Punjab-Haryana High Court
Joginder Singh @ Jagga vs State Of Punjab on 2 June, 2022
CRM-M-23628-2022 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CRM-M-23628-2022 (O&M)
Date of decision: 02.06.2022
Joginder Singh @ Jagga
... Petitioner
Vs.
State of Punjab
... Respondent
CORAM: HON'BLE MR. JUSTICE ARVIND SINGH SANGWAN
Present: Mr. Vipul Jindal, Advocate
for the petitioner.
Mr. Joginder Pal Ratra, DAG, Punjab.
*******
ARVIND SINGH SANGWAN, J. (ORAL)
Prayer in this petition is for grant of regular bail in FIR No.18
dated 30.01.2021 under Sections 21(c), 25, 29 of NDPS Act and Section 25 of
Arms Act, registered at Police Station STF, Phase IV, District SAS Nagar
(Mohali).
Learned counsel for the petitioner relies upon the order dated
06.05.2022 passed in CRM-M-17923-2022, vide which wife of the
petitioner/co-accused Amarjit Kaur @ Jeeta was granted the concession of
regular bail. The operative part of the order reads as under: -
"...Learned counsel for the petitioner submits that petitioner
Amarjit Kaur @ Jeeta is wife of Joginder Singh @ Jagga, who
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was earlier involved in FIR No.199 dated 10.10.2020 under
Sections 21 & 29 of NDPS Act, registered at Police Station Sadar
Batala, District Batala and was granted regular bail vide order
dated 10.03.2022 passed in CRM-M-5366-2021. In the said
petition, husband of the petitioner-Joginder Singh @ Jagga set up
a defence that on an earlier occasion, he filed CRWP-5324-2020
levelling allegations against DSP Balbir Singh Sandhu that he is
likely to be involved in a case under NDPS Act at his instance and
later on, FIR No.199 was registered against him, in which DSP
Balbir Singh Sandhu was the Gazetted Officer. It is further
submitted that the petitioner, who is first offender and is not
involved in any other case, was involved in present FIR No.18, for
the reason that she is wife of Joginder Singh @ Jagga.
Learned counsel further submits that in the present FIR,
registered on 30.01.2021 at 10.45 hours, it is recorded that at
03.07 a.m., LR/ASI Rohit Sharma informed SI Nirmal Singh that
Joginder Singh @ Jagga, who is confined in Central Jail,
Amritsar, is doing the business of selling heroin and his
wife/petitioner Amarjit Kaur @ Jeeta is also involved in the said
business. On 29.01.2021, some unknown persons have supplied
huge quantity of heroin to the petitioner and if a raid is conducted,
huge quantity of heroin can be recovered. Thereafter, ASI Rohit
Sharma informed DSP Vavinder Kumar to come at the spot and a
team reached at the spot and conducted raid at house of Joginder
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Singh @ Jagga, where petitioner Amarjit Kaur @ Jeeta was found
along with her children and maid. In the supervision of DSP
Vavinder Kumar, interrogation of the petitioner was conducted,
who made disclosure statement (Annexure P-5) that heroin is
concealed in the bonnet of car bearing registration No.CH-01-AR-
2202. It is submitted that this disclosure statement bears the
complete details of FIR No.18 and this memo was signed by ASI
Rohit Sharma, ASI Kulwinder Singh and SI Nirmal Singh and
despite the fact that DSP was present at the spot, he had not
signed the same.
Learned counsel has referred to recovery memo of heroin
(Annexure P-6), which was signed by DSP Vavinder Kumar, ASI
Kulwinder Singh, ASI Rohit Sharma, Lady Constable Manjinder
Kaur and SI Nirmal Singh. Even in this memo, details of the FIR
have been given. Again a reference is made to recovery memo of a
pistol and some ammunition, which was signed by ASI Kulwinder
Singh and ASI Rohit Sharma, however, neither DSP Vavinder
Kumar nor Lady Constable Manjinder Kaur signed the same.
Learned counsel has further referred to another document,
prepared at the spot i.e. recovery memo of Rs.25,700/-, stated to
be drug money, to submit that this document is typed one, in which
FIR No.18 is typed in the same font, in which document is
prepared and this document is signed by ASI Kulwinder Singh in
Punjabi, though in some documents, he signed in English along
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with ASI Rohit Sharma. Even on this document, DSP had not
signed, though he was allegedly present at the spot. Similarly,
recovery of car No.CH-01-AR-2202, is also a typed document with
complete details of FIR and signatures of DSP are not there on the
said document.
Learned counsel has also referred to certain other
documents, which are prepared at the spot in handwriting
regarding the recovery as well as statement of DSP Vavinder
Kumar recorded under Section 161 Cr.P.C., in which he stated
that all the documents referred to above were prepared in his
presence, though nothing is stated as to why he had not signed the
same, therefore, presence of the DSP at the spot is doubtful.
