Punjab-Haryana High Court
Santokh Singh Alias Tohla vs State Of Punjab on 28 July, 2023
Neutral Citation No:=2023:PHHC:097375
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CRM-M-19233-2022 Neutral Citation No.: 2023:PHHC:097375
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
203
CRM-M-19233-2022
Decided on: 28.07.2023
Santokh Singh alias Tohla ...Petitioner
Versus
State of Punjab ...Respondent
CORAM: HON'BLE MR. JUSTICE ANOOP CHITKARA
Present: Mr. Sandeep Godara, Advocate
for the petitioner.
Mr. Karunesh Kaushal, AAG, Punjab.
****
ANOOP CHITKARA, J.
FIR No. Dated Police Station Sections
182 29.09.2019 Guru Har Sahai, 15/61/85 of NDPS Act
District Ferozepur
1. The petitioner incarcerated for violating the above-mentioned provisions of
Narcotics Drugs and Psychotropic Substances Act, 1985 (NDPS Act) per the FIR
captioned above, has come up before this Court under Section 439 CrPC seeking bail.
2. In paragraph 10 of the bail petition, the accused declares the following criminal
antecedents:
Sr. No. FIR No. Date Offences Police Station
1 159 23.08.2012 15 of NDPS Act Guruharsahai
2 203 18.10.2013 18/21/22/61/85 of NDPS Guruharsahai
Act, 03 of OS Act 1923,
135 of Custom Act, 25 of
Arms Act and Sections
489A, 489B, 489C of IPC
3 182 20.09.2019 15/18/61/85 of NDPS Act Guruharsahai
4 15 31.01.2020 15/61/85 of NDPS Act Guruharsahai
5 33 05.04.1999 --- Sadar Jalalabad
6 152 17.12.199 --- Guruharsahai
7 79 02.09.2001 --- Guruharsahai
8 44 08.05.2002 --- Guruharsahai
9 54 25.05.2004 --- Guruharsahai
10 108 18.04.2004 --- Guruharsahai
11 123 11.07.2005 --- Guruharsahai
12 11 21.01.1999 --- Guruharsahai
13 83 05.11.1999 --- Sadar Jalalabad
14 112 23.09.2002 --- Guruharsahai
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3. The petitioner contends that the pre-trial incarceration would cause an
irreversible injustice to the petitioner and family.
4. While opposing the bail, the contention on behalf of the State is that the quantity
of contraband involved in the case falls into the commercial category, and given the
criminal past, the accused is likely to indulge in crime once released on bail. Eventhe
case of the petitioner is not on parity with co-accused or on the ground of prolonged
incarceration.
REASONING:
5. In Paramjeet Singh v. State of Punjab, 2022:PHHC:003983 [Para 8], CRM-M 50243
of 2021, this court observed,
While considering each bail petition of the accused with a criminal
history, it throws an onerous responsibility upon the Courts to act
judiciously with reasonableness because arbitrariness is the antithesis
of law. The criminal history must be of cases where the accused was
convicted, including the suspended sentences and all pending First
Information Reports, wherein the bail petitioner stands arraigned as
an accused. In reckoning the number of cases as criminal history, the
prosecutions resulting in acquittal or discharge, or when Courts
quashed the FIR; the prosecution stands withdrawn, or prosecution
filed a closure report; cannot be included. Although crime is to be
despised and not the criminal, yet for a recidivist, the contours of a
playing field are marshy, and graver the criminal history, slushier the
puddles.
6. A perusal of the petition does not refer to any averment based on which this court
is assured that if this recidivist is released on bail, then he shall not indulge in criminal
behavior.
7. The petitioner seeks bail on the grounds of parity with Harjinder Singh @ Pappa,
who was granted bail by the Co-ordinate Bench of this Court vide order dated
06.07.2020 passed in CRM-M-17548-2020and subsequently the same was absolute on
17.07.2020. Perusal of the said order reveals that co-accused Harjinder Singh was
granted anticipatory bail on the ground that the petitioner had joined investigation and
was no longer required for custodial interrogation and with the aforesaid observations,
the reasoning made in interim order, was made absolute. Furthermore, there is no
reference of criminal history of Harjinder Singh and to the contrary, the present
petitioner-Santokh Singh had a massive number of criminal cases as mentioned above.
Further after receiving prior information when the police had laid down naka then a
swift car stopped and the petitioner who was already known to ASI Darshan Lal,
absconded. There is a categorical statement of ASI Darshan Lal that he already knew
the petitioner-Santokh Singh and had identified him as the person who ran from the car.
In search, the police had recovered 80 kg of poppy husk and the bail application does
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not explain this aspect and however it is on the ground that the petitioner was not
registered owner of the car. This is inconsequential because the accused was present in
the car and his conduct was fleeing and this prima facie shows his involvement. As such,
the prosecution is able to make a prima facie case against the petitioner and he is
neither entitled to bail on merits nor on parity with co-accused.
8. Thus, the quantity 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
petitioner to satisfy the twin conditions put in place by the Legislature under Section 37
of the NDPS Act.
9. The petition states that the accused is entitled to bail because of the non-
examination of independent witnesses. However, this plea would gather force only when
the accused establishes after cross-examination 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 satisfy
the requirements of section 37 of NDPS Act.
