Sukhchain Singh vs State Of Punjab
2024 Latest Caselaw 6542 P&H

Punjab-Haryana High Court

Sukhchain Singh vs State Of Punjab on 22 March, 2024

Author: Vikas Bahl

Bench: Vikas Bahl

                                Neutral Citation No:=2024:PHHC:041985




CRM-M-13486-2023                         1                2024:PHHC:041985

      IN THE HIGH COURT OF PUNJAB & HARYANA AT
                   CHANDIGARH
                      ***

                                               CRM-M-13486-2023
                                               Date of decision : 22.03.2024


Sukhchain Singh

                                                     ... Petitioner

                   Versus


State of Punjab

                                                     ... Respondent

CORAM:       HON'BLE MR.JUSTICE VIKAS BAHL

Present:     Mr.Parminder Singh Sekhon, Advocate
             for the petitioner.

             Ms.Akshita Chauhan, DAG, Punjab.

VIKAS BAHL, J.(ORAL)

1. This is the first petition under Section 439 Cr.P.C. for grant of

regular bail to the petitioner in FIR no.220 dated 01.11.2021 registered

under Sections 15 and 25 of the NDPS Act at Police Station Dharamkot,

District Moga.

2. Learned counsel for the petitioner has submitted that the

petitioner has been in custody since 25.01.2023 and the investigation is

complete and the challan has already been presented and there are 25

witnesses, out of which, only 3 witnesses have been examined and thus, the

trial is likely to take time. It is further submitted that the petitioner was not

named in the FIR which was registered on 01.11.2021 and although 12

persons were specifically named and in the FIR it was also mentioned that

the secret informer had taken the names of the said 12 persons, who were

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stated to be involved in buying and selling of poppy husk. It is argued that

there was no allegation levelled against the present petitioner in the same

and that as per the short reply dated 09.01.2024 filed by way of affidavit of

Ravinder Singh, PPS, Deputy Superintendent of Police, Dharamkot, District

Moga on behalf of the State, recovery of poppy husk has been effected from

two vehicles i.e., one truck no.HR-64-6149 and one Xylo car without

number plate and the present petitioner is not the owner of either of the two

vehicles nor was driving the same. It is submitted that in paragraph 9 of the

said affidavit, it has been stated that one Angrej Singh son of Gurbux Singh,

resident of Hanuman Chowk, Ratia, was the registered owner of truck

no.HR-64-6149 and he had sold the said truck to Parkash Singh son of

Gurcharan Singh, resident of Malout and as per investigation, the Xylo car

was in the ownership of Randhir Singh son of Mohinder Singh, resident of

Adarsh Nagar, Phagwara. It is further submitted that no recovery has been

effected from the present petitioner and the petitioner is not involved in any

other case under the NDPS Act. It is argued that the petitioner was

implicated in the present case on 25.04.2022, after a delay of more than 5

months, solely on the ground that two vehicles were parked on the land of a

godown, which was owned by the present petitioner. It is stated that as per

paragraph 5 of the affidavit of Ravinder Singh filed on behalf of the State, it

has been recorded that as per the disclosure statement of Pippal Singh it is

he, who had purchased the property under neath the godown from one

Karam Chand resident of Dharamkot @ Rs.85,000/- per marla in the name

of the petitioner Sukhchain Singh, who was his close relative and after that

Pippal Singh had constructed a godown there. It is further stated that the

recovery is not from the godown but from the vehicles which were parked

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in the land where the godown is situated and even as per the case of the

