Punjab-Haryana High Court
Dilawar Singh vs State Of Punjab on 18 March, 2025
Author: Anoop Chitkara
Bench: Anoop Chitkara
Neutral Citation No:=2025:PHHC:036905
CRM-M-2972-2025
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CRM-M-2972-2025
Reserved on: 06.03.2025
Pronounced on: 18.03.2025
Dilawar Singh ...Petitioner
Versus
State of Punjab ...Respondent
CORAM: HON'BLE MR. JUSTICE ANOOP CHITKARA
Present: Mr. Kanwar Pal Singh, Advocate for
Mr. Vishal Nehra, Advocate, for the petitioner.
Mr. Akshay Kumar, AAG, Punjab.
****
ANOOP CHITKARA, J.
FIR No. Dated Police Station Sections
80 17.05.2018 City Hoshiarpur, 22 of NDPS Act and Section 52-A
Distt. Hoshiarpur of Prisons Act, 1984
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. In paragraph 20 of the bail petition, the accused declares that he has no criminal
antecedents.
3. The facts and allegations are taken from the status report filed by the State. The
petitioner was in custody at Central Jail, Hoshiarpur. On 17.05.2018, Head Warder Mani
Ram conducted personal search of the petitioner and during the personal search, a mobile
phone make Nokia of black colour along with its battery and sim, another mobile phone
(touch screen) of Samsung company alongwith battery without sim card and a white
coloured polythene containing 189 intoxicant tablets were recovered from him. The
petitioner disclosed that he has to handover these articles to under trial Amandeep, who is
lodged in barrack No.2.
4. The petitioner's counsel refers to the bail petition. It would be relevant to refer to
para 4, which reads as follows:
"4. That the petitioner has been falsely implicated in the present case. The
petitioner is innocent and has not committed any offence whatsoever. The
petitioner has been victimized on account of his honesty and sincerity. The
petitioner had refused to participate with the jail officials in giving favours
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to the gangsters lodged in the jail for exchange of money. As a result of his
honesty towards his service, the petitioner has been made a victim of the
conspiracy between the jail mafia and the corrupt jail officials engaged in
supplying facilities to the gangsters in exchange of money."
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 his family.
6. The State's counsel opposes bail and refers to the status report.
7. It would be appropriate to refer to the following portions of the reply, which read
as follows:
"ROLE OF THE PETITIONER:
6. That it is submitted that on 17.05.2018, at noon time, the petitioner was
posted in the jail. At about 2.00 PM, Head Warder Mani Ram conducted
personal search of the petitioner and during the personal search of the
petitioner, a mobile phone Make Nokia of black colour alongwith its
battery and Sim was recovered from the left side under his dress under his
Belt, and from the right side under his dress and belt, another mobile
phone (Touch screen) of Samsung Company alongwith battery without Sim
card. Thereafter, when his turban was searched, then, a white coloured
polythene containing 189 intoxicant tablets were recovered. The petitioner
disclosed that he has to handover these articles to under trail Amandeep
S/o Om Parkash who is lodged in Barrack No.2.
EVIDENCE AGAINST THE PETITIONER
7. That it is submitted that the present case was registered against the
petitioner on the basis of a letter No.1171 ASW dated 17.05.2018. During
the personal search recovery was effected from the petitioner in the
Central Jail, Hoshiarpur and the recovery memo was prepared and FSL
report of the recovery was received and as per FSL report recovery falls in
category of commercial quantity."
REASONING:
8. As per FSL report, salt of recovered contraband is Buprenorphine Hydrochloride
and total weight is 21.357 grams. 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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9. 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.
10. 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.
11. 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
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
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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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.
12. 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. 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.
13. 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.
14. As per the custody certificate dated 04.03.2025, the petitioner's custody is ten
months and thirteen days, which cannot be considered prolonged.
15. 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
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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 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 matter and conclude the proceedings as early as possible
and preferably within six months from the receipt of this order.
16. 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
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.
17. 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.
18. The petitioner's custody of around ten and half months cannot be termed
prolonged, given the minimum sentence prescribed for the offense.
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19. Any observation made hereinabove is neither an expression of opinion on the
case's merits nor shall the trial Court advert to these comments.
20. Petition dismissed. All pending applications, if any, stand disposed of.
(ANOOP CHITKARA)
JUDGE
18.03.2025
Jyoti-II
Whether speaking/reasoned: Yes
Whether reportable: No.
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