Sukhwinder Singh @ Bittu vs State Of Punjab
2023 Latest Caselaw 19727 P&H

                                                          Neutral Citation No:=2023:PHHC:145183




 CRM-M-55754-2023                    #1#                   2023:PHHC:145183

           IN THE HIGH COURT OF PUNJAB & HARYANA AT
                         CHANDIGARH.


                                                          CRM-M-55754-2023

                                                 Date of Decision:-15.11.2023

Sukhwinder Singh @ Bittu.

                                                                   ......Petitioner.
                                       Vs.

State of Punjab.

                                                                 ......Respondent.

CORAM:- HON'BLE MR. JUSTICE JASJIT SINGH BEDI

Present:-    Mr. Piyush Sharma, Advocate for the Petitioner.

             Mr. Harkanwar Jeet Singh, Assistant Advocate General, Punjab.

                                 ***

JASJIT SINGH BEDI, J.(ORAL)

The Prayer in this second petition under Section 439 Cr.PC is

for the grant of regular bail in case FIR No.149 dated 31.05.2021 under

Sections 22 of the NDPS Act and Sections 15, 15C, 22C, 29 of the NDPS

Act added later on registered at Police Station Sadar Fazilka, District

Fazilka.

2. The present FIR came to be registered on the basis of secret

information received by the police to the effect that one Gurcharan Singh @

Channu indulges in sale of intoxicant tablets. Pursuant to receipt of the said

information, Gurcharan Singh @ Channu was arrested by thepolice and as

many as 1050 intoxicant tablets were recovered from him. The said

recovered tablets were found to contain "Tramadol". It is further the case of

the prosecution that during the course of interrogation the said Gurcharan

Singh @ Channu disclosed that he had procured the said tablets from

1 of 10

Neutral Citation No:=2023:PHHC:145183

CRM-M-55754-2023 #2# 2023:PHHC:145183

Ravinder Singh @ Ravi. Upon arrest of the said Ravinder Singh @ Ravi,

115350 intoxicant tablets apart from 51Kgs of poppy husk and a cash

amount of Rs.1.77 lacs was recovered. On interrogation of Ravinder Singh

@ Ravi he disclosed that he along with his father Mang Singh (granted bail

vide order dated 06.12.2021 in CRM-M-50270-2021) and his brother Bittu

@ Sukhwinder Singh (petitioner) used to purchase the contraband from

Kulbir Singh @ Giani

3. The learned counsel for the petitioner contends that the

petitioner had been falsely implicated in the present case. He contends that

the name of the petitioner figured in the disclosure statement of his co-

accused, namely, Ravinder @ Ravi. Pursuant to his arrest, no recovery

whatsoever had been effected. Reliance is placed on the judgments in the

cases of Tofan Singh Versus State of Tamil Nadu, 2020 AIR (Supreme

Court) 5592, Rakesh Kumar Singla Versus Union of India, 2021(1) RCR

(Criminal) 704, Surinder Kumar Khanna Versus Intelligence Officer

Directorate of Revenue Intelligence, 2018(3) RCR (Criminal) 954, State by

(NCB) Bengaluru Versus Pallulabid Ahmad Arimutta & Anr. 2022(1) RCR

(Criminal) 762, Sanjeev Chandra Agarwal & Anr. Versus Union of India

2021(4) RCR (Criminal) 590, Vijay Singh Versus The State of Haryana,

bearing Special Leave to Appeal (Crl.) No.(s).1266/2023 decided on

17.05.2023, State of Haryana versus Samarth Kumar 2022 (3) RCR

(Criminal) 991 and Vikrant Singh Versus State of Punjab, CRM-M-39657-

2020.", wherein it has been held that the accused can be granted the

concession of regular bail where he has been named in the disclosure

statement of his co-accused and there is no other corroborative evidence

against the accused. As the petitioner was in custody since 20.03.2023 and

only 02 out of 16 prosecution witnesses had been examined so far, he was

2 of 10

Neutral Citation No:=2023:PHHC:145183

CRM-M-55754-2023 #3# 2023:PHHC:145183

entitled to the concession of bail, moreso, when his co-accused, namely,

Mangh Singh had been granted the concession of regular bail vide order

06.12.2021 passed in CRM-M-50270-2021(O&M) (Annexure P-2) even

though there were two other cases bearing FIR No.86 dated 17.10.2022

under Section 15/18/29/61/85 NDPS Act P.S. City 2 Abohar and in FIR

No.75 dated 26.05.2022 under Section 22 C/29/61/85 NDPs Act P.S.

