Punjab-Haryana High Court
Joga Singh vs State Of Punjab on 4 January, 2024
Author: Anoop Chitkara
Bench: Anoop Chitkara
Neutral Citation No:=2024:PHHC:000218
CRM-M-56452-2023
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CRM-M-56452-2023
Reserved on: 01.12.2023.
Pronounced on: 04.01.2024.
Joga Singh ...Petitioner
Versus
State of Punjab ...Respondent
CORAM: HON'BLE MR. JUSTICE ANOOP CHITKARA
Present: Mr. P.S. Ahluwalia, Advocate
for the petitioner.
Mr. Luvinder Sofat,D.A.G., Punjab assisted by
SP Sarabjit Singh Bahia.
****
ANOOP CHITKARA, J.
FIR No. Dated Police Station Sections
35 05.03.2015 Sadar Jalalabad, 21, 24, 25, 27, 27-A, 27-B, 28, 29, 30, of
District Fazilka Narcotics Drugs and Psychotropic
Substances Act, 1985 [NDPS Act] and
S. 25 of Arms Act and Section 66 of IT Act
1. The petitioner, apprehending arrest in the FIR captioned above, came up before
this Court under Section 438 of the CrPC, 1973, seeking anticipatory bail.
2. The petitioner contends that pre-trial incarceration would cause an irreversible
injustice to the petitioner and his family.
3. While opposing the bail, the contention on behalf of the State is that they want
custodial interrogation because the quantity of contraband involved in the case falls in
the commercial category, and they have collected sufficient evidence that prima facie
points towards the petitioner's dealings with the drugs trade and the international
mafia.
FACTS:
4. Facts of the case are being taken from a reply dated 17.11.2023 filed by the
concerned Deputy Superintendent of Police, which reads as under: -
"[4]. That the brief background of the matter is that the present FIR No.
35 dated 05.03.2015 was initially registered against 11 accused persons
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namely Harbans Singh, Subhash Chander, Gurdev Chand, Gurdev Singh,
Manjit Singh UK, Sonia, Manjit Singh son of Satnam Singh, Anil Kumar @
Neelu, Shanti Singh, Nirmal Singh and Kala Singh @ Kali. In this case,
following recoveries were made from the aforesaid 11 accused persons:
SR. NAME OF RECOVERY EFFECTED DATE OF
NO. ACCUSED PRESENTATION
OF POLICE
REPORT U/S 173
CrPC, 1973
1. Harbans Singh (i) 300 gms of Heroin 06.09.2015
Son of Satnam (ii) 01 Country Made
Singh Pistol .312 bore
(iii) 02 live cartridges
2. Subhash Chander 260 gms of Heroin 06.09.2015
Son of Shiva Ditta
3. Gurdev Chand 260 gms of Heroin 06.09.2015
Son of Nyamat
Chand
4. Gurdev Singh (i) 350 gms of Heroin 06.09.2015
Ex Chairman (ii) 24 Gold Biscuits
Son of Shiv Singh (iii) 01 Revolver .32
Bore
(iv) 25 live catridges
of .32 Bore
(v) 01 Pakistani SIM
Card
5. Manjit Singh U.K., (i) 300 gms of Heroin 06.09.2015
Son of Buta Singh (ii) 01 Pakistani
Mobile
(iii) 01 Pakistani SIM
Card
6. Sonia 100 gms of Heroin 06.09.2015
Wife of Anil
Kumar @ Neelu
7. Manjit Singh - 06.09.2015
Son of Satnam
Singh
8. Shenty Singh 100 gms of Heroin 06.09.2015
Son of Charanjit
Singh
9. Nirmal Singh @ 100 gms of Heroin 06.09.2015
Nimma
Son of Iqbal Singh
10. Kala Singh @ Kaali - 18.10.2016
Son of Madhi
11. Anil Kumar @ - 31.08.2019
Neelu
Son of Hans Raj
(He was earlier
absconding and
was declared
proclaimed
offender on
01.12.2015 and
was subsequently
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arrested on
16.04.2019)
[5]. That the brief background this case are that in this case out of 11 accused
persons, 9 have been convicted, one person is facing trial, recovery of 1.800 Kg.
heroin, 1 pistol (315bore) along with 2 cartridges, 1 revolver (32 bore) along with
25 cartridges, 24 biscuits (Gold), 1 Pakistani mobile & 1 Pakistani Mobile sim. 5
persons out of 9 have been awarded 20 years sentence by the trial court, 1
person was awarded 10 years sentence, 01 person 06 years sentence &
remaining 02 persons were awarded 3 years sentence while one accused has
been acquitted vide judgment dated 31.10.2017.
