Punjab-Haryana High Court
Gurdeep Singh Alias Deepa vs State Of Punjab on 20 November, 2024
Author: Anoop Chitkara
Bench: Anoop Chitkara
Neutral Citation No:=2024:PHHC:151478
CRM-M-46596-2024 -1-
IN THE HIGH COURT OF PU NJAB AND HARYANA
AT CHANDIGARH
CRM-M No.46596 of 2024
Reserved on: 06.11.2024
Pronounced on: 20.11.2024
Gurdeep Singh @ Deepa ...Petitioner
Versus
State of Punjab ...Respondent
CORAM: HON'BLE MR. JUSTICE ANOOP CHITKARA
Present: Ms. Manpreet Ghumman, Advocate for
Mr. Imaan Singh Khara, Advocate
for the petitioner.
Mr. Sukhdev Singh, AAG, Punjab.
****
ANOOP CHITKARA, J.
FIR No. Dated Police Station Sections
01 01.01.2024 Talwandi Sabo, 15(C) of NDPS Act, 1985
(section 29 of NDPS Act, 1985
District Bathinda
added later on)
1. The petitioner incarcerated in the FIR captioned above had come up before this
Court under Section 483 of Bharatiya Nagarik Suraksha Sanhita, 2023, [BNSS], seeking
regular bail.
2. Per paragraph 17 of the bail application and custody certificate dated
05.11.2024, the accused has the following criminal antecedents:
Sr. FIR No. Date Offenses Police Station
No.
1. 61 11.06.2016 Under section 61/1/14 of Excise SDR Mansa
Act
2. 95 30.12.2014 Under section 61/1/14 of Excise Jaurkian
Act
3. 14 22.02.2019 Under sections 379B, 323, 34 IPC Balianwali,
and 25, 54, 59 of Arms Act and District Bathinda
22, 61, 85 of NDPS Act
4. 197 01.08.2017 Section 61 of Excise Act Talwandi Sabo
5. 270 01.11.2022 Sections 341, 323, 148 IPC Sadar Mansa,
District Mansa
6. 135 13.05.2019 Sections 379B, 34 of IPC Talwandi Sabo,
District Bathinda
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3. The facts and allegations are taken from the reply filed by the State. On Jan 01,
2024, based on prior information, the Police seized 300 kgs of poppy straw from the
house of the main accused Lovepreet Singh. The Investigator claims to have complied
with all the statutory requirements of the NDPS Act, 1985, and CrPC, 1973. The
petitioner's interrogation found the petitioner as its seller.
4. The petitioner's counsel refers to bail petition and specifically to paras 3 to 6,
which reads as follows:
"3. That it is pertinent to mention here that the present petitioner was
admittedly not present at the time and place of the alleged recovery of
contraband from the house of above mentioned co-accused Lovedeep Sing
@ Labhi.
4. That it is important to mention here that the petitioner has not relation or
concern with the other co-accused implicated in the present case FIR
namely Lovedeep Singh @ Labhi and Manpreet Singh @ Fauji and also he
has no concern with the alleged recovery of contraband from the house of
co-accused Lovedeep Singh @ Labhi and further at the time of arrest of the
petitioner, nothing incriminating has been recovered from him.
5. That upon the perusal of the challan presented in the present case by the
prosecuting agency there is nothing except the aforementioned disclosure
statement of the co-accused Lovedeep Singh @ Labhi to link the present
petitioner with the alleged recovery which is not a sufficient piece of
evidence to bring home the charge under the NDPS Act against the present
petitioner as per the law of the land and also reiterated by the Hon'ble
Supreme Court of India. There are no call details or anything of such nature
to link the present petitioner with the other co-accused namely Lovedeep
Singh @ Labhi and with the alleged recovery.
6. That there is no evidence on file regarding any conspiracy by the present
petitioner with other co-accused namely Lovedeep Singh @ Labhi and
Manpreet Singh @ Fauji and also he never instigated or abetted the above
said co-accused for the commission of the alleged offence and also the
petitioner never sold or supplied the alleged contraband to co-accused
Lovedeep Singh @ Labhi and hence no offence under Section 15(c) or
Section 29 of NDPS Act is made out against the petitioner."
5. The petitioner's counsel prays for bail by imposing any stringent conditions and
contends that further pre-trial incarceration would cause an irreversible injustice to the
petitioner and their family.