Kabarwala pending against him.

4. The learned counsel for the respondent-State, on the other hand,

contends that in view of the serious allegations levelled against the

petitioner, he was not entitled to the grant of bail. He was an accused in two

other cases bearing FIR No.86 of 17.10.2022 and FIR No.75 of 26.05.2022.

Therefore, his case was different from that of his co-accused who had clean

antecedents. Even otherwise, there were no change in circumstances

warranting grant of bail when the first bail application of the petitioner came

to be withdrawn as recently as on 21.08.2023. He, however, concedes that

the petitioner had been named in the disclosure statement, was in custody

since 20.03.2023, 02 out of 16 prosecution witnesses have been examined so

far as also the fact that co-accused, namely, Mangh Singh had been granted

the concession of regular bail.

5. I have heard the learned counsel for both the parties at length.

6. The Hon'ble Supreme Court in the case of State of Haryana

Versus Samarth Kumar 2022 (3) RCR (Criminal) 991, held as under:-

"4. The High Court decided to grant pre-arrest bail to the respondents on the only ground that no recovery was effected from the respondents and that they had been implicated only on the basis of the disclosure statement of the main accused Dinesh Kumar. Therefore, reliance was placed by the High Court in the majority judgment of this Court in Tofan Singh v. State of Tamil Nadu reported in

3 of 10

Neutral Citation No:=2023:PHHC:145183

CRM-M-55754-2023 #4# 2023:PHHC:145183

(2021) 4 SCC 1.

5. But, it is contended by the learned Additional Advocate General appearing on behalf of the State of Haryana that on the basis of the anticipatory bail granted to the respondents, the Special Court was constrained to grant regular bail even to the main accused-Dinesh Kumar and he jumped bail. Fortunately, the main accused-Dinesh Kumar has again been apprehended. According to the learned Additional Advocate General, the respondent in the second of these appeals is also a habitual offender.

6. Learned counsel appearing on behalf of the respondent in the first of these Appeals contends that the State is guilty of suppression of the vital fact that the respondent was granted regular bail after the charge-sheet was filed and that therefore, nothing survives in the appeal. But,we do not agree.

7. The order of the Special Court granting regular bail to the respondents shows that the said order was passed in pursuance of the anticipatory bail granted by the High Court. Therefore, the same cannot be a ground to hold that the present appeals have become infructuous.

8. In cases of this nature, the respondents may be able to take advantage of the decision in Tofan Singh v. State of Tamil Nadu (supra), perhaps at the time of arguing the regular bail application or at the time of final hearing after conclusion of the trial.

9. To grant anticipatory bail in a case of this nature is not really warranted. Therefore, we are of the view that the High Court fell into an error in granting anticipatory bail to the respondents.

10. In view of the above, the appeals are allowed. The impugned orders are set-aside. As a consequence, the Appellant-State is entitled to take steps, in accordance with law.

[emphasis supplied]

7. In Vijay Singh Versus The State of Haryana, bearing Special

Leave to Appeal (Crl.) No.(s).1266/2023 decided on 17.05.2023, it was held

4 of 10

Neutral Citation No:=2023:PHHC:145183

CRM-M-55754-2023 #5# 2023:PHHC:145183

as under:-

"The petitioner is alleged to have committed offences under Sections 15 and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter called the NDPS Act". His application for anticipatory bail was rejected by the High Court. The allegations in the FIR are that 1.7 Kg of Poppy Straw (Doda Post) was recovered from the co-accused. The petitioner concededly was not present at the spot but was named by the co-accused. That apart there is no other material to implicate the petitioner. The prosecution urges that another case with allegations of commission of offence under the NDPS Act are pending against the petitioner. It is not denied that in those proceedings he was granted bail.

Having regard to these circumstances, the petitioner is directed to the enlarged on anticipatory bail, subject to such terms and conditions as the trial Court may impose.

The petition is allowed.

All pending applications are disposed of."

(emphasis supplied)

8. This Court in the case of Vikrant Singh Versus State of Punjab,

CRM-M-39657-2020, held as under:-

"It is not in dispute that the petitioners have not been named in the FIR. No recovery has been effected from the petitioners and the alleged recovery has been effected from two co-accused Rakesh Sharma and Ravdeep Singh alias Sheru. The petitioners are sought to be implicated solely on the basis of the disclosure statement made by the co- accused Rakesh Sharma and Ravdeep Singh @ Sheru and even after the petitioners were arrayed as accused in pursuance of the disclosure statements, no recovery had been made from the petitioners.

