Raju Kumar vs State Of Punjab
2022 Latest Caselaw 10933 P&H

231                          CRM-M-40705-2022                                      -1-

            IN THE HIGH COURT OF PUNJAB AND HARYANA
                             AT CHANDIGARH

                                        CRM-M-40705-2022
                                        Date of Decision: 12.09.2022

Raju Kumar
                                                                ......Petitioner

                                 Vs.
State of Punjab
                                                         .........Respondent

CORAM: HON'BLE MR. JUSTICE VIKAS BAHL

Present:    Mr. Rajesh Kumar Girdhar, Advocate,
            for the petitioner.

            Mr. Ramdeep Partap Singh, Sr. D.A.G., Punjab.

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

1. This is a first petition under Section 439 Cr.P.C. for grant of

regular bail to the petitioner in FIR No.56 dated 25.03.2022, under

Sections 22(c)/61/85 of the Narcotic Drugs & Psychotropic Substances

Act, registered at Police Station City Sri Muktsar Sahib.

2. Learned counsel for the petitioner has submitted that the

petitioner has been in custody since 25.03.2022 and the challan has already

been presented and there are total 22 prosecution witnesses, none of whom

have been examined, thus, the trial is likely to take time and the petitioner

is not involved in any other case. It is argued that a perusal of the FIR

would show that as per the case of the prosecution, three persons riding on

a motorcycle were intercepted by the police while they were patrolling,

and the present petitioner was alleged to have been riding the motorcycle,

co-accused Pawan was sitting on the rear seat and the person sitting in the

1 of 12

middle i.e. co-accused Dimple, was holding a transparent polythene bag in

which intoxicant tablets in a box were visible. It is from the said

transparent polythene bag that the alleged recovered had been effected and

it is further submitted that it is not the petitioner, who was holding the said

bag and at any rate, it is highly unlikely for a person who has to carry

contraband, to carry the same in a transparent polythene bag and on the

said aspect, has relied upon various orders passed by the Coordinate

Benches of this Court i.e. order dated 02.08.2021 passed in CRM-M-

4408-2021 titled Banti Kaur @ Bhanti Kaur Vs. State of Punjab,

Binder Kaur @ Goga Vs. State of Punjab reported as 2021(3) RCR

(Criminal) 360, Jaskaran Singh @ Jassu Vs. State of Punjab, reported

as 2021(2) RCR (Criminal) 837, order dated 28.02.2020 passed in

CRM-M-8026-2020 titled as Lakhwinder Singh @ Lakha Vs. State of

Punjab.

3. Learned State counsel, on the other hand, has opposed the

present petition for regular bail and has submitted that the recovery of

1500 intoxicant tablets effected from the bag which was held by the co-

accused Dimple, is of commercial quantity thus, the bar under Section 37

of the NDPS Act would apply to the present case and since the present

petitioner, as per the case of the prosecution, was travelling on the same

motorcycle, he would also be liable with respect to the recovery effected

from the co-accused Dimple.

4. This Court has heard learned counsel for the parties and has

gone through the paper-book.

2 of 12

5. A Coordinate Bench of this Court in Banti Kaur @ Bhanti

Kaur's case (Supra) has held as under:-

"1. The petitioner has approached this Court

seeking grant of regular bail in respect of a case registered

against her vide FIR No.191, dated 8.10.2020, Police Station

Cantt Bathinda, District Bathinda, under Section 22 of NDPS

Act, wherein it is alleged that the petitioner was caught red-

handed while carrying a transparent plastic polythene bag which

was found to contain 1000 tablets of 'Clovidol'.

2. Learned counsel for the petitioner submits that

the petitioner has falsely been implicated in the instant case and

that she has an unblemished record and is not involved in any

other case and it is highly unlikely that any person who is

carrying contraband would carry the same in a transparent bag

so as to invite attention, including that the police.

