Punjab-Haryana High Court
Ashu Singh vs State Of Punjab on 29 January, 2024
Author: Sandeep Moudgil
Bench: Sandeep Moudgil
Neutral Citation No:=2024:PHHC:014881
CRM-M-4218-2024 - 1-
101 2024:PHHC:014881
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CRM-M-4218-2024
DECIDED ON: 29.01.2024
ASHU SINGH
.....PETITIONER
VERSUS
STATE OF PUNJAB
.....RESPONDENT
CORAM: HON'BLE MR. JUSTICE SANDEEP MOUDGIL.
Present: Mr. Umesh Aggarwal, Advocate
for the petitioner.
SANDEEP MOUDGIL, J (ORAL)
1. The instant petition has been filed seeking anticipatory bail in FIR
No.216, dated 18.12.2023, under Sections 21B , 25/61/85 (Later on added
Section 29) of NDPS Act, registered at Police Station Kamboj, Amritsar
(Annexure P-1).
2. Learned counsel for the petitioner contends that the FIR was got
registered against the petitioner merely on the basis of disclosure statement of
co-accused Gurjit singh. The admitted fact is that the petitioner is son of co-
accused Gurjit Singh. In support of his assertion, Mr. Umesh Aggarwal,
learned Advocate has referred to the relevant part of the judgment dated
17.03.2021, vide which Ajit Singh @ Jeeta was acquitted by the trial Court
with the following observation:-
"18. After going through the evidence led by prosecution when
seen minutely, this Court considers that there remains no reason
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to disagree with the arguments advanced by Sh. Mohit Mahajan,
Advocate, learned Defence counsel as to that no connection of
accused with the recovered contraband could be established and
even after recovery of contraband, the prosecution failed to
establish any connection of accused with Heroin recovered in this
case. As per prosecution story it itself, recovery has been effected
on the border of Indo-Pakistan. Concededly contraband was
recovered in the absence of accused.
19. In the present case, when prosecution tried to say that some
persons from India side also fired upon the BSF officials/Naka
party, the documents relied upon by the prosecution Ex. PY in
itself makes it clear that firing was done upon Naka party from
across the border only and not from the India side. Though, the
present case, in Ruqa Ex.PW-3/M, it comes out that a secret
information was received with regard to that Harpreet Singh alias
Happy son of Gubaj Singh, Bau son of Ajit Simngh and Ajit Singh
alias Jeeta, all residents of Dauke, P.S. Gharinda, District
Amritsar, are indulging in smuggling activities with connivance of
Pakistan smuggler Bilal, resident of Narowal Pakistan and they
all are trying to smuggle the big consignment of Heroin and Arms
and ammunition across Indi-Pak border in the area of Border out
Post at Dera Baba Nanak Road in the night time. If joint
operation with BSF party be conducted and proper ambush may
be planned then the heavy consignment of Heroin and arms and
ammunition can be recovered and accused can be apprehended,
but till the time of recovery even in recovery memo Ex.PW-3/A,
name of Ajit Singh was not mentioned as accused. Proceedings
were being carried out by I, INSPECTOR showing accused to be
unknown person. In case, there should have been any secret
information with the Police with regard to involvement of accused,
in the recovery of this case, then, at the time of recovery, and at
the time of preparing other documents, name of accused Ajit Singh
alias Jeeta would have been mentioned as accused on recovery
memo of Heroin Ex.PW-3/A, on recovery memo of 30 bore Pistol
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Ex.PW-3/B, on recovery memo of pipe Ex. PW-3/D and on
recovery memo of 18 empty packets of cloth. Meaning thereby,
version of learned Defence Counsel with regard to that story with
regard to secret information regarding involvement of accused is
fabricated by the prosecution after recovery of Heroin and other
articles in the present case proves to be sustainable.
20. For proving guilt of accused under Section 21(c) of NDPS, Act
and for other offences, prosecution was to establish that accused
was found in conscious possession of contraband taken into police
custody by the officials of BSF. No doubt, in view of the provisions
of section 35 and 54 of NDPS, Act, once possession is found or
proved then accused is presumed to be in conscious possession
and if the accused takes a stand that he was not in conscious
possession, he has to establish the same, but when prosecution
fails to establish the possession of accused over the contraband
recovered, then this presumption of accused being in conscious
possession can not be taken in favour of the prosecution. In case
titled as Dharam Pal Vs State of Punjab 2010 (4) RCR (Criminal)
504, Hon'ble Supreme Court held that to make out an offence
under Section 18 of the Act, possession has to be conscious
possession. It was held that initial burden of proof of possession
lies on prosecution and once it is discharged only then, the burden
would shift on the accused. Hon'ble Bombay High Court in case
titled as Nazma Ismail Shaikh Vs State of Maharashtra 2001(5)
BCR 407, has held that when prosecution could not prove beyond
doubt that recovery was effected from accused. In such a case
accused is not required to offer any explanation about possession
of contraband. Presumption under Section 35 of the Act, therefore,
neither arises nor is required to be rebutted by the
appellant/accused. Similarly, Hon'ble Delhi High Court in case
titled as "Chand Singh and Anr. Vs The Narcotic Control Bureau
and Ors." 2016 (1) SCC 1 held that law arises a statutory
presumption of conscious possession, where physical possession
of the contraband established. This is a rebuttable presumption. It
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should be for the accused to rebut the presumption of conscious
possession, once the prosecution has established physical
possession of the contraband.