10. In State of Punjab v Baldev Singh, (1999) 6 SCC 172, Constitutional bench of
Hon'ble Supreme Court holds,
[14]. The provisions of Sections 100 and 165 Cr.P.C. are not
inconsistent with the provisions of the NDPS Act and are applicable for
effecting search, seizure or arrest under the NDPS Act also. However,
when an empowered officer carrying on the investigation including
search, seizure or arrest under the provisions of the Code of Criminal
Procedure comes across a person being in possession of the narcotic
drugs or the psychotropic substance, then he must follow from that
stage onwards the provisions of the NDPS Act and continue the
investigation as provided thereunder. If the investigating 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 thereafter
proceed from the stage in accordance with the provisions of the NDPS
Act. In Balbir Singh's case after 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 particularly those of Sections 100,
102, 103 and 165 per se does not vitiate the prosecution case. If there
is such a violation, what the courts have to see is whether any
prejudice was caused to the accused. While appreciating the evidence
and other relevant factors, the courts should bear in mind that there
was such a violation and evaluate the evidence on record keeping that
in view.
11. The petition states that the quantity of substance allegedly recovered is marginally
above the commercial quantity. This submission is more compassionate than legal. Once
the quantity is greater than commercial, it is immaterial for the purpose of bail. Once it
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is in statute, Judges have no latitude. Given the legislative mandate under section 37 of
the NDPS Act, an accused is not entitled to bail if the quantity is marginally above the
commercial quantity.
12. Ld. counsel for the petitioner submits that the investigator conducted search and
seizure violating sections 42 and 50 of the NDPS.
13. Whether the Investigator complied with the mandatory provisions of sections 42
and 50 of the NDPS Act is a question of fact to be adjudicated in the trial. However,
before this court treats the compliances as illegal, the prosecution needs an opportunity
to prove that they had complied with the mandatory provisions per law. Such 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 exception to this would be applicable only
when the non-compliance of the mandatory provisions of sections 42 and 50 of the
NDPS Act is apparent on the face of the special report under section 57 of the NDPS Act
and other documents of search and seizure, and in the opinion of the court, the lapse is
non-rectifiable, after recording a finding that it is an incurable defect, the court might
consider granting bail on such violations.
14. In State of H.P. v. Prithi Chand, (1996) 2 SCC 37, Hon'ble Supreme Court holds,
[3]. The question is whether the learned Sessions Judge was justified,
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 Section 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. Section 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 Gazetted Officer or a Magistrate and
search would be conducted in his presence. It was imperative 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 violation of the requirement of
Section 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 implication read the obligation on the part
of authorised Officer to inform the person to be searched of his right
to information that he could be searched in the presence of the
Gazetted 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
articles under the Act, viz., the shifting of the onus to the accused and
the severe punishment to which he became liable, the Legislature had
enacted safeguards contained in Section 50. Compliance of the
safeguards in Section 50 is mandatory obliging the Officer concerned
to inform the person to be searched of his right to demand that search
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could be conducted in the presence of a Gazetted Officer or a
Magistrate. The possession of illicit article has to be satisfactorily
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 Gazetted 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 protection the law gives him
and must find that possession of illicit articles was not established.
The presumption under Article 114, illustration (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 scrutinise the evidence
and satisfy that the accused had been informed by the concerned
Officer that he had a right to be searched before a Gazetted 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 question of fact, has to be proved at the trial. In
Pooran Mal v. Director of Inspection [(1974) 1 SCC 345] : (AIR 1974 SC
348) a Constitution Bench of this Court had held that power of search
and seizure, is, in any system of jurisprudence, an overriding power of
the State for the protection of social security and that power is
necessarily regulated by law. A search by itself is not a restriction on
the right to hold and enjoy property, though seizure is a temporary
restriction 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 investigation. The power of search and seizure is an
accepted norm is our criminal law envisaged in Sections 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 Constitution to exclude such evidence. The
decisions of the American Supreme Court spelling out certain
Constitutional protections 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 prohibition in the Constitution 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
restrictions imposed as reasonable measures.
[7]. It would thus be settled law that every deviation 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
articles pursuant to the illegal search, irrelevant evidence nor the
discovery of the fact inadmissible at the trial. Weight to be attached 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
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when it is proved and the Court would hold that the evidence would
be relied upon.
15. The stand that the accused is in custody for sufficient time is also not legal grounds
to overcome the rigors of S. 37 of the NDPS Act at this stage.
16. The grounds taken in the bail petition do not shift the burden placed by the
legislature on the accused under S. 37 of the NDPS Act. The petitioner has not stated
anything to discharge the burden put by the stringent conditions placed in the statute by
the legislature under section 37 of the NDPS Act. Thus, the petitioner has failed to make
a case for bail at this stage.
17. A perusal of the bail petition and the documents attached, primafacie points
towards the petitioner's involvement and does not make out a case for bail. Any further
discussions are likely to prejudice the petitioner; this court refrains from doing so.
18. Any observation made hereinabove is neither an expression of opinion on the
merits of the case nor shall the trial Court advert to these comments.
The petition is dismissed. All pending applications, if any, stand closed.
However, considering the petitioner's right to speedy trial coupled with the pre-trial
incarceration, this court requests the concerned trial court to make all endeavours to
conclude the trial by Dec 31, 2023, of which the prosecution evidence be completed by
Oct 31, 2023, and latest by Nov 30, 2023, and the remaining time 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 directions in this regard. It is clarified that if expediting
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 mentioning such
reasons. It is clarified that this order speeding up the trial is subject to the condition that
neither the petitioner shall seek any adjournment nor try to use any tactics to delay the
trial. If they do so, this order of expediting the trial shall stand automatically recalled by
resorting to Section 362, read with Section 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
attend the trial without any sufficient cause, then they be dealt with strictly but in
accordance with law.
(ANOOP CHITKARA)
JUDGE
28.07.2023
anju rani
Whether speaking/reasoned: Yes
Whether reportable: No.
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