Punjab-Haryana High Court
Kanwalpreet Singh @ Kanwal vs State Of Punjab on 20 January, 2023
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IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CRM-M-58220-2022(O&M)
Date of Decision: 20.01.2023
KANWALPREET SINGH ALIAS KANWAL
...Petitioner
Versus
STATE OF PUNJAB
...Respondent
CORAM: HON'BLE MR. JUSTICE HARSH BUNGER
Present : Mr. Preetinder S.Ahluwalia, Advocate
for the petitioner.
Mr. Subhash Godara, Addl. A.G., Punjab.
HARSH BUNGER, J. (ORAL)
CRM-2912-2023
This is an application under Section 482 of the Code of
Criminal Procedure, 1973, for placing on record the Inquiry Report
(Annexure P-6) in case FIR No.28 dated 27.02.2017 as well as bail order
dated 29.06.2020 (Annexure P-7) in case FIR No.47 dated 18.05.2020,
respectively.
Criminal Misc. Application is allowed, as prayed for.
Annexures P-6 and P-7 are taken on record, subject to all just exceptions.
CRM-M-58220-2022
Prayer in the present petition filed under Section 439 of the
Code of Criminal Procedure, 1973, is for grant of regular bail to the
petitioner in case FIR No.188 dated 21.08.2022 (Annexure P-1), registered
at Police Station Special Task Force, District STF Wing, for offence
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punishable under Sections 21, 25 and 29 of the Narcotic Drugs and
Psychotropic Substances Act, 1985 (here-in-after referred to as `the NDPS
Act).
Brief facts of the case are that on 21.08.2022, an informer gave
information to Deputy Superintendent of Police, STF, Border Range,
Amritsar, that Garhgadjit Singh S/o Baldev Singh R/o Village Kotla Doom,
Ramtirath Road, Police Station Raja Sansi, Amritsar and Kanwaljit Singh
alias Kanwal S/o Gajjan Singh R/o Village Blaggan, Ramtirath Road, Police
Station Raja Sansi, Amritsar, are together indulged in business of heroin
smuggling and Garhgadjit Singh uses virtual number +1(386)3062911 in his
phone to contact heroin smugglers and takes delivery of heroin and supplies
further to customers. It was further informed that if the houses of aforesaid
Garhgadjit Singh and Kanwaljit Singh are raided and search is conducted
then a heavy quantity of heroin can be recovered from them.
On finding the said information reliable, a ruqa was prepared
and the same was sent to the concerned Station House Officer, whereupon,
the case FIR No.188 dated 21.08.2022 was registered.
On 03.09.2022, Deputy Superintendent of Police,
Vavinder Kumar was present at Ram Tirath Road in connection with
investigation of this case, where he received a secret information that real
name of Kanwaljit Singh is Kanwalpreet Singh @ Kanwal and he is coming
on his Innova car towards Amritsar side. Upon getting information, the
Deputy Superintendent of Police laid a naka at bridge of Mahal and arrested
accused Kanwalpreet Singh. On the asking of Kanwalpreet Singh, his
co-accused Garhgadjit Singh was also arrested.
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Thereafter, upon a disclosure statement of accused
Garhgadjit Singh recorded on 05.09.2022, 01 kg. of heroin was recovered
from his farm house situated at Village Kotla Doom and on the disclosure
statement of accused Kanwalpreet Singh, 200 grams of heroin was
recovered from his farm house.
The petitioner herein filed an application under Section
439 Cr.P.C. seeking regular bail before the Court of Additional Sessions
Judge, Amritsar. However, the same was dismissed on 18.11.2022 by
observing as under :-
"...On 5.9.2022, on the disclosure statement of
accused Gargajjit Singh, 1 Kg. heroin was recovered from
his farm house situated at Village Kotla doom and on the
disclosure statement of accused Kanwalpreet Singh, 200
grams heroin was recovered from his farm house. More
than, 250 grams of Heroin falls under the ambit of
commercial quantity. Here in this case, the alleged
recovery of 1 kg. 200 grams of heroin has been effected
from the possession of the accused-applicant along with
his co-accused which falls under the ambit of commercial
quantity. As such, this Court is of the considered view that
the accused-applicant is not entitled for bail..."
