Charanjit Singh Alias Amritpal vs State Of Punjab
2022 Latest Caselaw 12055 P&H

CRM-M-13795-2022                                                    -1-


            IN THE HIGH COURT OF PUNJAB AND HARYANA AT
                         CHANDIGARH
(205)
                                 CRM-M-13795-2022
                                 Date of decision: - 23.09.2022

Charanjit Singh alias Amritpal
                                                                  ....Petitioner

                                   Versus

State of Punjab
                                                                .....Respondent

CORAM : HON'BLE MR. JUSTICE VIKAS BAHL


Present:-     Mr. P.K.S. Phoolka, Advocate
              for the petitioner.

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

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

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

grant of regular bail to the petitioner in FIR No.201 dated 11.12.2021,

registered under Section 22(b) of the Narcotic Drugs & Psychotropic

Substances Act, 1985, at Police Station Kotbhai, District Sri Muktsar

Sahib.

Learned counsel for the petitioner has submitted that the

petitioner is in custody since 11.12.2021 and the challan has already been

presented and there are total 15 prosecution witnesses, out of whom none

have been examined, thus, the trial is likely to take time. It is further

submitted that the petitioner is not involved in any other case. It is also

submitted that even as per the case of the prosecution, the recovery was

effected not from the present petitioner, inasmuch, he had been stated to

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have thrown the plastic envelope on the ground on seeing the police party

and was thereafter, implicated on the basis of suspicion. In support of his

arguments, learned counsel for the petitioner has relied upon a decision of

a Coordinate Bench of this Court in CRM-M-16150-2021 dated

19.07.2021 titled as 'Balwinder Singh Vs. State of Punjab', and on

judgement in CRM-M-33733-2020 dated 15.03.2021 titled as 'Manjit

Singh Vs. State of Punjab alongwith connected matters', to contend that

in such a situation, it is matter of debate as to whether the petitioner could

be stated to be in conscious possession of the narcotic tablets in question

or not. It is also submitted that the said police party was in a private

vehicle.

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

present petition for regular bail and has submitted that in the present case,

the recovery had been effected from the conscious possession of the

petitioner, inasmuch as, the police officials had seen the petitioner

throwing the polythene envelope on the ground and the recovery had been

effected from the same and thus, it cannot be said that the petitioner was

not in conscious possession of the said plastic envelope, which contained

the intoxicant tablets. It is also submitted that the recovery from the said

plastic envelope is of commercial quantity, thus, the bar under Section 37

of the NDPS Act would apply. The custody period of the petitioner and

the fact that he is not involved in any other case has not been disputed by

learned State counsel.

This Court has heard learned counsel for the parties and has

gone through the paper-book.

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In Balwinder Singh's case (Supra), a Coordinate Bench of

this Court has held as under:

"Briefly stated, case of the prosecution against the petitioner is that on 04.03.2019 police party headed by ASI Ravinder Singh on patrolling duty were coming to Tehang Octroi via Saiflabad. When they reached near Civil Hospital, Phillour they saw the petitioner coming on foot who on seeing the police party threw one heavy weight black coloured polythene bag and tried to run away. The police apprehended the petitioner and on search as per prescribed procedure recovered 55 intoxicant injections containing Buprenorhpine 2 ml each and 55 injections containing Avil 10 ml each from the polythene bag.

XXX---XXX---XXX On the other hand, learned State Counsel has argued that the petitioner kept in his conscious possession commercial quantity of intoxicant injections. Rigors of Section 37(1)(b) are fully applicable to the case of the petitioner. The petitioner does not deserve the concession of regular bail. Therefore, the petition may be dismissed.

However learned State Counsel has conceded that the petitioner is not involved in any other case under the NDPS Act.

In CRM-M-13662-2020 titled as 'Niranjan Kumar @ Kaka Vs. State of Punjab' decided on 06.07.2020; CRM-M-14474- 2020 titled as 'Dharminder Singh Vs. State of Punjab' decided on 24.06.2020; CRM-M-21020-2020 titled as 'Amritpal Singh Lamberdar Vs. State of Punjab' decided on 11.08.2020; CRMM6433-2018 titled as 'Pawan Kumar Vs. State of Punjab' decided on 23.02.2018 and CRM-M- 16380-2020 titled as 'Buta Singh Vs. State of Punjab' decided on 13.08.2020 where recovery of narcotic/psychotropic drug/substance was made from bag allegedly thrown on the road side by the accused, the case was considered to involve question as to whether the accused could be said to be in conscious possession thereof and the accused was granted regular bail.

