Punjab-Haryana High Court
Nishan Singh Alias Shana vs State Of Punjab on 24 September, 2024
Author: Jasgurpreet Singh Puri
Bench: Jasgurpreet Singh Puri
Neutral Citation No:=2024:PHHC:126289
CRM-M-60361-2023 with
CRM-M-12476-2024 -1-
202
IN THE HIGH COURT OF PUNJAB & HARYANA
AT CHANDIGARH
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CRM-M-60361-2023
Date of Decision: 24.09.2024
Nishan Singh alias Shana ..... Petitioner
Versus
State of Punjab ..... Respondent
CRM-M-12476-2024
Gurdev Singh ..... Petitioner
Versus
State of Punjab ..... Respondent
CORAM: HON'BLE MR. JUSTICE JASGURPREET SINGH PURI
Present: Mr. Ruhani Chadha, Advocate,
for the petitioner in CRM-M-60361-2023.
Mr. Arshdeep Singh Brar, Advocate
for the petitioner in CRM-M-12476-2024.
Mr. Rajiv Verma, DAG, Punjab.
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JASGURPREET SINGH PURI, J. (ORAL)
1. Both the petitions have been filed under Section 439 of the
Code of Criminal Procedure for grant of regular bail to the petitioners and
are being taken up together for final disposal with the consent of the learned
counsels for the parties, since they arise out of the same FIR bearing No.116
dated 08.08.2022, under Sections 22 of the NDPS Act (Sections 25 & 29
NDPS Act added later on), registered at Police Station Kot Isse Khan,
District Moga.
2. As per the FIR, when the police party was patrolling in a
Government vehicle and were in search of bad and suspicious elements in a
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village, then an information was received by them through a secret informer
with regard to one of the petitioners, namely, Nishan Singh @ Shana that he
is coming with some intoxicant tablets and in case he is apprehended, the
aforesaid intoxicant tablets can be recovered from him. Acting upon the
aforesaid information as per the FIR, a report under Section 42 of the NDPS
Act was sent to the Police Station Kot Isse Khan and FIR was registered
under Section 22 of the NDPS Act.
3. Learned counsel appearing on behalf of the petitioner, namely,
Nishan Singh @ Shana in CRM-M-60361-2023 submitted that the petitioner
is in custody from 08.08.2022 which is more than 2 years and 1 month and
qua him the charges were framed on 14.09.2023 and more than one year has
elapsed but till date only one witness, who is the Investigating Officer, has
been examined and none of the other material witnesses, who are stated to
be recovery witnesses or a part of the police party have been examined till
date. He further submitted that when the aforesaid witness i.e. I.O. had
deposed before the Court then in his cross-examination he made totally
inconsistent statement and rather stated that there was no report recorded
under Section 42 of the NDPS Act. He submitted that the entire FIR was
fabricated and concocted story in this regard and also submitted that a
perusal of the FIR would show that on the basis of a secret information that
the petitioner-Nishan Singh @ Shana is coming with some intoxicant tablets
that FIR was registered under Section 22 of the NDPS Act. He further
submitted that it is not understandable as to how the provisions of Section 22
of the NDPS Act have been invoked by filing the FIR even prior to any
recovery being made and without even knowing as to what recovery could
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have been made and therefore, on the face of it, it is a fabricated FIR with a
concocted story by the police to falsely implicate the petitioner. He further
submitted that the petitioner is not involved in any other case under the
NDPS Act but is involved in one case i.e. under Sections 341, 452, 427, 323,
148, 149, 120-B of the IPC and it was because of the personal rivalry with
the opposite party of that FIR, the petitioner has been falsely implicated by
the police in the present case. He submitted that even otherwise also,
considering the long custody of the petitioner, he may be considered for
grant of regular bail. He also submitted that so far as the alleged recovery
from the petitioner which is stated to be 220 tablets of Etizolam carrying
weight of 23.76 grams is concerned, although it falls in the category of
commercial quantity under the NDPS Act but the bar contained under
Section 37 of the NDPS will not apply to the petitioner in view of the
aforesaid facts and circumstances where on the face of it, it is clear that the
petitioner has been falsely implicated. He further submitted that even as per
the recovery memo of intoxicant tablets which has been attached as
Annexure P-2, it has been so stated that the aforesaid tablets were thrown by
the petitioner on the ground and got scattered and therefore, even otherwise
also there was no recovery from the conscious possession of the petitioner
and on that ground as well, the bar contained under Section 37 of the NDPS
Act will not apply to the petitioner.
