Punjab-Haryana High Court
Gursewak Singh @ Baggi vs State Of Punjab on 31 August, 2023
CRM-M-56806-2022
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CRM-M-56806-2022
Reserved on:28.08.2023
Pronounced on: 31.08.2023
Gursewak Singh @ Baggi ...Pe oner
Versus
State of Punjab ...Respondent
CORAM: HON'BLE MR. JUSTICE ANOOP CHITKARA
Present: Mr. Balbir Kumar Saini, Advocate for the pe oner.
Mr. Shiva Khurmi, AAG, Punjab.
****
ANOOP CHITKARA, J.
1. The pe oner incarcerated for viola ng the above-men oned provisions of
Narco cs Drugs and Psychotropic Substances Act, 1985 (NDPS Act) per the FIR
cap oned above, on the allega ons of possession of 250 tablets for E zolam has come
up before this Court under Sec on 439 CrPC seeking bail.
2. In paragraph 28 of the bail pe on, the accused declares that he has no criminal
antecedents.
3. Counsel for the pe oner seeks bail on the grounds that the custody is 01 year,
11 months and 09 days as per custody cer ficated dated 26.08.2023. The pe oner
contends that the pre-trial incarcera on would cause an irreversible injus ce to the
pe oner and family.
4. While opposing the bail, the conten on on behalf of the State is that the
quan ty of contraband involved in the case falls in the commercial category. State
counsel submits that the pe oner is not en tled to bail on the ground of custody
because the trial has started, charges have been framed and even one witness has been
examined.
REASONING:
5. I find force in the conten ons of the State. The pe oner is not en tled to bail
on the grounds of delay in trial and period of custody.
6. Thus, the quan ty allegedly involved in this case is commercial. Given this, the
rigours of S. 37 of the NDPS Act apply in the present case. The burden is on the
JYOTI
2023.09.02 08:22
I attest to the accuracy and
CRM-M-56806-2022
pe oner to sa sfy the twin condi ons put in place by the Legislature under Sec on 37
of the NDPS Act.
7. The pe on states that the accused is en tled to bail because of the non-
examina on of independent witnesses. However, this plea would gather force only
when the accused establishes a er cross-examina on that the police deliberately did
not associate any independent witness even when they could have been made
available, and in the facts and circumstances peculiar to this case, the argument does
not sa sfy the requirements of sec on 37 of NDPS Act.
8. In State of Punjab v Baldev Singh, (1999) 6 SCC 172, the Cons tu onal bench of
Hon'ble Supreme Court holds,
[14]. The provisions of Sec ons 100 and 165 Cr.P.C. are not inconsistent
with the provisions of the NDPS Act and are applicable for effec ng search,
seizure or arrest under the NDPS Act also. However, when an empowered
officer carrying on the inves ga on including search, seizure or arrest under
the provisions of the Code of Criminal Procedure comes across a person
being in possession of the narco c drugs or the psychotropic substance,
then he must follow from that stage onwards the provisions of the NDPS
Act and con nue the inves ga on as provided thereunder. If the
inves ga ng officer is not an empowered officer then it is expected of him
that he must inform the empowered officer under the NDPS Act, who
should therea er proceed from the stage in accordance with the provisions
of the NDPS Act. In Balbir Singh's case a er referring to a number of
judgments, the Bench opined that failure to comply with the provisions of
Cr.P.C. in respect of search and seizure and par cularly those of Sec ons
100, 102, 103 and 165 per se does not vi ate the prosecu on case. If there
is such a viola on, what the courts have to see is whether any prejudice was
caused to the accused. While apprecia ng the evidence and other relevant
factors, the courts should bear in mind that there was such a viola on and
evaluate the evidence on record keeping that in view.
9. Ld. counsel for the pe oner submits that the inves gator conducted search and
seizure viola ng sec ons 42 and 50 of the NDPS.