[6] That subsequently, vide order dated 04.09.2023 of Director, Bureau of
Investigation, Punjab, Chandigarh a Special Investigation Team was constituted
consisting of following officials:
a) Swapan Sharma, IPS, DIG, Jalandhar Range, Jalandhar
Chairman
b) Mukhwinder Singh Bhullar, PPS, S.S.P Jalandhar, Rural
Member
c) Manjit Singh, PPS, S.P. (investigation) Fazilka
Member
d) Sarabjit Singh, PPS, S.P. Investigation, Hoshiarpur Member
The said SIT, in its investigation, has considered the evidence already
available on record and has also collected fresh evidence during the course of
investigation.
[7] That it is respectfully submitted that as per investigation conducted so far
by SIT, it has been revealed that Charanjit Kaur (sister of accused Gurdev Singh
alias Debi) had been calling present petitioner Joga Singh and PA Manish Kumar
for having a talk with accused Sukhpal Singh Khaira. In this way, the petitioner
was found actively active in commission of above noted offence of drug
trafficking along with other co-accused Sukhpal Singh Khaira, Charanjit Kaur,
Manjit Singh (Driver of Gurdev Singh accused). From the examination of CDRs
obtained by the police, these accused have been found connected to each other
through different phone calls. Interconnectivity Chart depicting the frequent
conversations of the accused along with each other, is appended herewith as
Annexure R-1 for the kind consideration of this Hon'ble Court.
Therefore, having regard to the investigation carried out so far by SIT,
Gurpreet Singh @ Gopi, Kashmir Singh @ Billa, Major Singh Bajwa, Charanjit
Kaur, Sukhpal Singh Khaira, present petitioner Joga Singh PSO & Manish Kumar
PA were nominated in this case and sections 27-A and 27-B of NDPS Act was
added in the present FIR vide DDR No. 5 dated 28.09.2023. The intimation of
which was given to JMIC, Jalalabad. Out of these 07 nominated accused 03 have
been arrested, 02 are evading arrest after the dismissal of their anticipatory bail
from the learned trial Court where as qua 02 accused LOC have been opened.
[8] That it is respectfully submitted that after nomination of the petitioner as
accused in the present FIR, a notice No. 2052-Reader-SP-Investigaton dated
28.09.2023 under Section 67 of NDPS Act was issued by the SIT to the present
petitioner to appear before the said SIT and to explain his position but the
petitioner miserably failed to do so.
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REASONING:
5. I have heard Mr. P.S. Ahluwalia, Ld. Counsel for the petitioner, Mr. Luvinder Sofat,
D.A.G for Punjab, at length on various dates and gone through the record. The following
paragraphs will reflect the arguments and counter arguments addressed by the parties
and its outcome.
6. The present FIR, in which the police arraigned the petitioner as accused on
September 28, 2023, traces back to March 05, 2015. The Investigator had received secret
and exceptionally reliable information that an international drug mafia was operating at
the Pakistan border, and one person named Harbans Singh, who owned land at the
border of India and Pakistan was facilitating the drug smuggling, taking advantage of the
proximity to Pakistan border. After completing the procedural requirement, a substantial
number of police officials raided the premises and recovered massive amounts of
Heroin, gold, and pistols from various accused. After completion of the investigation, the
Investigator filed a police report under Section 173(2) CrPC against ten accused. Since
the 11th accused, Anil Kumar, could not be traced, he was mentioned as a proclaimed
offender. The petitioner was neither named as an accused in the FIR nor the report
under Section 173 CrPC.