3. Opposing the petition, learned State counsel has

not disputed the fact that the contraband is alleged to have been

carried in a transparent plastic polythene bag. He has however,

submitted that the weight of the total recovered contraband works

out to 410 grams of 'Tramadol' which would fall within the

category of 'commercial quantity'. Learned State counsel has

however, informed that the petitioner is not involved in any other

case and has presently been behind bars since the last about 9

months and 17 days.

4. I have considered rival submissions addressed

before this Court.

5. It is not disputed that the contraband was

alleged to have been carried by the petitioner in a transparent

polythene bag. It is certainly highly unlikely that a person who is

3 of 12

committing an offence in respect of any contraband would do it in

such a manner that his/her detection is inevitable. Carrying

contraband in a transparent polythene bag making it clearly

visible to others would surely invite attention of everybody who

passes by. In these circumstances the case of the prosecution is

rather rendered suspect particularly in view of the fact that the

petitioner is not even stated to be a previous convict and is a lady

who has been behind bars since the last about 9 months. In view

of the aforesaid discussion particularly the fact that the petitioner

is a lady and is not even a previous convict, the petition is

accepted and the petitioner is ordered to be released on bail

subject to her furnishing bail bonds to the satisfaction of learned

trial Court/Chief Judicial Magistrate/Duty Magistrate concerned.

2.8.2021                           Sd/- (GURVINDER SINGH GILL)

                                                  JUDGE"

A perusal of the said judgment would show that although, in

the said case, recovery effected was of commercial quantity but it was

found that since recovery was effected from a transparent polythene bag,

the same made the case of the prosecution doubtful and it was observed

therein that as it was highly unlikely that a person who is committing an

offence with respect to any contraband, would carry the same in a

transparent polythene bag inviting the attention of everybody who passes

by.

Coordinate Bench in Jaskaran Singh @ Jassu's case

(Supra), after considering several judgments on the same issue, had also

granted the concession of regular bail to the petitioner in that case.

Relevant portion of the judgment is reproduced as under:-

4 of 12

"xxx xxx

2. Relies upon the decision of this Court in Lakhwinder Singh alias Lakha vs. State of Punjab (CRM-M No.8026 of 2020) and of Co-ordinate Benches in Binder Kaur alias Goga vs. State of Punjab (CRM-M No.4584 of 2020) and Mandir Singh vs. State of Punjab (CRM-M No.8035 of 2019) to contend that a person engaged in the trade of contraband would never be expected to carry the same in any transparent bag which would be visible to the naked eyes.

3. Per contra, the bail application is opposed on behalf of the State by contending that the recovery of commercial quantity of contraband was made from the car of the petitioner himself.

4. Be that as it may, without prejudice to the merits of the submission raised on behalf of the petitioner, but considering that he is admittedly not involved in any other case under the NDPS Act, and also considering that he has remained in detention well above 05 months since 14.12.2019, at this stage, the petitioner may be released on regular bail to the satisfaction of the Ld. Trial Court/Duty Magistrate, concerned subject to imposition of appropriate terms and conditions. Xxx xxx"

Coordinate Bench of this Court in Binder Kaur @ Goga's

case (Supra), had held as under:-

"xxx xxx

"2. Learned counsel for the petitioner has vehemently argued that in the present case the petitioner has been falsely implicated. He has further stated that the petitioner is a young lady of 38 years of age, having a family and has good antecedents. He has further stated that there is no past history of the petitioner and she is not involved in any other case till date. He has further contends that even as per the allegations contained in the FIR, the petitioner was carrying 1000 tablets containing Tramadol Hydrochloride salt in her hand, which was in a transparent polythene bag. Learned counsel states that the story put forward by the police is ex facie concocted because in

5 of 12

case any person wishes to do the trading or to carry the contraband then it would never be put in a transparent bag. He has further pointed out that in the FIR it has been repeatedly recorded that bag was transparent in nature. He has further submitted that the petitioner is in custody since 08.11.2019.

xxx xxx

4. Learned State counsel has filed the custody certificate of the petitioner by way of affidavit of Rajdeep Singh Brar, Deputy Superintendent, Central Prison, Faridkot. Same is taken on record. As per the custody certificate the petitioner is in custody for a period of 02 months and 27 days and there is no other case against her. He further submits that after completion of investigation and presentation of challan, the charges have also been framed by the trial Court.

