Avtar Singh vs State Of Punjab
2022 Latest Caselaw 14509 P&H

108
      IN THE HIGH COURT OF PUNJAB AND HARYANA AT
                       CHANDIGARH

                                   CRM-M-52767-2022
                                   Date of Decision: 16.11.2022


Avtar Singh                                               ...Petitioner


                           Versus

State of Punjab                                           ...Respondent



CORAM:HON'BLE MR. JUSTICE ASHOK KUMAR VERMA


Present:      Mr.Karanjeet Singh Brar, Advocate for the petitioner

              Mr.Jaspal Singh Guru, AAG, Punjab



ASHOK KUMAR VERMA, J.

Notice of motion.

On the asking of this Court, Mr. Jaspal Singh Guru, AAG,

Punjab accepts notice.

The petitioner has approached this Court by filing this

petition under Section 438 of the Cr.P.C. for grant of anticipatory bail in

FIR No.208 dated 7.9.2022 under Sections 22 and 29 of the NDPS Act

registered at Police Station Sadar Samana, District Patiala.

As per prosecution story, on the basis of secret information

received, FIR was lodged by name against the petitioner and co-accused

Prabhjot Singh. The petitioner alongwith Prabhjot Singh were coming on

motor cycle but on seeing the police party, the petitioner was able to flee

away, though the polythene which was kept on the oil tank of the motor

cycle had fallen down from which 12 vials were recovered. The said vials

were sent to the lab and salt of the same has been opined to be codeine

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phosphate.

Learned Counsel appearing for the petitioner, inter alia,

submits that the petitioner was neither present at the spot as alleged in FIR

nor any recovery has been effected from him. It is the case of the

prosecution that police officials have secret information and they were in

large number, so it is highly improbable that the petitioner can succeed in

running away from the spot when so many police officials were present at

the spot. The petitioner is already ready and willing to join the

investigation.

On the other hand, learned State counsel opposed the

petition for grant of anticipatory bail to the petitioner. Learned counsel

submits that the petitioner has been specifically named in the FIR.

Petitioner alongwith co-accused Prabhjot Singh were coming on

motorcycle but on seeing the police party petitioner was able to flee away,

though the polythene which was kept on the oil tank of the motorcycle had

fallen down from which 12 vials were recovered, the said vials were sent

to the lab and salt of the same has been opined to be codeine phosphate.

Besides that from the possession of the co-accused Prabhjot Singh,

recovery of CARISOMA tablets was effected. Thus, it is a case falling

within the ambit of commercial quanity as the quantity 1200 ml from 12

vials comes to 1475.16 grams. Learned counsel for the State submits that

petition under Section 438 of the Cr.P.C. for grant of anticipatory bail

filed by co-accused Sukhpreet Singh has been already dismissed by this

Court vide order dated 29.10.2022 passed in CRM-M-49890-2022.

Learned counsel further submits that custodial interrogation of the

petitioner is required for finding out the source of contraband.

I have heard learned counsel for the petitioner as well

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as learned State counsel and perused the record.

Perusal of the record shows that on the basis of secret

information received, the FIR was lodged against the petitioner and co-

accused Prabhjot Singh by name. Motorcycle was intercepted, though the

petitioner who was allegedly driving the motorcycle fled away. The

polythene containing 12 vials had fallen down alongwith the mobile

phone which was recovered. Samples sent to the Forensic Science

Laboratory consisting of 12 vials shows that the contents of salt have been

opined to be that of codeine phosphote. It is a case of 1475.16 grams

(1200 ml x 1.2293 grams per ml), which falls under the category of

"commercial quantity".

In State of Haryana vs Samarth Kumar, 2022 Live

Law (SC) 622, the Hon'ble Supreme Court held that the accused is not

entitled for anticipatory bail only on the ground that no recovery was

effected from the accused. In Samrath Kumar's case (supra), the

Hon'ble Supreme Court observed as under:-

"In cases of this nature, the respondent may be able to take

advantage of the decision in Tofan Singh vs State of Tamil

Nadu (supra), perhaps at the time of arguing the regular

bail application or at the time of final hearing after the

conclusion of the trial. To grant anticipatory bail in case of

this nature is not really warranted. Therefore, we are of the

view that the High Court fell into an error in granting

anticipatory bail to the respondent."

Recovery effected from the co-accused is heavy 'commercial'

quantity, which strongly points out that the contraband was intended for

commercial/business purpose and not for personal consumption. In view

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of the ratio of the above mentioned judgment, this Court is of the

considered view that for proper investigation; to find any nexus between

the petitioner and his co-accused and for knowing the source of

contraband, the custodial interrogation of the petitioner is necessary.

In view of the above, the present petition being devoid of any

merit is dismissed. Nothing said herein shall be construed as an expression

of opinion on the merits of the case.

                                        (ASHOK KUMAR VERMA)
                                               JUDGE
16.11.2022
MFK
Whether speaking/reasoned               Yes/No

Whether Reportable                      Yes/No




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