Punjab-Haryana High Court
Gurpreet Singh @ Mani vs State Of Punjab on 17 March, 2022
CRM-M-17503-2020(O&M) 1
IN THE HIGH COURT OF PUNJAB & HARYANA AT
CHANDIGARH
***
Date of decision : 17.03.2022
1. CRM-M-17503-2020(O&M)
Gurpreet Singh @ Mani
... Petitioner
Versus
State of Punjab
... Respondent
2. CRM-M-19973-2020(O&M)
Sajan Singh
... Petitioner
Versus
State of Punjab
... Respondent
CORAM: HON'BLE MR. JUSTICE VIKAS BAHL
Present: Mr. Vipul Jindal, Advocate
for the petitioner in both the petitions.
Mr.Sarabjit Singh Cheema, AAG, Punjab.
VIKAS BAHL, J.(ORAL)
This order will dispose of two Criminal Miscellaneous
Petitions. The first petition is CRM-M-17503-2020 filed by Gurpreet Singh
@ Mani and the second petition is CRM-M-19973-2020 filed by Sajan
Singh praying for regular bail in FIR no.41 dated 06.02.2020 registered
under Sections 21, 29 of the Narcotic Drugs and Psychotropic Substances
Act, 1985 (in short "NDPS Act") and Sections 307, 148, 149 IPC and
Section 25, 27 of the Arms Act, 1959 at Police Station Sadar Amritsar.
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Learned counsel for the petitioners has submitted that the pleas
raised and the issue of law involved in both the petitions is the same and has
prayed that CRM-M-17503-2020 be taken up as the lead case. Learned
State counsel has no objection to the same. Accordingly, CRM-M-17503-
2020 is taken as lead case and the facts are being taken from the same.
Learned counsel for the petitioners at the outset has referred to
the order dated 17.12.2020 passed by a coordinate Bench of this Cour, the
relevant portion of the said order is reproduced hereinbelow:-
"Case taken up through video conferencing.
The present petition has been filed under Section
439 Cr.P.C. for the grant of regular bail in FIR No.41
dated 06.02.2020 registered under Sections 21 and 29 of
the Narcotic Drugs and Psychotropic Substances Act,
1985, Sections 307, 148 and 149 IPC and Sections 25
and 27 of the Arms Act, 1959, at Police Station Sadar
Amritsar.
Briefly stated, the case of the prosecution is that
the police party finding the petitioner and his five co-
accused roaming around suspiciously searched and
recovered 500 grams of heroin from the petitioner, later,
on on his disclosure statement 36 grams of heroin from
his car and at the time of search co-accused Rajinder
fired upon the police party as a result of which two of
the co-accused managed to flee.
Learned counsel for the petitioner contends that
the petitioner has been falsely implicated in the case;
there is no other criminal case in which the petitioner is
involved; there is no recovery from the person of the
petitioner; report under Section 173 Cr.P.C. has been
filed and therefore the petitioner is in no position to
influence the investigation; alleged firing on the police is
by co-accused Rajinder and not the petitioner; for the
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last several months no effective proceedings have taken
place in the petitioner's trial for which he cannot be
blamed; 12 prosecution witnesses are to be examined in
the petitioner's trial and therefore the same is likely to
take a long time to conclude and in this case the memo of
consent is a cyclostyled copy which contains the number
of the FIR which is impossible as at the time of consent
admittedly no FIR had been lodged.
Learned State counsel opposes the grant of
regular bail to the petitioner on the ground that the
petitioner and his co-accused have been found in illegal
possession of 536 grams of heroin and on being caught
his co-accused fired upon the police party.
Whether the petitioner has been falsely implicated
in the case and the effect of printing of FIR number on
the consent memo would be debated during the course of
trial.
On one hand the petitioner is not involved in any
other criminal case; alleged firing is by co-accused
Rajinder; he has suffered incarceration for over ten
months; report under Section 173 Cr.P.C. has been filed
and therefore he is in no position to influence the
investigation; for the last several months no effective
proceedings have taken place in the petitioner's trial; in
the petitioner's trial where 12 prosecution witnesses are
to be examined the same is not likely to conclude in the
near future especially in the present circumstances when
the world is facing the Covid-19 pandemic for which the
petitioner cannot be blamed and on the other hand the
petitioner and his co-accused are accused of being in
illegal possession of 536 grams of heroin and firing on
the police party.
