Punjab-Haryana High Court
Avtar Singh Sangha vs State Of Punjab on 5 September, 2022
CRM-M-36755-2022 1
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Sr. No.210 CRM-M-36755-2022
Date of decision : 5.9.2022
Avtar Singh Sangha
.....Petitioner(s)
VERSUS
State of Punjab
..... Respondent(s)
CORAM: HON'BLE MR. JUSTICE AMAN CHAUDHARY
Present: Mr.BK Saini, Advocate for the petitioner
Mr.MS Atwal, DAG, Punjab
AMAN CHAUDHARY, J.
The present petition has been filed under Section 439 Cr.P.C.
for grant of regular bail to the petitioner in case FIR No.61, dated
14.4.2022, registered under Section 18 of NDPS Act (Section 29 NDPS Act
added later on) at Police Station Baghapurana, District Moga.
Succinctly, the facts of the case are that the petitioner was
apprehended by ASI Varinder Kumar, while he was driving a car bearing
registration No. PB-65-H-3183 and found in conscious possession of one
kg. Opium, wrapped in an envelop without any permit or license and also
Rs.400/- was recovered from the petitioner. After following the due
procedure of the recovery under NDPS Act, the petitioner was arrested on
14.4.2022. He made a disclosure statement on 15.4.2022, wherein he
specifically told to the police about time, place, recovery and registration of
vehicle allegedly used in the crime by co-accused Lakhwinder Singh. After
investigation in the matter, final report under Section 173 Cr.P.C. has been
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presented in the Court.
Learned counsel for the petitioner submits that the petitioner
has been falsely implicated in the present case. The alleged recovery of 1 kg
opium falls under the category of non-commercial quantity as per the
Schedule appended with the NDPS Act. However, the learned Judge,
Special Court, Moga while declining the anticipatory bail of the petitioner
clubbed the recovery effected from co-accused Lakhwinder Singh, which
was 9 kgs of opium. He further submits that no recovery is to be effected
from the petitioner. He is in custody since 14.4.2022. Final report under
Section 173 Cr.P.C. stands presented. He further submits that the petitioner
is not involved in any other case.
On the other hand, learned counsel for the State opposes the
prayer of the petitioner. He further submits that the total quantity of the
contraband recovered from both the accused is to be considered and thus, in
the present case, the recovery effected from both the accused are 10 kgs of
opium, which falls under the category of commercial quantity and thereby
attracts bar of Section 37 of NDPS Act to grant of bail to the petitioner.
I have heard the learned counsel for the parties.
In CRM-M-33684-2020 titled as "Amit Dhanak Vs. State of
Haryana" decided on 11.01.2021, a Coordinate Bench of this Court in
similar set of facts, has held as under:
"Considering the facts; that in the FIR specific recovery
has been attributed to all the three accused of 16Kgs of
Ganja Patti each; they are in custody since August, 2020;
no recovery is to be made; the individual recovery is of
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non commercial quantity and conclusion of trial would
take time, both the petitions are allowed. The petitioners
are ordered to be released on bail subject to their
furnishing surety/bail bonds to the satisfaction of the
learned trial Court/Duty Magistrate concerned. "
Similarly, the Hon'ble Supreme Court in Amarsingh
Ramjibhai Barot Vs. State of Gujarat 2005 AIR (Supreme Court) 4248
held as under:-
"A number of contentions were urged in the High Court
by the appellant in support of his appeal. It was
contended that the conviction was liable to be set aside
as there was non-compliance with the provisions of
section 42(2), 50, 52 and 57 of the NDPS Act. There is
no substance in this contention. The High Court,
however, was of the view that the conviction of the
appellant under sections 17 and 18 read with section 29
of the NDPC Act was not correct. On the other hand, the
High Court came to the conclusion that the appellant was
liable to be convicted under Section 21(c) and also under
Section 21(c) read with Section 29 of the Act, for
individually being in possession of 920 grams and for
being jointly, in conspiracy with the deceased, in
possession of 4.250 kgs. of the prohibited substance
recovered. In the view of the High Court, the total
amount of prohibited substance recovered (personally
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from the appellant and also from the joint possession of
the two accused) being more than ''commercial
quantity'' as defined under the applicable notification,
the appellant was liable to be visited with the minimum
punishment of 10 years rigorous imprisonment plus fine
of Rs. 1 lakh. The High Court was also of the view that,
even if the quantity of 920 grams recovered from the
appellant alone were to be considered, it would warrant
conviction under Section 21(c) and the minimum
sentence of 10 years rigorous imprisonment plus fine of
Rs. 1 lakh. Being aggrieved thereby, the appellant is
before this Court.
