-2020 titled as 'Amritpal Singh Lamberdar Vs. State of Punjab' decided on 11.08.2020; CRMM6433-2018 titled as 'Pawan Kumar Vs. State of Punjab' decided on 23.02.2018 and CRM-M 16380-

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2020 titled as 'Buta Singh Vs. State of Punjab' decided on 13.08.2020 where recovery of narcotic/psychotropic drug/substance was made from bag allegedly thrown on the road side by the accused, the case was considered to involve question as to whether the accused could be said to be in conscious possession thereof and the accused was granted regular bail.

In 'Chitta Biswas @ Subhash Vs. State of West Bengal' Criminal Appeal No.245 of 2020 SLP (Criminal) No.8823 of 2019 decided on 07.02.2020 where recovery of 46 bottles of phensydryl cough syrup containing codeine mixture above commercial quantity was made from the accused who was in custody since 21.07.2018 and out of 10 prosecution witnesses only 4 prosecution witnesses had been examined, the accused was granted bail by Hon'ble Supreme Court.

In the present case recovery of intoxicant injections was allegedly made from polythene bag allegedly thrown on the road side. The case involves debatable question as to whether the petitioner can be said to be in conscious possession of the contraband recovered from the polythene bag lying on the road side. The petitioner is not involved in any other case under the NDPS Act. Rigors of Section 37(1)(b) of the NDPS Act stand satisfied by due implication. Further, the petitioner is in custody since 04.03.2019. Prosecution evidence is yet to be recorded. The trial is likely to take long time due to restrictions imposed to prevent spread of Covid-19.

In view of the above referred judicial precedents and facts and circumstances of the case but without commenting on the merits of the case, I am of the considered view that the petitioner deserves the concession of regular bail.

Therefore, the petition is allowed and the petitioner is ordered to be released on regular bail on furnishing of bail

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bonds to the satisfaction of the trial Court/Duty Magistrate/Chief Judicial Magistrate concerned.

However, bail is granted to the petitioner subject to the condition that he will not commit any offence under the NDPS Act after his release on bail and in case of involvement of the petitioner in commission of any offence under the NDPS Act in future, his bail in the present case shall also be liable to be cancelled on application to be filed in this regard."

A perusal of the above judgment would show that although, in

the said case, the recovery effected was of commercial quantity but, since the

recovery was effected after the same had been thrown on the ground, thus, it

was observed that it was a debatable issue whether the petitioner could be

stated to be in conscious possession of the narcotic substance or not. It was

also observed that the rigors of Section 37(1) (B) of the NDPS Act stood

satisfied by due implication.

Even in Manjit Singh's case (supra), a Coordinate Bench of this

Court dealt with a case in which, the allegation was that the petitioner therein

was holding a polythene bag and on seeing the police party, he threw the said

polythene bag. It was observed that it was not possible to conclude that

whether the recovery effected was made from the conscious possession of the

petitioner therein or not. The said case was a case of commercial quantity.

Before adverting to the facts of the present case, it would

relevant to note the various judgments of the Hon'ble Supreme Court and

High Court granting bail in cases involving commercial quantity. In CRMM-

20177- 2020, titled as Vipan Sood vs. State of Punjab, a Co-ordinate Bench

of this Court granted regular bail to an accused who was involved in a case

wherein recovery was of 3.8 kgs of "charas" (commercial quantity) after

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being in custody for 1 year and 7 months. The said order was upheld by the

Hon'ble Supreme Court vide order dated 24.08.2021 in a Petition for Special

Leave to Appeal (Crl.) No.5852/2021 titled as "Narcotic Control Bureau v.

Vipan Sood and another".

The Hon'ble Supreme Court of India vide order dated

12.10.2020 passed in Criminal Appeal No.668 of 2020 titled as "Amit Singh

@ Moni v. Himachal Pradesh" was pleased to grant regular bail in a case

involving 3 kg and 800 grams of "charas" primarily on the ground of

substantial custody and also, the fact that the trial would likely take time to

conclude.

In Criminal Appeal No.827 of 2021 titled as Mukarram

Hussain v. State of Rajasthan and another, the Hon'ble Apex Court vide

judgment dated 16.8.2021 was also pleased to grant bail wherein the quantity

of the contraband was commercial in nature.

A Co-ordinate Bench of this Court in CRM-M 10343 of 2021

titled as Ajay Kumar @ Nannu v. State of Punjab and other connected

matters, vide Order dated 31.03.2021, after taking into consideration the

stipulations of Section 37 of the NDPS Act, was pleased to grant regular bail

in a case involving commercial quantity and a condition was imposed on the

petitioner therein while granting the said bail and the said condition was

incorporated in para 21 of the said judgment, which reads as under:

"21. However, the petitioners are granted regular bail subject to the condition that they shall not commit any offence under the NDPS Act after their release on bail and in case of commission of any such offence by them after their release on bail, their bail in the present case shall also be

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liable to be cancelled on application to be filed by the prosecution in this regard."

Further, a Division Bench of this Court vide judgment dated

31.08.2021 passed in CRM-8262-2021 in CRA-S-3721-SB of 2015 titled as,

Harpal Singh v. National Investigating Agency and another, granted

suspension of sentence in a case where the recovery was of commercial

quantity. In the above-mentioned order, the Division Bench had taken into

consideration the right vested with an accused person/convict under Article

21 of the Constitution of India with regard to speedy trial. Further, the

judgment of Hon'ble the Supreme Court in State (NCT of Delhi) v. Lokesh

Chadha; (2021) 5 SCC 724 was also taken into account and the provisions of

Section 37 of NDPS Act were considered and the sentence of the applicant-

appellant therein was suspended after primarily considering the period of

custody of the applicant-appellant therein and also the fact that the appeal

was not likely to be heard in near future. Reference in the order was also

made to the Division Bench judgment of this Court in Daler Singh v. State of

Punjab; 2007 (1) R.C.R. (Criminal) 316 and the view taken in Daler Singh's

case (supra) was reiterated and followed. In the above said judgment, it was

also noticed that the grounds for regular bail stand on a better footing than

that of suspension of sentence, which is after conviction.

In the present case, as per the custody certificate, the petitioner

is already undergone actual sentence of 1 year and 26 days and challan has

been presented and there are 7 prosecution witnesses, out of which, none

have been examined and thus, the conclusion of trial is likely to take time.

The question, whether the recovery effected in the present case from the

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polythene bag which was alleged to have been thrown by the petitioner on

the side of the road and was picked up by the SI could be stated to be from

the conscious possession of the petitioner or not, would be a matter of debate,

which would be finally adjudicated during the course of the trial. Keeping in

view of the law laid down in the aforesaid judgments, moreso in the case of

Balwinder Singh's case (supra), as well as in the case of Manjit Singh's case

(supra), it is apparent that the same is a strong arguable point in favour of the

petitioner and has been considered as a point to overcome the rigors of

Section 37 of the NDPS Act. Moreover, this Court purposes to impose such

conditions that would meet the object of Section 37 of the NDPS Act.

Keeping in view the above-said facts and circumstances, 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 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 his personal presence is exempted.

4. The petitioner shall not commit an offence similar to the offence of

which they are 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

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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.

Nothing stated above shall be construed as an expression of

opinion on the merits of the case and the trial would proceed independently

of the observations made in the present case which are only for the purpose

of adjudicating the present bail application.

Pending application(s) stands disposed of.

08.12.2022                                              (VIKAS BAHL)
Rajeev (rvs)                                               JUDGE


               Whether speaking/reasoned:- Yes/No

               Whether reportable:-              Yes/No




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