7. The trial against ten accused persons against whom Challan had been presented
commenced in the Court of Special Judge Fazilka. At the final stage of the first trial, the
State moved an application under Section 319 CrPC to summon the petitioner as an
accused. The State filed this application based on the testimonies of PW4, PW5, and
PW13. On October 31, 2017, Special Judge Fazilka convicted and sentenced nine accused
to various terms mentioned in the judgment and acquitted one accused, whereas
accused namely Anil (A-11) has already been declared proclaimed offender. After
pronouncing the judgment of conviction, the Sessions Judge also allowed the application
filed by the Investigator under Section 319 CrPC and issued non-bailable warrants
against the petitioner. The state's counsel had supplied a photocopy of the judgment,
and I have also gone through the same. Counsel for the State submits that, per his
information, all the convicts have challenged the conviction by filing separate appeals
pending adjudication.
8. During the investigation, Gurdev Singh (A-6) [an Ex-chairman of the Market
Committee, Dhilwan, and Ex-Sarpanch of Village Lakhan Ke Padde, falling in Bholath
constituency], had disclosed his proximity to the accused Sukhpal Singh Khaira, and the
petitioner who was PSO to Sukhpal Singh Khaira.
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9. Mr. P.S. Ahluwalia, Ld. Counsel for the petitioner stated that apart from Sukhpal
Singh Khaira, even the petitioner had challenged the non-bailable warrants, and the
order passed in the application under Section 319 CrPC before this Court and
subsequently had filed SLP(Crl) No. 009150 of 2017 [Cr.A No. 000886-2019] before the
Hon'ble Supreme Court. On May 10, 2019, in Sukhpal Singh Khaira vs The State of
Punjab, 2019 (6) SCC 638, a two-member Bench formulated a question of law and
referred the matter to a Larger Bench.
10. On December 05, 2022, a Constitutional Bench of Hon'ble Supreme Court, In
Sukhpal Singh Khaira vs The State of Punjab, decided the reference in the following
terms: -
"[38]. For all the reasons stated above, we answer the questions referred
as hereunder.
[39]. (I) Whether the trial court has the power under Section 319 CrPC for
summoning additional accused when the trial with respect to other co-
accused has ended and the judgment of conviction rendered on the same
date before pronouncing the summoning order?
The power under Section 319 CrPC is to be invoked and exercised before
the pronouncement of the order of sentence where there is a judgment of
conviction of the accused. In the case of acquittal, the power should be
exercised before the order of acquittal is pronounced. Hence, the
summoning order has to precede the conclusion of trial by imposition of
sentence in the case of conviction. If the order is passed on the same day,
it will have to be examined on the facts and circumstances of each case
and if such summoning order is passed either after the order of acquittal
or imposing sentence in the case of conviction, the same will not be
sustainable.
[40]. (II) Whether the trial court has the power under Section 319 CrPC for
summoning additional accused when the trial in respect of certain other
absconding accused (whose presence is subsequently secured) is
ongoing/pending, having been bifurcated from the main trial?
The trial court has the power to summon additional accused when the
trial is proceeded in respect of the absconding accused after securing his
presence, subject to the evidence recorded in the split-up (bifurcated) trial
pointing to the involvement of the accused sought to be summoned. But
the evidence recorded in the main concluded trial cannot be the basis of
the summoning order if such power has not been exercised in the main
trial till its conclusion."
11. On February 9, 2023, a two-member Bench of Hon'ble Supreme Court passed the
following order, in Sukhpal Singh Khaira's matter: -
"[1]. Indisputably, in the present cases the order under Section 319
Cr.P.C. was passed by the learned High Court after the learned Trial Judge
had pronounced the order of conviction and sentence against the accused,
who were being tried by the learned Trial Judge.
[2]. The order passed under Section 319 Cr.P.C. against the present
appellants was challenged before the learned Single Judge vide judgment
dated 17th November, 2017 of the High Court by way of revision petitions.
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The learned Single Judge rejected the revisions. Aggrieved thereby present
appeals were filed.
[3]. Since the Bench hearing the matter in this Court found that it
involves an important issue, the matters were referred to a Larger Bench.
The Constitution Bench vide its judgment dated 05.12.2022 rendered in
Sukhpal Singh Khaira v. The State of Punjab, reported in (2022) 17 SCC 246,
has held that once the learned Trial Judge passes an order on sentence, the
Court become functus officio and it is not within its jurisdiction to pass an
order under Section 319 Cr.P.C.
