Sukhwinder Kaur vs State Of Punjab
2022 Latest Caselaw 6404 P&H

CRM-M-38961-2021 (O&M)                                               -1-


            IN THE HIGH COURT OF PUNJAB AND HARYANA AT
                         CHANDIGARH
(209)
                                 CRM-M-38961-2021 (O&M)
                                 Date of decision: - 08.07.2022
Sukhwinder Kaur
                                                                   ....Petitioner
                                   Versus
State of Punjab
                                                                .....Respondents

CORAM : HON'BLE MR. JUSTICE VIKAS BAHL


Present:-     Mr. Rahul Arora, Advocate
              for Mr. Raman Goklaney, Advocate, for the petitioner.

              Mr. Sukhbeer Singh, AAG, Punjab.

                   ****
VIKAS BAHL, J. (ORAL)

This is a first petition under Section 439 Cr.P.C. for grant of

regular bail in FIR No.88 dated 08.07.2021, registered under Section 22

of the Narcotic Drugs & Psychotropic Substances Act, 1985, at Police

Station Arniwala, District Fazilka.

Learned counsel for the petitioner has submitted that in the

present petition, no recovery has been effected from the present petitioner

and even as per the prosecution version, the said recovery has been

effected from the husband of the petitioner. It is also submitted that the

petitioner is not involved in any other case and that she is a lady and has a

seven year old daughter to take care of. It is further submitted that the

petitioner has been in custody since 08.07.2021 and out of the total 16

prosecution witnesses, only one has been examined and thus, the trial is

likely to take time. It is also submitted that all the witnesses are official

witnesses, thus, the question of them influenced by the petitioner would

1 of 7

CRM-M-38961-2021 (O&M) -2-

not arise.

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

present petition for regular bail and has submitted that the present

petitioner was also also walking with her husband (co-accused) before

they were both apprehended at the spot and thus, it cannot be said that the

petitioner was not in conscious possession of the recovered intoxicant

tablets. It is further submitted that the recovery from the husband of the

present petitioner is of commercial quantity and the bar under Section 37

of the NDPS Act, would be attracted and thus, the petitioner does not

deserve the concession of regular bail.

This Court has heard learned counsel for the parties and has

gone through the paper-book.

Learned counsel for the petitioner has also highlighted the

fact that in various cases where recovery of commercial quantity has been

effected, the Supreme Court as well as this Court have, on the basis of

arguable points in the bail application as well as by considering the

custody undergone by the accused in 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

2 of 7

CRM-M-38961-2021 (O&M) -3-

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 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

3 of 7

CRM-M-38961-2021 (O&M) -4-

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 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

4 of 7

CRM-M-38961-2021 (O&M) -5-

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 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. 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.

                                    5 of 7

 CRM-M-38961-2021 (O&M)                                            -6-

In the present case, the petitioner is in custody since

08.07.2021 and there are 16 prosecution witnesses, only one has been

examined and thus, the trial is likely to take time. The petitioner is stated

to be not involved in any other case and all the prosecution witnesses are

stated to be official witnesses, thus, the question of them being influenced

by the petitioner does not arise. The petitioner is a lady, who has a 7 year

old daughter to take care of. Perusal of the FIR would show that the

recovery had been effected from the co-accused (husband of the

petitioner) and not from the petitioner and they were stated to be walking

and were not even in a vehicle. The question as to whether the petitioner,

in such circumstances, could also be stated to be in conscious possession

of the intoxicant tablets recovered, would be a matter of debate, which

would be finally adjudicated during the course of trial. This Court is of

the opinion that in the present case, there are arguable points which have

been raised by the learned counsel for the petitioner and all the abovesaid

factors are sufficient to entitle the petitioner for the concession of regular

bail. Moreover, this Court proposes 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 her furnishing bail / surety bonds to the satisfaction of the

concerned trial Court/ Duty Magistrate and subject to her 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

6 of 7

CRM-M-38961-2021 (O&M) -7-

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 she is accused of, or for commission of which

she 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.

Pending miscellaneous application(s), if any, stand disposed

of in view of the abovesaid order.

                                                  ( VIKAS BAHL )
July 08, 2022                                          JUDGE
naresh.k
            Whether reasoned/speaking?                   Yes/No
            Whether reportable?                          Yes/No




                                        7 of 7