Xxx xxx

6. At the time of deciding bail application there are various relevant factors, which can be taken into consideration. Prima facie probability of influencing witnesses is one of the element factor and also as to whether the petitioner is particularly involved in any other case is also a relevant factor. It is also relevant in any case for deciding the bail application as to what is the stage of the case. In the present case the investigation is already over and the petitioner is in custody for about three months and this Court while deciding the bail application would not go into the merits of the case. Nothing is apparent to show that petitioner may influence the witnesses. Therefore, without meaning any expression of opinion on the merits of the case, it is ordered that the petitioner be released on regular bail subject to her furnishing requisite bail bonds/surety bonds to the satisfaction of the trial Court."

Xxx xxx"

A perusal of the above judgment would show that in fact, bail

was granted on the said point in a case where the accused was in custody

only for a period of three months. Similarly, in Lakhwinder Singh @

Lakha's case (Supra), Coordinate Bench of this Court had held has under:-

"xxx xxx

6 of 12

2. Ld. Counsel for the Petitioner relies on a decision of a Co-ordinate Bench of this Court in 'CRM-M No.4584 of 2020 - Binder Kaur alias Goga vs. State of Punjab', to contend that it is unbelievable that a person engaged in the business of Drug Smuggling, will carry the contraband in a transparent Bag. The applicant, in the aforesaid case, in the given circumstances, considering that she was not involved in any other case under the NDPS Act and challan against her had already been submitted, was therefore released on bail by the Bench after she had remained in detention for 02 months and 27 days.

3. The detention undergone by the present Petitioner is much more being 08 months, and he is also not stated to be involved in any other case under the NDPS Act.

4. Challan against the Petitioner has already been submitted and the trial is still pending.

5. As such, considering the long detention already undergone by the present Petitioner and without commenting on other merits of the case, he is ordered to be released on bail to the satisfaction of the Ld. Trial Court concerned.

6. Disposed off."

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 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: -

7 of 12

" 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".

The Hon'ble Supreme Court of India vide order dated

8 of 12

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

as, Harpal Singh v. National Investigating Agency and another, granted

9 of 12

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.

6. A perusal of the FIR would show that the the petitioner was

stated to be a person who was driving the motorcycle in question and the

person sitting in the middle was stated to be holding a transparent

polythene carry bag in which intoxicant tablets in a box were visible, thus,

the question arising in the above-said judgments would also arise in the

present case. The petitioner has been in custody since 25.03.2022 and the

challan has already been presented and there are total 22 prosecution

witnesses, none of whom have been examined and the trial is likely to take

time. The petitioner is stated to be not involved in any other case.

10 of 12

From the facts in the present case, it is apparent that the

petitioner has an arguable case and since the petitioner is not involved in

any other case, thus, keeping in view the judgment passed by a co-ordinate

Bench in Ankush Kumar alias Sonu (supra), which has been upheld by

the Hon'ble Supreme Court, the requirement of Section 37 stands complied

with.

7. Keeping in view the above-said facts and circumstances, as

well as in view of the law laid down in the above-said judgments, the

present petition is allowed and the 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 he is an accused, 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/her 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

11 of 12

prosecution shall be at liberty to move an application for cancellation of

bail before this Court.

However, nothing stated above shall be construed as an

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 application.

September 12, 2022                                   (VIKAS BAHL)
nitin                                                  JUDGE


             Whether speaking/reasoned                      Yes/No
             Whether Reportable                             Yes/No




                                    12 of 12