Punjab-Haryana High Court
Joginder Singh vs State Of Punjab on 18 November, 2024
Author: Anoop Chitkara
Bench: Anoop Chitkara
Neutral Citation No:=2024:PHHC:149781
CRM-M-47375-2024
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CRM-M-47375-2024
Reserved on: 08.11.2024
Pronounced on: 18.11.2024
Joginder Singh ...Pe oner
Versus
State of Punjab ...Respondent
CORAM: HON'BLE MR. JUSTICE ANOOP CHITKARA
Present: Mr. Raman Kumar, Advocate
for the pe oner.
Mr. Jasjit Singh, DAG, Punjab.
****
ANOOP CHITKARA, J.
FIR No. Dated Police Sta1on Sec1ons
206 04.10.2023 Sidhwan Bet, District Ludhiana 15, 22, 29, 61, 85 of NDPS Act
1. The pe oner incarcerated in the FIR cap oned above had come up before this
Court under Sec on 483 of Bhara ya Nagarik Suraksha Sanhita, 2023, [BNSS], seeking
regular bail.
2. In paragraph 7 of the bail pe on, the accused declares that he has no criminal
antecedents. However, as para 12 of the status report/custody cer ficate, the accused
has the following criminal antecedents:
Sr. No. FIR No. Dated Offenses Police Sta1on
1. 116 14.05.2017 22, 25, 61, 85 of NDPS Act Sidhwan Bet
2. 27 27.07.2021 61-1-114 of Excise Act and 15, Sidhwan Bet
21, 22, 61, 85 of NDPS Act
3. The facts and allega ons are taken from the status report filed by the State. On
Oct 04, 2023, based on prior informa on, the Police seized 90 kgs of poppy husk from a
car driven by the pe oner in which another co-accused, Paramjit Singh @ Pamma, was
also siEng. The Inves gator claims to have complied with all the statutory requirements
of the NDPS Act, 1985, and BNSS, 2023.
4. The pe oner's counsel prays for bail by imposing any stringent condi ons and
contends that further pre-trial incarcera on would cause an irreversible injus ce to the
pe oner and his family.
1 of 6
Neutral Citation No:=2024:PHHC:149781
CRM-M-47375-2024
5. The State's counsel opposes bail and refers to the status report.
6. Dealing in 90 kgs of poppy husk/straw is a punishable offense under the NDPS
Act in the following terms:
Substance Name Poppy straw
Quan ty detained 90 Kg
Quan ty type Commercial
Drug Quan ty in % to upper limit
180.00%
of Intermediate
Specified as small & Commercial in S.2(viia) & 2(xxiiia) NDPS Act, 1985
No fica on No S.O.1055(E)
dated 10/19/2001
Common Name
(Name of Narco c Drug and
Psychotropic Substance Poppy straw
(Interna onal non-proprietary
name (INN)
Other non-proprietary name ******
Chemical Name ******
Small Quan ty 1000 Gram (i.e. equivalent to 1 Kg)
Commercial Quan ty 50000 Gram (i.e. equivalent to 50 Kg)
Declared as punishable under NDPS Act and as per schedule defined in S.2(xi) & 2(xxiii)
NDPS Act, 1985
No fica on No S.15 & S.2(xviii) NDPS Act, S.O.821(E)
dated 11/14/1985
Sr. No. S.2(xviii)
Common Name
(Name of Narco c Drug and
Psychotropic Substance ******
(Interna onal non-proprietary
name (INN)
Other non-proprietary name ******
Chemical Name S.2(xviii) "poppy straw" means all parts (except the
seeds) of the opium poppy aQer harves ng whether
in their original form or cut, crushed or powdered
and whether or not juice has been extracted
therefrom; S. 2(viiib)] "illicit traffic", in rela on to
narco c drugs and psychotropic substances, means--
(i) cul va ng any coca plant or gathering any por on
of coca plant;
(ii) cul va ng the opium poppy or any cannabis plant;
(iii) engaging in the produc on, manufacture,
possession, sale, purchase, transporta on,
warehousing, concealment, use or consump on,
import inter-State, export inter-State, import into
India, export from India or transhipment, of narco c
drugs or psychotropic substances; S.2 (xvii) "opium
2 of 6
Neutral Citation No:=2024:PHHC:149781
CRM-M-47375-2024
poppy" means--
(a) the plant of the species Papaver somniferum L;
and
(b) the plant of any other species of Papaver from
which opium or any phenanthrene alkaloid can be
extracted and which the Central Government may, by
no fica on in the Official GazeUe, declare to be
opium poppy for the purposes of this Act;
S2. (xviii) "poppy straw" means all parts (except the
seeds) of the opium poppy aQer harves ng whether
in their original form or cut, crushed or powdered
and whether or not juice has been extracted
therefrom;
7. The quan ty allegedly involved in this case is commercial. Given this, the rigors
of S. 37 of the NDPS Act apply in the present case. The pe oner must sa sfy the twin
condi ons put in place by the Legislature under Sec on 37 of the NDPS Act.