After considering the totality of the above noticed
facts this Court is of the opinion that while adjourning
the present petition to 19.03.2021 subject to the
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satisfaction of the CJM/Duty Magistrate, Amritsar, the
petitioner be released on interim bail. On the adjourned
date, subject to the petitioner's surrender on 16.03.2021,
further orders in the present petition would be passed
after considering the merits of the case; his conduct
during the time he was on interim bail; progress in his
trial and the situation with regard to the Covid-19
pandemic.
It is clarified that nothing observed herein-above
shall be construed to be an expression of opinion by this
Court on the merits of the case."
Reliance has also been placed upon the order dated 18.11.2021
passed by a coordinate Bench of this Court. The relevant portion of which is
reproduced hereinbelow:-
"Learned counsel for the petitioner(s) inter alia
contends that the entire case against the petitioner is
false on the face of it as the case of the prosecution is
that the co-accused, while running from the spot, fired at
the police whereas no empties were recovered and while
drawing the attention of this Court to Annexure P-13 it
is submitted that there is gross violation of Section 50 of
the NDPS Act as the so called consent memo contains
the number of the FIR at the time when the same had not
even been registered. In any case, the consent memo is a
joint consent memo for all the accused which is violation
of the law settled by the Hon'ble Supreme Court in State
of Rajasthan vs Parmanand (2014) 5 SCC 345.
Adjourned to 07.12.2021.
On the adjourned date the investigating officer is
directed to appear before the Court.
A photocopy of this order be placed on the file of
the other connected case."
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By referring to the said orders as well as record of the present
case, learned counsel for the petitioner has submitted that the petitioner has
been falsely implicated in the present case and he has no criminal
background. It has been submitted that although the alleged recovery from
the petitioner Gurpreet Singh is stated to be of 536 grams of heroin and with
respect to Sajan Singh it has been stated that the said person was also
accompanying Gurpreet Singh @ Mani and thus, the recovery from the said
petitioners is of commercial quantity, however he has highlighted the
contents of the in the FIR so as to show discrepancies in the prosecution
case and has submitted that in the present case as per FIR (page 33), the
information is stated to have been received in the police station at 5:17 AM
on 06.02.2020 and the FIR had been registered at 6:10 hours. Further
reference has been made to allegation in the FIR as per which it is alleged
that personal search, had also been conducted by the prosecution and
reference has been made to page 35 of the FIR, wherein it has been stated
that after the recovery was effected, the ruqa had been sent.
The first argument raised by learned counsel for the petitioners
that as per the FIR, it is apparent that the information had been received at
the Police Station at 5:17 AM on 06.02.2020 and the ruqa had been sent
after the recovery had been effected and on the basis of the said ruqa, the
FIR had been registered at 6:10 hours. It has been submitted that from the
allegations in the FIR, it is also apparent that the personal search was
conducted and the consent was taken prior to the registration of the FIR but
however, a perusal of the consent memo of the accused (Annexure P-13 of
CRM-23268-2020 in CRM-M-17503-2020) (vernacular of same at page 23
of the said CRM) would show that the same is a typed document and the
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number of FIR had already mentioned in the same. The said document is
sought to be compared with the recovery memo Annexure P-14 of the said
CRM (vernacular of same at page 24) to show that name of the concerned
police officer on both the documents are the same, however the signatures
on page 24 of the said police officer are different from the signatures of the
said police officer on page 23 and it is further highlighted that at page 24,
the said recovery memo was hand written. Further reference has been made
to Annexure P-15 (vernacular of the same at page 25) to highlight that the
ruqa was also hand written and at page 26 the time was mentioned as 5:10
AM. It is pointed out that memo handing over the case property i.e.