21. Concededly, in the present case, contraband was recovered by
the police officials at their own level. No link of accused Ajit
Singh alias Jeeta with recovery could be established on file.
22. Further to create some link of accused with the recovered
material, prosecution has tried to rely upon statement of one
Karamjit Singh, before whom as per prosecution, accused Ajit
Singh alias Jeeta made extra judicial confession with regard to his
involvement and connection with the recovery of Heroin in the
present case. As per prosecution in May, 2017 Ajit Singh accused
confessed his guilt before PW-12 Karamjit Singh. Firstly,
statement of Karamjit Singh under Section 161 is shown by ASI
Amit Sharma who has not been examined by prosecution.
Karamjit Singh appeared in witness box as PW-12. He stated that
he is not knowing to Ajit Singh @ Jeeta and his statement was
never recorded in this case. On his this deposition, this witness
has been declared hostile and Ld. Addl. P.P. for the State was
allowed to cross- examined this witness. He was thoroughly cross-
examined by Ld. Addl. P.P. for the State. In the cross- examination
he stated that accused Ajit Singh alias Jeeta never made any extra
judicial confession before him with regard to his involvement or
with regard to recovery of Heroin from the Border of Pakistan. In
his cross-examination he categorically stated that never recorded
any statement mark-P1 on 04.09.2017. He denied that Ajit Singh,
told him that he is having any connection with Pakistani
Smuggler. He also denied this fact that he ever recorded to the
Police that he and Ajit Singh started drinking from thereby the
shop and Ajit Singh told him that his village falls near the INDO-
PAK border and he is in contact with the Pakistani Smuggler or
that he is drawing the business of smuggling across the INDO-
PAK border or that his son Dharminder Singh, Harpreet Singh son
of Bar Singh, resident of Dauke are also indulged in activity of
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INDO-PAK cross border smuggling or that they have managed
one consignment from the Pakistani Smuggler in the area of Dera
Baba Nanak 164 B BSF near barbered line of INDO-PAK border.
23. If seen present case was registered in the year 2015 but after
recording the statement of Karamjit Singh PW-12 by showing that
accused Ajit Singh made. disclosure statement before him accused
Ajit Singh has been involved in the present case. Report under
Section 173 Cr.P.C. regarding extra judicial confession made by
accused is silent. In these circumstances, by taking the benefit of
some recovery of Heroin from Indo-Pak Border possibility of
involving of accused cannot be ruled out.
24. When as per law, extra judicial confession without
corroboration cannot be made basis for the conviction, projected
case of the prosecution with regard to that accused Ajit Singh
alias Jeeta made any extra judicial confession with regard to his
guilt before Karamjit Singh, remained unproved on file because
Karamjit Singh who was star witness with the prosecution to
connect the accused with the recovery, did not support the
prosecution version and categorically stated that no such judicial
confession was made by Ajit Singh before him. Further to create
some link of accused with the recovered material the prosecution
has relied upon disclosure statement of accused Ex. PW6/A,
because PW7 retired DSP Harbhajan Singh stated that on
14.11.2018 during interrogation, accused Ajit Singh alias Jeeta,
made a disclosure statement Ex.PW-6/A before SI Binderjit Singh,
regarding the commission of offence. With the assistance of
learned Addl. P.P. for the State and learned counsel for the
accused, when this disclosure statement is seen minutely, then, it
can be safely said that this disclosure statement relied by the
prosecution, is of no help to the prosecution."
3. Notice of motion.
4. On the asking of the Court, Mr. Ramdeep Partap Singh, Sr. DAG,
Punjab accepts notice on behalf of the respondent-State. He prays for
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dismissal of the present petition stating that it is admitted fact that the
petitioner has been nominated on the basis of disclosure statement of co-
accused Gurjit Singh from whose conscious possession of 90 grams of Heroin
was recovered, who is none else but the father of the present petitioner. He
stated that the said contraband was supplied to him by the present petitioner.