[4]. Indisputably, in the present case, the orders under Section 319
Cr.P.C. has been passed after the accused, who were facing trial, were
convicted and sentenced.
[5]. In view of the law laid down by the Constitution Bench in Sukhpal
Singh Khaira (Supra) these appeals are allowed. The order passed by the
learned Trial Judge under Section 319 Cr.P.C. against the appellants as well
as by the learned Single Judge of the High Court are quashed and set aside."
12. Subsequently, vide order dated September 4, 2023, the Director, Bureau of
Investigation, Punjab, constituted another SIT to investigate FIR No.35 of 2015. On
September 28, 2023, vide rapat no.5, the SIT added offenses under Section 27-A and 27-
B of NDPS Act and also arraigned Gurpreet Singh @ Gopi, Kashmir Singh @ Billa, Major
Singh Bajwa, Charanjit Kaur, Sukhpal Singh Khaira, Joga Singh (petitioner, PSO of Sukhpal
Singh Khaira) and Munish Kumar (PA of Sukhpal Singh Khaira) as additional accused.
13. Mr. P.S. Ahluwalia, counsel for the petitioner, submits that the petitioner-Joga
Singh, had also challenged the summoning order passed by the Special Court in 319
CrPC application and Hon'ble Supreme Court disposed of his petition clarifying that the
findings given in Sukhpal Singh Khaira's matter by Hon'ble Supreme Court would also
apply to the case of petitioner. He further submits that the entire material based on
which the petitioner is being connected with the alleged offense and sought to be
arrested was adduced before the Learned Trial Court at the point in time when the
petitioner came to be summoned as an additional accused in the exercise of powers
under Section 319 of the CrPC.
14. Counsel for the petitioner submits that State could not take into consideration the
evidence whatever already adduced before the trial Court at the time of first trial. He
also refers the order passed by the Hon'ble Supreme Court in case of Sukhpal Singh
Khaira vs The State of Punjab, while deciding the reference and had stated below:
"The trial court has the power to summon additional accused
when the trial is proceeded in respect of the absconding accused
after securing his presence, subject to the evidence recorded in the
split-up (bifurcated) trial pointing to the involvement of the
accused sought to be summoned. But the evidence recorded in the
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main concluded trial cannot be the basis of the summoning order
if such power has not been exercised in the main trial till its
conclusion, and as such no reliance is being placed on any
evidence recorded in the aforesaid first trial."
15. Ld. Deputy Advocate General contended that the investigation against Anil (A-
11) was going on, and while filing the police report against the ten accused, it was
explicitly mentioned that further investigation was being conducted. Further
investigation brought the evidence to surface that the petitioner, who was supposed to
discharge his official duty, acted and conspired with Sukhpal Singh Khaira and because
his conduit for drug trade and facilitated conversation with handler operating from the
United Kingdom. Counsel further submits that the evidence based on which they are
opposing the bail of the petitioner, was not part of the criminal trial, had taken place
against ten accused. He further submits that the additional evidence, as mentioned and
referred to in the reply dated 17.11.2023 filed by Dy.S.P. is sufficient to connect the
petitioner with the drug trade. The fact of continuation of investigation was very much
in the knowledge of trial Court and all the facts were brought to the notice of the Court
when Mr. Sukhpal Singh Khaira was produced before the Court on 28.09.2023. He refers
to the order dated 28.09.2023 passed by the Special Judicial Magistrate concerned.
16. It would be appropriate to refer to the order dated 28.09.2023, Annexure P-16
filed in CRWP No.9859 of 2023 which reads as follows:
Accused produced in the court. IO moved application seeking 07
days police remand. Police file perused. Medical certificate of accused also
seen and signed. Sh. Sanjeev Kamboj, Sh. N.K. Middha and Sh. Karan
Chuchra, Advocates filed power of attorney on behalf of accused.