Annexure P-16 (vernacular of the same at page 27) was also hand written
and the said document is prepared at the police station. It is, thus, submitted
that the said documents, which were being prepared at the police station, as
well as at the spot, were hand written but the consent memo was typed and
the FIR number on the same was also typed. It is submitted that the said
case shows that the consent memo is not a genuine document and for the
said purpose, he has relied upon a judgment of Division Bench of this Court
in Didar Singh @ Dara vs. The State of Punjab, reported as 2010(3) RCR
(Criminal) 337
The second argument of learned counsel for the petitioners is
that a perusal of the consent memo (Annexure P-13) (vernacular at Page 23)
would show a joint consent memo was prepared for the accused in the case
and in the same four options were given, including the option to get the
search done from ASI Lakhwinder Singh. It is submitted that since in the
present case, as per the FIR, the personal search had also been conducted
and thus, the provision of Section 50 of the NDPS Act had to be
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mandatorily followed and giving an option of getting their search conducted
from ASI himself would show that the mandatory provision of Section 50 of
the NDPS Act had been violated and for the said purpose, he has relied
upon the judgment of Hon'ble Supreme Court in S.K.Raju @ Abdul Haque
@ Jagga vs. State of West Bengal passed in Criminal Appeal no.459 of
2017 decided on 05.09.2018 and State of Rajasthan vs. Parmanand and
another passed in Criminal Appeal no.78 of 2005 decided on 28.02.20214.
The third argument raised by learned counsel for the petitioners
is that a coordinate Bench of this Court, after considering the entire matter,
was pleased to release the petitioners on interim bail vide order dated
17.12.2020 and had also observed that the conduct of the petitioners while
they are on interim bail would also be taken into consideration at the time of
final adjudication of the case. Learned counsel for the petitioners has
pointed out that the petitioners have duly surrendered in pursuance of the
said order and have not committed any offence while being on interim bail.
It is also submitted that the petitioners are not involved in any other case.
The fourth argument raised by learned counsel for the
petitioners is that both the petitioners have been in custody since
06.02.2020 and there are 12 prosecution witnesses and none of them have
been examined and thus, the trial is likely to take time. It is further
submitted that the petitioners were granted interim bail approximately for a
period of six months but even if the said period is excluded, then also, the
custody undergone by the petitioners is of 1 year 9 months each, thus even
on account of the substantial period of incarceration, the petitioners deserve
the concession of bail.
Learned State counsel has opposed the present petitions for
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regular bail and has submitted that the argument raised with respect to
consent memo being fabricated is a matter of trial and would only be
considered after the concerned police official is examined and cross-
examined. With respect to the argument of learned counsel for the
petitioners that there has been a violation of Section 50 of the NDPS Act, it
has been argued that in the present case, recovery had been effected from
the kit bag and not from the personal search. It is further submitted that the
personal search had been conducted as a matter of procedure, which is
required to be done in every case. He has also submitted that there are
several judgments which would further the proposition that if the recovery
has not been made from the person of the accused and it is only
subsequently that the accused is personally searched, then Section 50 of the
NDPS Act need not be followed or any violation of the same would not
render the recovery so effected to be bad. It is further submitted that as far
as consent memo is concerned, all the accused had signed the same
separately and thus, even if it is one joint consent memo, the same would
also not further the case of the petitioners. With respect to the argument
regarding the option given by ASI Lakhwinder Singh in the said consent
memo, it is submitted that since in the present case, Section 50 of the NDPS
Act is not applicable, thus the said issue is also irrelevant. With respect to
the period of incarceration and fact that the petitioners are not involved in
any other case, the same have not been disputed.
This Court has heard the learned counsel for the parties and has
perused the paper book.
The first argument raised by learned counsel for the petitioners
is to the effect that although as per the FIR, information had been received
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at the police station at 5: 17 AM on 06.02.2020, the FIR contained the
details with respect to the search conducted and also the fact that the ruqa
had been sent after the entire recovery process had been completed. Perusal
of the consent memo (Annexure P-13) (vernacular at page 23), which even
as per the prosecution case, had been prepared prior to the recovery, would
show that the number of the FIR had already been typed in the same. The
Division Bench in Didar Singh @ Dara's case (supra) had observed as
under:-
"29. There is another infirmity on the record which
further creates a doubt about the entire prosecution
case. As per the prosecution, at the time of the recovery,
various documents were prepared. Those documents
areEx.PA, Ex.PB, Ex.PC, Ex.PD, Ex.PE and Ex.PF. All
these memos bear the FIR number of the case. It is
admitted case of the prosecution that when these
documents were prepared, the FIR was not registered
and FIR No. was not available as the same was
registered later on, on the ruqa sent by the police. It has
not been explained how all these memos contained the
FIR number, which was not existing at the time when
these memos were prepared. In Ajay Malik & Ors. v.