10. Whether the Inves gator complied with the mandatory provisions of sec ons 42
and 50 of the NDPS Act is a ques on of fact to be adjudicated in the trial. However,
before this court treats the compliances as illegal, the prosecu on needs an opportunity
to prove that they had complied with the mandatory provisions per law. Such a stage
would come only during the trial and certainly not at the bail stage, where it would be
hit by the maxim Audi alteram partem. The excep on to this would be applicable only
when the non-compliance of the mandatory provisions of sec ons 42 and 50 of the
NDPS Act is apparent on the face of the special report under sec on 57 of the NDPS Act
and other documents of search and seizure, and in the opinion of the court, the lapse is
JYOTI
2023.09.02 08:22
I attest to the accuracy and
CRM-M-56806-2022
non-rec fiable, a er recording a finding that it is an incurable defect, the court might
consider gran ng bail on such viola ons.
11. In State of H.P. v. Prithi Chand, (1996) 2 SCC 37, Hon'ble Supreme Court holds,
[3]. The ques on is whether the learned Sessions Judge was jus fied,
at the stage of taking cognizance of the offence, in discharging the
accused, even before the trial was conducted on merits, on the
ground that the provisions of Sec on 50 of the Act had not been
complied with. This Court in State of Punjab v. Balbir Singh [(1994)3
SCC 299] : (AIR 1994 SCW 1802) has considered the provisions of the
Act. Sec on 50 has been held to be mandatory. In paragraph 16, this
Court has held that it is obligatory on the part of the empowered or
the authorised officer to inform the suspect that, if so required, he
would be produced before a Gaze ed Officer or a Magistrate and
search would be conducted in his presence. It was impera ve on the
part of the Officer to inform the person of the above right and if he
failed to do the same, it amounted to viola on of the requirement of
Sec on 50 of the Act. It was held that when the person was searched
he must have been aware of his right and that it could be done only if
the authorised or empowered Officer informed him of the same.
Accordingly, this Court by implica on read the obliga on on the part
of authorised Officer to inform the person to be searched of his right
to informa on that he could be searched in the presence of the
Gaze ed Officer or the Magistrate. In Saiyad Mohd. Saiyaad Umar
Saiyed v. State of Gujarat [1995(3) JT SC 489] a three-Judge Bench of
this Court had reiterated the above view and held that having regard
to the grave consequences that might entail the possession of illicit
ar cles under the Act, viz., the shi ing of the onus to the accused and
the severe punishment to which he became liable, the Legislature had
enacted safeguards contained in Sec on 50. Compliance of the
safeguards in Sec on 50 is mandatory obliging the Officer concerned
to inform the person to be searched of his right to demand that
search could be conducted in the presence of a Gaze ed Officer or a
Magistrate. The possession of illicit ar cle has to be sa sfactorily
established before the Court. The Officer who conducts search must
state in his evidence that he had informed the accused of his right to
demand, while he is searched, in the presence of a Gaze ed Officer or
a Magistrate and that the accused had not chosen to so demand. If no
evidence to that effect is given, the Court must presume that the
person searched was not informed of the protec on the law gives him
and must find that possession of illicit ar cles was not established.
The presump on under Ar cle 114, illustra on (e) of the Evidence
Act, that the official duty was properly performed, therefore, does not
apply. It is the duty of the Court to carefully scru nise the evidence
and sa sfy that the accused had been informed by the concerned
Officer that he had a right to be searched before a Gaze ed Officer or
a Magistrate and that the person had not chosen to so demand.
[4]. It is to be seen whether the accused has been afforded such a
right and whether the authorised Officer has violated the mandatory
requirement, as a ques on of fact, has to be proved at the trial. In
Pooran Mal v. Director of Inspec on [(1974) 1 SCC 345] : (AIR 1974 SC
348) a Cons tu on Bench of this Court had held that power of search
and seizure, is, in any system of jurisprudence, an overriding power of
JYOTI the State for the protec on of social security and that power is
2023.09.02 08:22
I attest to the accuracy and
CRM-M-56806-2022
necessarily regulated by law. A search by itself is not a restric on on
the right to hold and enjoy property, though seizure is a temporary
restric on to the right of possession and enjoyment of the property
seized. However, the seizure will be only temporary and limited for
the purpose of the inves ga on. The power of search and seizure is
an accepted norm is our criminal law envisaged in Sec ons 96 to 103
and 165 of the Criminal Procedure Code, 1973 [for short, "the Code"].