[2]. Learned APP for the State submits that earlier accused was
summoned to face trial by learned Judge, Special Court, Fazilka on the
basis of application under Section 319 of Cr.P.C. which order was
subsequently dropped on technical ground by Hon'ble Apex Court, but the
matter was still open for further investigation. Accused has been
nominated in the present case on the basis of thorough inquiry conducted
by Special Investigation Team. Sufficient and corroborating evidence has
been collected against accused for his involvement in the commission of
offence. It is further submitted that the custodial interrogation of accused
is required for collection of some more evidence i.e. mobile phones, SIM
cards, travel history, recovery of old passport, his links with drug
smugglers residing in U.K. and Pakistan and the income derived from drug
smuggling. Lastly, he prayed that accused should be remanded to police
custody for seven days.
[3]. On the other hand, learned defence counsels have referred
towards copy of zimney dated 25.6.2021 recorded in police file and
contended that nothing incriminating was found against accused. Even
there is no document to show that accused had links with Gurdev Singh Ex-
Chairman etc. or contraband allegedly recovered by the police. Once there
is no such material collected by SIT during course of inquiry accused
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cannot be sent to police custody. Learned defence counsel has further
referred towards copies of medical record of accused as well as video
recording and submitted that he is suffering from various ailments and
therefore, application for police custody should be declined.
[4]. Alter considering the aforesaid contentions and going
through the police diary/file, it is found that custodial interrogation of
accused is sought for collecting evidence in the form of mobile phones.
SIMs, conversation taken place between accused and other drug
smugglers, travel history, passports, links with drug smugglers or Pakistani
nationals and the drug money collected from drug smugglers and the use
thereof. It is also case of the prosecution that although proceedings under
Section 319 Cr.PC. initiated against accused were dropped, but right to
further investigate the matter was still open and therefore, involvement of
accused is found in the report submitted by Special Investigating Team.
Once the matter is under investigation and material evidence is likely to be
collected from accused, therefore, reasonable opportunity should be
afforded to the investigating agency for proper and effective investigation
and as such there are found to be sufficient grounds for his custodial
interrogation. Accordingly, accused is sent to police custody till 30.9.2023.
I.O is directed to get accused medically examined from Civil Hospital
Jalalabad (W) before and after interrogation. He will produce medical
certificate on the date fixed.
[5]. Learned counsel for accused also moved application seeking
directions to investigating officer to interrogate the accused in the
presence of his counsel. Heard. The person arrested has a right to meet his
counsel while being interrogated, though not throughout the
interrogation. Therefore, accused is allowed to meet his one counsel on
every alternate day for 15 minutes in the presence of investigating officer
from the date of order.
17. State Counsel also refers to judgment of Hon'ble Supreme Court passed in case
State of Haryana v. Samarth Kumar, 2022(3) R.C.R.(Criminal) 991, wherein Hon'ble
Supreme Court holds,
[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.
18. The petitioner's counsel further argued that the mere exchange of calls between
the petitioner who is PSO of Sukhpal Singh Khaira, who was arrested in this FIR in
September, will not be the incriminating circumstance. The petitioner's counsel further
submits that it is normal for any PSO to stay in touch with the persons to whose
protection such PSO was deputed. However, the State's counsel submits that Sukhpal
Singh Khaira and the petitioner were contacting their handler from the United Kingdom
on the phone of the petitioner, and furthermore, there is prima facie evidence of the
petitioner's involvement in the drug dealing in the above captioned FIR.
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19. Mr. P.S. Ahluwalia further submits that this Court has already heard arguments
and reserved the regular bail application of Sukhpal Singh Khaira, and in case, this Court
is inclined to regular bail to Sukhpal Singh Khaira on the same parameters because the
allegation against the petitioner is lesser than Sukhpal Singh Khaira as such, there would
be no purpose to reject his bail and to send him behind bars. However, Mr. Luvinder
Sofat, D.A.G., Punjab, argued that anticipatory and regular bail parameters are entirely
different, and Sukhpal Singh Khaira was arrested and subjected to custodial
interrogation and is in judicial custody. The petitioner's custodial interrogation is
required, and he might be entitled to treatment similar to Sukhpal Singh Khaira only
when he files a regular bail under Section 439 CrPC.
