Shree Chand vs State Of Haryana
2022 Latest Caselaw 1688 P&H

CRM-M-10260-2022                                                 -1-

           IN THE HIGH COURT OF PUNJAB AND HARYANA AT
                        CHANDIGARH

                                  CRM-M-10260-2022
                                  Date of decision: - 16.03.2022

Shree Chand

                                                                 ....Petitioner

                                     Versus

State of Haryana

                                                                 ....Respondent

CORAM : HON'BLE MR. JUSTICE VIKAS BAHL

Present:     Mr. Balraj Gujjar, Advocate,
             for the petitioner.

             Mr. Praveen Bhadu, AAG, Haryana.

                                           (Through Video Conferencing)

VIKAS BAHL, J. (ORAL)

This is the second petition for grant of regular bail to the

petitioner in FIR No.72 dated 18.05.2021, registered under Section 20-61-

85 of the Narcotic Drugs and Psychotropic Substances Act (hereinafter to

be referred as "the NDPS Act"), Section 25/54/59 of the Arms Act and

Sections 395, 427, 216 and 34 of the Indian Penal Code, 1860, at Police

Station Satnali, District Mahendergarh (District Narnaul).

Brief case of the prosecution is that secret information had

been received to the effect that one Canter had been parked near Village

Barda and since, there was suspicion that there were some intoxicant

substances inside the same, and upon finding the said information to be

credible, a police team was formed to conduct the raid. Efforts were made

to join witnesses from the public, but people showed their inability to do

1 of 13

so and when the police party reached near the Canter, no person was

found present near it and thereafter, a notice under Section 42 of the Act

of 1985 was prepared and was forwarded to the Duty Magistrate. The

Duty Magistrate reached the spot and in his presence, the search of the

Canter was conducted. During the search, huge quantity of Ganja i.e., 17

quintals 12 kg and 760 grams was recovered from the said Canter. During

the search of cabin of the Canter, one Driving Licence issued in the name

of Ravi Kumar son of Om Parkash and one Aadhaar Card also in the

name of Ravi Kumar, were recovered and the FIR was registered against

unidentified persons. Thereafter, co-accused Ajit, Rohit and Kuldeep

were arrested. The present petitioner was also arrested on 24.05.2021.

Learned counsel for the petitioner has relied upon the order

dated 15.11.2021 passed in CRM-M-46920-2021 titled as "Sukhwant

Singh Vs. State of Haryana" vide which the co-accused Sukhwant Singh

has been granted regular bail and further reliance has been placed upon

the order dated 07.12.2021 passed in CRM-M-50518-2021 titled as

'Naveen Vs. State of Haryana' and also on the order dated 10.01.2021

passed in CRM-M-54123-2021 titled as 'Sandeep Vs. State of Haryana'

