Vikram Singh vs State Of Punjb
2023 Latest Caselaw 16534 P&H

                                                        Neutral Citation No:=2023:PHHC:125474




CRM-M-40374-2023 (O/M)                       -1-        2023:PHHC:125474


219
            IN THE HIGH COURT OF PUNJAB AND HARYANA
                        AT CHANDIGARH

                                                   CRM-M-40374-2023 (O/M)
                                                   Date of decision : 22.09.2023


Vikram Singh                                                    ........ Petitioner

                                         Versus

State of Punjab                                                  ...... Respondent


CORAM: HON'BLE MR. JUSTICE HARSH BUNGER

Present:-   Mr. Talwinder Singh, Advocate
            for the petitioner.

            Mr. Vipin Pal Yadav, Additional A.G. Punjab.

            -.-                            -.-

HARSH BUNGER, J.

1. Petitioner (Vikram Singh) has filed this second petition under

Section 439 of the Code of Criminal Procedure seeking grant of regular bail

in case FIR No. 169 dated 15.12.2021, registered under Section 15 (C) of

the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter

referred to as 'NDPS Act') (Section 29 of NDPS Act added later on) at

Police Station Khuian Sarwar, District Fazilka.

2. The first petition filed under Section 439 of the Code of

Criminal Procedure (CRM-M-45080-2022) by petitioner was withdrawn

vide order dated 22.05.2023.

3. Status report by way of affidavit dated 11.09.2023 of Mr. Arun

Mundan, PPS, Deputy Superintendent of Police, Sub Division Abohar,

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District Fazilka, has been filed on behalf of State of Punjab, which is

already on record.

4. Custody certificate dated 21.09.2023 of the petitioner has been

filed by learned State counsel in Court today itself which is taken on record

subject to all just exceptions.

5. Briefly, the aforesaid case FIR was registered on the basis of a

ruqa sent by ASI Swaran Singh, wherein it was stated that he alongwith

other police officials was on patrolling duty in official vehicle Bolero

bearing registration No. PB-22-R0872 in the area of Abohar-Ganganagar

Main Highway near Ganpati Vexing Plant, he signalled a big truck (bearing

registration No. RJ07-GB-0222), coming from Ganganagar Rajasthan side,

to stop,. The said truck was being driven by a young boy. On being asked,

the driver told his name Vikram Singh son of Sehtan Singh. The driver was

found perplexed whereupon ASI Swaran Singh got suspicious that either the

driver is having some intoxicant substance or same is in the said truck.

Thereafter, he (ASI Swaran Singh) sent the information to the police station

concerned for sending a competent officer to conduct search of the truck.

On receiving the information, SI/SHO Amrinder Singh, Police Station

Khuian Sarwar alongwith other police officials with original Rapat No. 37

dated 14.12.2021, reached at Vexing Plant, Abohar-Ganganagar Main Road

where ASI Swaran Singh alongwith police officials and also the truck driver

was present. The SI/SHO inquired about the antecedents of the driver, who

revealed his name as Vikram Singh (petitioner) and after introducing

himself to the driver (petitioner), he was informed that there was suspicion

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of some intoxicant substance with driver or in the truck and accordingly, the

search of the driver as well as of the truck is to be conducted and the driver

was made aware of his legal right of getting himself searched as well as

search of the truck in the presence of some Gazetted Officer or a Magistrate,

whereupon the petitioner replied that he wanted to get his search as well as

the search of his truck conducted from a Gazetted Officer, whereupon the

non consent memo was prepared and Shri Sandeep Kumar, PPS, DSP, Sub

Division Abohar City was requested to come at the spot.

Upon arrival of DSP Sandeep Kumar, he was made aware of

the circumstances and thereafter, the said DSP introduced himself to the

driver (petitioner) and also made aware of his legal right of search,

whereupon the petitioner stated that he wanted to get his search as well as

the search of his truck conducted from the DSP and after following the

procedure, the search was conducted.

Upon search of the truck, 5 plastic bags were recovered near

the back lid of driver side (upper side of coal), which were checked and

poppy husk was found in the said bags. Upon weighing, each bag

weighed 20 kg and accordingly, 100 kg poppy husk was recovered. The

recovered intoxicant substance was taken into police possession and

samples were drawn.

Upon personal search of the petitioner, currency notes

amounting to Rs. 450/- and one mobile phone were recovered. In the

aforesaid circumstances, the petitioner was arrested.

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6. As per status report, Vikram Singh (petitioner) was arrested in

the instant case on 15.12.2021. During questioning, the petitioner disclosed

that he was to deliver the recovered contraband to Tarsem Singh alias

Pamma. In this way, the name of said Tarsem Singh alias Pamma was

nominated in this FIR, vide DDR No. 24 dated 17.12.2021. During the

inquiry, it also came that Shambhu Singh is the owner of the offending

truck.

After completion of investigation, the challan in FIR was filed

in the concerned Court on 20.05.2022 and charges were framed

on 16.07.2022. Now, the case before the trial Court is at the stage of

prosecution evidence.