Learned counsel has next referred to ruqa (Annexure P-1), which
was sent at 8.45 a.m., after completing all the investigation at the
spot and preparing the documents, referred to above, for
registration of FIR. Learned counsel submits that a perusal of
ruqa would show that though it is stated that at 3.07 a.m., LR/ASI
Rohit Sharma gave information, as noticed in the FIR and in
presence of DSP Vavinder Kumar, raid was conducted and
petitioner made disclosure statement and thereafter, recovery of
1300 grams of heroin, some firearm and ammunition was effected.
It is argued that ruqa was sent at 08.45 a.m. for registration of
FIR and FIR was registered at 10.45 a.m. and there was no
occasion for the Investigating Officer/DSP to record complete
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details of FIR No.18 in the documents prepared at the spot, much
prior to sending ruqa and on some of the documents, DSP had not
signed, which shows that these were prepared later on.
Learned counsel has next argued that involvement of the
petitioner is only on account of the fact that her husband is
involved in some other FIRs and had levelled allegations against
DSP Balbir Singh Sandhu and on his asking, husband of the
petitioner Joginder Singh @ Jagga is repeatedly involved in the
cases. It is further submitted that the petitioner is in custody for
the last 01 year, 02 months and 29 days and there is no one to look
after the children, as her husband is already in judicial custody.
Learned counsel has referred to judgment of the Hon'ble
Supreme Court in Smt. Nandini Satpathy Vs. P.L. Dani (Criminal
Appeal No.101 of 1978), in which it is held that the police must
invariably warn and record the fact about the right to silence
against self-incrimination and when the accused is literate to take
his written acknowledgment. In context of Article 20(3) of the
Constitution of India, the Hon'ble Supreme Court has observed
that an assurance of awareness and observation of right of silence
is given to an accused.
Learned counsel has also argued that the information was
sent by ASI Rohit Sharma under Section 42 of NDPS Act, as ASI
Rohit Sharma being the local rank official was not competent to
comply with the provisions of Section 42 of NDPS Act, therefore, it
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will be a matter of trial whether provisions of Section 42 of NDPS
Act were properly complied with or not. In this regard, learned
counsel has referred to 2nd proviso to Section 42 (1) of NDPS Act,
which reads as under: -
"Provided further that if such officer has reason to believe
that a search warrant or authorization cannot be obtained
without affording opportunity for the concealment of
evidence or facility for the escape of an offender, he may
enter and search such building, conveyance or enclosed
place at any time between sunset and sunrise after
recording the grounds of his belief."
In compliance thereof, DSP Vavinder Kumar had not
recorded any ground of his belief for raiding house of the
petitioner at midnight.
Learned State counsel has filed the custody certificate in the
Court today, according to which, the petitioner is in custody for
the last 01 year, 02 months and 29 days; charges were framed on
13.10.2021 and out of total 26 prosecution witnesses, none has
been examined so far. It is, however, submitted that detail of the
FIR in the documents was given because the information was
received by the police officials at 03.00 a.m., which was shared by
ASI Rohit Sharma with SI Nirmal Singh and then to DSP Vavinder
Kumar, therefore, details of the FIR were mentioned, however,
FIR number was entered with pen later on.
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However, on a Court query, learned State counsel could not
dispute that two documents, which are typed documents giving the
details of FIR No.18, were also prepared at the spot, however,
these documents do not bear the signatures of DSP, who was
present at the spot.
In reply, learned counsel for the petitioner has additionally
argued that very fact that Section 21 (c) of NDPS Act is mentioned
in these documents, though at some places, FIR No.18 was later
on added with pen as well as provisions of Arms Act are
mentioned, would reflects that secret information was received by
the police only with regard to some narcotic substance and there
was no secret information leading to Arms Act as well as there
was no information that recovery would be falling under
commercial quantity, therefore, adding of Section 21 (c) of NDPS
Act in anticipation, while preparing all those documents, much
prior to sending of ruqa, raises a suspicion about the
investigation.
After hearing learned counsel for the parties, without
commenting anything on merits of the case and considering
aforesaid facts and circumstances of the case, this petition is
allowed and the petitioner is directed to be released on regular
bail subject to furnishing her bail/surety bonds to the satisfaction
of the trial Court/Illaqa Magistrate/Duty Magistrate, concerned."
