Punjab-Haryana High Court
Kulwinder Singh vs State Of Punjab on 23 April, 2024
Neutral Citation No:=2024:PHHC:055410
CRM-M-46391-2023 -1-
2024:PHHC:055410
226
IN THE HIGH COURT OF PUNJAB & HARYANA
AT CHANDIGARH
****
CRM-M-46391-2023
Date of Decision: 23.04.2024
Kulwinder Singh
..... Petitioner
Versus
State of Punjab
..... Respondent
CORAM: HON'BLE MR. JUSTICE HARSH BUNGER
Present: Mr. Rahul Rampal, Advocate
for the petitioner.
Mr. Ankit Grewal, DAG, Punjab.
*****
HARSH BUNGER J. (ORAL)
1. This is second petition filed under Section 439 of the Code
of Criminal Procedure on behalf of petitioner (Kulwinder Singh)
for grant of regular bail in case bearing FIR No.36 dated 25.02.2020
(Annexure P-1) under Section 22 of the Narcotic Drugs and Psychotropic
Substances Act, 1985 (in short 'the N.D.P.S. Act'), registered at Police
Station Raman, District Bathinda.
2. The first petition (CRM-M-30290-2022) was dismissed as
withdrawn vide order dated 27.07.2023 (Annexure P-4).
3. In pursuance of an advance notice served upon the State of
Punjab, status report by way of affidavit dated 28.01.2024 of Mr. Rajesh
Snehi Batta, P.P.S., Deputy Superintendent of Police, Sub Division Talwandi
Sabo, District Bathinda has been filed on behalf of State of Punjab, which is
already on record.
4. Custody certificate dated 26.02.2024 of the petitioner is filed by
learned State counsel in Court today, which is taken on record, subject to all
just exceptions.
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5. Briefly, the aforestated case FIR (Annexure P-1) was registered
on the basis of ruqa, wherein it was stated that on 25.02.2020, Head
Constable Randhir Singh, along with Baljinder Singh 200, Constable
Rajdeep Singh, PHG Gurtej Singh and PHG Samsher Singh, was going
towards Village Narang via main refinery road in connection with checking
of suspected persons; and at about 4:15 P.M., when police party reached near
VRC Mixture Plot then they saw one black motorcycle coming from the
front, on which three persons were riding, who upon seeing the police party
got perplexed and tried to turn the motorcycle back, however, they all fell
down due to slip; and the person sitting in the middle threw one black
polythene from his right hand, out of which, some intoxicant tablets got
scattered on the ground. Thereafter, the police party apprehended the
aforesaid persons and inquired about their names and addresses, whereupon
the driver of motorcycle disclosed his name as Gurtej Singh @ Babu son of
Bhupa Singh resident of Torkhanwala; the person sitting in the middle was a
disabled person and he told his name as Falel Singh son of Billu Singh and
the pillion rider revealed his name as Kulwinder Singh (petitioner) son of
Falel Singh resident of Laleana. Due to his inability to conduct investigation
under the N.D.P.S. Act, Head Constable Randhir Singh informed his senior
officials about the facts and circumstances of the case; whereupon, Assistant
Sub Inspector Gobind Singh, In-Charge Police Post Refinery, Police Station
Raman, District Bathinda, reached the spot.
6. Thereafter, by following the due procedure, the scattered
intoxicant tablets were collected and the search of polythene bag was
conducted; and total 40 strips labeled as TREDOL-100, B.No. TDP19045,
MFG NOV., 2019, EXP OCT., 2022 (each strip containing 10 tablets as such
400 intoxicant tablets) were recovered; which were being carried by the
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aforesaid accused persons without any permit or license. The recovered
contraband was converted into a parcel and sealed and the motorcycle was
taken into police possession.
7. According to the status report, the intoxicant tablets were found
to have been containing Tramadol Hydrochloride (99.12 mg/tablet), as per
the report given by the concerned Forensic Science Laboratory; and the
same falls under the 'commercial quantity'.
8. Learned counsel for the petitioner submits that the petitioner is
innocent and he has been falsely implicated in the present case. It is
submitted that the alleged recovery falls under the commercial quantity but
while referring to the FIR (Annexure P-1), he submits that the polythene
bag, from which the alleged recovery has been effected, is stated to have
been thrown by co-accused Falel Singh, who was sitting in the middle of the
motorcycle. It is further submitted that another co-accused, namely Gurtej
Singh @ Babbu, who was driving the motorcycle, has already been granted
regular bail by a co-ordinate Bench of this Court vide order dated
04.09.2023 passed in CRM-M-42518-2023 (Annexure P-2).
