Punjab-Haryana High Court
Jagtar Singh @ Nikka vs State Of Punjab on 20 July, 2022
CRM-M-13072-2022 # 1#
IN THE HIGH COURT OF PUNJAB & HARYANA AT
CHANDIGARH.
CRM-M-13072-2022
Date of Decision:-20.07.2022
Jagtar Singh @ Nikka.
......Petitioner.
Versus
State of Punjab.
......Respondent.
CORAM:- HON'BLE MR. JUSTICE JASJIT SINGH BEDI
Present:- Mr. Jashandeep Singh Sandhu, Advocate for the Petitioner.
Mr. Kirat Singh Sidhu, Deputy Advocate General, Punjab.
***
JASJIT SINGH BEDI, J. (ORAL)
The Prayer in this petition under Section 439 Cr.PC is for the
grant of regular bail in case FIR No.08 dated 28.01.2022 under Section
22(C) of the NDPS Act, 1985 and Section 29 of the NDPS Act added later
on registered at Police Station Balianwali, District Bathinda, Punjab.
The brief facts of the case are that when the police party was on
patrolling duty a person was seen with a bag, who on seeing the police party
got perplexed and tried to turn back. The person was apprehended by the
police and on him being apprehended, he disclosed his name as Hakam
Singh. Search was conducted and from his possession a recovery of 230
strips of 10 tablets (2300 tablets) of CAVITOL (tramadol HCL SR Tablets
I.P. 100 mg) was effected.
Hakam Singh during investigation confessed that he had
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bought these recovered tablets from the present petitioner and on the basis
of his disclosure statement the present petitioner was nominated as an
accused vide DDR No.16 dated 29.1.2022 and he offence was enhanced
under Section 29 of the NDPS Act. The petitioner was arrested on
29.01.2022 and a recovery of Rs.2,40,000/- was effected from him.
The Counsel for the petitioner inter alia contends that the
petitioner is not named in the FIR and has only been named in the disclosure
statement of his co-accused Hakam Singh. The evidentiary value of the said
disclosure statement would be a matter of adjudication during the trial.
Even otherwise, the Hon'ble Supreme Court in various judgments Tofan
Singh Vs. State of Tamil Nadu, 2020 AIR (Supreme Court) 5592,
Rakesh Kumar Singla Vs. Union of India 2021(1) RCR (Criminal) 704,
State by (NCB) Bengaluru Vs. Pallulabid Ahmad Arimutta &Anr.
2022(1) RCR (Criminal) 762, Surinder Kumar Khanna Vs. Intelligence
Officer, Director of Revenue Intelligence, 2018(3) RCR (Criminal) 954
and Sanjeev Chandra Aggarwal & Anr. Versus Union of India 2021(4)
RCR (Criminal) 590 has held that the disclosure statement of an accused
against the co-accused would be inadmissible in evidence. He contends that
the recovery of Rs.2,40,000/- from him in no manner suggest that the same
was an outcome of his earnings from dealing with intoxicating tablets as has
been suggested by the prosecution. He also refers to the violations of
various provisions of NDPS Act to contends that the search and seizure
from the petitioner is vitiated. He lastly contended that the Petitioner is in
custody since 29.01.2022 and none of the 10 cited prosecution witnesses
have been examined so far and, therefore, the petitioner is entitled to the
concession of regular bail.
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The learned State Counsel while referring to the reply dated
20.07.2022 submits that undoubtedly no recovery of any contraband was
effected from him and he has been named in the disclosure statement of
Hakam Singh but Rs.2,40,000/- has been recovered from him which as per
his confession was earned by him by selling intoxicating tablets. He
contends that there are two other FIRs against him i.e. FIR No.48 dated
28.06.2019 under Section 22, 61 and 85 of NDPS Act registered with P.S.
Bhadaur , District Barnala and FIR No.145 dated 10.07.2019 under Sections
22, 29, 61, 85 of NDPS Act registered with PS Nathana, District Bathinda.
In both these FIRs he has been nominated as an accused under Section 29 of
the NDPS Act. He, therefore, submits that the Petitioner does not deserve
the concession of bail because of his criminal antecedents.
I have heard counsel for both the sides at length.
Undoubtedly, there is absolutely no recovery from the
Petitioner of any contraband. It would be a matter of adjudication during
the trial as to whether the recovery of Rs.2,40,000/- is in fact the proceeds
of crime or not. There are two other FIRs registered against the petitioner,
however, in each of the FIR he has been nominated as an accused under
Section 29 of the NDPS Act. With respect to the provisions of Section 37 of
the NDPS Act, this Court in Gurjant Singh Vs. State of Punjab bearing
CRM-M-20943-2022 Decided on 20.05.2022 has held as under:-
" A perusal of the Section 37 of the NDPS Act reveals that
two conditions are to be satisfied cumulatively before an
accused is granted bail/suspension of sentence (i) that the
accused is not guilty of the offence & (ii) that he was not likely
to commit any offence while on bail.
