Punjab-Haryana High Court

Varinder Kumar @ Dhalla vs State Of Punjab on 1 September, 2023

                                                               Neutral Citation No:=2023:PHHC:115055




            CRM-M No.865 of 2023(O&M)                2023:PHHC:115055                   1

            201

                   IN THE HIGH COURT OF PUNJAB AND HARYANA
                                 AT CHANDIGARH


                                          CRM-M No.865 of 2023(O&M)
                                          Date of Decision: 01.09.2023

            Varinder Kumar @ Dhalla
                                                     ......Petitioner
               Vs.
            State of Punjab
                                                     .....Respondent

            CORAM: HON'BLE MR. JUSTICE RAJ MOHAN SINGH

            Present:Mr. Atul Lakhanpal, Sr. Advocate with
                    Mr. Sidharth Chawla, Advocate
                    for the petitioner.

                     Mr. Sanjeev Soni, Addl., A.G., Punjab.

                        ****

RAJ MOHAN SINGH, J.(Oral)

[1]. The petitioner seeks grant of regular bail under Section

439 Cr.P.C in his second attempt in case bearing FIR No.127

dated 29.11.2019 under Section 18 of the NDPS Act registered

at Police Station Ajitwal, District Moga.

[2]. As per allegations, the car possessed by the petitioner

was searched by the police and one kit bag of blue colour was

recovered from the driving seat. On being checked, Opium was

found, which was wrapped in a polythene bag along with

currency notes. On weighment, the contraband was found to be

For Subsequent orders see CRM-37501-2023 Decided by HON'BLE MR. JUSTICE RAJ MOHAN SINGH 1 of 12

Neutral Citation No:=2023:PHHC:115055

3 kgs in weight and on counting the currency notes, the same

were found to be 400 currency notes of 2000/- denomination.

160 currency notes of 500/- denomination were also recovered,

thereby totalling Rs.8,80,000/- as drug money.

[3]. Learned Senior Counsel for the petitioner submits that

the petitioner has been involved in number of cases due to

political status of his mother. In all other cases, he has been

acquitted or discharged or has undergone the requisite period of

sentence.

[4]. Status report filed by way of affidavit of Manjit Singh,

PPS, Deputy Superintendent of Police, Sub Division Nihal Singh

Wala, District Moga would indicate that the petitioner was

involved in following cases, in which conviction was recorded:-



            1.     261    dated 307,  452, P.S.  Kotwali One of the
                   24-09-2012 363, 366-A, Faridkot       famous cases
                                148,   149               of      District
                                IPC and25,               Faridkot
                                27   Arms                named        as
                                Act.                     Sharuti Kand-
                                                         27-05-2013-
                                                         Convicted
            2.     136         382,   341, P.S. Ajitwal                  10-03-2017-
                   dated:11-8- 323,148                                   Convicted
                   2010        IPC

For Subsequent orders see CRM-37501-2023 Decided by HON'BLE MR. JUSTICE RAJ MOHAN SINGH 2 of 12

Neutral Citation No:=2023:PHHC:115055

3. 76 dated:08- Sec 25 of P.S. City-I, 13-09-2017-

5-2015. Arms Act Moga Convicted and sentenced to imprisonment for the period of detention already undergone by him.

[5]. Learned Senior Counsel for the petitioner further

submits that in two cases, the sentence of the petitioner has

been suspended and in FIR No.76 dated 08.05.2015, the

petitioner has already undergone the requisite period of

sentence.

[6]. In FIR No.279 dated 20.10.2019 under Sections 386,

120-B IPC, Police Station City Faridkot, the petitioner was

granted regular bail by the High Court on 16.11.2020. He

jumped the bail and was declared proclaimed offender vide

order dated 07.12.2021. Thereafter, the bail was granted to the

petitioner vide order dated 22.03.2023.

[7]. In the present case, the petitioner was granted interim

bail by the High Court vide order dated 04.09.2020 in CRM-M

No.8447 of 2020 and thereafter, interim bail was extended vide

order dated 14.10.2020. On 24.11.2020, the petitioner withdrew

the said petition and order was passed, thereby dismissing the

For Subsequent orders see CRM-37501-2023 Decided by HON'BLE MR. JUSTICE RAJ MOHAN SINGH 3 of 12

Neutral Citation No:=2023:PHHC:115055

petition as withdrawn. The proclamation was executed and only

on 29.11.2022, the petitioner surrendered before the trial Court

and since then, he is in custody.

[8]. With reference to other cases shown in the tabulated

form from Sr. No.1 to 9, the petitioner has submitted the status

of those cases as under:-

            Sr. No.           FIR             Offence                   Status
                              No./Dated/Polic u/s(s).
                              e Station
            1.                41/17.03.2010          365,     324, Acquitted vide
                              P.S. City Moga         323,     506, judgment    dt
                                                     148,149 IPC 09.03.2015
                                                                   passed by the
                                                                   CJM, Moga
            2                 148/08.08.2011 364,     342, Acquitted vide
                                             120-B of IPC judgment     dt.
                                                           30.4.2018
                                                           passed by the
                                                           Addl. Sessions
                                                           Judge, Moga

3. 347/02.11.2013 52 Prisoner's Discharged P.S. Sangrur Act,1894

4. 75/07.05.2015 22, ND&PS Acquitted vide P.S. City Moga Act judgment dated 11.4.2018 passed by the Sepcial Court, Moga

5. 203/04.11.2016 22, ND&PS Acquitted vide P.S. City Moga Act judgment dated 1.12.2017 passed by the Special Court Moga.