The learned counsel appearing for the appellant urged
only one contention in support of the present appeal. He
contended that the High Court fell into an error in taking
the total quantity of the offending substances recovered
form the two accused jointly and holding that the said
quantity was more than the commercial quantity,
warranting punishment under Section 21(c) of the NDPS
Act. He contended that as far as the appellant is
concerned, the High Court erred by assuming that there
was criminal conspiracy within the meaning of Section
29 of the NDPS Act, and erroneously proceeded under
the said section. The High Court fell into a further error
of assuming that because Section 29 was applicable, the
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total quantity of opium recovered was 920 grams plus
4.250 kgs. The counsel urged that because of this error
the High Court took the wrong view that the total
recovered opium was of ''commercial quantity'' and,
therefore, attracted Section 21(c) of the NDPS Act.
Although, at first blush, the argument of the learned
counsel appeared attractive, on careful appreciation of
the facts on record we are satisfied that the High Court
judgment is fully justified and needs to be upheld. It is
true that the High Court proceeded on the footing that
there was a criminal conspiracy between the appellant
and the deceased, Danabhai Virabhai Rabari. In our
view, however, there was no warrant for this conclusion
at all as there is no evidence to suggest that there was
any such abetment and/or criminal conspiracy within the
meaning of Section 29 of the NDPS Act. The appellant
and Danabhai Virabhai Rabari were found together, but
individually carrying the recovered substances. Hence, it
was not possible for the High Court to take the view that
Section 29 was attracted."
In the case in hand, similar to the above, the recovery of 1 kg
opium was effected from the petitioner, whereas from his co-accused, who
was stated to be a supplier, 9 kgs opium was recovered. From a plain
reading of the aforequoted judgments, it reveals that the total quantity
recovered from both the accused should not be considered collectively
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when individual recovery from each accused is effected. Thus, in view of
the same, the recovery effected from the petitioner being one kg, falls under
the category of non-commercial quantity, the rigors of Section 37 of the
NDPS Act are not applicable to the case of the petitioner. Moreover, the
petitioner has been in custody since 14.4.2022; though the challan has been
filed as is the case of the parties, but the charges are yet to be framed, thus,
the trial is yet to commence; as also the fact that the petitioner is stated to be
not involved in any other case, his further detention behind the bars would
not serve any useful purpose, the present petition for grant of regular bail
deserves to be allowed.
Accordingly, the present petition is allowed. The petitioner is
ordered to be released on regular bail, subject to his furnishing bail/surety
bonds to the satisfaction of trial Court/Duty Magistrate concerned and
subject to him not being required in any other case. The petitioner shall
abide by the following conditions:-
1. The petitioner will not tamper with the evidence
during the trial.
2. The petitioner will not pressurise/ intimidate the
prosecution witnesses.
3. The petitioner will appear before the trial Court on
each and every date fixed, unless is exempted by a
specific order of Court.
4. The petitioner shall not commit an offence similar
to the offence of which, he is an accused, or for
commission of which he is suspected of.
5. The petitioner shall not directly or indirectly make
any coerce, inducement, threaten or promise to any
person acquainted with the facts of the case so as
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to dissuade him/ her from disclosing such facts to
the Court or to any police officer or tamper with
the evidence in any manner.
6. The petitioner shall not in any manner misuse his
liberty.
7. Any infraction shall entail in withdrawal of the
benefit granted by this Court.
It is, however, clarified that nothing stated hereinabove be
construed as a final expression of opinion on the merits of the case and the
trial would proceed independently of the observations made above, which
have only been made for the purpose of adjudicating the present petition for
grant of regular bail.
5.9.2022 (AMAN CHAUDHARY)
gsv JUDGE
Whether speaking/reasoned : Yes / No
Whether reportable : Yes / No
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