With respect to the first condition, a reasonable ground
for belief of the court could be recorded that the accused had
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not committed an offence if there are violations of the
mandatory provisions of the Act. Similarly where the evidence
against the accused is scant or inadmissible once again a
prima facie satisfaction of the court could be recorded that the
accused had not committed an offence.
The difficulty arises with respect to the second condition
wherein the Court is to record a finding that the accused was
not likely to commit an offence while on bail. Recording of
such a finding becomes onerous on the court because the
future conduct of any person is not easy to predict. Obviously,
where no other case is pending against the accused it would be
easier to record a finding that the accused is not likely to
commit such an offence in future. However, in a case where
there are other pending cases/convictions under the NDPS Act
against the accused, recording of this finding becomes
challenging. The conduct of an accused in the past would be
some indicator of his possible future conduct but mere past
conduct cannot lead to assumption that his future conduct
would be similar. Therefore, mere pendency of earlier
FIR/convictions cannot lead to an assumption that the accused
will and is likely to commit an offence in future thereby
denying the accused the benefit of bail. There is another
aspect of the matter. There could be a situation when in the
case in which the accused seeks bail there is either a violation
of a mandatory provision of the Act or there is scant evidence
against him. However, there may be other pending
FIRs/convictions against the said accused. In such a scenario,
the satisfaction of the court that the accused has not committed
an offence could be recorded but the satisfaction of the Court
that the accused was not likely to commit an offence in future
would be difficult for the court to record. This would lead to
an anomalous situation because there would be hardly any
prospects of conviction in the case in which bail is sought, but
it would be denied due to pendency of the other
FIRs/convictions. Therefore, undoubtedly the twin conditions
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are to be satisfied cumulatively and not alternatively but
primacy ought to be accorded to the first of the twin conditions
because whatever may be criminal antecedents of the accused
a judgment of conviction or acquittal can be recorded only on
the basis of the evidence lead in the case in hand and the
criminal antecedents of an accused have no role to play in the
ultimate judgment of acquittal or conviction except to the
extent of imposition of enhanced sentence in the case of a
subsequent conviction. Having said that there could be cases
where the antecedents are such that second of the twin
conditions may assume greater importance. Therefore, in
each case it would depend on the subjective satisfaction of the
Court as to which of the twin conditions ought to be given
precedence.
Also, where there is a substantial delay in the conclusion
of the trial or in the final adjudication of an appeal against
conviction, the satisfaction of Section 37 of the conditions
under NDPS Act would not stand as a bar to grant
bail/suspend sentence on account of the right to speedy trial
envisaged under Article 21 of the Constitution of India."
Coming back to the facts of the present case, in the light of the
judgments in Tofan Singh's case (supra), Rakesh Kumar Singla's case
(supra), State by (NCB) Bengaluru's case (supra), Surinder Kumar
Khanna's case (supra) and Sanjeev Chandra Aggarwal & Anr.'s case
(supra) it would be a matter of adjudication during the trial as to the
evidentiary value of the said disclosure/confessional statement of Hakam
Singh inculpating the petitioner.
Undoubtedly, there is no recovery of any contraband from the
applicant. Even in the other two cases registered against him he has been
implicated with the aid of Section 29 of the NDPS Act, therefore, it would
be a matter of adjudication during trial as to the culpability of the petitioner
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in the present case. The petitioner is in custody since 29.01.2022 and none
of the 10 cited prosecution witnesses have been examined so far. Thus, the
trial is not likely to be concluded in near future.
In view of the above, but without commenting on the merits of
the case, the present petition is allowed and the petitioner Jagtar Singh @
Nikka son of Sh. Bhura Singh is ordered to be released on bail subject to
the satisfaction of learned CJM/Duty Magistrate, concerned.
The petitioner shall appear before the police station concerned
on the first Monday of every month till the conclusion of the trial and
inform in writing each time that he is not involved in any other crime other
than those mentioned above in this order.
If the petitioner commits a similar offence for which he is
currently charged while on bail, the State would be at liberty to move an
application for cancellation of bail.
Petition stands disposed of.
( JASJIT SINGH BEDI )
JUDGE
July 20, 2022
Vinay
Whether speaking/reasoned Yes/No
Whether reportable Yes/No
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