Punjab-Haryana High Court
Tarsem Masih vs State Of Punjab on 3 February, 2022
CRM-M-1677-2022 -1-
216
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CRM-M-1677-2022
Date of decision : 03.02.2022
Tarsem Masih
...Petitioner
Versus
State of Punjab
...Respondent
CORAM: HON'BLE MR. JUSTICE VIKAS BAHL
Present: Mr. Gobind Singh Randhawa, Advocate
for the petitioner.
Mr. Sarabjit S. Cheema, AAG, Punjab.
(Through Video Conferencing)
****
VIKAS BAHL, J. (ORAL)
Prayer in the present petition is for grant of regular bail to the
petitioner in FIR No.133 dated 02.11.2021 registered under Sections 15(C),
29/61 of the Narcotic Drugs and Psychotropic Substances Act, 1985 at
Police Station Bhogpur, District Jalandhar (Rural).
The present FIR has been registered on the basis of ruqa sent by
the Sub-Inspector Navdeep Kaur to the effect that she alongwith ASI Satpal
Singh and other police officials were in the Government Vehicle and were
patrolling the area when the secret informer came present and informed that
Chaman Lal (co-accused) and Shinder Pal Singh (co-accused), commuting
by Canter bearing registration No. PB-23M-7691, being the driver and
cleaner of the same respectively, were carrying poppy husk by hiding the
1 of 9
same under the boxes of apples, which they were getting from Srinagar and
were to supply the same to the customers at Jalandhar city and in pursuance
of the said secret information, the barricades were set up and during
checking, at the 'naka', the abovesaid canter was intercepted and the said co-
accused Chaman Lal and Shinder Pal Singh were apprehended, and
thereupon, the recovery of 110 kg of poppy husk from the canter was
effected. It is further the case of the prosecution that the said accused
Chaman Lal had made a disclosure statement to the effect that he, alongwith
Shinder Pal Singh, had purchased five plastic bags total weighing 22/22 kg
of poppy husk from one Dhaba and had loaded them in their canter and the
present petitioner and co-accused Sukhdev Raj @ Sukha had purchased 30
kg of poppy husk from the same Dhaba and had loaded the same in the
cabin of their truck bearing registration No.PB-10BZ-7207.
Learned counsel for the petitioner has submitted that in the
present case, at best, the recovery from the truck in which the present
petitioner was travelling i.e. PB-10BZ-7207 was of 30 kg of poppy husk and
the same is non-commercial quantity. It is further submitted that under no
circumstance, recovery made from the canter bearing registration No.PB-
23M-7691, of 110 kg of poppy husk, could be clubbed with the recovery
made from the truck bearing registration No.PB-10BZ-7207. It is argued
that perusal of the FIR would also show that no secret information had been
received against the present petitioner and the secret information received
was only against the co-accused Chaman Lal and Shinder Pal Singh and was
with respect to canter bearing registration No.PB-23M-7691 and it is from
the said vehicle, that the recovery of 110 kg of poppy husk has been
2 of 9
effected. The petitioner was not present in the said canter bearing
registration No.PB-23M-7691 and thus, any recovery made from the said
canter could not be foisted upon the present petitioner. It is further argued
that the petitioner is not involved in any other case and has been in custody
since 02.11.2021 and the challan in the present case has already been
presented and since, the charges have to be framed, thus, the conclusion of
the trial is likely to take time, moreso in view of the present COVID-19
pandemic. Learned counsel for the petitioner has further submitted that the
co-accused of the petitioner Sukhdev Raj @ Sukha has already been granted
regular bail vide order dated 01.02.2022 passed in CRM-M-3293-2022 and
the case of the petitioner is on the same footing as that of Sukhdev Raj @
Sukha.
Notice of motion.
On advance notice, Mr. Karanbir Singh, AAG, Punjab, appears
and accepts notice on behalf of the State and has submitted that he is fully
prepared to argue the matter and assist this Court. He has opposed the
present petition for grant of regular bail to the petitioner and has submitted
that the recovery of 110 kg of poppy husk is from the canter bearing
registration No.PB-23M-7691, but perusal of the disclosure statement made
by the Chaman Lal would show that the present petitioner and the co-
accused Sukhdev Raj @ Sukha were involved in the said business and had
been going to Srinagar and returning together and had even made the
alleged purchase from one Dhaba only and thus, it is submitted that the
entire recovery made from both the vehicles, should be taken into
consideration for the purpose of determination of the present petition for
3 of 9
grant of regular bail.
This Court has heard the learned counsel for the parties and has
perused the paper book.
Though, claiming for the petitioner's case to be involving non-
commercial quantity of contraband, learned counsel for the petitioner has
also highlighted the fact that in various cases, even where recovery of
commercial quantity was involved, there, the Hon'ble Supreme Court as
well as this Court have, on the basis of arguable points in the bail
application as well as by considering the period of custody and the merits of
the case, granted bail/suspension of sentence. Some of the said judgments
are being discussed hereinafter. In Criminal Appeal No.965 of 2021 titled as
Dheeren Kumar Jaina v. Union of India, the Hon'ble Supreme Court in a
case where allegation in the chargesheet was with respect to 120 kg of
contraband i.e. "ganja", thus, being of commercial quantity, was pleased to
grant bail after setting aside the order of the High Court where the said
application for grant of regular bail had been rejected.
