Punjab-Haryana High Court
Rajinder Singh Alias Bholu vs State Of Punjab on 12 September, 2022
CRM-M-20617-2022 (O&M) -1-
221
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CRM-M-20617-2022 (O&M)
Date of decision : 12.09.2022
Rajinder Singh @ Bholu @ Harpal Singh
...Petitioner
Versus
State of Punjab
...Respondent
CORAM: HON'BLE MR. JUSTICE VIKAS BAHL
Present: Mr. Sidhant Vermani, Advocate for the petitioner.
Mr. Ramdeep Pratap Singh, Sr. DAG, Punjab.
****
VIKAS BAHL, J. (ORAL)
This is the second petition filed under Section 439 of Cr.P.C.
for grant of regular bail to the petitioner in FIR No.41 dated 06.02.2020
registered under Sections 21/29 of the Narcotic Drugs and Psychotropic
Substances Act, 1985 read with Sections 307/148/149 of the Indian Penal
Code, 1860 and Section 25 of the Arms Act, 1959 at Police Station Sadar
Amritsar, District Police Commissionerate, Amritsar.
Learned counsel for the petitioner has submitted that the
petitioner was not named in the FIR nor any recovery has been effected
from him and the petitioner has been solely implicated on the basis of the
disclosure statement of the co-accused. It is further submitted that the
alleged recovery has been effected from co-accused Gurpreet Singh @
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Mani, who has already been granted the concession of regular bail vide
order dated 17.03.2022 passed in CRM-M-17503-2020.
Learned counsel for the petitioner has further relied upon the
judgment passed by the Hon'ble Supreme Court in Tofan Singh Vs. State of
Tamil Nadu, reported as 2021(1) RCR (Criminal) 1, an order passed by
Coordinate Bench of this Court dated 17.06.2020 in CRM-M-12051-2020
titled "Mewa Singh Vs. State of Punjab", and an order of another
Coordinate Bench dated 16.07.2021 passed in CRM-M-12997-2020 titled
as "Daljit Singh Vs. State of Haryana" to contend that in such like cases if
a person has only been proceeded against on the basis of disclosure
statement of co-accused and no recovery has been effected from the
petitioner, then he should be granted the concession of regular bail. It is
further submitted that the petitioner has been in custody since 08.02.2022
and although, initially, there were 12 witnesses but now the supplementary
challan has been presented against the present petitioner on 20.04.2022 and
in the same, there are total 25 witnesses, out of which, none have been
examined and thus, the conclusion of trial is likely to take time.
Learned State counsel, on the other hand, has opposed the
present application for regular bail and has submitted that the petitioner is
involved in one case also. The other facts as mentioned by learned counsel
for the petitioner however have not been disputed by learned State counsel.
Learned counsel for the petitioner, in rebuttal, has submitted
that the petitioner is already on bail in the said case and has further relied
upon the judgment of Hon'ble Supreme Court in "Maulana Mohd. Amir
Rashadi vs. State of U.P. and another", reported as 2012 (2) SCC 382 to
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contend that the facts and circumstances of the present case are to be seen
and the bail application of the petitioner cannot be rejected solely on the
ground that the petitioner is involved in another case. The relevant portion
of the said judgment is reproduced hereinbelow:-
"As observed by the High Court, merely on the basis of
criminal antecedents, the claim of the second respondent
cannot be rejected. In other words, it is the duty of the Court
to find out the role of the accused in the case in which he
has been charged and other circumstances such as
possibility of fleeing away from the jurisdiction of the Court
etc."
This Court has heard learned counsel for the parties and has
perused the paperbook.
It is not in dispute that the petitioner has not been named in the
FIR nor any recovery had been effected from him. The petitioner has been
implicated solely on the basis of the disclosure statement of the co-accused.
As per the law laid down in the cases of Tofan Singh, Mewa Singh and
Daljit Singh (supra), the disclosure statement made before the police is
inadmissible in evidence, moreso, when no recovery has been effected from
the petitioner thereafter. The co-accused Gurpreet Singh, from whom the
recovery has been effected, has already been granted the concession of
regular bail vide order dated 17.03.2022 passed in CRM-M-17503-2020.
The relevant portion of the said judgment is reproduced hereinbelow:-
"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
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FIR, information had been received 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
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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."
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.
5 of 15
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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 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-S2212- 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-M36504-2020
(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
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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) 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-S2212-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
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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 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.
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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
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
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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 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
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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 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
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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.
Further the learned counsel for the petitioners has
relied upon the judgment of the Hon'ble Supreme Court
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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
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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 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.
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
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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."
The petitioner is stated to be in custody since 08.02.2022 and
there are as many as 25 witnesses, out of whom, none have been examined,
thus, the trial is likely to take time.
Keeping in view the abovesaid facts and circumstances, and
also in view of the law laid down in all the abovesaid judgments, the present
petition is allowed and the petitioner is ordered to be released on 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.
However, it is made clear that in case, any act is done by the
petitioner to threaten the complainant or any of the witnesses, then it would
be open to the State to move an application for cancellation of bail granted
to the petitioner.
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.
All the pending miscellaneous applications, if any, stand
disposed of in view of the abovesaid judgment.
12.09.2022 (VIKAS BAHL)
Pawan JUDGE
Whether speaking/reasoned:- Yes/No
Whether reportable:- Yes/No
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