The Evidence Act permits relevancy as the only test of admissibility of
evidence. The evidence obtained under an illegal search and seizure
does not exclude relevant evidence on that ground. It is wrong to
invoke the spirit of Cons tu on to exclude such evidence. The
decisions of the American Supreme Court spelling out certain
Cons tu onal protec ons in regard to search and seizure are not
applicable to exclude the evidence obtained on an illegal search.
Courts in India refuse to exclude relevant evidence merely on the
ground that it is obtained by illegal search and seizure. When the test
of admissibility of evidence lies in relevancy, unless there is an express
or necessarily implied prohibi on in the Cons tu on or other law,
evidence obtained as a result of illegal search and seizure, is not liable
to be shut out. Search and seizure are not a new weapon in the
armoury of those whose duty it is to maintain social security in its
broadest sense. If the safeguards are generally on the lines adopted
by the Code, they would be regarded as adequate and render the
restric ons imposed as reasonable measures.
[7]. It would thus be se led law that every devia on from the details
of the procedure prescribed for search, does not necessarily lead to
the conclusion that search by the police renders the recovery of the
ar cles pursuant to the illegal search, irrelevant evidence nor the
discovery of the fact inadmissible at the trial. Weight to be a ached to
such evidence depends on facts and circumstances in each case. The
Court is required to scan the evidence with care and to act upon it
when it is proved and the Court would hold that the evidence would
be relied upon.
12. The stand that the accused is in custody for sufficient me is also not legal
ground to overcome the rigors of S. 37 of the NDPS Act at this stage. All the other
arguments which the pe oner's counsel has made were already dealt by this Court in
paragraphs 6, 7 and 8 of order dated 28.04.2022 passed by this Court in CRM-M-47627-
2021.
13. The grounds taken in the bail pe on do not shi the burden placed by the
legislature on the accused under S. 37 of the NDPS Act. The pe oner has not stated
anything to discharge the burden put by the stringent condi ons placed in the statute
by the legislature under sec on 37 of the NDPS Act. Thus, the pe oner has failed to
make a case for bail at this stage.
JYOTI
2023.09.02 08:22
I attest to the accuracy and
CRM-M-56806-2022
14. A perusal of the bail pe on and the documents a ached, primafacie points
towards the pe oner's involvement and does not make out a case for bail. Any further
discussions are likely to prejudice the pe oner; this court refrains from doing so.
15. Any observa on made hereinabove is neither an expression of opinion on the
merits of the case nor shall the trial Court advert to these comments.
The pe on is dismissed. All pending applica ons, if any, stand closed. However,
considering the pe oner's right to speedy trial coupled with the pre-trial incarcera on,
this court requests the concerned trial court to make all endeavours to conclude the trial
by Dec 31, 2023, of which the prosecu on evidence be completed by Oct 31, 2023, and
latest by Nov 30, 2023, and the remaining me to provide an opportunity to the accused
to lead defence evidence, if so desired, and to conclude its hearing. To meet the
deadline, an endeavour be made to speed up the process for service and to pass the
necessary direc ons in this regard. It is clarified that if expedi ng this trial disturbs the
docket of the concerned court, then a balance be struck, and if, on this account, any
delay happens, then an extension can be sought by men oning such reasons. It is
clarified that this order speeding up the trial is subject to the condi on that neither the
pe oner shall seek any adjournment nor try to use any tac cs to delay the trial. If they
do so, this order of expedi ng the trial shall stand automa cally recalled by resor ng to
Sec on 362, read with Sec on 482 Code of Criminal Procedure, 1973, without any
further reference to this court. If any of the accused is on bail and fail(s) to a end the
trial without any sufficient cause, then they be dealt with strictly but in accordance with
law. It is clarified that if the trial is not concluded by the date men oned above, and if
the delay is not a ributable to the pe oner, then the pe oner may file an applica on
for bail before the trial court, which shall decide it expedi ously and consider the bail on
the grounds of pre-trial custody, and all the previous orders of dismissal passed by the
trial court or High Court shall not come in the way.
(ANOOP CHITKARA)
JUDGE
31.08.2023
Jyo -II
Whether speaking/reasoned: Yes
Whether reportable: No.
JYOTI
2023.09.02 08:22
I attest to the accuracy and