State of U.T. Chandigarh, 2009(3) RCR (Crl.) 649, this
Court while dealing with similar situation has observed
that two inferences could be drawn from such situation,
i.e. either the FIR was registered prior to the alleged
recovery of the contraband or number of FIR was
inserted in the document after its registration. But in
both situations, it seriously reflects upon the integrity of
the prosecution version. While relying upon several
other decisions, it was held that such serious lapses in
the prosecution case create a doubt to the prosecution
theory.
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xxx xxx xxx
32. In view of the aforesaid discussion, the appeal is
allowed and the impugned judgment of conviction and
order of sentence passed by the Judge, Special Court,
Amritsar are set aside. The appellant, who is in custody,
be set at liberty forthwith if not required in any other
case."
A coordinate Bench of this Court in Ajay Kumar @ Nannu's
case (supra) had held as under:-
"(iii) that mentioning of number of FIR and additional
offences in the recovery memo shows manipulation and
fabrication of recovery memo subsequently in the police
station which denudes recovery memo of any sanctity
and strikes out integrity and shatters credibility of the
prosecution version and entitles the petitioners to grant
of bail. In support of his arguments Mr. Vipul Jindal,
learned Counsel for the petitioners has placed reliance
on the observations in judgments passed in Ajay Malik
Vs. State of U.T. Chandigarh : 2009(3) RCR (Criminal)
649 (P&H); Didar Singh @ Dara Vs. State of Punjab :
2010(3) RCR (Criminal) 337 (P&H); where mentioning
of subsequent details in recovery memo was held to
affect sanctity/credibility of recovery memo and
Criminal Appeal No.1809 of 2009 titled as 'Ram
Chander Sharma @ Pandit Vs. State (NCT of Delhi)'
decided on 01.12.2020 (SC); CRM-M-38153-2019
(O&M) titled as 'Satish Kumar Vs. State of Punjab'
decided on 11.02.2020; CRM-M-42370-2019 (O&M)
titled as 'Tarsem Lal Vs. State of Punjab' decided on
17.09.2020; CRM-M- 44921-2019 titled as 'Gurdeep
Singh Vs. State of Punjab' decided on 18.02.2020;
CRM-M-32615-2018 titled as 'Rinku Singh Vs. State of
Punjab' decided on 07.08.2018; CRM-M-61999-2018
titled as 'Jatinder Vashisht Vs. State of Punjab' decided
10 of 23
on 26.03.2019; CRM-M- 34433-2019 titled as
'Harvinder Singh @ Shammi Vs. State of Punjab'
decided on 25.11.2019; CRM-20778-2018 in CRA-S-
2212- SB-2016 titled as 'Kashmir Singh @ Koki Vs.
State of Punjab' decided on 24.01.2019; CRM-19587-
2019 in CRA-S-2884-SB-2016 titled as 'Charno Vs.
State of Punjab' decided on 16.08.2019; CRM-M-
36504-2020 (O&M) titled as 'Rajandeep Singh @
Ghughi Vs. State of Punjab' decided on 28.01.2021 and
Mustkeem @ Sirajudeen Vs. State of Rajasthan (SC):
2011(3) RCR (Criminal) 766 where bail was granted/
suspension of sentence was allowed on this ground.
xxx xxx xxx
16. In Mustakeem @ Sirajudeen Vs. State of
Rajasthan : AIR 2011 SC 2769 it was held by Hon'ble
Supreme Court that if the recovery memos were
prepared at the Police Station itself then the same would
lose its sanctity. In Ajay Malik Vs. State of U.T.
Chandigarh : 2009(3) RCR (Criminal) 649 (P&H) it
was held by this Court that presence of FIR details on
recovery memos etc. leads to two inferences: either the
FIR was registered prior to the alleged recovery of
contraband or the number of FIR was inserted in these
documents after its registration in both the situations it
seriously reflects upon the integrity of the prosecution
version. This view was upheld and reiterated by the
Division Bench of this Court in Didar Singh @ Dara Vs.