8. Sec on 371 of the NDPS Act mandates under sub-sec on (1) (b) of sec on 37
that no person accused of an offense punishable for offenses involving commercial
quan ty shall be released on bail unless- (i) the Public Prosecutor has been given an
opportunity to oppose the applica on of release, and (ii) where the Public Prosecutor
opposes the applica on, the Court is sa sfied that there are reasonable grounds for
believing that accused is not guilty of such offense and is not likely to commit any
offense while on bail. Thus, the rigors of S. 37 of the NDPS Act apply in the present case,
and the burden is on the pe oner to sa sfy the twin condi ons put in place by the
Legislature under Sec on 37 of the NDPS Act. Given the legisla ve mandate of S. 37 of
the NDPS Act, the Court can release a person accused of an offense punishable under
the NDPS Act for possessing a commercial quan ty of contraband only aQer recording
reasonable sa sfac on of its rigors.
9. The State's Counsel argues that a plain reading of Sec on 37 reveals that the
legislature intends to make the law stringent to curb the drug menace. It is further to be
no ced that the provisions are couched in nega ve language, meaning that to grant
bail, the Court needs to record a finding that there are reasonable grounds for believing
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.
3 of 6
Neutral Citation No:=2024:PHHC:149781
CRM-M-47375-2024
that the pe oner is not guilty of the offense. The burden of proof is also on the
pe oner to sa sfy the Court about his non-involvement in the case. While interpre ng
the provisions of Sec on 37 of the NDPS Act, the Court must be guided by the objec ve
sought to be achieved by puEng these stringent condi ons.
10. Sa sfying the feUers of S. 37 of the NDPS Act is candling the infer le eggs. The
stringent condi ons of sec on 37 placed in the statute by the legislature do not create a
bar for bail for specified categories, including the commercial quan ty; 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 pe ons under general
penal statutes like IPC. Thus, both the twin condi ons need to be sa sfied before a
person accused of possessing a commercial quan ty of drugs or psychotropic substance
is to be released on bail. The first condi on is to provide an opportunity to the Public
Prosecutor, enabling them to take a stand on the bail applica on. The second s pula on
is that the Court must be sa sfied 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 condi ons is not met, the ban on gran ng bail operates. The
expression "reasonable grounds" means something more than prima facie grounds. It
contemplates substan al probable causes for believing the accused is not guilty of the
alleged offense. Even on fulfilling one of the condi ons, the reasonable grounds for
believing that the accused is not guilty of such an offense, the Court s ll cannot give a
finding on the assurance that the accused is not likely to commit any such crime again.
11. The pe oner's arguments did not point toward any material contradic ons. It
was a case of chance recovery. As such, S. 42 would not apply ini ally, and recovery was
not from the person. As such, S. 50 would also not aUract. Non-examina on of
independent witnesses is not illegal, and its outcome depends upon the nature of
evidence tendered in the examina on in chief and its cross-examina on.
12. The submissions made above and the grounds in the bail pe on do not shiQ the
burden the legislature places on the accused under S. 37 of the NDPS Act. The pe oner
has not stated anything in the bail pe on to discharge the burden put by the stringent
condi ons placed in the statute by the legislature under sec on 37 of the NDPS Act. The
inves ga on reveals sufficient prima facie evidence to connect the pe oner with the
crime; thus, the pe oner fails to make out a case for bail. Any detailed discussions
about the evidence may prejudice the case of the pe oner, the State, or the other
accused.
13. As per custody cer ficate dated 06.11.2024, the pe oner's custody is one year
4 of 6
Neutral Citation No:=2024:PHHC:149781
CRM-M-47375-2024
and one month, which cannot be considered prolonged.