prosecution, it is not the petitioner who had purchased the same by paying

consideration and it is rather co-accused Pippal Singh, who had purchased

the same. In such a situation, it is submitted that it cannot be stated that the

petitioner was in conscious possession of the poppy husk. Learned counsel

for the petitioner has relied upon a judgment of a Coordinate Bench of this

Court in CRM-M-16150-2021 dated 19.07.2021 titled as "Balwinder

Singh Vs. State of Punjab" to contend that in such a situation, it is matter

of debate as to whether the petitioner could be stated to be in conscious

possession of the poppy husk in question or not. It is argued that 8 persons

named in the FIR have been granted anticipatory bail by the Coordinate

Bench including Karamjeet Singh @ Karamjit Singh in CRM-M-51048-

2021 decided on 22.03.2022, Gurjinder Singh @ Motu in CRM-M-51800-

2021 decided on 22.03.2022, Inderjit Singh in CRM-M-52014-2021

decided on 22.03.2022, Lakhwinder Singh @ Kaku in CRM-M-52042-2021

decided on 22.03.2022, Arasal Singh @ Rasal Singh @ Nanu in CRM-M-

53114-2021 decided on 22.03.2022 and Jagraj Singh in CRM-M-50383-

2021 decided on 22.03.2022.

3. Learned State counsel, on the other hand, has opposed the

present petition for regular bail and has submitted that the recovery in the

present case is of commercial quantity and thus, bar under Section 37 of the

NDPS Act would apply in the present case. It is further submitted that

although it has been stated in paragraph 5 of the affidavit that it is Pippal

Singh, who had purchased the property under neath the godown from one

Karam Chand resident of Dharamkot @ Rs.85,000/- but the same was in the

name of the petitioner and thus, the involvement of the petitioner is also

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prima facie established. It is argued that poppy husk has been recovered

from the vehicles, which were parked in the land owned by the petitioner

and thus, the petitioner does not deserve the concession of regular bail.

4. This Court has heard the learned counsel for the parties and has

perused the paper book.

5. With respect to the rigors of Section 37 of the NDPS Act, it

would be relevant to note the various cases wherein the Hon'ble Supreme

Court and High Courts have granted bail / suspension of sentence in cases

involving commercial quantity.

6. In Criminal Appeal No.965 of 2021 titled as Dheeren Kumar

Jaina v. Union of India, the Hon'ble Supreme Court in a case where

allegation in the charge sheet 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.

7. A Coordinate Bench of this Court in a detailed judgment titled

as Ankush Kumar @ Sonu v. State of Punjab reported as 2018 (4) RCR

(Criminal) 84, had considered the provision of Section 37 of the NDPS Act

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 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 4 of 12

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CRM-M-13486-2023 5 2024:PHHC:041985 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.

8. Further, vide order dated 25.02.2021 in CRM-M-20177-2020, a

Co-ordinate 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 v. Vipan Sood and another".

9. 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 v. 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.

10. In Criminal Appeal No.827 of 2021 titled as Mukarram

Hussain v. 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.

11. A Co-ordinate Bench of this Court in CRM-M-10343 of 2021

titled as Ajay Kumar @ Nannu v. State of Punjab and other connected 5 of 12

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matters, vide Order dated 31.03.2021, after taking into consideration the

stipulations of Section 37 of the NDPS Act, 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:

"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."

12. 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; (2021) 5 SCC 724 was also taken into account and the provisions

of Section 37 of NDPS Act were considered and the sentence of the

applicant-appellant therein was suspended after primarily considering the

period of 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; reported as 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

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stand on a better footing than that of suspension of sentence, which is after

conviction.

13. In Balwinder Singh's case (Supra), a Coordinate Bench of this

Court has held as under:

"Briefly stated, case of the prosecution against the petitioner is that on 04.03.2019 police party headed by ASI Ravinder Singh on patrolling duty were coming to Tehang Octroi via Saiflabad. When they reached near Civil Hospital, Phillour they saw the petitioner coming on foot who on seeing the police party threw one heavy weight black coloured polythene bag and tried to run away. The police apprehended the petitioner and on search as per prescribed procedure recovered 55 intoxicant injections containing Buprenorhpine 2 ml each and 55 injections containing Avil 10 ml each from the polythene bag.

XXX---XXX---XXX On the other hand, learned State Counsel has argued that the petitioner kept in his conscious possession commercial quantity of intoxicant injections. Rigors of Section 37(1)(b) are fully applicable to the case of the petitioner. The petitioner does not deserve the concession of regular bail. Therefore, the petition may be dismissed.