6. The quantity allegedly involved in this case is commercial. Given this, the rigors
of S. 37 of the NDPS Act apply in the present case. The petitioner must satisfy the twin
conditions put in place by the Legislature under Section 37 of the NDPS Act.
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7. Section 371 of the NDPS Act mandates under sub-section (1) (b) of section 37
that no person accused of an offense punishable for offenses 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 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 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 offense punishable under
the NDPS Act for possessing a commercial quantity of contraband only after recording
reasonable satisfaction of its rigors.
8. The State's Counsel argues 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.
9. 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
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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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.
10. The State's counsel opposes bail and refers to para 21 of the reply, which reads as
follows:
"21. That during investigation, the investigating officer had taken the record
pertaining to ownership of above said Truck (Tralla Ghoda) make LPS 4018 TC
bearing Registration No.PB-19H-9613 from concerned registering authority and
as per said record, the accused Manpreet Singh alias Fauzi is registered owner
of the same and in which, he brought the poppy husk in commercial quantity to
smuggle illegally. The investigating officer had also taken CDR/CAF of
concerned phone numbers of all accused persons including the
accused/petitioner Gurdeep Singh alias Deepa and as per the same,
accused/petitioner Gurdeep Singh alias Deepa and other accused persons i.e.
Manpreet Singh alias Fauzi and Lovedeep Singh alias Labbi had been constantly
in touch with each other and used to talk over phone. Consequently, the
investigating officer had enhanced offence under section 25/61/85 NDPS Act in
the present case vide DDR No.18 Dated 09.09.2024 registered at Police Station
Talwandi Sabo, District Bathinda."
11. The petitioner's arguments did not point toward any material contradictions. It
was a case of chance recovery. As such, S. 42 would not apply initially, and recovery was
not from the person. As such, S. 50 would also not attract. Non-examination of
independent witnesses is not illegal, and its outcome depends upon the nature of
evidence tendered in the examination in chief and its cross-examination.
12. The submissions made above and 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 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. The
investigation reveals sufficient prima facie evidence to connect the petitioner with the
crime; thus, the petitioner fails to make out a case for bail. Any detailed discussions
about the evidence may prejudice the case of the petitioner, the State, or the other
accused.
13. Per the custody certificate, the petitioner's custody is 10 months, which cannot
be considered prolonged.
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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 prosecution, 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 investigation, it was found that the motor vehicle was
recorded in the name of Md. Nizam Uddin who had executed a
sale letter 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 question 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 after they had undergone custody to the tune of about a
year. Questioning grant of relief to said accused, the instant
appeals have been preferred.
[7]. What emerges from the record is that large quantity 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 question.
[8]. The answer to said question could be the statement recorded
of Md. Nizam Uddin. The statement of Md. Jakir Hussain recorded
under Section 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 Section 67 has been pronounced upon
by this Court in Tofan Singh v. State of Tamil Nadu . In State by
(NCB) Bengaluru v. Pallulabid Ahmad Arimutta, 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 matter stands on a different footing.
In our considered view, in the face of the mandate of Section 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 takenin 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 matter 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,
The petitioners are in custody since 28th May, 2022 for alleged
commission of alleged offence under Section 20(b)(ii)(c) of the
Narcotic Drugs and Psychotropic Substances Act, 1985. As per the
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FIR allegation, 125.3 kg. of "Ganja" was recovered from the
petitioners.
[3]. It is not in dispute that the trial has commenced and that
three prosecution witnesses have been examined till date.
[4]. Learned counsel for the petitioners submits that the third
prosecution witness was examined as far back as on 28th January,
2024 and since then, no other prosecution witness has been
examined. There is, however, no such averment in the petition.
[5]. Learned counsel appearing for the respondent submits that
every endeavor shall be made on behalf of the prosecution 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 petitioners shall be at liberty to renew their prayer
for bail before the trial court.
16. A perusal of the bail petition and the documents attached primafacie points
towards the petitioner's involvement and does not make out a case for bail. The impact
of crime would also not justify bail. Any further discussions will likely prejudice the
petitioner; this court refrains from doing so.
17. Any observation made hereinabove is neither an expression of opinion on the
case's merits nor shall the trial Court advert to these comments.
18. Petition dismissed. All pending applications, if any, stand disposed of.
(ANOOP CHITKARA)
JUDGE
20.11.2024
Sonia Puri
Whether speaking/reasoned: Yes
Whether reportable: No.
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