State of Punjab : 2010(3) RCR (Criminal) 337 (P&H)
and mentioning of such details in recovery memo was
held to affect sanctity/credibility of recovery memo. In
Criminal Appeal No.1809 of 2009 titled as 'Ram
Chander Sharma @ Pandit Vs. State (NCT of Delhi)'
decided on 01.12.2020 (SC); CRM-M-38153-2019
(O&M) titled as 'Satish Kumar Vs. State of Punjab'
decided on 11.02.2020; CRM-M-42370-2019 (O&M)
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titled as 'Tarsem Lal Vs. State of Punjab' decided on
17.09.2020; CRM-M-44921-2019 titled asGurdeep
Singh Vs. State of Punjab' decided on 18.02.2020;
CRM-M-32615-2018 titled as 'Rinku Singh Vs. State of
Punjab' decided on 07.08.2018; CRM-M-61999-2018
titled as 'Jatinder Vashisht Vs. State of Punjab' decided
on 26.03.2019; CRM-M-34433-2019 titled as
'Harvinder Singh @ Shammi Vs. State of Punjab'
decided on 25.11.2019; CRM-20778-2018 in CRA-S-
2212-SB-2016 titled as 'Kashmir Singh @ Koki Vs.
State of Punjab' decided on 24.01.2019; CRM-19587-
2019 in CRA-S-2884-SB-2016 titled as 'Charno Vs.
State of Punjab' decided on 16.08.2019; CRM-M-6504-
2020 (O&M) titled as 'Rajandeep Singh @ Ghughi Vs.
State of Punjab' decided on 28.01.2021 and Mustkeem
@ Sirajudeen Vs. State of Rajasthan (SC): 2011(3)
RCR (Criminal) 766 bail was granted/suspension of
sentence was allowed on this ground.
xxx xxx xxx
20. In view of the above, the petitions are allowed and
the petitioners are ordered to be released on regular
bail on furnishing of personal bond and bond of one
surety in heavy amount to the satisfaction of the trial
Court/Chief Judicial Magistrate/Duty Magistrate
concerned."
Similarly, a coordinate Bench of this Court in Rajandeep
Singh @ Ghughi's case (supra) had held as under:-
"In this backdrop, the submission made by Ld. Counsel
for the petitioner is that in view of the decision of the
Supreme Court in Ram Chander Sharma @ Pandit v.
State (NCT Delhi) Criminal Appeal No. 1809 of 2009,
the existence of the FIR on the recovery memo when the
FIR was not itself drawn up would point to the case
against the petitioner being a fabricated one. Reliance
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has thereafter been placed upon an earlier decision of
this Court in Ajay Malik v. State of U.T. Chandigarh,
2009(3) RCR (Crl.)649 (P&H) which was thereafter
followed by the Division Bench in the decision of Didar
Singh @ Dara v. State of Punjab, 2010(3) RCR
(Criminal) 337 (P&H) (DB). Various Benches of this
Court have subsequently granted bail to such accused
persons in view of these decisions wherever number of
the FIR was seen to have been noted down in the
documents purported prepared before registration of the
FIR itself.
[(i) CRM-M-38153-2019 titled Satish Kumar v. State of
Punjab;
(ii) CRM-M-42370-2019 titled Tarsem Lal v. State of
Punjab;
(iii) CRM-M-44921-2019 titled Gurdeep Singh v. State
of Punjab;
(iv) CRM-M-32615-2018 titled Rinku Singh v. State of
Punjab;
(v) CRM-M-61999-2018 titled Jatinder Vashisht v.
State of Punjab;
(vi) CRM-M-34433-2019 titled Harvinder Singh @
Shammi v. State of
Punjab.]
Similarly in :-
(vii) CRM-20778-2018 in CRA-S-2212-SB-2016 titled
Kashmir Singh @
Kokki v. State of Punjab; and
(viii) CRM-19587-2019 in CRA-S-2884-SB-2016 titled
Charno v. State of Punjab, the benefit of suspension of
sentence even in favour of the convicts was granted by
this Court for the same reason, i.e. existence of the F.I.R.
number on the Recovery Memo/ Documents prepared
before registration of the F.I.R."
xxx xxx xxx
[8] In addition, Ld. Counsel for the petitioner has
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separately relied upon an appropriate format of the
Recovery Memo pertaining to Heroin in FIR No. 232
dated 24.09.2016, Police Station Chheharta Amritsar to
demonstrate in what manner the relevant FIR number is
to be shown. Perusal of the same goes to show that the
recovery from the concerned accused Karan Singh @
Karan s/o Watan Singh was purportedly effected on
23.09.2016, but the relevant FIR No. 232 dated
24.09.2016 was separately entered on the margin which
was totally distinct from the original contents with a
separate/categorical noting that the memo in question
pertains to the said FIR drawn up on the following day.