However learned State Counsel has conceded that the petitioner is not involved in any other case under the NDPS Act. In CRM-M-13662-2020 titled as 'Niranjan Kumar @ Kaka Vs. State of Punjab' decided on 06.07.2020; CRM-M-14474- 2020 titled as 'Dharminder Singh Vs. State of Punjab' decided on 24.06.2020; CRM-M-21020-2020 titled as 'Amritpal Singh Lamberdar Vs. State of Punjab' decided on 11.08.2020; CRMM6433-2018 titled as 'Pawan Kumar Vs. State of Punjab' decided on 23.02.2018 and CRM-M-16380-2020 titled as 'Buta Singh Vs. State of Punjab' decided on 13.08.2020 where recovery of narcotic/psychotropic drug/substance was made from bag allegedly thrown on the road side by the accused, the case was considered to involve question as to whether the accused could be said to be in conscious possession thereof and the accused was granted regular bail.

In 'Chitta Biswas @ Subhash Vs. State of West Bengal' Criminal Appeal No.245 of 2020 SLP (Criminal) No.8823 of 2019 decided on 07.02.2020 where recovery of 46 bottles of phensydryl cough 7 of 12

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CRM-M-13486-2023 8 2024:PHHC:041985 syrup containing codeine mixture above commercial quantity was made from the accused who was in custody since 21.07.2018 and out of 10 prosecution witnesses only 4 prosecution witnesses had been examined, the accused was granted bail by Hon'ble Supreme Court.

In the present case recovery of intoxicant injections was allegedly made from polythene bag allegedly thrown on the road side. The case involves debatable question as to whether the petitioner can be said to be in conscious possession of the contraband recovered from the polythene bag lying on the road side. The petitioner is not involved in any other case under the NDPS Act. Rigors of Section 37(1)(b) of the NDPS Act stand satisfied by due implication. Further, the petitioner is in custody since 04.03.2019. Prosecution evidence is yet to be recorded. The trial is likely to take long time due to restrictions imposed to prevent spread of Covid-19. In view of the above referred judicial precedents and facts and circumstances of the case but without commenting on the merits of the case, I am of the considered view that the petitioner deserves the concession of regular bail.

Therefore, the petition is allowed and the petitioner is ordered to be released on regular bail on furnishing of bail bonds to the satisfaction of the trial Court/Duty Magistrate/Chief Judicial Magistrate concerned.

However, bail is granted to the petitioner subject to the condition that he will not commit any offence under the NDPS Act after his release on bail and in case of involvement of the petitioner in commission of any offence under the NDPS Act in future, his bail in the present case shall also be liable to be cancelled on application to be filed in this regard."

A perusal of the above judgment would show that although in

the said case also, the recovery effected was of commercial quantity but

since debatable issue with respect to the accused therein being to in

conscious possession of the narcotic recovered or not, was raised, it was

observed that the rigors of Section 37(1) (B) of the NDPS Act stood

satisfied by due implication.

14. In the present case, the petitioner has been in custody since

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25.01.2023 and the investigation is complete and the challan has already

