Arun Kumar @ Anu vs State Of Punjab
2022 Latest Caselaw 1174 P&H

CRM-M-13171-2021                                                         -1-
203-A
        IN THE HIGH COURT OF PUNJAB & HARYANA
                    AT CHANDIGARH
                                        ****

CRM-M-13171-2021 Date of Decision: 04.03.2022

Arun Kumar @ Anu ..... Petitioner Versus State of Punjab ..... Respondent

CORAM: HON'BLE MR. JUSTICE HARSIMRAN SINGH SETHI

Present: Mr. Kanwaljit Singh, Senior Advocate, assisted by Mr. Anirudh Singh Shera, Advocate, for the petitioner.

Mr. Sandeep Singh Deol, DAG, Punjab.

*****

HARSIMRAN SINGH SETHI J. (ORAL)

The present petition has been filed for grant of regular bail to

the petitioner in FIR No.76, dated 25.06.2020, under Sections 21 & 29 of

the NDPS Act and Section 25 of the Arms Act, registered at Special Task

Force (STF), Phase-4, Mohali, District SAS Nagar.

Learned senior counsel appearing on behalf of the petitioner

argues that the petitioner has been involved in the present FIR based on

false allegations, despite of the fact that he has done no wrong. Learned

senior counsel further submits that in the present case, it has been alleged

that the petitioner was travelling in a car bearing No. PB-10-HB-9191,

which does not belong to the petitioner, and 3 kgs. and 200 gms. of heroin

was recovered from the said car, lying under the driver seat in a black

polythene and an amount of Rs.60,000/- was also recovered from the car.

Besides this, a loaded pistol, along with live cartridges, is also alleged to

have been recovered from the petitioner. Learned senior counsel for the 1 of 9

petitioner submits that while conducting the said raid and recovering the

alleged contraband, provisions of Section 42 of the NDPS Act were violated

and hence, the petitioner, who is already behind bars for the last more than

one and a half year, may kindly be extended the concession of regular bail,

especially in view of the fact that the trial is likely to take some time to

conclude due to the restrictive working of the Courts in view of Covid-19

pandemic. Learned senior counsel places reliance upon the judgment of a

co-ordinate Bench of this Court in CRM-M-44957-2021 titled as

"Virender Singh @ Rinku Vs. State of Punjab" to contend that though the

recovery of the contraband alleged to have been effected from the car was

commercial in nature but as the possession of the same cannot be attributed

to the petitioner, rigors of Section 37 of the NDPS Act will not apply and

keeping in view the incarceration already undergone by the petitioner, he is

entitled for the grant of regular bail.

Learned State counsel on the other hand submits that in the

present case, the petitioner was travelling along with the co-accused persons

in the car, which is registered in the name of his first wife and the occupants

of the car were his second wife, namely Harpreet Kaur, friend Raj Kumar @

Raju and his wife Anjali. Learned State counsel further submits that the raid

was conducted on the basis of a secret information, in which, heroin

weighing 3 kgs. and 200 gms. in a black polythene, lying under the driver

seat of the said car, was recovered and the petitioner was sitting on the front

seat along with the driver, therefore, conscious possession of the petitioner

in respect of the contraband recovered is proved. Learned State counsel

further submits that besides this, a fire arm as well as live cartridges were

also recovered from possession of the petitioner, besides drug money from

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the glove compartment of the said car. Learned State counsel also submits

that in the present case, provisions of the NDPS Act, including Section 42,

were complied with as a Gazzetted Officer, as required by Section 42 of the

Act came present at the spot, at the time of said recovery. Learned State

counsel further argues that as the petitioner and co-accused persons were

known to each other and the contraband was recovered from the car itself

along with the drug money, keeping in view the settled principle of law, it

cannot be said that the petitioner was not having conscious possession of

the same, hence the rigors of Section 37 of the NDPS Act do come in play.

Learned State counsel also submits that the petitioner is a habitual offender

as he is also involved in other cases relating to the NDPS Act, and therefore,

his prayer for grant of regular bail may kindly be declined.

I have heard learned counsel for the parties and have gone

through the record with their able assistance.