The said document is now tagged as Annexure 'X' with
the record. It would, therefore, be clear that such format
was being followed by the Narcotic Cell Authorities of
the area for more than three years prior to the
apprehension of the petitioner in the present case, and so
mentioning of the FIR number in the very beginning of
the Recovery Memo as done in the present case, and not
by way of a subsequent explanatory endorsement to
indicate that it relates to the relevant FIR drawn up
subsequently, would only go to support the contention
raised on behalf of the petitioner.
xxx xxx xxx
[11] The petition is, therefore, allowed and the
petitioner is directed to be released on bail to the
satisfaction of the Ld. Trial Court/ Duty Magistrate,
concerned."
Perusal of the above said judgments would show that Division
Bench as well as coordinate Bench of this Court had considered the
contention raised by learned counsel for the present petitioner to be one of
the points while granting regular bail to the petitioner therein. Even in a
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case involving commercial quantity, it was observed that in such a situation
only two inferences can be drawn, i.e., either the FIR was registered prior to
the alleged recovery of contraband or the number of the FIR has been
inserted in the document after its registration and both situations seriously
reflect upon the integrity of the prosecution version and the same is a
serious lapse in the prosecution case and creates a doubt in the prosecution
theory. The coordinate Bench of this Court in Rajandeep Singh @
Ghughi's case (supra) had even explained as to how an entry was to be
made with respect to the FIR which was entered into subsequently and it
was observed that separate/categorical noting to the effect that FIR and its
number having been mentioned, should be made. The same has not been
done in the present case.
The issue which has been raised in the above said case would
also arise in the present case. Even a perusal of the signatures on the
consent memo (vernacular at page 23) and a perusal of the recovery memo
(vernacular at page 24) would show that the signatures of the same police
official on both the said documents are completely different. The
documents Annexure P-14 recovery memo (vernacular at page 24),
Annexure P-15 ruqa (vernacular at page 25), Annexure P-16 memo handing
over case property (vernacular at page 27), all were hand written whereas,
the consent memo was typed. The plea of learned counsel for the petitioners
to the effect that the said consent memo is a document which has been
prepared subsequently after the recovery, thus, cannot be outrightly rejected
and thus the question of its authenticity would be matter of trial.
Learned counsel for the petitioners has also raised the argument
that a perusal of the FIR would show that the personal search of the
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petitioner had also been conducted and further the consent memo would
show that the petitioners, even as per the case of the prosecution, were
given a fourth option to get their search conducted from ASI Lakhwinder
Singh. It is submitted that giving of the the said option would be violative
of the provisions of Section 50 of the NDPS Act.
The Hon'ble Supreme Court of India in S.K. Raju's case (supra)
had observed as under:-
"The question which arises before us is whether
Section 50(1) was required to be complied with when
charas was recovered only from the bag of the appellant
and no charas was found on his person. Further, if the
first question is answered in the affirmative, whether the
requirements of Section 50 were strictly complied with
by PW-2 and PW-4.
xxx xxx xxx
PW-2 conducted a search of the bag of the
appellant as well as of the appellant's trousers.
Therefore, the search conducted by PW-2 was not only
of the bag which the appellant was carrying, but also of
the appellant's person. Since the search of the person of
the appellant was also involved, Section 50 would be
attracted in this case. Accordingly, PW-2 was required
to comply with the requirements of Section 50(1). As
soon as the search of a person takes place, the
requirement of mandatory compliance with Section 50 is
attracted, irrespective of whether contraband is
recovered from the person of the detainee or not.
In the said case, the provisions under Section 50 of the NDPS
Act were attracted despite the recovery having been made only from the bag
of the appellant therein, since his personal search had been conducted. The
same principle is applicable in the present case.