4. Learned counsel appearing on behalf of the petitioner-Gurdev
Singh in CRM-M-12476-2024 submitted that he is in custody from
12.12.2023, which is more than 9 months and he was nominated on the basis
of the disclosure statement of other petitioner, namely, Nishan Singh @
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Shana. He further submitted that the reason as to why the petitioner has been
falsely implicated in the present case was that he was earlier involved in one
case under the NDPS Act and one case under the POCSO Act and the
aforesaid case of NDPS Act was also registered in the same police station
i.e. Kot Isse Khan and there is no material available with the police to
connect the petitioner with the present offence except for the disclosure
statement of the aforesaid co-accused which is not admissible in evidence
and also referred to a judgment of Hon'ble Supreme Court passed in "Tofan
Singh Vs. State of Tamil Nadu", 2021(4) SCC 1 in this regard. He
submitted that in view of the aforesaid facts and circumstances, since even
as per the police, no recovery was effected from the petitioner in the present
case, the bar contained under Section 37 of the NDPS Act will not apply to
the present petitioner as well and therefore, he may be considered for grant
of regular bail.
5. On the other hand, Mr. Rajiv Verma, learned Deputy Advocate
General, Punjab on instructions from ASI Harjinder Singh submitted that so
far as the custody of both the petitioners is concerned, the same is correct
and it is also correct that qua the petitioner, namely, Nishan Singh @ Shana,
the charges were framed on 14.09.2023 and the charges qua the petitioner-
Gurdev Singh were framed on 15.02.2024. He has however submitted that it
was on the basis of a secret information by the police, when they had laid
down a naka bandi that the petitioner-Nishan Singh @ Shana was
apprehended along with 220 tablets of Etizolam, which falls in the category
of commercial quantity under the NDPS Act and therefore, the bar contained
under Section 37 of the NDPS Act will apply in the present case.
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6. I have heard the learned counsels for the parties.
7. It is a case where the custody of the petitioner, namely, Nishan
Singh @ Shana is more than 2 years and 1 month and the custody of the
petitioner, namely, Gurdev Singh is more than 9 months. A perusal of the
FIR would show that it has been so recorded that a report under Section 42
of the NDPS Act was sent to the Police Station Kot Isse Khan whereas
during the course of arguments the learned counsels for the petitioners, have
referred to the cross-examination of the I.O., who is the only witness who
has been examined till date, in which, he had given inconsistent statement
and even he has so deposed before the trial Court by stating that the
aforesaid report is not available in the judicial file. Apart from the above, a
perusal of the FIR would further show that it is so stated that a secret
information was received by the police with regard to the petitioner-Nishan
Singh @ Shana and an FIR was registered under Section 22 of the NDPS
Act after sending a report to the Police Station Kot Isse Khan. It is not
understandable as to how the police came to know in advance as to what
would be the nature of the salt of the tablets which were to be recovered
from the petitioner-Nishan Singh @ Shana in future. The argument raised by
the learned counsel for the petitioner-Nishan Singh @ Shana is that the
petitioner has been falsely implicated by concocting story made in the FIR
cannot be ruled out at this stage. This Court makes it very clear that the
aforesaid observation is only for the purpose of considering the prayer of the
petitioners for grant of regular bail and it cannot be in any circumstance,
construed to have any bearing on the trial of the case. So far as the
petitioner-Gurdev Singh is concerned, he was nominated on the basis of the
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disclosure statement of the other petitioner, namely, Nishan Singh @ Shana
and there is no recovery effected from the petitioner-Gurdev Singh. So far as
the alleged recovery effected from the petitioner-Nishan Singh @ Shana is
concerned, as per the FIR, it was effected from the ground and not from the
conscious possession of the petitioner even though the allegations were that
the petitioner-Nishan Singh @ Shana had thrown away the packets on the
ground.
8. The charges qua the petitioner-Nishan Singh @ Shana were
framed on 14.09.2023 and the charges qua the petitioner-Gurdev Singh were
framed on 15.02.2024 and as per the learned counsel for the parties, only
one witness i.e. I.O. has been examined but none of the witnesses, who are
the recovery witnesses or the part of the police party has been examined till
date. Even the I.O., who has been examined, as per the learned counsels for
the petitioners has given an inconsistent statement before the trial Court in
his cross-examination. The custody of the petitioner-Nishan Singh @ Shana
from whom the recovery was effected is more than 2 years and 1 month and
the custody of the petitioner-Gurdev Singh, who was nominated on the basis
of the disclosure statement of the other petitioner-Nishan Singh @ Shana is
more than 9 months and no recovery has been effected from him. Therefore,
this Court is of the considered view that the bar contained under Section 37
of the NDPS Act will not apply to both the petitioners in the light of the
aforesaid peculiar facts and circumstances of the present case.
9. In view of the aforesaid facts and circumstances, both the
petitions are allowed and the petitioners, namely, Nishan Singh @ Shana
and Gurdev Singh are ordered to be released on regular bail on furnishing
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bail bonds/surety bonds to the satisfaction of the trial Court/Duty Magistrate
concerned, if not required in any other case.
10. However, anything observed hereinabove shall not be treated as
an expression of opinion on merits of the case and is only meant for the
purpose of decision of present petition.
24.09.2024 (JASGURPREET SINGH PURI)
Bhumika JUDGE
1. Whether speaking/reasoned: Yes/No
2. Whether reportable: Yes/No
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