20. An analysis of the submissions viz-a-viz evidence collected against the petitioner,
as mentioned in reply dated 17.11.2023, points out that the co-accused Charanjit Kaur,
who is the sister of co-accused Gurdev Singh, was in touch with petitioner-Joga Singh
telephonically and also with Manish Kumar, PA of Sukhpal Singh Khaira. The investigator
had obtained phone calls and found evidence of monitoring. The offenses under
Sections 27-A and 27-B of the NDPS Act have also been added. Out of 7 newly
nominated accused, three have already been arrested, and the trial Court has dismissed
bail of 2, whereas LOC has been issued against the remaining two. The investigator has
collected many international calls exchanged between the petitioner and Charanjit Kaur.
As per Annexure R-1 filed with the reply, there has been interconnectivity between the
accused persons. Thus, the evidence collected so far prima facie connects the petitioner
with the drugs recovered as per FIR, and his custodial interrogation is required to
unearth the role of other persons to unmask the involvement of more international
connections, which is required to break the drugs cartel.
21. It has come in the investigation that Major Singh Bajwa, a resident of the United
Kingdom, was in touch with the Pakistani Drugs Cartel, who was in touch with the
accused, who was based in India. The petitioner was explicitly in touch with Major Singh
Bajwa through Charanjit Kaur and the other accused. There is exchange of 100 calls
between these accused. To find out the nexus, custodial interrogation of petitioner is
required. A perusal of the bail petition does not mention any reason for phone calls
except that Sukhpal Singh Khaira was using the petitioner's phone. This appears to be an
afterthought and shifting the burden on Sukhpal Singh Khaira because during the period
when he was summoned to face trial, which is 6 years back, the petitioner, being a PSO,
did not bring this unusual fact to the notice of his superiors and was fully aware of the
stage of the investigation. Simply because there is a delay of 8 ½ years from the
registration of FIR, would not eclipse the crime because crime never dies.
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22. The petitioner seeks anticipatory bail, and the parameters to decide a bail after
the accused is subjected to custodial interrogation differ from those interrogated
without them in custody. The quantity of heroin that was seized falls in the commercial
category. Section 371 of the NDPS Act mandates under sub-section (1) (b) of section 37,
that no person accused of an offence punishable for offences involving commercial
quantity shall be released on bail unless- (i) the Public Prosecutor has been given an
opportunity to oppose the application of release, and (ii) where the Public Prosecutor
opposes the application, the Court is satisfied that there are reasonable grounds for
believing that accused is not guilty of such offence and is not likely to commit any
offence while on bail. Thus, the rigors of S. 37 of the NDPS Act apply in the present case,
and the burden is on the petitioner to satisfy the twin conditions put in place by the
Legislature under Section 37 of the NDPS Act. Given the legislative mandate of S. 37 of
the NDPS Act, the Court can release a person accused of an offence punishable under
the NDPS Act for possessing a commercial quantity of contraband only after recording
reasonable satisfaction of its rigors.
23. The State's arguments are that a plain reading of Section 37 reveals that the
legislature intends to make the law stringent to curb the drug menace. It is further to be
noticed that the provisions are couched in negative language, meaning that to grant bail,
the Court needs to record a finding that there are reasonable grounds for believing that
the petitioner is not guilty of the offense. The burden of proof is also on the petitioner to
satisfy the Court about his non-involvement in the case. While interpreting the
provisions of Section 37 of the NDPS Act, the Court must be guided by the objective
sought to be achieved by putting these stringent conditions. The movement and call
detail chart of Gurdev Singh, Charanjit Kaur, and Major Singh Bajwa (Drug cartel handler)
and the interpretation of call detail of Sukhpal Singh Khaira, Gurdev Singh, Charanjit Kaur
& Major Singh Bajwa and petitioner was verified by ASI/LR Ravinderpal Singh. These
technical details and analysis clearly show the cartel members' nexus and business
association.
37. Offences to be cognizable and non-bailable.--(1) Notwithstanding anything contained in the Code
of Criminal Procedure, 1973 (2 of 1974),--
(a) every offence punishable under this Act shall be cognizable;
(b) no person accused of an offence punishable for offences under section 19 or section 24 or section 27A
and also for offences involving commercial quantity shall be released on bail or on his own bond unless--
(i) the Public Prosecutor has been given an opportunity to oppose the application for such release, and (ii)
where the Public Prosecutor opposes the application, the court is satisfied that there are reasonable
grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence
while on bail.