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Further the learned counsel for the petitioners has relied upon
the judgment of the Hon'ble Supreme Court of India in Parmanand's case
(supra) in which it was observed as under:-
"15. We also notice that PW-10 SI Qureshi informed the
respondents that they could be searched before the
nearest Magistrate or before a nearest gazetted officer
or before PW-5 J.S. Negi, the Superintendent, who was a
part of the raiding party. It is the prosecution case that
the respondents informed the officers that they would
like to be searched before PW-5 J.S. Negi by PW-10 SI
Qureshi. This, in our opinion, is again a breach of
Section 50(1) of the NDPS Act. The idea behind taking
an accused to a nearest Magistrate or a nearest gazetted
officer, if he so requires, is to give him a chance of being
searched in the presence of an independent officer.
Therefore, it was improper for PW-10 SI Qureshi to tell
the respondents that a third alternative was available
and that they could be searched before PW-5 J.S. Negi,
the Superintendent, who was part of the raiding party.
PW-5 J.S. Negi cannot be called an independent officer.
We are not expressing any opinion on the question
whether if the respondents had voluntarily expressed
that they wanted to be searched before PW-5 J.S. Negi,
the search would have been vitiated or not. But PW-10
SI Qureshi could not have given a third option to the
respondents when Section 50(1) of the NDPS Act does
not provide for it and when such option would frustrate
the provisions of Section 50(1) of the NDPS Act. On this
ground also, in our opinion, the search conducted by
PW-10 SI Qureshi is vitiated. We have, therefore, no
hesitation in concluding that breach of Section 50(1) of
the NDPS Act has vitiated the search. The conviction of
the respondents was, therefore, illegal. The respondents
have rightly been acquitted by the High Court. It is not
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possible to hold that the High Court's view is perverse.
The appeal is, therefore, dismissed."
In the said case, PW-10 SI Qureshi had given a third option to
the accused persons therein to be searched before PW-5 J.S.Negi who was a
part of the raiding party. It was observed by the Hon'ble Supreme Court that
the said option given to the accused was against the mandate of Section 50
of the NDPS Act and thus, the search conducted stood vitiated.
Learned State counsel has although very vehemently argued
that the recovery in the present case is not on account of personal search and
the said recovery was effected from the kit bag and the personal search of
the petitioner was conducted subsequently, as is required to be conducted in
every case and thus, the recovery from the kit bag do not stand vitiated on
account of non compliance of Section 50 of the NDPS Act. In said regard,
learned State counsel has referred to the judgment of the Hon'ble Supreme
Court of India in State of Punjab vs. Baljinder Singh reported as 2020(1)
RCR (Criminal) 58.
Learned counsel for the petitioners in rebuttal has submitted
that in Baljinder Singh's case (supra), recovery had been effected from the
car involved therein and judgment of Hon'ble Supreme Court of India in
S.K. Raju's case (supra) has not been considered in the said judgment.
The aforesaid facts would clearly show that even the question
with respect to applicability of Section 50 of the NDPS Act to the present
case is a matter of debate and raises arguable points. Both the petitioners are
stated to be in custody since 06.02.2020 and although there are 12
witnesses, none of them have been examined and thus, the trial is likely to
take time moreso, in view of the present pandemic. Both the petitioners
were also granted interim bail by a coordinate Bench of this Court and the
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petitioners have not misused the said concession. Both the petitioners are
not involved in any other case.
Learned counsel for the petitioners 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 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
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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".
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
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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 as
"Harpal Singh vs. 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 reported as (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
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was also made to the Division Bench judgment of this Court in Daler Singh
v. State of Punjab reported as 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 to meet the requirement of 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.
Keeping in view the facts and circumstances of the present case
and also the fact that there are arguable points in the present case and the
custody of the petitioners is substantial and the trial is likely to take time,
the present petitions are allowed and and the petitioners are ordered to be
released on bail on their furnishing bail / surety bonds to the satisfaction of
the concerned trial Court/ Duty Magistrate and subject to them not being
required in any other case. Moreover, to meet the object of Section 37 of the
NDPS Act, this Court proposes to impose the following conditions that the
petitioners shall abide by:-
1. The petitioners will not tamper with the evidence during
the trial.
2. The petitioners will not pressurize / intimidate the
prosecution witness(s).
3. The petitioners will appear before the trial Court on the
date fixed, unless personal presence is exempted.
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4. The petitioners 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 petitioners shall not directly or indirectly make any
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.
Nothing stated above shall be construed as a final expression of
opinion on the merits of the case and the trial 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)
JUDGE
March 17, 2022
Davinder Kumar
Whether speaking / reasoned Yes/No
Whether reportable Yes/No
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