and also on the order dated 17.02.2022 passed in CRM-M-5404-2022

titled as 'Sunder Singh vs. State of Haryana' and has submitted that the

case of the present petitioner, if not better, is at parity with the said

persons. It is further submitted that the challan in the present case has

been presented and there are as many as 28 witnesses, out of which, only

one has been examined and thus, the conclusion of trial is likely to take a

long time, moreso, in view of the COVID-19 pandemic. Learned counsel

2 of 13

for the petitioner has argued that the petitioner was not named in the FIR

and he has nothing to do with the said occurrence, inasmuch as, he is

neither the owner of the Canter nor is alleged to be the driver of the

Canter. It is further submitted that no recovery has been effected from the

petitioner nor the petitioner can be stated to be in conscious possession of

any narcotic substances much less, the narcotic substance that has been

allegedly recovered. It has further been submitted that as per disclosure

statement of the petitioner dated 24.05.2021, it has been stated by the

petitioner that he, along with his brother Sunder, was working in the

liquor vend of Ajit and on 17/18.05.2021 at about 2:00 AM a phone call

of Ajit was received by the petitioner and he said that Ajit was chasing a

Canter on a motorcycle and he suspected that there may be liquor in the

vehicle or some other narcotic substance and so the petitioner, along with

his brother Sunder Singh, took a Bolero vehicle which was being driven

by Sunder Singh and then while the petitioner was on a call with Ajit, Ajit

stated that they had stopped a Canter on the road before the power house

of village Barda and the petitioner and Sunder Singh reached there and on

reaching there, they saw that Ajit along with 3 /4 other persons had

loaded the bags of ganja in the pick-up vehicle and after that Ajit and his

friends had broken the glasses of canter and thereafter Ajit and other

persons had gone to some isolated place and thereafter the petitioner, his

brother and Ajit sat in the Bolero vehicle and pick-up vehicle in which

ganja was loaded came behind them and thereafter the petitioner went to

his house in Dhani and after dropping the petitioner there, Sunder Singh

and Ajit went away by saying that they are going to village Bhagot. The

3 of 13

pick-up vehicle was driven by Rohit and thereafter the petitioner's brother

Sunder Singh returned home with Bolero and Ajit was either in Bhiwani

or Dadri or somewhere in Rajasthan and he could be traced. It is argued

that the said statement is the best case against the petitioner and although,

there is no connecting link with respect to the same but even if it is taken

to be true on face value, then also, it is apparent that the petitioner was

neither the person who had supplied the said Ganja nor is the person to

whom it had to be supplied to and in fact, while the petitioner and the

other co-accused, as per the disclosure statement, were chasing the canter,

the impression was that it contained liquor. It is further argued that as per

the disclosure statement of one Naveen, it is Kuldeep Singh and Lakhmi

who had the knowledge that Ganja was coming from Orissa and it was

Ravi Kumar who was driving the said Canter and the said Ganja had been

stated to have been purchased from the State of Orissa by Lakhmi and

Kuldeep Singh. It is further submitted that there is no allegation against

the petitioner that he was in conscious possession of the said Ganja nor

any recovery of Ganja has been effected from him and thus, reliance has

been placed upon an order passed by Coordinate Bench of this Court

dated 17.06.2020 in CRM-M-12051-2020 titled 'Mewa Singh Vs. State

of Punjab', and an order of another Coordinate Bench dated 16.07.2021

passed in CRM-M-12997-2020 titled as 'Daljit Singh Vs. State of

Haryana' to contend that in such like cases if a person has been

proceeded against only on the basis of disclosure statement and no

recovery has been effected from the petitioner, then he should be granted

the benefit of bail. It is also submitted that the petitioner is not involved

4 of 13

in any other case.

Learned counsel for the petitioner, in order to overcome the

bar under Section 37 of the NDPS Act, has relied upon several judgments.

The said judgments have been collated hereinbelow:-

i) Judgment of the Hon'ble Supreme Court in Criminal Appeal No.965 of 2021 titled as 'Dheeren Kumar Jaina v. Union of India'.

ii) Judgment of a Co-ordinate Bench titled as 'Ankush Kumar @ Sonu v. State of Punjab', reported as 2018 (4) RCR (Criminal) 84; which was further challenged in the Hon'ble Supreme Court vide SLP (Criminal) Diary No.42609 of 2018 and the same was upheld.

iii) Judgment of a Co-ordinate Bench in CRM-M-20177-2020 titled as 'Narcotic Control Bureau Vs. Vipan Sood and another' and the same was upheld by the Hon'ble Supreme Court vide order dated 24.08.2021 in a Petition for Special Leave to Appeal (Crl.) No.5852/2021.

iv) Judgment of the Hon'ble Supreme Court in Criminal Appeal No.668 of 2020 titled as 'Amit Singh @ Moni v. Himachal Pradesh.'

v) Judgment of the Hon'ble Supreme Court in Criminal Appeal No.827 of 2021 titled as 'Mukarram Hussain v. State of Rajasthan and another'.

vi) Judgment of a Co-ordinate Bench of this Court in CRM-M 10343 of 2021 titled as 'Ajay Kumar @ Nannu v. State of Punjab'.

Further, reliance has also been placed upon the judgment of a

Division Bench of this Court in CRM-8262-2021 in CRA-S-3721-SB of

2015 titled as 'Harpal Singh v. National Investigating Agency and

another, dated 31.08.2021, wherein the Division Bench was pleased to

5 of 13

grant suspension of sentence in a case where the recovery was of

commercial quantity. It has been argued that in the said Division Bench

judgment, it had been noticed that the grounds for regular bail stand on

better footing than for suspension of sentence, which is after conviction.

Learned State counsel has opposed the present petition for

grant of regular bail to the petitioner and has submitted that the case of

the petitioner is worse than the case of Ravi inasmuch as, said Ravi was

not present at the spot whereas, the present petitioner was admittedly

present at the spot. It is further submitted that it is apparent from the

disclosure statement of the petitioner that he alongwith others have

committed a crime and even after he had come to know that there was

Ganja in the Canter, still, he did not inform the police. It is however not

disputed that no recovery of Ganja has been made from the petitioner and

that there is no other case against the petitioner.