9. Learned counsel for the petitioner very fairly states that the
petitioner is involved in two more cases, i.e. case bearing FIR No.3 dated
24.12.2020, under Section 3 RP (4P) 147 Railway Act, registered at Police
Station Sirsa, and FIR No.183 dated 07.08.2017, under Sections 380 and 457
of the Indian Penal Code, registered at Police Station Raman; however, no
other case under the N.D.P.S. Act, except the present one, is pending against
the petitioner.
10. Learned counsel for the petitioner submits that the petitioner is
in custody since the day of his arrest and he has undergone actual custody in
the instant case for a period of two years and eight days (as on 26.02.2024);
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investigation in the case is complete, challan stands presented on 07.08.2020
and charges have been framed on 13.08.2020. Learned counsel for the
petitioner further submits that all the prosecutions witnesses in the instant
case stand examined and now the case is fixed for 03.05.2024 before the trial
Court, for recording of the statement of accused under Section 313 of the
Code of Criminal Procedure; and thereafter the petitioner has to lead
evidence in his defence. Hence, trial is likely to take some time to conclude
and no useful purpose would be served by keeping the petitioner behind the
bars for indefinite period.
11. Learned counsel for the petitioner contends that the bail
application under Section 439 of the Code of Criminal Procedure, filed on
behalf of the petitioner before the Court of learned Judge Special Court,
Bathinda has been wrongly declined vide order dated 11.05.2022
(Annexure P-3). 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 ready 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.
12. Per contra, learned State counsel opposes the prayer of
petitioner for grant of regular bail on the ground of seriousness and gravity
of the offence. It is submitted that trial in the case is about to conclude as all
the prosecution witnesses already stand examined. It is further submitted
that the recovered contraband in the instant case falls under the category of
'commercial quantity' and thus, rigors of Section 37 of the N.D.P.S. Act are
attracted in this case. While referring to the custody certificate, learned State
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counsel has submitted that besides the present case, the petitioner is also
involved in two more cases (FIR No.3 dated 24.12.2020 and FIR No.183
dated 07.08.2017), although no other case under the N.D.P.S. Act is pending
against him. Learned State counsel further states that there is an
apprehension that in the event of grant of bail, the petitioner may abscond to
delay the trial. Accordingly, prayer has been made for dismissal of the
present petition.
However while referring to the custody certificate, it is
conceded by learned State counsel that petitioner has undergone actual
custody in the instant case for a period of two years and eight days
(as on 26.02.2024). Learned State counsel admits the stage of the trial and
further concedes that co-accused namely Gurtej Singh @ Babbu has already
been granted the concession of regular bail vide order dated 04.09.2023
passed by a co-ordinate Bench of this Court in CRM-M-42518-2023.
13. Learned counsel for the petitioner, in rebuttal, has relied upon
the judgment of Hon'ble Supreme Court in "Maulana Mohd. Amir Rashadi
v. State of U.P. and another", 2012(2) SCC 382 to contend that the facts
and circumstances of the present case are to be seen while deciding a bail
application and the bail application of the petitioner cannot be rejected solely
on the ground that the petitioner is involved in other cases. The relevant
portion of the said judgment is reproduced herein below :-
"As observed by the High Court, merely on the basis of
criminal antecedents, the claim of the second respondent
cannot be rejected. In other words, it is the duty of the Court to
find out the role of the accused in the case in which he has
been charged and other circumstances such as possibility of
fleeing away from the jurisdiction of the Court etc."
14. I have heard learned counsel for the parties and perused the
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paper book as well as the status report and custody certificate of the
petitioner.
15. In the instant case, the petitioner was arrested on 25.02.2020
and as per custody certificate, the actual period undergone by him is two
years and eight days (as on 26.02.2024). Investigation in the case is
complete, challan stands presented on 07.08.2020 and charges have been
framed on 13.08.2020. Although, all the prosecution witnesses in this case
are stated to have already been examined, however, the defence evidence is
still to be recorded; therefore, this Court has reason to believe that the trial in
this case is likely to take some time to conclude. Moreover, co-accused
namely Gurtej Singh @ Babbu has already been granted the concession of
regular bail vide order dated 04.09.2023 passed by a co-ordinate Bench of
this Court in CRM-M-42518-2023.
16. Further, the alleged recovery in this case, falls under the
category of 'commercial quantity', thus rigors of Section 37 of the N.D.P.S.
Act are attracted in this case. However, while dealing with Section 37 ibid,
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.
17. In a recent decision, while considering the bail under the
N.D.P.S. Act, the Hon'ble Supreme Court in "Mohd. Muslim @ Hussain V.