7. Learned counsel for the petitioner submits that the petitioner is

innocent and he has been falsely implicated in the instant case FIR No. 169

dated 15.12.2021. It is submitted that petitioner has nothing to do with the

alleged recovery of contraband and the same was not recovered from the

conscious possession of the petitioner. It is submitted that the recovery was

effected from the rear deck of truck which is an open space and is accessible

to anyone. It is submitted that the petitioner is not the owner of the truck

and he has no link with the recovered contraband. It is submitted that the

petitioner being resident of Rajasthan does know Punjabi and Gurmukhi

script and all the proceedings done by the police was in Punjabi language. It

is submitted that the petitioner has no link with said Tarsem Singh. While

referring to offer memo, it is contended that there was violation of

provisions of Section 50 of the NDPS Act.

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Learned counsel for the petitioner contends that the petitioner is

in custody since 15.12.2021 in this case and no other case is pending against

him. It is stated that investigation qua the petitioner is complete and challan

stands presented, thus trial in the case is likely to take long time to conclude

and no useful purpose would be served with further incarceration of the

petitioner. Learned counsel for the petitioner states that co-accused of

petitioner, namely, Tarsem Singh alias Pamma has already been granted

regular bail by a coordinate Bench of this Court, vide order

dated 13.04.2023, passed in CRM-M-57254-2022 (Annexure P-4). Learned

counsel for the petitioner submits that the petitioner is ready to abide by all

the conditions as may be imposed by this Court or by the trial Court.

Learned counsel further submits that the petitioner is also willing to furnish

security in the form of Fixed Deposit Receipt (F.D.R.) before the concerned

Court, so as to ensure his presence before the Court on each and every date

of hearing. Accordingly, prayer for grant of regular bail is made.

8. Per contra, learned State counsel has reiterated the contents of

the status report and submitted that huge quantity of intoxicant substance

has been recovered in this case. He submits that 5 plastic bags,

containing 20 kg. poppy husk in each bag, were found lying under

polythene near back lid on driver side. The total weight of the poppy husk

was found to be 100 kg. Thus, the recovery of intoxicant substance in this

case comes under the category of 'commercial' quantity, accordingly, bar

under Section 37 of NDPS Act is attracted. Therefore, it is prayed that the

petition be dismissed.

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However, learned State counsel has not disputed the fact that

the petitioner has been in custody since 15.12.2021 and also that the charges

have been framed in this case and trial is going on and out of total 18

prosecution witnesses, only 1 prosecution witness has been examined. It is

also not disputed that there is no other case against the petitioner. Learned

State counsel also concedes that co-accused Tarsem Singh alias Pamma has

already been granted regular bail by a co-ordinate Bench of this Court, vide

order dated 13.04.2023, passed in CRM-M-57254-2022 (Annexure P-4).

9. I have heard learned counsel for the parties and perused the

paper book as well as the status report with their able assistance.

10. Since the petitioner seeks grant of bail mainly on account of

long custody, no criminal antecedents and trial not likely to conclude in near

future, accordingly it is apposite to refer to the judgments rendered by

Hon'ble Supreme Court.

11. The Hon'ble Supreme Court in Chitta Biswas alias Subhas v.

State of West Bengal (Criminal Appeal No. 245 of 2020 dated 07.02.2020)

observed as under:-

" xxxxxx The instant matter arises out of application preferred by the appellant under Section 439 Cr.P.C. seeking bail in connection with Criminal Case No.146 of 2018 registered with Taherpur Police Station for offence punishable under Section 21-C of the Narcotic Drugs and Psychotropic Substances Act, 1985.

According to the prosecution, the appellant was found to be in possession of narcotic substance i.e. 46

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bottles of phensydryl cough syrup containing codeine mixture above commercial quantity.

The appellant was arrested on 21.07.2018 and continues to be in custody. It appears that out of 10 witnesses cited to be examined in support of the case of prosecution four witnesses have already been examined in the trial.

Without expressing any opinion on the merits or demerits of the rival submissions and considering the facts and circumstances on record, in our view, case for bail is made out. We therefore, allow this appeal and direct as under:

(a) Subject to furnishing bail bond in the sum of Rs.2 lakhs with two like sureties to the satisfaction of the Judge, Special Court, NDPS Act, Nadia at Krishnagar, the appellant shall be released on bail. (b) The Special Court may impose such other conditions as it deems appropriate to ensure the presence and participation of the appellant in the pending trial.

With the aforesaid directions, the appeal stands allowed."

12. The Hon'ble Supreme Court in Nitish Adhikary alias Bapan v.

State of West Bengal (Special Leave (Crl.) no. 5769 of 2022) held as under:-

" xxxx The petitioner seeks enlargement on bail in F.I.R. No. 612 of 2020 dated 17.10.2020 filed under Section 21(c) and 37 of the NDPS Act, registered at Police Station Bongaon, West Bengal.

During the course of the hearing, we are informed that the petitioner has undergone custody for a period of 1 year and 7 months as on 09.06.2022. The trial is at a preliminary stage, as only one witness has been

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examined. The petitioner does not have any criminal antecedents.