This Court has heard learned counsel for the parties and has

perused the paperbook.

It is not in dispute that the petitioner was not named in the

FIR and even the documents recovered from the Canter in question, are

with respect to co-accused Ravi Kumar. The Canter, is neither owned nor

was being driven by the petitioner nor it is the case of the prosecution that

the petitioner was sitting/present in the Canter. The petitioner is neither

stated to be the person who had purchased the Ganja from the State of

Orissa nor the person who had sold the same.

As per the disclosure statement of the petitioner, the

petitioner, who was an employee of Ajit in his liquor vend, had gone with

6 of 13

his brother Sunder Singh, who was also working with Ajit and the said

Ajit had made a phone call to the petitioner and had stated that when they

were chasing the canter, the said Ajit was suspecting that there may be

liquor in the vehicle or some narcotic substance.

From the said disclosure statement, the best case of the

prosecution against the petitioner is that the petitioner, being an employee

of said Ajit, had taken the Bolero car and after a certain point had taken

Ajit, his brother in the said Bolero car, which was being followed by the

pick-up vehicle in which the Ganja was loaded and thereafter, the

petitioner had returned to his house at Dhani whereas Ajit had taken the

pick-up vehicle in which the ganja was loaded. Thus, from the disclosure

statement, it is apparent that the petitioner was not the person who had

purchased the Ganja or to whom it had to be sold to. The petitioner

happened to be at the place of the incident on account of a call made by

Ajit and it was per chance that they found Ganja in the Canter. No

recovery of Ganja has been made from the petitioner. As per the case of

the prosecution, it is Kuldeep Singh and Lakhmi who had the knowledge

that Ganja was coming from Orissa and it was Ravi whose documents had

been found in the Canter and it was him, who was driving the Canter and

had left the same parked. The case of the petitioner cannot be stated to be

worse off than that of Ravi and rather, is on a better footing than that of

Ravi inasmuch as, Ravi was the person who was knowingly involved in

the Canter being its driver, in which the Ganja was being taken whereas,

the present petitioner just happened to be there at the time of the incident

by chance without having knowledge that there was Ganja in the said

7 of 13

Canter. The question whether, in a situation when the petitioner was not

even sitting in the Canter in question and was neither the supplier nor the

purchaser, the petitioner could be considered to be in the conscious

possession of the contraband, is a moot point which has to be decided

during the course of the trial. There are as many as 28 witnesses out of

which, only one has been examined and thus, the conclusion of the trial is

likely to take time, moreso, in view of the COVID-19 pandemic. The case

of the present petition is on a similar footing as that of Sunder Singh, who

has been granted regular bail by this Court, vide order dated 17.02.2021

passed in CRM-M-5404-2022.

Learned counsel for the petitioner has also highlighted the

fact that in various cases where recovery of commercial quantity was

involved, the Hon'ble Supreme Court as well as this Court have, on the

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

the period of custody and the merits of 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 charge-sheet 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

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

8 of 13

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

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'.

9 of 13

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 Punjab and 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 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

10 of 13

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 in order to meet the requirement under

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. This Court is of the opinion that

in the present case, there are several arguable points which have been

raised by the learned counsel for the petitioner and the petitioner has been

11 of 13

in custody since 24.05.2021 and all the abovesaid factors are sufficient to

entitle the petitioner to the concession of regular bail. The present petition

is the second petition for regular bail and the earlier bail petition was

withdrawn on 30.09.2021 and thereafter, more than 5 ½ months have

elapsed and no witness has been examined within the said period and the

co-accused of the petitioner namely Sunder Singh has been granted

regular bail on 17.02.2022, who is on a similar footing as that of the

present petitioner and thus, the said subsequent circumstances entitled the

petitioner to file the second application for regular bail. In order to meet

object of Section 37 of the NDPS Act, this Court proposes to impose

certain conditions. Accordingly, the present petition is allowed and the

petitioner is ordered to be released on regular bail on his furnishing

bail/surety bonds to the satisfaction of the concerned trial Court/Duty

Magistrate and subject to him 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

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 he is accused of, or for commission of

which he is suspected.

5. The petitioner shall not directly or indirectly make any

12 of 13

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.

                                                  ( VIKAS BAHL )
March 16, 2022                                         JUDGE
Davinder Kumar


                       Whether reasoned/speaking?                  Yes
                       Whether reportable?                         No




                                       13 of 13