14. In Union of India (NCB) v. Khalil Uddin, decided on 21 Oct 2022, 2022 SCC OnLine
SC 2109, Hon'ble Supreme Court holds,
[4]. According to the prosecu on, contraband material weighing
about 13 kgs. of morphine was found in a motor vehicle which
was driven by co-accused named Md. Jakir Hussain. During the
course of inves ga on, it was found that the motor vehicle was
recorded in the name of Md. Nizam Uddin who had executed a
sale leUer and handed over the custody of the vehicle to accused
Md. Abdul Hai and that accused Md. Jakir Hussain was the driver
employed by accused Md. Abdul Hai and that contraband material
in ques on was to be handed over to accused-Khalil Uddin, an
owner of a tea shop.
[5]. The High Court by its order which is presently under
challenge, directed release of both the accused as stated above
on bail aQer they had undergone custody to the tune of about a
year. Ques oning grant of relief to said accused, the instant
appeals have been preferred.
[7]. What emerges from the record is that large quan ty of
contraband weighing about 13 kgs of morphine was found in a car
which was driven by Md. Jakir Hussain. Whether the role played
by said Md. Jakir Hussain could get connected with both the
accused is a ques on.
[8]. The answer to said ques on could be the statement recorded
of Md. Nizam Uddin. The statement of Md. Jakir Hussain recorded
under Sec on 67 of the Act has also named his owner accused
Abdul Hai. We are conscious of the fact that the validity and scope
of such statements under Sec on 67 has been pronounced upon
by this Court in Tofan Singh v. State of Tamil Nadu . In State by
(NCB) Bengaluru v. Pallulabid Ahmad Arimu/a , the rigour of law
lay down by this Court in Tofan Singh was held to be applicable
even at the stage of grant of bail.
[9]. However, going by the circumstances on record, at this stage,
on the strength of the statement of Md. Nizam Uddin, though
allegedly retracted later, the maUer stands on a different foo ng.
In our considered view, in the face of the mandate of Sec on 37
of the Act, the High Court could not and ought not to have
released the accused on bail. We, therefore, allow these appeals,
set aside the view taken by the High Court and direct that both
the appellants be taken in custody forthwith.
[10]. We have been given to understand that the charge-sheet has
been filed. In the circumstances, we direct the Trial Court to take
up the maUer and conclude the proceedings as early as possible
and preferably within six months from the receipt of this order.
15. In Narayan Takri v. State of Odisha, decided on 10 Sep 2024, SLP (Crl.) 8198-
2024, Hon'ble Supreme Court holds,
5 of 6
Neutral Citation No:=2024:PHHC:149781
CRM-M-47375-2024
The pe oners are in custody since 28th May, 2022 for alleged
commission of alleged offence under Sec on 20(b)(ii)(c) of the
Narco c Drugs and Psychotropic Substances Act, 1985. As per the
FIR allega on, 125.3 kg. of "Ganja" was recovered from the
pe oners.
[3]. It is not in dispute that the trial has commenced and that
three prosecu on witnesses have been examined ll date.
[4]. Learned counsel for the pe oners submits that the third
prosecu on witness was examined as far back as on 28th January,
2024 and since then, no other prosecu on witness has been
examined. There is, however, no such averment in the pe on.
[5]. Learned counsel appearing for the respondent submits that
every endeavor shall be made on behalf of the prosecu on to
have all the witnesses examined by the end of this year.
[6]. The trial court is encouraged to expedite the trial and give its
decision as early as possible, in accordance with law.
[7]. We, however, do not see any reason to interfere the
impugned judgment and order at this stage; however, it is
clarified that in the event the trial is not completed by the end of
this year, the pe oners shall be at liberty to renew their prayer
for bail before the trial court.
16. The pe oner's custody of around one year and one month cannot be termed
prolonged, given the minimum sentence prescribed for the offense, which is ten years,
coupled with the pe oner's criminal history.
17. Any observa on made hereinabove is neither an expression of opinion on the
case's merits nor shall the trial Court advert to these comments.
18. Pe11on dismissed. All pending applica ons, if any, stand disposed of.
(ANOOP CHITKARA)
JUDGE
18.11.2024
Jyo -II
Whether speaking/reasoned: Yes
Whether reportable: No.
6 of 6