Learned counsel submits that the petitioner was already in judicial
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custody and it will be a debatable issue before the trial Court whether the
charge beyond Section 29 of NDPS Act is sustainable against the petitioner or
not. It is further submitted that on an earlier occasion, the petitioner filed CRM-
M-5366-2021 for grant of regular bail relating to FIR No.199 dated 10.10.2020
under Sections 21 & 29 of NDPS Act, registered at Police Station Sadar Batala,
District Batala and the same was allowed vide order dated 10.03.2022, by
making the following observations: -
"...Counsel for the petitioner submits that as per the allegations in
the FIR, registered at the instance of ASI Vijay Kumar, it is stated
that on 10.10.2020, while on patrol duty, he received a secret
information that petitioner-Joginder Singh @ Jagga, a former
Sarpanch of the village is indulged in the business of selling of
heroine and is keeping the same in his house and if a raid is
conducted, heroine can be recovered. On the basis of the same, a
ruqa was sent to the Police Station and the FIR was registered at
2.20 a.m.
Counsel for the petitioner has submitted that it is further the
case of the prosecution that after registration of the FIR, an
information was sent to Balbir Singh, DSP, Sub Division
Fatehgarh Churian, who reached at the spot for conducting a raid
at the house of the petitioner. When the DSP reached at the spot,
outside the house of the petitioner a person was nabbed, who
informed his name as Sarwan Singh son of Shingara Singh. He
was taken into custody on the basis of suspicion. The petitioner
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was found in the lobby of the house and was apprehended. The
DSP gave him a notice to be searched before a Gazetted Officer or
a Magistrate, who can be called at the spot or he could be taken
before him. On this, the petitioner reposed faith on the DSP to
conduct the search. Thereafter, on personal search of the
petitioner, one polythene of black colour containing 250 grams of
heroine along with Indian currency was recovered. The recovery
was sealed by following the proper procedure. One mobile was
also recovered in the personal searched, which was also taken into
possession. Thereafter, a disclosure statement of the petitioner was
recorded and as per the same, the petitioner led the police party to
a room inside the house and from a trunk recovered a total
currency notes of Rs.1,35,000/-, which were also taken in
possession by the police.
Thereafter, the petitioner took the police party to a car,
which was parked near his house and from the dash board of the
car, a packet was recovered from which 01 kg. of heroine was
recovered. The same was also taken in possession by way of a
recovery memo.
Counsel for the petitioner has argued that the petitioner, in
fact, much prior to registration of the FIR has filed Cr.W.P.-5324-
2020 against the State of Punjab, the police official and Balbir
Singh Sandhu, DSP, who was the Gazetted Officer in the FIR, was
implicated as respondent No.6 in the said petition and ASI Vijay
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Kumar, who as the informant of the same was impleaded as
respondent No.7. Counsel for the petitioner has referred to the
prayer clause of the petition, which reads as under :-
"It is, therefore, respectfully prayed that the present petition
may kindly be allowed. An appropriate writ, order or
direction inter alia directing the respondents to comply with
the procedure stipulated under Section 100/160/165/166
Cr.P.C. in case the petitioner is sought to be interrogated
upon or investigated upon, as also further directing the
respondents to conduct videography or the entire
occurrence in case the petitioner is sought to be arrested, in
view of the observations recorded by the Hon'ble Division
Bench of this Hon'ble High Court on 28.5.2019 in CRA-D-
564-2014 'Abhijeet Singh Vs. State of Punjab' and to
produce the petitioner immediately before the nearest
Magistrate in case any recovery is to be effected from the
petitioner in terms of the law laid down by the Hon'ble
Supreme Court in the case of Vijaysinh Chandubha Jadeja
Vs. State of Gujarat reported as 2011(1) SCC 609 so as to
rule out the repeated false implication of the petitioner."
Counsel for the petitioner has argued that the petitioner
much before the registration of the FIR was apprehending that
both ASI Vijay Kumar and DSP Balbir Singh Sandhu will involve
him in a case under the NDPS Act, therefore, it was prayed in the
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said petition that if any case is registered against the petitioner, he
should be produced before the Magistrate for conducting the
investigation. Counsel for the petitioner further submits that in this
petition notice of motion was issued on 28.7.2020 for 28.10.2020
and on receiving the notice of the same, the two police officials
have involved the petitioner in the present case.
It is next argued that despite a request made by the
petitioner in the aforesaid writ petition that even if in future any
case is registered, a search be conducted before the Magistrate.
The two police officials recorded the consent of the petitioner that
the search be conducted by the same DSP Balbir Singh Sandhu
and was never taken before the Magistrate for the purpose of
search and recovery.
Counsel for the petitioner submits that the action show the
mala fide of the two police official involving the petitioner in a
false case under the NDPS Act. Counsel has further argued that on
the same day the petitioner was shown arrested in two more FIRs
under the NDPS Act, i.e. FIR No.10 dated 11.2.2019, registered at
Police Station Sadar Batala and FIR No.18 dated 13.1.2021,
registered at Police Station STF, Phase 4, SAS Nagar, Mohali.
Counsel for the petitioner submits that in both the cases, the
petitioner was involved on the basis of the disclosure and in FIR
No.18, the petitioner was already in the custody in the present
case.
