Jagwinder Singh @ Bablu vs State Of Punjab
2022 Latest Caselaw 10466 P&H

CRM-M-7380-2022 (O&M)                                               -1-


            IN THE HIGH COURT OF PUNJAB AND HARYANA AT
                         CHANDIGARH
(220)
                                 CRM-M-7380-2022 (O&M)
                                 Date of decision: - 06.09.2022
Jagwinder Singh @ Bablu
                                                                  ....Petitioner
                                   Versus
State of Punjab
                                                                .....Respondent


CORAM : HON'BLE MR. JUSTICE VIKAS BAHL


Present:-     Mr. Preetwinder Singh Dhaliwal, Advocate,
              for the petitioner.

              Mr. Ramdeep Partap Singh, Sr. DAG, Punjab.

                   ****
VIKAS BAHL, J. (ORAL)

CRM-33023-2022

Present application has been filed under Section 482 Cr.P.C.

for placing on record copy of certain documents as Annexures P-3 to P-7.

Application is allowed, as prayed for.

Copy of documents (Annexures P-3 to P-7) are taken on

record, subject to all just exceptions.

CRM-M-7380-2022

This is the first petition filed under Section 439 Cr.P.C. for

grant of regular bail to the petitioner in FIR no.47 dated 11.07.2021

registered under Sections 21, 22, 25, 29, 61 & 85 of the Narcotic Drugs

and Psychotropic Substances, Act, 1985 (in short "NDPS Act") at Police

Station Rureke Kalan, Tehsil Tapa District Barnala.

Learned counsel for the petitioner has submitted that in the

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present case, there is a violation of mandatory provisions of law. It has

been submitted that the FIR in the present case has been registered on

11.07.2021 and perusal of the report under Section 57 of the NDPS Act

(Annexure P-6) would show that the report was prepared on 15.07.2021

but the same is stated to have been signed by the Deputy Superintendent

of Police, S.D. Tapa on 10.07.2021. For the said purpose, reference has

been made to the vernacular wherein, the said date has also been

mentioned as 10.07.2021. It has been submitted that said fact shows that

the documents have been manipulated. It has also been argued that as per

the report dated 11.07.2021 under Section 42 of the NDPS Act (Annexure

P-4), it has been stated that the report under Section 42 of the NDPS Act

was being presented for information and was signed by SI Kuldeep Singh,

CIA Barnala, dated 11.07.2021 and the same was being sent to SI

Paramjit Singh and not to any senior officer as is required under Section

42(2) of the NDPS Act. It has been submitted that the same has been sent

from one Sub Inspector to another Sub Inspector and that too, belonging

to two different police stations, whereas the provision of Section 42(2) of

the NDPS Act specifically requires that after noting down the information

in writing, the officer concerned shall, within 72 hours, send its copy to

the immediate superior officer. It has also been submitted that the

immediate superior officer would be either the Officer Incharge of CIA

staff or the DSP Tapa or the SSP, since the report has been prepared by

Sub Inspector Kuldeep Singh, CIA, Barnala. It has further been

submitted that in the report under Section 42(2) of the NDPS Act,

although, in the end it is mentioned that case be registered and the

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concerned Investigating Officer be informed but the FIR number has been

mentioned along with date and sections and it has been submitted that the

same also shows that the documents have been prepared subsequent to the

registration of the FIR. Reliance in this regard has been placed upon the

judgment of the Division Bench of this Court in Didar Singh @ Dara vs.

The State of Punjab, reported as 2010(3) RCR (Criminal) 337. It has

been stated that in the present case, there is a violation of Section 50 of

the NDPS Act. Learned counsel for the petitioner has referred to memo of

personal search (Annexure P-5) which has been carried out by ASI

Satwinderpal Singh without giving any option as is required under

Section 50 of the NDPS Act. It has also been stated that the petitioner has

been in custody since 17.07.2021 and is not involved in any other case

under the NDPS Act. It is further stated that the petitioner has been

implicated on the basis of disclosure statement of co-accused. It has been

submitted that co-accused of the petitioner namely Sarban Singh @ Lakhi

@ Sarwan Kumar has already been granted the concession of regular bail

by this Court vide order dated 02.12.2021 passed in CRM-M-49251-

2021. It has been stated that there are 16 prosecution witnesses and none

of them have been examined, thus, the trial is likely to take time.

Learned State counsel has opposed the present petition for

regular bail and has submitted that in the present case, the petitioner has

been implicated on the basis of disclosure statement of the co-accused

and from him also, in pursuance of the disclosure statement, recovery to

the effect of 35 grams of heroin had been effected. It has also been

submitted that in the present case, Section 50 of the NDPS Act would not

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stand violated as the recovery with respect to the heroin has not been

effected from personal search and nothing has been recovered from the

personal search. It has also been submitted that personal search was made

for the purpose of conducting jamatalashi and not for the purpose of

recovery of narcotic drugs and the same is a matter of procedure. It has

further been pointed out that as far as non-compliance of Section 42 of

the NDPS Act is concerned, the report has been sent by SI Kuldeep Singh

to SI Paramjit Singh, who was the SI SHO of the Police Station and the

SHO of the Police Station is superior officer to the Sub Inspector of CIA

Staff. It has also stated that in the present case, Section 42 of the NDPS

Act is not applicable as the search is not from a private place but is from a

public place.

This Court has heard learned counsel for the parties and has

perused the paper book.

In Didar Singh @ Dara's case (supra), the Division Bench

of this Court has held 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

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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.

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."

With respect to the bar under Section 37 of the NDPS Act, it

would be relevant to note 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 chargesheet 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 coordinate 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

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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

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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

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

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31.08.2021 passed in CRM-8262-2021 in CRA-S-3721-SB of 2015 titled

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; 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.

Petitioner has been in custody since 17.07.2021. The

petitioner is not involved in any other case under the NDPS Act. Challan

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in the present case has already been presented and there are 16

prosecution witnesses and none of them have been examined, thus, the

trial is likely to take time. In the present case, with respect to the question

whether there is compliance of Sections 42 and 50 of the NDPS Act, the

same is a matter of debate, which would be finally adjudicated during the

course of trial. Further, the fact as to how the DSP had seen the report

under Section 57 of the NDPS Act on 10.07.2021 even though, the FIR

was registered on 11.07.2021 whereas, the report under Section 57 of the

NDPS Act was prepared on 15.07.2021 (Annexure P-6), would be

considered finally at the time of trial. Further, even a perusal of the report

under Section 42(2) of the NDPS Act (Annexure P-4) would also show

that it has been specifically mentioned in the same that "case be registered

and concerned investigating officer be informed." Thus, at the time when

the report under Section 42(2) of the NDPS Act dated 11.07.2021 was

prepared, the FIR had not been registered whereas, the first page of the

said report would show that FIR number, date of FIR as well as all

the sections, have been mentioned in report dated 11.07.2021 (Annexure

P-4).

Keeping in view that there are arguable points in the present

case and also keeping in view the period of custody of the petitioner, as

well as also the law laid down in the above-said judgments, this Court is

of the opinion that the petitioner deserves the concession of regular bail.

Moreover, this Court proposes to impose such conditions that would meet

the object of Section 37 of the NDPS Act.

Accordingly, the present petition is allowed and the

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petitioner is directed 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 they are accused of, or for commission of which he is suspected.

5. The petitioner 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 )
September 06, 2022                                                JUDGE
naresh.k
                    Whether reasoned/speaking?         Yes
                    Whether reportable?                No




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