Taking into consideration the period of sentence undergone by the petitioner and all the attending circumstances but without expressing any views in the merits of the case, we are inclined to grant bail to the petitioner.

The petitioner is accordingly, directed to be released on bail subject to him furnishing bail bonds to the satisfaction of the Trial Court.

The Special Leave Petition is disposed of on the aforestated terms. Pending application(s), if any, shall stand disposed of."

13. In Shariful Islam alias Sarif v. State of West Bengal (Special

Leave to Appeal (Crl) 4173 of 2022 dated 04.08.2022), the Hon'ble

Supreme Court held that:-

" 1. Heard learned counsel appearing for the petitioner, learned counsel appearing for the State of West Bengal and carefully perused the material available on record.

2. Taking into consideration the fact that the petitioner is reported to be in custody since 27.12.2021 and has suffered incarceration for over 1 year 6 months and there being no likelihood of completion of trial in the near future, which fact cannot be controverted by the learned counsel appearing for the State, we are inclined to grant him bail.

3. The petitioner is, therefore, directed to be released on bail, subject to such terms and conditions which the concerned Trial Court may deem fit and find appropriate to impose upon him.

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4. The Special Leave Petition stands disposed of on the above terms.

5. Pending application filed in the matter also stands disposed of."

14. In Karnail Singh v. State of Odisha (Criminal Appeal no. 2027

of 2022 dated 22.11.2022), Hon'ble Supreme Court held as under:-

"The appellant in the present case was only a Khalasi of the vehicle who did not run away while the others ran away and have still not been apprehended. He has been in custody from 21.03.2021 i.e. more than a year and a half.

In view of the aforesaid facts and circumstances, we grant bail to the appellant on terms and conditions to the satisfaction of the trial Court."

15. The Hon'ble Supreme Court in Karim Adaldar v. State of West

Bengal (Special Leave to Appeal (Crl.) No. 8653 of 2022) held that:-

"Having heard learned counsel appearing for the parties and keeping in view the period of custody already undergone by the petitioner, and there being no likelihood of completion of trial in the near future, but without expressing any views on the merits of the case, the petitioner is ordered to be released on bail, subject to his furnishing bail bonds to the satisfaction of learned Additional Sessions Judge, 6th Court, Barasat, District - North 24 Parganas, West Bengal."

16. Coming to the case in hand, the petitioner is a young man of

about 30 years of age, who is stated to be resident of Rajasthan. The

petitioner has been in custody since 15.12.2021 and as per the custody

certificate, the petitioner has undergone total custody of 1 year, 9 months, 7

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days (as on 21.09.2023) and there is no other case against the petitioner. The

investigation in this case is complete, charges have been framed and the

trial is going on. Out of 18 prosecution witnesses, only 1 prosecution

witness has been examined. Thus, the trial is likely to take some time to

conclude. Moreover, the co-accused of the petitioner, namely, Tarsem Singh

alias Pamma has already been granted regular bail by a coordinate bench of

this Court, vide order dated 13.04.2023, passed in CRM-M-57254-2022.

17. Although, the alleged recovery in this case falls under the

category of commercial quantity and bar of Section 37 of the Narcotic

Drugs and Psychotropic Substances Act is attracted, however, while dealing

with Section 37 of the Narcotic Drugs and Psychotropic Substances Act, the

Court is not called upon to record a finding of "not guilty" and it is only

required to say that there are reasonable grounds to believe that the accused

is not guilty of the offence. In the facts of the present case and on an

assessment of material on record, I am of the prima facie view at this stage

that the petitioner may not have committed the alleged offence. Further,

considering the fact that the petitioner is not involved in any other case

under the Narcotic Drugs and Psychotropic Substances Act, there is nothing

on record to suggest that he is likely to commit an offence under the

Narcotic Drugs and Psychotropic Substances Act, while on bail.

18. Keeping in view the aforementioned circumstances and the

legal position as indicated above, present petition is allowed and the

petitioner is ordered to be released on regular bail subject to his furnishing

bail/surety bonds to the satisfaction of the trial Court/Illaqa Magistrate/Duty

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Magistrate concerned. However, the concerned Station House Officer shall

be informed about the release of petitioner and the petitioner shall inform

the concerned Station House Officer about his address at which he intends

to reside during the pendency of case/trial and 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 his undertaking to the effect

that he will not indulge in any illegal activity. The petitioner shall also

appear before the concerned Police Station/Station House Officer on first

Monday of every month till the conclusion of trial.

19. In addition, the petitioner (or anyone on his behalf) shall

prepare a Fixed Deposit Receipt (F.D.R.) in the sum of Rs. 1,00,000/- and

submit the same with the trial Court. The same would be liable to be

forfeited as per law, in case the petitioner remains absent from trial without

any sufficient cause.

20. Nothing expressed hereinabove 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.

21. The petition is accordingly disposed of.

22. All pending application(s), if any, shall also stand closed.

(HARSH BUNGER) JUDGE

22.09.2023.

sjks

Whether speaking/reasoned   :     Yes / No
Whether reportable          :     Yes / No



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