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Counsel for the petitioner has then referred to the cases in
which the petitioner was earlier involved to submit that looking
into his previous antecedents, the petitioner is repeatedly involved
in the cases and with reference to the affidavit of the DSP filed by
the State of Punjab, submit that he has been acquitted in one FIR
of 1994 and 8 other FIRs relating to the years 2001 to 2004 and
again acquitted in two FIRs of 2014. Counsel for the petitioner
further submits that in one FIR, he has undergone the sentence
and in one FIR of 2004, he was convicted on 15.3.2007 and his
sentence has been suspended by this Court.
Counsel for the petitioner has next argued that in the
present case, the petitioner is in custody for the last more than 01
year and 01 month and the challan stands presented and in view of
the defence set up by the petitioner that he is likely to be involved
by ASI Vijay Kumar and DSP Balbir Singh Sandhu which has
actually happened after filing of this petition, the petitioner is
entitled to grant of regular bail.
Counsel for the petitioner further submits that though as per
the affidavit of the DSP, the petitioner was lastly involved in a
case of 2014, however, for a period of 07 years he was not
involved in any other case as he tried to improve but the aforesaid
two police officials have falsely implicated him in the present case
and after his arrest, he has been implicated in two more cases on
the basis of the two disclosures.
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The learned State counsel, on the basis of the affidavit of
SHO, however, has denied the allegations and submit that the
petitioner was arrested at the spot and recovery of 250 grams of
heroin was recovered from his pant and 01 kg. of heroin from the
car, which was parked near his house and, therefore, the
allegations are of serious nature. However, the affidavit of the
SHO, is silent about the filing of the Cr.W.P.-5324-2020 and the
fact that notice of motion was issued in this case about two months
prior to the registration of the FIR.
On a Court query, the learned State counsel could not
dispute that the pendency of the aforesaid direction petition was in
the notice of both the police officials and despite that, no other
police official was deputed to conduct the recovery to show that a
fair and impartial investigation have been conducted.
The learned State counsel, on the basis of the affidavit, has
further stated that the car No. PB-18-W-1832 is not in the name of
the petitioner and rather it is in the name of one Malook Singh son
of Gurdeep Singh, resident of village Bal Purian and on
investigation, Malook Singh stated that by availing loan in his
name, Joginder Singh @ Jagga has purchased the car. The
learned State counsel has also referred to the other cases which
remained pending and as per the affidavit, in 9 cases, the
petitioner stands acquitted and in 03 cases, including the present
case, he is under investigation. It is also not disputed that in FIR
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Nos.18 and 24, the petitioner was taken into custody while he was
already in custody in the present case and in both these FIRs,
nothing was recovered from the petitioner, except that he is
nominated on the disclosure of the co-accused.
After hearing learned counsel for the parties and
considering the fact that the petitioner is in custody for the last 01
year 01 month; the investigation is complete and in view of the fact
that the petitioner had already filed Cr.W.P.5324-2020 pointing a
finger against complainant ASI Vijay Singh and DSP Balbir Singh
Sandhu 03 months prior to the registration of the FIR that they are
likely to involve him in a false case and in the said petition notice
was issued, though in ordinary prudence on receiving the secret
information, some other Gazetted Officer should have been
deputed instead of DSP Balbir Singh Sandhu, which raises a
suspicion and mala fide against the abovesaid two police officials
in conducting the investigation, therefore, without commenting
anything on the merits of the case, the present petition is allowed
and the petitioner is ordered to be released on bail, subject to his
furnishing bail bonds/surety bonds to the satisfaction of the Chief
Judicial Magistrate/Duty Magistrate, concerned."
Learned counsel next submits that on the face of it, the petitioner is
setting up a defence regarding his false implication at the instance of ASI Vijay
Kumar and DSP Balbir Singh Sandhu and his involvement in the present FIR,
while in judicial custody in an earlier FIR No.199, is to be decided by the trial
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Court whether he has been falsely implicated in the present FIR or not. It is
further submitted that the petitioner is in custody for the last 01 year, 03 months
and 27 days; charges have been framed and out of total 26 prosecution
witnesses, none has been examined so far.
Learned State counsel has filed the custody certificate in the Court
today and has not disputed the factual position.
After hearing learned counsel for the parties, without commenting
anything on merits of the case and considering aforesaid facts and
circumstances of the case, this petition is allowed and the petitioner is directed
to be released on regular bail subject to furnishing his bail/surety bonds to the
satisfaction of the trial Court/Illaqa Magistrate/Duty Magistrate, concerned.
Petition is disposed of.
[ ARVIND SINGH SANGWAN ]
02.06.2022 JUDGE
vishnu
Whether speaking/reasoned : Yes/No
Whether reportable : Yes/No
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