There is no reason disbelieve to the afore-said disclosure statement suffered by
the father of the petitioner.
5. In rebuttal to the argument of learned State counsel, Mr. Umesh
Aggarwal, learned counsel for the petitioner has asserted that apart from the
present FIR, there is no other case pending against the petitioner.
6. To record 'finding of innocence' for granting the relief of
anticipatory bail to the petitioner, this court is not called upon to record a
finding of not guilty and it is only required to see if there are reasonable
grounds of its belief. It does not mandate the court to enter into a domain as if
it is pronouncing a judgment of acquittal and recording a finding of not guilty.
Such an exercise, if conducted by the court, is likely to defeat the prosecution
case even before a trial is concluded.
7. The Court is also not expected to weigh the evidence for arriving
at a finding as to whether the accused has committed an offence under the
NDPS Act or not. The entire exercise that the Court is expected to undertake at
this stage is for the limited purpose of releasing him on bail. Thus, the focus is
on the availability of "reasonable grounds" for believing that the accused is
not guilty of the offences that he has been charged with and he is unlikely to
commit an offence under the Act.
8. The Hon'ble Supreme Court elaborated the expression
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"reasonable ground" in 'Customs, New Delhi v Ahmadalieva Nodira' 2004
(2) RCR (Criminal) 192 and 'State of Kerala v Rajesh' 2020 (1) RCR
(Criminal) 818, which can be read as under:
"7. The limitations on granting of bail come in only when the
question of granting bail arises on merits. Apart from the grant of
opportunity to the Public Prosecutor, the other twin conditions
which really have relevance so far as the present accused
respondent is concerned, are: the satisfaction of the court that
there are reasonable grounds for believing that the accused is not
guilty of the alleged offence and that he is not likely to commit
any offence while on bail. The conditions are cumulative and not
alternative. The satisfaction contemplated regarding the accused
being not guilty has to be based on reasonable grounds. The
expression "reasonable grounds" means something more than
prima facie grounds. It contemplates
substantial probable causes for believing that the accused is not
guilty of the alleged offence. The reasonable belief contemplated
in the provision requires existence of such facts and
circumstances as are sufficient in themselves to justify satisfaction
that the accused is not guilty of the alleged offence.
[emphasis added]
21. The expression "reasonable grounds" means something more
than prima facie grounds. It contemplates substantial probable
causes for believing that the accused is not guilty of the alleged
offence. The reasonable belief contemplated in the provision
requires existence of such facts and circumstances as are
sufficient in themselves to justify satisfaction that the accused is
not guilty of the alleged offence."
*** **** **** ****
9. The statute used "three expressions" -- "the court is satisfied";
"reasonable grounds", and "believing that the accused is not guilty", and as
such, it does not restrain the Court from exercising its jurisdiction. The
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requirement of recording reasons would not mean to record in writing
establishing that an accused is innocent'. Hence it is the subjective satisfaction
of the court based on an objective assessment of the material brought before it
for giving a reasonable ground to sustain a belief.
10. As strongly asserted by the learned State counsel there is
sufficient and cogent evidence which is sufficient for this court to draw an
inference that there are reasonable grounds to believe the petitioner's active
and regular involvement is drug peddling.
11. This Court is also obvious of the prevailing circumstance,
wherein drug abuse is a social malady. While drug addiction eats into the
vitals of the society, drug trafficking not only eats into the vitals of the
economy of a country, but to the economy of the State/country by generating
illicit money.
12. The drug peddlers have successfully destroyed not only the social
fabric of the society but finishing the youth, who are future generation of the
country. Such accused need to be dealt with firmly and sternly with no
sympathy to be shown to them particularly in the case in hand, wherein the
petitioner is involved in smuggling of dangerous contraband at the
international borders.
13. Considering the afore-said aspect and the intensity of the
allegations wherein, a father himself has specifically named his son, though
the quantity of total contraband i.e. 150 grams Heroin, which falls under non-
commercial quantity but in any case the petitioner who is a young boy and is
involved in such like activities, this Court deems it appropriate that in the case
in hand the custodial interrogation of the petitioner is required for the recovery
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of the contraband which he is in possession and the source thereof.
14. In view of the discussions made hereinabove, this Court is of the
view that the petitioner does not deserve the concession of anticipatory bail.
Thus, the present petition is dismissed having no merits.
(SANDEEP MOUDGIL)
29.01.2024 JUDGE
Sham
Whether speaking/reasoned: Yes/No
Whether reportable: Yes/No
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