Punjab-Haryana High Court
Hem Singh vs State Of Punjab on 11 July, 2022
CRM-M No. 51723 of 2021 -1-
Sr. No. 218
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CRM-M No.51723 of 2021
Date of Decision: 11.07.2022
Hem Singh
.......Petitioner
Vs.
State of Punjab
........Respondent
CORAM: HON'BLE MR. JUSTICE JASGURPREET SINGH PURI
Present:- Mr. Prateek Pandit, Advocate,
for the petitioner.
Mr. Davinder Bir Singh, DAG, Punjab.
*****
JASGURPREET SINGH PURI, J. (ORAL)
The present petition has been filed under Section 439 of the
Code of Criminal Procedure for the grant of regular bail to the petitioner in
FIR No.46 dated 31.03.2019, under Sections 15 & 25 of the NDPS Act,
1985, registered at Police Station Jalandhar Cantt, District Jalandhar.
It has been submitted by learned counsel for the petitioner that
the petitioner is in custody since 31.03.2019, which is about 03 years and 03
months. He submitted that it is a case where there has been total non-
compliance of mandatory provisions of Sections 42 and 50 of the NDPS
Act. He further submitted that although the alleged recovery from the
petitioner was of 345 kg. Poppy husk, which falls under commercial
quantity but the bar contained under section 37 of the NDPS Act would not
apply in the present case since there has been violation of mandatory
provisions of Sections 42 and 50 of the NDPS act. He also submitted that
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this Court on 21.02.2022 had raised a specific query to the State with regard
to the contention raised by the petitioner that there was violation and non-
compliance of Section 42 of the NDPS Act and in pursuance thereof, an
affidavit has been filed by the Deputy Commissioner of Police
(Investigation), Jalandhar, in which it has been specifically stated by the
aforesaid officer that the provisions of Section 42 of the NDPS Act were
not duly complied with. Learned counsel for the petitioner also relied upon
the judgment of the Hon'ble Supreme Court in Karnail Singh Vs. State of
Haryana, (2009) 8 SCC 539, to contend that the provisions of Section 42 of
the NDPS Act were mandatory in nature. He has further submitted that
apart from the same, there has been a violation of Section 50 of the NDPS
Act. He has submitted that a Gazetted Officer was called since it was a case
of secret information but the offer in terms of Section 50 of the NDPS Act
was improper and invalid offer because when offer was made it was made
for being searched before a Magistrate only, whereas as per the provisions
of Section 50 of the NDPS Act, it has to be made either before the
Magistrate or a Gazetted Officer and therefore, the entire proceedings
against the petitioner are liable to be vitiated on this ground as well.
Learned counsel has further referred to the orders passed by this Court on
20.05.2022 in CRM-M-18798-2022, whereby the bail of the co-accused
namely Jagtar Singh has been allowed and one of the grounds on the basis
of which the bail was allowed was that there was a violation of Section 50
of the NDPS Act. He has submitted that in this way, both the mandatory
provisions of Section 42 as well as 50 of the NDPS Act have been violated
and therefore, has prayed for the grant of regular bail to the petitioner by
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also considering long custody of the petitioner.
On the other hand, learned State counsel has submitted that it is
correct that an affidavit has been filed by the Deputy Commissioner of
Police (Investigation), Jalandhar, dated 23.05.2022, in which it has been
submitted that the provisions of Section 42 of the NDPS Act were not duly
complied with and the ASI was negligent and careless towards his duty and
a departmental action has been recommended to be initiated against him.
He has further submitted that it is also correct that the bail petition filed by
the co-accused Jagtar Singh has been allowed on the medical ground and
also on the ground that there was a direct violation of Section 50 of the
NDPS Act and the offer in the present case was not valid offer in terms of
Section 50 of the NDPS Act. He has also submitted that the petitioner is
involved in two more cases under the NDPS Act.
I have heard learned counsel for the parties.
The petitioner is in custody since 31.03.2019, which is about 03
years and 03 months. When the query was raised by this Court on an earlier
date as to whether the mandatory provisions of Sections 42 of the NDPS
Act were complied with or not, the Deputy Commissioner of Police has
filed an affidavit, in which it has been stated that the provisions of Section
42 of the NDPS Act have not been complied with. The relevant portion of
the affidavit is reproduced as under:-
"That it is respectfully submitted that the record
of the case and concerned documents were called
and on the perusal of the same, Speaking Order
was passed by the Commissioner of Police,
Jalandhar, vide No.1091-96 dated 04.05.2022,
whereby it has been stated that Investigating
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Officer i.e. ASI Jaswinder Singh 2132/Jalandhar
has not complied with the provisions of Section
42 of the NDPS Act by not informing his Senior
Officer about the secret information received and
the raid which was conducted in the present case
and by not doing so ASI Jaswinder Singh has
given evidence of negligence and carelessness
towards his duty, for which ACT, Cantt.
Jalandhar had recommended the initiation of
Departmental Inquiry against Investigating
Officer i.e. ASI Jaswinder Singh 2132/Jalandhar,
which was approved by the Commissioner of
Police Jalandhar and Departmental Inquiry has
been initiated under PPR Rule 16.24 (1) order
No.03/81 against ASI Jaswinder Singh
2132/Jalandhar (now SI/LR)."
When the bail application of other co-accused namely Jagtar
Singh was considered by this Court, the same was allowed not only on the
medical ground but also on the ground of non-compliance of Section 50 of
the NDPS Act. In the present case, the offer was given only to the other co-
accused for being searched through a Magistrate only, whereas under the
provisions of Section 50 of the NDPS Act, the option has to be given for
being searched not only from the Magistrate but also from any Gazetted
Officer. Therefore, the co-accused was granted bail by this Court. In this
way, both the mandatory provisions of Sections 42 and 50 of the NDPS Act
have not been complied with in the present case. The fact that the petitioner
is involved in three more cases, would not become a ground for denial of
bail to the petitioner in the present case in view of the aforesaid position. So
far as bar contained under Section 37 of the NDPS Act is concerned, the
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same would not apply in the present case since in view of the aforesaid facts
and circumstances, this Court is of the considered opinion that there are
reasons to believe at least at this stage that the petitioner is not guilty of the
offence since there appears to be a violation of Sections 42 and 50 of the
NDPS Act. So far as the second ingredient for making a departure from
Section 37 of the NDPS Act is concerned, it has not been argued by the
learned State counsel that in case the petitioner is released on bail then he
may abscond from justice or repeat the offence nor any such plea has been
taken in the affidavit filed by the State. Therefore, the second ingredient for
making a departure from the bar is also satisfied. Therefore, the bar
contained under Section 37 of the NDPS Act would not apply in the present
case.
Therefore, in view of the aforesaid facts and circumstances of
the present case, the present petition is allowed. The petitioner shall be
released on regular bail subject to furnishing bail bonds/surety bonds to the
satisfaction of the learned trial Court/Duty Magistrate concerned.
However, anything observed hereinabove shall not be treated as
an expression of opinion on merits of the case and is meant for the purpose
of deciding the present petition only.
11.07.2022 (JASGURPREET SINGH PURI )
monika JUDGE
Whether speaking/reasoned Yes/No
Whether reportable Yes/No
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