For Subsequent orders see CRM-37501-2023 Decided by HON'BLE MR. JUSTICE RAJ MOHAN SINGH 4 of 12

Neutral Citation No:=2023:PHHC:115055

6. 167/24.09.2010 336, 427, 34 On bail vide P.S. City Moga IPC & 25, 27 order dated Arms Act 10.03.2023 passed by the Sessions Judge, Moga

7. 96/27.05.2014 18, 24 NDPS On bail vide P.S.City Moga Act order dated 22.01.2015 passed by the Additional Sessions Judge, Moga

8. 98/10.08.2012 382, 506 IPC On bail P.S. Sadar Kotkapura

9. 112/15.05.2018 52-A, 42 Discharged P.S. City Prisons Act, vide order Faridkot 1894 dated 18.01.2020 passed by the JMIC, Faridkot

[9]. In the aforesaid cases, the petitioner has either been

acquitted, discharged or granted bail.

[10]. Perusal of the custody certificate would also indicate

that FIR No.23 was also registered on 13.04.2023 under

Sections 21, 29, 61, 85 NDPS Act at Police Station

Baghapurana i.e. the date on which, the status report is shown

to have been prepared by way of affidavit of Manjit Singh.

[11]. There is no reference of aforesaid FIR in the status

report. The custody of the petitioner in the said case is shown

from 23.04.2023 till date.

For Subsequent orders see CRM-37501-2023 Decided by HON'BLE MR. JUSTICE RAJ MOHAN SINGH 5 of 12

Neutral Citation No:=2023:PHHC:115055

[12]. Learned Senior Counsel for the petitioner submits that

lodging of the aforesaid FIR is also on account of alleged

antecedents of the petitioner, in which he was subjected to

numerous cases. The petitioner seeks grant of regular bail on

the basis of long custody, de hors the quantity allegedly

recovered from the petitioner.

[13]. Learned Senior Counsel for the petitioner refers to

CRM-M No.24006 of 2022 titled Sukhwinder Singh Vs. State

of Punjab decided on 19.09.2022 and CRM-M No.9317 of

2022 titled Chunni Ram @ Sandeep Vs. State of Haryana

decided on 22.11.2022, Special Leave to Appeal (Crl)

No.4173 of 2022 titled 'Shariful Islam @ Sarif vs The State of

West Bengal' decided on 04.08.2022, Special Leave to

Appeal (Crl) No.5530 of 2022 titled 'Mohammad Salman

Hanif Shaikh vs The State of Gujarat' decided on 22.08.2022

and Criminal Appeal No.245 of 2020 titled 'Chitta Biswas @

Subhas vs The State of West Bengal' decided on 07.02.2020,

wherein concession of regular bail was granted on the basis of

custody of about 01 year and 07 months approximately.

[14]. In Sukhwinder Singh's case (supra), following

observations were made by the Co-ordinate Bench while

considering the regular bail of the accused:-

For Subsequent orders see CRM-37501-2023 Decided by HON'BLE MR. JUSTICE RAJ MOHAN SINGH 6 of 12

Neutral Citation No:=2023:PHHC:115055

"Learned counsel for the petitioner has also highlighted the fact that in various cases where recovery of commercial quantity has been effected, the Supreme Court as well as this Court have granted bail/suspension of sentence. Some of the said judgments are being discussed hereinafter.

In Criminal Appeal No.965 of 2021 titled as Dheeren Kumar Jaina vs. 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 vs. State of Punjab reported as 2018 (4) RCR (Criminal) 84, had considered the provision of Section 37 of the Act of 1985 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

For Subsequent orders see CRM-37501-2023 Decided by HON'BLE MR. JUSTICE RAJ MOHAN SINGH 7 of 12

Neutral Citation No:=2023:PHHC:115055

being incomprehensible 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 Coordinate 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 vs. Vipan Sood

For Subsequent orders see CRM-37501-2023 Decided by HON'BLE MR. JUSTICE RAJ MOHAN SINGH 8 of 12

Neutral Citation No:=2023:PHHC:115055

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 vs. 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 Hussain vs. 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 vs. State of Punjab and other connected matters, vide Order dated 31.03.2021, after taking into consideration the stipulations of Section 37 of the Act of 1985, 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:

For Subsequent orders see CRM-37501-2023 Decided by HON'BLE MR. JUSTICE RAJ MOHAN SINGH 9 of 12

Neutral Citation No:=2023:PHHC:115055

CRM-M No.865 of 2023(O&M) 2023:PHHC:115055 10

"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; reported as (2021) 5 SCC 724 was also taken into account and the provisions of Section 37 of the Act of 1985 were considered and the sentence of the applicant-appellant therein was suspended after primarily considering the period of

For Subsequent orders see CRM-37501-2023 Decided by HON'BLE MR. JUSTICE RAJ MOHAN SINGH 10 of 12

Neutral Citation No:=2023:PHHC:115055

CRM-M No.865 of 2023(O&M) 2023:PHHC:115055 11

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."

[15]. Per contra, learned State counsel opposed the bail on

the ground that the quantity recovered from the petitioner is

commercial in nature and the petitioner is not entitled for grant

of bail. The vehicle in question was also owned and possessed

by the petitioner. Learned State counsel on instructions from

ASI Sandeep Kumar has admitted that no prosecution witness

has been examined so far.

[16]. In view of acquittals/discharged earned by the petitioner

in number of cases and without meaning anything on merits of

the case, I deem it appropriate to grant regular bail to the

petitioner, particularly in view of the period already undergone

by the petitioner and the stage of the trial, where no prosecution