In 'Chitta Biswas @ Subhash Vs. State of West Bengal' Criminal Appeal No.245 of 2020 SLP (Criminal) No.8823 of 2019 decided on 07.02.2020 where recovery of 46 bottles of phensydryl cough syrup containing codeine mixture above commercial quantity

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was made from the accused who was in custody since 21.07.2018 and out of 10 prosecution witnesses only 4 prosecution witnesses had been examined, the accused was granted bail by Hon'ble Supreme Court.

In the present case recovery of intoxicant injections was allegedly made from polythene bag allegedly thrown on the road side. The case involves debatable question as to whether the petitioner can be said to be in conscious possession of the contraband recovered from the polythene bag lying on the road side. The petitioner is not involved in any other case under the NDPS Act. Rigors of Section 37(1)(b) of the NDPS Act stand satisfied by due implication. Further, the petitioner is in custody since 04.03.2019. Prosecution evidence is yet to be recorded. The trial is likely to take long time due to restrictions imposed to prevent spread of Covid-19.

In view of the above referred judicial precedents and facts and circumstances of the case but without commenting on the merits of the case, I am of the considered view that the petitioner deserves the concession of regular bail.

Therefore, the petition is allowed and the petitioner is ordered to be released on regular bail on furnishing of bail bonds to the satisfaction of the trial Court/Duty Magistrate/Chief Judicial Magistrate concerned.

However, bail is granted to the petitioner subject to the condition that he will not commit any offence under the NDPS Act after his release on bail and in case of involvement of the petitioner in commission of any offence under the NDPS Act in future, his bail in the present case shall also be liable to be cancelled on application to be filed in this regard."

A perusal of the above judgment would show that although

in the said case also, the recovery effected was of commercial quantity

but, since the recovery of the polythene bag therein was also after the

same had been thrown on the ground, thus, it was observed that it was a

debatable issue whether the petitioner could be said to be in conscious

possession of the narcotic or not. It was also observed that the rigors of

Section 37(1) (B) of the NDPS Act stood satisfied by due implication.

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Even in Manjit Singh's (supra) case, a Coordinate Bench of

this Court dealt with a case in which, the allegation was that the petitioner

therein was holding a polythene bag and on seeing the police party, he

threw the said polythene bag. It was observed that it was not possible to

conclude that the recovery effected was made from the conscious

possession of the petitioner therein or not. The said case was also a case

of commercial quantity.

With respect to Section 37 of the NDPS Act, it would be

relevant to note that in 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: -

" 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

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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

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

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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 Punjaband 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

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

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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.

In the present case, the petitioner has been in custody since

11.12.2021 and the challan has already been presented and there are total

15 prosecution witnesses, out of whom none have been examined, thus,

the trial is likely to take time. The petitioner is stated to be not involved in

any other case. All the prosecution witnesses are stated to be official

witnesses, thus, the question of influencing them does not arise.

Moreover, a perusal of the FIR would show that as per the prosecution

case, the petitioner had thrown the plastic envelope on the ground on

seeing the police party, thus, in view of the judgments cited by learned

counsel for the petitioner, it would be a matter of debate as to whether the

petitioner could be stated to have been in conscious possession of the

alleged contraband or not and the same would be finally adjudicated

during the course of the trial Court and the same raises a strong prima

face argument in favour of the petitioner. Moreover, the petitioner is not

involved in any other case and thus, keeping in view the law laid down in

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Ankush Kumar @ Sonu's case (supra), it could be reasonably said that

the petitioner is not likely to commit any offence while he is on bail.

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

the object of Section 37 of the Act of 1985.

Keeping in view the above-said facts and circumstances and

also 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 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 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

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

before this Court.

However, nothing stated above shall be construed as a final

expression of opinion on the merits of the case and the trial Court 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 23, 2022                                     JUDGE
naresh.k

             Whether reasoned/speaking?                  Yes
             Whether reportable?                         Yes




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