As per the facts stated hereinbefore, it is not disputed that the

petitioner was travelling in a car along with other co-accused persons at the

time of the raid, which was conducted on basis of a secret information and

as per the allegations recorded in the present FIR, 3.2 kgs. of heroin was

recovered from the car along with the drug money. Besides this, a fire arm,

along with live cartridges, was also recovered from the person of the

petitioner. The argument raised by learned senior counsel appearing on

behalf of the petitioner that Section 37 of the NDPS Act is not applicable in

the present case as the recovery was done from under the driver seat of the

car. Prima facie, at this stage the recovery is to be treated as having been

done from the conscious possession of the petitioner until proved otherwise

during the trial for the reason that there were four occupants of the car, who

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were known to each other, and the car belonged to the first wife of the

petitioner and it is difficult to accept the plea of the petitioner at this stage

that the contraband which was recovered from the said car, lying under the

driver seat, was not in his knowledge. Apart from the above, even the

alleged drug money amounting to Rs.60,000/- was also recovered from the

car. Under these circumstances, keeping in view the settled principle of law

laid down by the Hon'ble Supreme Court of India in SLP (Crl.) No.1771 of

2021 titled as "Union of India through Narcotics Control Bureau,

Lucknow Vs. Md. Nawaz Khan", prima facie, the argument raised by

learned senior counsel for the petitioner, that the petitioner cannot be treated

in conscious possession of the recovered contraband, cannot be accepted at

this stage.

The further argument being raised by learned senior counsel for

the petitioner where he submits that even on the basis of incarceration

already undergone by the petitioner, irrespective of the other factors, the

petitioner is entitled for grant of regular bail also cannot be accepted, since

while considering the plea for grant of bail to the accused, the Court has to

consider the provisions of Section 37 of the NDPS Act, coupled with the

incarceration already undergone by the accused. Mere incarceration of the

accused, especially when the contraband recovered is commercial in nature,

cannot be a basis for grant of prayer of the petitioner for regular bail. There

has to be a harmonious consideration of all aspects relating to the

allegations being alleged against an accused, such as incarceration suffered,

whether the accused is prima facie guilty of the allegations or not, and

whether in case he is granted the concession of bail, the accused might

indulge in similar activities or not. In SLP (Crl.) Nos.2241 & 2250 of 2020

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titled as "Sheru Vs. Narcotics Control Bureau", the Hon'ble Supreme

Court of India has observed that mere incarceration for a certain period

cannot be a reason for grant of bail and the rigors of Section 37 of the

NDPS Act would have to be met. In the present case, since the contraband

recovered from the car is commercial in nature, and, the petitioner is already

facing trial in another case regarding violation of the NDPS Act and the

present allegations against the petitioner have come into being while the

petitioner was on bail in the those case, therefore in view of the case in

entirety, this Court is of the opinion that the antecedents of the petitioner are

such that it cannot be safely opined that if granted the concession of regular

bail, the petitioner will not indulge in similar activities once again. Conduct

of the petitioner shows that he is a habitual offender. No finding that

allegations alleged against the petitioner are false can be recorded at this

stage keeping in view the facts of the case recorded hereinbefore.

Further, the judgment of a co-ordinate Bench of this Court

passed in Virender Singh's case (supra), which is being relied upon by the

learned senior counsel for the petitioner for grant of regular bail to the

petitioner is not applicable in the facts and circumstances of the present

case, for the reason that the petitioner therein was nominated on the basis of

disclosure statement of the co-accused and no recovery had been effected

from him and it was under those circumstances that the petitioner therein

was granted regular bail keeping in view the incarceration undergone by

him even though in the said case the recovery of contraband was

commercial in nature. Facts in the present case are entirely different as

herein, the contraband was recovered from the car in which petitioner was

present, along with the co-accused persons, who were known to him, and

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also he has not been involved in the present FIR on the basis of disclosure

statement of any co-accused.

As far as the argument of learned senior counsel for the

petitioner with respect to violation of Section 42 of the NDPS Act is

concerned, no benefit on basis of the same can be granted to the petitioner at

this stage for the reason that as per the factual averments of the present case,

a Gazzetted Officer came present at the spot during the time of the raid and

recovery of the contraband, which fact is conceded between the parties

during the arguments. Keeping in view the judgment, being relied upon by

learned State counsel, passed in "Sekhar Suman Verma Vs.