been presented and there are 25 witnesses, out of which, only 3 witnesses

have been examined and thus, the trial is likely to take time. In the present

case, there are arguable points in favour of the petitioner. The petitioner is

not named in the FIR although 12 persons have been specifically named in

the FIR which as per the secret informer, were the persons, who in

connivance with each other were bringing poppy husk from the other States

and were supplying to their customers. No recovery has been effected from

the present petitioner and even as per the paragraph 4 of the affidavit of

Ravinder Singh, PPS, Deputy Superintendent of Police, Dharamkot, filed on

behalf of the State, recovery of commercial quantity of poppy husk has been

effected from one truck no.HR-64-6149 and one Xylo car without number

plate and the said two vehicles are not owned by the petitioner nor the

petitioner was caught at the spot with the said vehicles and as per the

averments made in paragraph 9 of the said affidavit, the said truck no.HR-

64-6149 was owned by Angrej Singh son of Gurbux Singh who had sold the

same to Parkash Singh and said Xylo car was stated to be in the ownership

of Randhir Singh son of Mohinder Singh. The petitioner was involved in

the present case on 25.04.2022 i.e., after the delay of 5 months from the

date of registration of the present FIR, on the basis of disclosure statement

of Pippal Singh and the details of the involvement of the petitioner in the

case have been mentioned in paragraph 5 of the affidavit filed on behalf of

the State, which is reproduced hereinbelow:-

"5. That during investigation of the case, on 11.11.2021 accused Pippal Singh was arrested by the police on the basis of production warrants and during the investigation he got recorded his disclosure statement u/s 27 of Evidence Act that on 13.10.2021 when he was produced before the Ld. Court of Mrs. Anjana,

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CRM-M-13486-2023 10 2024:PHHC:041985 Additional Sessions Judge, Moga, then his son Inderjit Singh @ Landa also met to him and both of them executed the plan for taking poppy husk. Inderjit Singh also informed him that time Buta Singh son of Gurbachan Singh, Karamjit Singh @ Karma son of Kuldip Singh residents of Daulewala and Mangal Singh son of Hansa Singh r/o Mander and 4- 5 other persons were also accompanied with him and all of them have to take the poppy husk together. Pippal Singh further disclosed that he directed his son to go to Nimach or Mansaur situated in MP State and after disclosing the name of Pippal Singh they can bring the poppy husk. Pippal Singh further disclosed that he had purchased the property under neath of godown from one Karam Chand resident of Dharamkot @ Rs.85000/- per Marla on the name of petitioner Sukhchain Singh, who is his close relative and after that he had conducted godown there."

A perusal of the above would show that even as per the

disclosure statement of the co-accused, it has been stated that it is the said

co-accused who purchased the property under neath the godown from one

Karam Chand resident of Dharamkot @ Rs.85,000/- per marla in the name

of the petitioner Sukhchain Singh, who was his close relative and after that

the co-accused had constructed the godown therein. It is the argument of

learned counsel for the petitioner that the said godown was neither

constructed by the petitioner nor was being used by the petitioner and no

recovery has been even effected from the said godown, nor any recovery has

been effected from the person of the petitioner and thus, it cannot be said

that the petitioner was in conscious possession of the alleged contraband. It

is not disputed that several co-accused of the petitioner including Karamjeet

Singh @ Karamjit Singh, Gurjinder Singh @ Motu, Inderjit Singh,

Lakhwinder Singh @ Kaku, Arasal Singh @ Rasal Singh @ Nanu and

Jagraj Singh have been granted anticipatory bail by the Coordinate Bench of

this Court. The arguments raised by learned counsel for the petitioner raise

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several debatable issues which would be finally adjudicated during the

course of trial but the said arguments make a strong prima facie case in

favour of the petitioner at this stage.

15. Accordingly, the petition is allowed and the petitioner is

directed to be released on regular bail on his furnishing bail/surety bonds to

the satisfaction of the concerned trial Court/Duty Magistrate and subject to

him not being required in any other case. The petitioner shall also abide by

the following conditions:-

i). The petitioner will not tamper with the evidence during

the trial.

ii) The petitioner will not pressurize / intimidate the

prosecution witness(s).

iii). The petitioner will appear before the trial Court on the

date fixed, unless personal presence is exempted.

iv). The petitioner shall not commit an offence similar to the

offence of which he is accused of, or for commission of

which they are suspected.

v). The petitioner shall not directly or indirectly make any

inducement, threat or promise to any person acquainted

with the facts of the case so as to dissuade him from

disclosing such facts to the Court or to any police officer

or tamper with the evidence.

16. In case of breach of any of the above conditions, the

prosecution shall be at liberty to move an application for cancellation of

bail, before this Court.

17. Nothing stated above shall be construed as a final expression of

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opinion on the merits of the case and the trial would proceed independently

of the observations made in the present case which are only for the purpose

of adjudicating the present bail petition.

                                                    (VIKAS BAHL)
                                                       JUDGE
March 22, 2024
Davinder Kumar

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




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