A co-ordinate Bench of this Court in a detailed judgment titled
as Ankush Kumar @ Sonu v. State of Punjab reported as 2018 (4) RCR
(Criminal) 84, had considered the provision of Section 37 of the NDPS Act
in extenso and had granted bail in a case which involved commercial
quantity. The relevant portion of the said judgment is reproduced as under:
" xxx--xxx--xxx
But, so far as second part of Section 37 (1) (b) (ii), i.e.
regarding the satisfaction of the Court based on reasons to
believe that the accused would not commit 'any offence' after
coming out of the custody, is concerned, this Court finds that
4 of 9
this is the requirement which is being insisted by the State,
despite the same being irrational and being incomprehensible
from any material on record. As held above, this Court cannot
go into the future mental state of the mind of the petitioner as to
what he would be, likely, doing after getting released on bail.
Therefore, if this Court cannot record a reasonable satisfaction
that the petitioner is not likely to commit 'any offence' or
'offence under NDPS Act' after being released on bail, then this
court, also, does not have any reasonable ground to be satisfied
that the petitioner is likely to commit any offence after he is
released on bail. Hence, this satisfaction of the Court in this
regard is neutral qua future possible conduct of the petitioner."
The Special Leave Petition (Criminal) Diary No.42609 of 2018
filed against the aforesaid judgment of the Co-ordinate Bench of this Court,
was dismissed by the Hon'ble Supreme Court.
Further, vide order dated 25.02.2021 in CRM-M-20177-2020, 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 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. VipanSood 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.
5 of 9
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 Punjaband 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 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 abovementioned 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
6 of 9
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 DalerSingh 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.
It is apparent that to meet the requirement of Section 37 of the NDPS Act,
various Courts have taken into consideration the merits of the case and the
period of custody and where in a case there are arguable points on merits
and the custody is also adequate, the Hon'ble Supreme as well as various
High Courts have granted bail even in cases involving commercial quantity.
In the present case, it is not in dispute that the secret
information was with respect to canter bearing registration No.PB-23M-
7691, in which the present petitioner was not travelling. The secret
information was with respect to co-accused Chaman Lal and Shinder Pal
Singh, who were travelling in the abovesaid vehicle. The recovery of 110 kg
of poppy husk was also made from the said canter and thus, at best, only
those two persons could be stated to be the persons from whom the said
recovery of 110 kg of poppy husk has been made. The petitioner and the co-
accused Sukhdev Raj @ Sukha have been implicated in the present case on
the basis of disclosure statement of the co-accused namely Chaman Lal. A
careful perusal of the said statement of co-accused Chaman Lal would show
7 of 9
that it had been stated by him that he and Shinder Pal Singh had purchased
five plastic bags weighing 22/22 kg of poppy husk from one Dhaba and had
loaded them in the canter (PB-23M-7691) and the present petitioner and
Sukhdev Raj @ Sukha had also purchased 30 kg of poppy husk from the
same Dhaba and had loaded the same in the cabin of their truck (i.e. PB-
10BZ-7207). It is not in dispute that recovery from the truck in which the
petitioner was sitting i.e. PB-10BZ-7207 was of two bags of poppy husk of
15 kg each i.e. 30 kg total. The commercial quantity, as per the law, is 50 kg
and above. The question as to whether the recovery effected from the other
vehicle i.e. PB-23M-7691, in which the petitioner was neither the driver,
nor present otherwise, could also be clubbed with the recovery effected
from the truck in which the petitioner was sitting i.e. PB-10BZ-7207, would
be a matter of trial. As the facts stand today, from the record, recovery made
from the truck which the petitioner was driving was of 30 kg of poppy husk.
The same is non-commercial quantity. The petitioner is not involved in any
other case. The petitioner has been in custody since 02.11.2021 and the
challan in the present case has already been presented and the charges have
not been framed as yet and thus, the conclusion of the trial is likely to take
time, moreso in view of the present COVID-19 pandemic and the co-
accused of the petitioner Sukhdev Raj @ Sukha, who is similarly placed as
the present petitioner has been granted the concession of regular bail by this
Court vide order dated 01.02.2022 passed in CRM-M-3293-2022.
From the abovesaid facts, it is apparent that there are arguable
points in the case to be determined during trial and accordingly, the present
petition is allowed and the petitioner is ordered to be released on regular
8 of 9
bail on his furnishing bail/surety bonds to the satisfaction of the concerned
trial Court/Duty Magistrate, subject to his 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, 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 application.
03.02.2022 (VIKAS BAHL)
Mehak JUDGE
Whether speaking/reasoned:- Yes/No
Whether reportable:- Yes/No
9 of 9