Superintendent of N.C.B." (SC), 2016(3) R.C.R. (Criminal) 1002, the

argument being raised by learned senior counsel for the petitioner cannot be

accepted. The relevant para of the said judgment is as under:-

"-- xx -- xx --

13) The submission of the learned counsel appearing

for the appellant (accused) was only one and that was

in regard to non- compliance of requirements

of Section 42 read with Section 50 of the NDPS Act.

According to him, the compliance of these Sections

being mandatory at the time of search and the same in

this case was not done in the manner required by the

concerned officials of the Department, the appellant's

conviction is rendered legally unsustainable and hence

deserves to be set aside.

-- xx -- xx --

16) The point urged by the learned counsel for the

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appellant was dealt with by the High Court as under:

"Now, we come to the main area which has

detained Shri Jash at length. His argument that there

was no compliance of Section 42 of the said Act. This

ground has to be discarded at the very outset in view of

the latest decision of Supreme Court in State of

Haryana Vs. Jarnail Singh and Ors. [2004 SAR

(Criminal) 535] wherein Their Lordships had held:

"Moreover it cannot be lost sight of that

the Superintendent of Police was also a

member of the searching party. It has been

held by this Court in M. Prabbulal vs.

Assistant Director, Directorate of Revenue

Intelligence: (2003) 8 SCC 449 that where

a search is conducted by a gazetted officer

himself acting under Section 41 of the

NDPS Act, it was not necessary to comply

with the requirement of Section 42. For

this reason also, in the facts of this case, it

was not necessary to comply with the

requirement of the proviso to Section

42 of the NDPS Act."

Such being the position the argument of Shri

Jash so far as infraction of Section 42 of the said Act is

concerned has no merit at all since PW7 was a

Gazetted Officer himself and he conducted the raid and

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also effected the search and seizure from the Appellant.

....

17) We are in complete agreement with the

aforementioned finding of the High Court as, in our

opinion, it is just, legal and proper calling no

interference in this appeal.

18) Firstly, the High Court has recorded the finding

keeping in view the law laid down by this Court in State

of Haryana vs. Jarnail Singh & Ors., (2004) SAR

(Criminal) 535. Secondly, since PW-7 himself was the

gazetted officer, it was not necessary for him to ensure

compliance of Section 42 as held by this Court

in Prabha Shankar Dubey vs. State of M.P. (2003) 8

Supreme 565 = (2004) 2 SCC 56 and lastly, so far as

compliance of the requirement of Section 50 is

concerned, it was found and indeed rightly that the

offer to search the appellant was given to him in

writing and on his giving consent, he was accordingly

searched.

-- xx -- xx --"

Learned senior counsel appearing on behalf of the petitioner

also raises an argument that the present case involves violation of Section

50 of the NDPS Act as well as, no proper offer was given to the petitioner

before he was personally searched. Learned senior counsel submits that the

said violation itself makes the petitioner eligible for the grant of regular

bail.

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Learned State counsel has rightly controverted the said

averment of the learned senior counsel for the petitioner that in the present

case submitting that the raid was conducted on the basis of a secret

information and the recovery has been effected from the car, which does not

involve Section 50 of the NDPS Act. Once the recovery is effected from the

car and not from the personal search, in view of the judgment of the Hon'ble

Supreme Court of India, passed in SLP (Crl.) No.8425 of 2021 titled as

"Kalu Khan Vs. State of Rajasthan", the recovery which has been effected

other than from the personal search, cannot be ignored and can be treated as

a valid recovery. That being so, once in the present case, the recovery has

been done from the car and not from personal search of the petitioner, no

grievance can be made by the petitioner with regard to violation of Section

50 of the NDPS Act at this stage, while contending for the grant of bail.

Keeping in view the above, no ground is made out to grant

petitioner the concession of regular bail, as being prayed for in the present

petition.

Dismissed.

It is made clear that this Court is not expressing any opinion on

merits of the present case, rather the order is being passed keeping in view

the contentions raised by learned senior counsel for the petitioner. The

ultimate guilt or innocence of the petitioner will depend upon the complete

evidence which will come on record.

04.03.2022                               (HARSIMRAN SINGH SETHI)
Apurva                                           JUDGE

             1. Whether speaking/reasoned :           Yes
             2. Whether reportable        :           No
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