(2) The limitations on granting of bail specified in clause (b) of sub-section (1) are in addition to the
limitations under the Code of Criminal Procedure, 1973 (2 of 1974) or any other law for the time being in
force on granting of bail.
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24. Satisfying the fetters of S. 37 of the NDPS Act is candling the infertile eggs. The
stringent conditions of section 37 placed in the statute by the legislature do not create a
bar for bail for specified categories, including the commercial quantity; however, it
creates hurdles by placing a reverse burden on the accused, and once crossed, the rigors
no more exist, and the factors for bail become similar to the bail petitions under general
penal statutes like IPC. Thus, both the twin conditions need to be satisfied before a
person accused of possessing a commercial quantity of drugs or psychotropic substance
is to be released on bail. The first condition is to provide an opportunity to the Public
Prosecutor, enabling them to take a stand on the bail application. The second stipulation
is that the Court must be satisfied that reasonable grounds exist for believing that the
accused is not guilty of such an offense and is not likely to commit any offense while on
bail. If either of these conditions is not met, the ban on granting bail operates. The
expression "reasonable grounds" means something more than prima facie grounds. It
contemplates substantial probable causes for believing the accused is not guilty of the
alleged offense. Even on fulfilling one of the conditions, the reasonable grounds for
believing that the accused is not guilty of such an offense, the Court still cannot give a
finding on the assurance that the accused is not likely to commit any such crime again.
Thus, the grant or denial of bail for possessing commercial quantity would vary from
case to case, depending upon its facts, and the parameters for anticipatory bail are
stringent compared to the regular bail when the accused is in judicial custody because
the accused has already suffered custodial interrogation.
25. The evidence based on which this Court is considering the bail application is not
the evidence from the first trial but includes the evidence unearthed after the co-
accused's arrest. The parameters for deciding anticipatory bail are more stringent than
those to be considered while deciding regular bail. The quantity involved is commercial,
and the burden to satisfy the rigor of condition of Section 37 of NDPS Act, was on the
petitioner, which he did not discharge to the satisfaction of the statutory requirements.
Further investigation reveals that there is sufficient prima facie evidence to connect the
petitioner with the crime. Custodial interrogation is required to find out the involvement
of the drug mafia from Pakistan and the role of the handler from the UK. Any detailed
discussions about the evidence may prejudice the case of the petitioner or the other
accused.
26. Learned Special Judge had dismissed the anticipatory bail of the petitioner by
giving elaborative reasons and considering almost every aspect.
27. The grounds in the bail petition do not shift the burden the legislature places on
the accused under S. 37 of the NDPS Act. The petitioner has not stated anything in the
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CRM-M-56452-2023
bail petition to discharge the burden put by the stringent conditions placed in the
statute by the legislature under section 37 of the NDPS Act.
28. In Jai Prakash Singh v. State of Bihar and another (2012) 4 SCC 379, Hon'ble
Supreme Court holds,
[19]. Parameters for grant of anticipatory bail in a serious offence are
required to be satisfied and further while granting such relief, the court
must record the reasons therefor. Anticipatory bail can be granted only in
exceptional circumstances where the court is prima facie of the view that
the applicant has falsely been enroped in the crime and would not misuse
his liberty. [See D.K. Ganesh Babu v. P.T. Manokaran (2007) 4 SCC 434,
State of Maharashtra v. Mohd. Sajid Husain Mohd. S. Husain (2008) 1 SCC
213 and Union of India v. Padam Narain Aggarwal (2008) 13 SCC 305].
29. In the facts and circumstances peculiar to this case, and for the reasons
mentioned above, the petitioner fails to make a case for anticipatory bail under section
438 CrPC.
30. 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.
Petition dismissed. Interim order dated 01-12-2023 is vacated. All pending applications,
if any, stand disposed.
(ANOOP CHITKARA)
JUDGE
04.01.2024
Jyoti Sharma/AK
Whether speaking/reasoned: Yes
Whether reportable: YES.
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