The petitioners have been in custody since 06.11.2020 (Vikrant Singh), 05.12.2020 (Subash Chander) and 23.04.2021 (Davinder Singh) and challan in the present case has already been presented and there are 32 witnesses,

5 of 10

Neutral Citation No:=2023:PHHC:145183

CRM-M-55754-2023 #6# 2023:PHHC:145183

out of whom only one has been examined and thus, the trial is likely to take time on account of Covid-19 Pandemic. The petitioners are not involved in any other case. With respect to the call details, suffice to say that no dates on which the said calls had been allegedly made by the coaccused, Rakesh Sharma and Ravdeep Singh alias Sheru to the petitioners or vice-versa have been mentioned in the affidavit or in the report under Section 173 Cr.P.C. Moreover, even the transcript of the said conversations are not a part of the record under Section 173 Cr.P.C. A Division Bench of this Court in Narcotics Control Bureau's case (supra), was pleased to observe as under:-

Still further, no conversation detail between accused Ramesh Kumar Patil and accused Sandeep has been produced by the prosecution. Mere call details is not sufficient to prove that Sandeep accused was also involved in the business of narcotic drugs or he had any connected with Ramesh Kumar Patil.

In view of the above, no case is made out for grant of leave to appeal against the acquittal of Sandeep accused."

In judgment of the Gujarat High Court in Yash Jayeshbhai Champaklal Shah's case (supra), it has been observed as under:-

"Having heard learned advocates for the appearing parties, it emerges on record that the applicant is not found in possession of any contraband article. Over and above that, the call data records may reveal that in an around the time of incident, he was in contact with the co-accused who were found in possession of contraband. Since there is no recording of conversation in between the accused, mere contacts with the co- accused who were found in possession cannot be treated to be a corroborative material in absence of substantive material found against the accused."

A perusal of the above judgment would show that without the transcript of the conversations exchanged

6 of 10

Neutral Citation No:=2023:PHHC:145183

CRM-M-55754-2023 #7# 2023:PHHC:145183

between the co-accused, mere call details would not be considered to be corroborative material in absence of substantive material found against the accused. In the present case, there is no other material against the petitioners.

Keeping in view the above-said facts and circumstances, as well as law laid down in the judgments noticed hereinabove, the present petitions are allowed and the petitioners are ordered to be released on bail on their furnishing bail/surety bonds to the satisfaction of the concerned trial Court/Duty Magistrate and subject to their not being required in any other case.

(emphasis supplied)

9. This Court in the case of Ranjit Singh Versus State of Punjab,

CRM-M-25526-2023, decided on 17.07.2023, held as under:-

"8. Coming back to the facts of the present case, it is pertinent to note here that other than the instant FIR in which the petitioner has been nominated as an accused on the basis of the disclosure statement of the arrested accused, the petitioner is also an accused in two other cases under the NDPS Act. In addition, he had been an accused in three other cases, though he has been acquitted in the said cases. It is highly unlikely that the petitioner would have been implicated in multiple FIRs at the whims and fancies of the Investigating Agency.

9. When there are multiple FIRs against a person over a significant period of time (in this case 18 years), then even though he may have been acquitted in some of those cases, the twin conditions as envisaged under Section 37 of the NDPS Act that he has not committed an offence and was not likely to commit an offence cannot be satisfied.

10. Keeping in view the conduct of the petitioner and his criminal antecedents, his custodial interrogation would certainly be necessary to effect necessary recoveries and to take the investigation to its logical conclusion.

11. In view of the above, I find no merit in the present

7 of 10

Neutral Citation No:=2023:PHHC:145183

CRM-M-55754-2023 #8# 2023:PHHC:145183

petition. Therefore, the same stands dismissed.

(emphasized supplied)

10. This Court in Soni Singh @ Chamkaur Sahib, CRM-M-31645-

2022, decided on 20.10.2022, held as under:-

"The Counsel for the petitioner contends that the petitioner is not named in the FIR nor in the secret information. He has been named only in the disclosure statement of his co-accused which is inadmissible in evidence and even otherwise since the recovery effected from him of 3 Kgs of Poppy Husk is of non commercial quantity, therefore the rigors of Section 37 of NDPS Act did not apply to the petitioner. Since the petitioner was in custody since 26.05.2022 and the trial was not likely to be concluded in the near future, he deserved the concession of bail.