State (NCT of Delhi)", 2023 AIR (Supreme Court) 1648 held as under:
"19. A plain and literal interpretation of the conditions
under Section 37 (i.e., that Court should be satisfied that
the accused is not guilty and would not commit any
offence) would effectively exclude grant of bail altogether,
resulting in punitive detention and unsanctioned preventive
detention as well. Therefore, the only manner in which
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such special conditions as enacted under Section 37 can be
considered within constitutional parameters is where the
court is reasonably satisfied on a prima facie look at the
material on record (whenever the bail application is made)
that the accused is not guilty. Any other interpretation,
would result in complete denial of the bail to a person
accused of offences such as those enacted under Section 37
of the NDPS Act.
20. The standard to be considered therefore, is one, where
the court would look at the material in a broad manner,
and reasonably see whether the accused's guilt may be
proved. The judgments of this court have, therefore,
emphasized that the satisfaction which courts are expected
to record, i.e., that the accused may not be guilty, is only
prima facie, based on a reasonable reading, which does
not call for meticulous examination of the materials
collected during investigation (as held in Union of India v.
Rattan Malik (2009) 2 SCC 624). Grant of bail on ground
of undue delay in trial, cannot be said to be fettered by
Section 37 of the Act, given the imperative of Section 436A
which is applicable to offences under the NDPS Act too
(ref. Satender Kumar Antil supra). Having regard to these
factors the court is of the opinion that in the facts of this
case, the appellant deserves to be enlarged on bail."
18. In the peculiar 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 as the polythene bag
from which the contraband was recovered is stated to have been thrown by
co-accused Falel Singh, who was sitting in the middle of the motorcycle, and
not by the petitioner. The issue as regards conscious possession of the
contraband by the petitioner would be a subject matter of trial. Concededly,
the petitioner is not involved in any other case under the N.D.P.S. Act nor
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there is anything on record to suggest that petitioner is likely to commit an
offence under the N.D.P.S. Act, while on bail.
19. In the case of "Bhupender Singh Versus Narcotic Control
Bureau" (2022) 2 RCR (Crl.) 706, the Division Bench of this Court
observed with regard to achieving balance between right to speedy trial
guaranteed under Article 21 of the Constitution of India and rigors of
Section 37 of NDPS Act.
20. In the case of "Shariful Islam alias Sarif Versus The State of
West Bengal" SLP (Crl.) No. 4173/2022, decided on 04.08.2022, Hon'ble
the Supreme Court granted bail to the petitioner in a case of recovery of
commercial quantity of contraband, considering incarceration for over 1 year
and 6 months and there being no likelihood of completion of trial in the near
future.
21. Hon'ble Apex Court in case titled "Umarmia Alias Mamumia
v. State of Gujarat", (2017) 2 SCC 731, has held delay in criminal trial to be
in violation of right guaranteed to an accused under Article 21 of the
Constitution of India.
22. In "Manoranjana Sinh alias Gupta v. CBI", (2017) 5 SCC
218, Hon'ble Apex Court has held that the object of the bail is to secure the
attendance of the accused in the trial and the proper test to be applied in the
solution of the question whether bail should be granted or refused is whether
it is probable that the party will appear to take his trial.
Pertinently, appropriate directions can be issued for securing the
attendance of the petitioner during the trial.
23. As regards the apprehension expressed by learned State counsel
that in the event of arrest of regular bail, the petitioner may abscond in order
to delay the trial, it is observed that in the event of any such conduct, the
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prosecution can always approach the competent Court for cancellation of
bail. Accordingly, the State/Prosecuting Agency/State police shall be at
liberty to observe the behaviour of the petitioner during the bail period, and
in case it feels that the petitioner is causing interference with the progress of
trial, it shall be open for the State/Prosecuting Agency/State police to move
to the trial Court for cancellation of the bail, which shall be decided by the
trial Court on merits.
24. Keeping in view the aforementioned facts and circumstances
and in the light of judgment in Maulana's case (supra), the 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 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 mark his presence before the concerned Police
Station/Station House Officer on every alternate Monday till the conclusion
of trial and in case the Station House Officer refuses to mark his presence,
he is permitted to make an application before the Illaqa Magistrate,
concerned.
25. In addition, the petitioner (or anyone on his behalf) shall
prepare a Fixed Deposit Receipt (F.D.R.) in the sum of Rs.50,000/- and
submit the same with the trial Court. The same would be liable to be
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forfeited as per law, in case the petitioner remains absent from trial without
any sufficient cause.
26. 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.
27. The petition is accordingly disposed of.
28. All pending application(s), if any, shall also stand closed.
23.04.2024 (HARSH BUNGER)
Apurva JUDGE
1. Whether speaking/reasoned : Yes/No
2. Whether reportable : Yes/No
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