Learned counsel for the petitioner submitted that the petitioner
has been falsely implicated in the present case and various provisions
relating to search and seizure provided under the NDPS Act have been
violated. He further submitted that the FIR was registered on 21.08.2022 on
the basis of secret information. However, the petitioner was arrested on
03.09.2022 i.e. after a delay of 12 days from the date of registration of FIR
i.e. 21.08.2022. While referring to recovery memos Annexures P-4 and P-5
in respect of the petitioner and Garhgadjit Singh, respectively; it is submitted
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that on the basis of his alleged disclosure statement, 200 grams of heroin
was recovered from Behak/Dera of the petitioner and 1 kg. of heroin was
allegedly recovered from the farm house of co-accused Garhgadjit. It is
submitted that both the aforesaid recoveries were from different places and
at different times and accordingly, two separate recovery memos were
prepared. Learned counsel submits that the alleged recovery of 200 grams of
heroin from the petitioner is non-commercial quantity, however, his bail
application was wrongly dismissed by the learned Additional Sessions
Judge, Amritsar by clubbing the recovery allegedly made from the petitioner
with the recovery made from the co-accused Garhgajit Singh and by holding
that the total recovery was 1 kg and 200 grams, which was commercial. It is
submitted that the question of adding the recovery from each of the arrested
accused to make it a case of commercial quantity of recovery is against
the settled proposition of law and he places reliance upon the judgment in
CRM-M-53872-2021 (O&M) titled as Sukhdev Singh v. State of Punjab
decided on 27.04.2022. He further contends that rigors of Section 37 of the
NDPS Act shall not be applicable in the case of the petitioner as the
recovery of 200 grams of heroin from the petitioner is not of commercial
quantity. It is submitted that the petitioner is in custody since 03.09.2022 and
nothing is to be recovered from him; hence, no useful purpose would be
served by keeping him in custody any further. It is submitted that the
petitioner is ready to abide by all conditions as imposed by this Court or by
the trial Court, accordingly prayer for grant of regular bail has been made.
Learned counsel for the respondent-State has filed the custody
certificate of the petitioner in the Court today and the same is taken on
record, subject to all just exceptions.
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Learned State counsel opposes the pleas raised by the counsel
for the petitioner by stating that the petitioner does not deserve the
concession of bail as he has been specially named in the FIR and on his
statement, 200 grams of heroin was recovered from his Behak/Dera. It is
further submitted that the petitioner is involved in three more cases, out of
which, one case bearing FIR No.28 dated 27.02.2017, is registered at Police
Station Ajnala under Section 22 of the NDPS Act and Section 25 of the
Arms Act. He also submits that the recovery from each accused is to be
clubbed to examine the total quantity recovered. While referring to the
custody certificate, learned State counsel has not disputed the fact that the
petitioner has been in custody for 04 months - 13 days (as on 19.01.2023).
I have heard learned counsel for the parties and have perused
the paper book with their able assistance.
So far as the issue of clubbing of the recoveries made from
different accused in the case is concerned, this Court in Sukhdev Singh's
case (supra) held as under:-
" 3. The Counsel for the petitioner contends that the
recovery effected from him was 1Kg 350 grams of Opium
which was a non commercial quantity and recovery from his
co-accused could not be clubbed to his recovery to make the
total recovery that of commercial quantity. He relies on the
judgment of this Court in Amit Dhanak vs. State of
Haryana CRM-M-33684- 2020 decided on 11.01.2021 to
contend that when there is separate recovery from each
accused of non commercial quantity then the recovery from
each accused cannot be clubbed together so as to disentitle
all the accused to the grant of bail. Relevant para of the
order is reproduced as under:-
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" Considering the facts; that in the FIR specific recovery
has been attributed to all the three accused of 16Kgs of
Ganja Patti each; they are in custody since August, 2020;
no recovery is to be made; the individual recovery is of non
commercial quantity and conclusion of trial would take
time, both the petitions are allowed. The petitioners are
ordered to be released on bail subject to their furnishing
surety/bail bonds to the satisfaction of the learned trial
Court/Duty Magistrate concerned. "
So far as the involvement of the petitioner in one other case
under the NDPS Act is concerned, learned counsel for the petitioner has
referred to Annexure P-6 i.e. the Inquiry Report, wherein, the petitioner has
been found "innocent" and in other two FIRs i.e. FIR No.38 dated
21.04.2022 and FIR No.47 dated 18.05.2020, it is stated that the petitioner
has been released on bail and the said fact is not refuted by the learned State
counsel.
In the present case, the alleged recovery from the petitioner as
per recovery memo (Annexure P-4) is of 200 gms. of heroin, which is
non-commercial quantity and, therefore, the rigors of Section 37 of the
NDPS Act shall not be applicable to the present case. Even otherwise, the
petitioner is in custody since 03.09.2022.
Keeping in view the afore-mentioned facts and circumstances,
the instant petition is allowed and the petitioner is ordered to be released on
regular bail subject to his furnishing heavy bail/surety bonds to the
satisfaction of the Illaqa Magistrate/Duty Magistrate concerned. However, at
the time of his release, the concerned Station House Officer be informed and
the petitioner shall inform the concerned Station House Officer about his
address at which he intends to reside during the pendency of the case and
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any change in the address shall be communicated to the concerned Station
House Officer, forthwith. The petitioner would also furnish his telephone
number to the concerned Station House Officer. He would also furnish an
undertaking to the effect that he will not indulge in any illegal activity in
relation to drugs and intoxicants. The petitioner shall appear before the
police station concerned on first Monday of every month till conclusion of
the trial.
Nothing expressed here-in-above shall be construed to be an
observation on merits of the case and the facts and circumstances recorded
above are only for consideration of the prayer for bail at this stage.
The petition is accordingly disposed of.
January 20, 2023 (HARSH BUNGER)
gurpreet JUDGE
Whether speaking/reasoned: Yes/No
Whether reportable: Yes/No
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