The Counsel for the State on the other hand contends that the petitioner is a trafficker along with his co-accused. As per the disclosure statement 200 Kgs of Poppy Husk was to be supplied to the petitioner. Further he is involved in two other cases under the NDPS Act as also one case under the Excise Act and, therefore, did not deserve the concession of bail in view of his antecedents.

I have heard counsel for both the sides at length. Admittedly, the petitioner in the present case is named in the disclosure statement of the arrested accused.

Subsequently thereto 3Kgs of Poppy Husk was recovered at his instance which is a non commercial quantity. It may be relevant to mention here that limitations to the grant of bail under Section 37 of the NDPS Act are in addition to those prescribed under Cr.PC or any other law inforce on the grant of bail as has been set out by the Hon'ble Supreme Court in Satpal Singh Vs. State of Punjab 2018(5) RCR (Criminal) 152. In the present case, the petitioner is involved in two other cases under the NDPS Act. Thus, as he is a habitual offender, he is not entitled to the grant of bail even under Section 439 Cr.PC keeping in view his

8 of 10

Neutral Citation No:=2023:PHHC:145183

CRM-M-55754-2023 #9# 2023:PHHC:145183

antecedents. Even otherwise, assuming that the rigors of Section 37 of the NDPS Act did not apply to the petitioner, that by itself would not ipso facto lead to the grant of bail to the petitioner.

In view of the above discussion, I find no merit in the present petition and the same is therefore dismissed.

(emphasis supplied)

11. In Samarth Kumar (supra) the Hon'ble Supreme Court had

clearly held that an accused who had been named in the disclosure statement

of a co-accused was not entitled to the grant of anticipatory bail but could be

granted regular bail. However, in Vijay Singh (supra) a somewhat contrary

view was taken and the accused therein was granted the concession of

anticipatory bail even though he had been an accused in another case under

the NDPS Act in which he was on bail. In Vikrant Singh (supra) this Court

held that where an accused had been named in the disclosure statement of

his co-accused and there were CDRs/WhatsApp calls/chats between the

arrested accused and the person named in a disclosure statement then in the

absence of the contents of the conversation/chats bail could not be denied to

the said accused. In Ranjit Singh (supra) and Soni Singh @ Chamkaur

Sahib (supra) it has been held by this Court that where there were multiple

FIRs against an accused over a period of time then, even though he had been

named in a disclosure statement, he was not entitled to the concession of

bail.

12. Coming back to the facts and circumstances of the present case,

other than the instant FIR in which the petitioner has been nominated as an

accused on the basis of the disclosure statement of his co-accused, the

petitioner is also an accused in two other cases under the NDPS Act which

were registered subsequent to the registration of the instant FIR. It is highly

unlikely that the petitioner would have been implicated in multiple FIRs at

9 of 10

Neutral Citation No:=2023:PHHC:145183

CRM-M-55754-2023 #10# 2023:PHHC:145183

the whims and fancies of the investigating agency.

13. In fact, when there are multiple FIRs against an accused over a

significant period of time, then the twin conditions as envisaged under

Section 37 of the NDPS Act that he had not committed an offence and was

not likely to commit an offence cannot be satisfied. Further, the limitation to

the grant of bail under Section 37 of the NDPS Act are in addition to those

prescribed under the Cr.P.C. or any other law in force on the grant of bail.

Thus, a habitual offender is not entitled to the grant of bail even under the

provisions of the Cr.P.C. keeping in view his criminal antecedents even

though, his co-accused who are similarly situated may have been granted the

said concession.

Further the earlier bail application of the petitioner was

withdrawn as recently as on 21.08.2023 and there are no changed

circumstances warranting grant of bail. As regards the co-accused Mangh

Singh being granted bail, it is pertinent to mention here that no other case

under the NDPS Act stands registered against him and therefore he had been

granted the concession of bail. The case of the petitioner is materially

different from that of Mangh Singh as 02 other cases under the NDPS Act

stand registered against the petitioner.

14. In view of the above, I find no merit in the present petition.

Therefore, the same stands dismissed.

15. However, the petitioner is at liberty to renew his prayer for the

grant of bail if there is any significant delay in the conclusion of the trial.

                                                   ( JASJIT SINGH BEDI )
                                                         JUDGE
November 15, 2023
Vinay
        Whether speaking/reasoned                        Yes/No
        Whether reportable                               Yes/No


                                                             Neutral Citation No:=2023:PHHC:145183

                                        10 of 10