Punjab-Haryana High Court
Gurdeep Singh vs State Of Punjab on 25 October, 2024
Author: Anoop Chitkara
Bench: Anoop Chitkara
Neutral Citation No:=2024:PHHC:140648
CRM-M-22714-2024
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CRM-M-22714-2024
Reserved on: 16.10.2024
Pronounced on: 25.10.2024
Gurdeep Singh ...Pe oner
Versus
State of Punjab ...Respondent
CORAM: HON'BLE MR. JUSTICE ANOOP CHITKARA
Present: Ms. Manjot Kaur, Advocate for the pe oner.
Mr. Jasjit Singh, DAG, Punjab.
****
ANOOP CHITKARA, J.
FIR No. Dated Police Sta0on Sec0ons 08 25.01.2024 Urban Estate, Dis,. Pa ala 18/25/27/29/61/85 of NDPS Act
1. The pe oner incarcerated in the FIR cap oned above had come up before this Court under Sec on 439 CrPC, seeking regular bail.
2. As per paragraph 14 of the bail pe on and as per paragraph 8 of the status report, the accused has the following criminal antecedents:
Sr. No. FIR No. Dated Offenses Police Sta0on 1. 118 03.11.2011 15, 18, 61, 85 of NDPS Act Urban Estate Pa ala 2. 128 07.09.1999 279, 336, 427 IPC Chandimandir
3. The facts and allega ons are taken from the status report filed by the State. On Jan 25, 2024, based on prior informa on, the Police seized 2.6 kgs of opium from the possession of the co-accused Manjit Singh and Charanjit Singh. The Inves gator claims to have complied with all the statutory requirements of the NDPS Act, 1985, and CrPC, 1973. During their custodial interroga on, they named the pe oner as the person for whom they were transpor ng the drug. They also gave details of various previous phone calls and financial transac ons regarding the purchase of opium by the pe oner.
4. The pe oner's counsel refers to bail pe on and specifically to para 6, which reads as follows:
11 of 7 ::: Downloaded on - 31-10-2024 03:02:19 ::: Neutral Citation No:=2024:PHHC:140648 CRM-M-22714-2024 "6. That the bare perusal of the FIR clearly shows that false and frivolous FIR has been lodged on the secret informa on. FIR is nothing else but only a concocted story and is an outcome of foxy mind of the Sub Inspector/complainant. The pe oner is totally innocent and has not commi"ed any offence, whatsoever, and has been falsely implicated in the above noted case for the reasons best known to the complainant/inves ga ng agency."
5. 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.
6. The State's counsel opposes bail and refers to para 10 of the status report, which reads as follows:
"10. That the inves ga on in present case is s ll under process and the police report i.e., challan under Sec on 173 of Criminal Procedure Code shall be presented in due course of me."
7. The pe oner's arguments did not point toward any material contradic ons. Recovery was not from the person, as such, S. 50 would also not a,ract. 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.
8. Dealing in 2.6 kgs of opium is a punishable offense under the NDPS Act in the following terms:
Substance Name "Opium"
Quan ty detained 2.6 Kg
Quan ty type Commercial
Drug Quan ty in % to upper limit
104.00%
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 Sr. No. 92 Common Name (Name of Narco c Drug and Psychotropic Substance Opium (Interna onal non-proprietary name (INN) Other non-proprietary name ****** Chemical Name And any prepara on containing opium Small Quan ty 25 Gram (i.e. equivalent to 0.025 Kg) Commercial Quan ty 2500 Gram (i.e. equivalent to 2.5 Kg) 2 2 of 7 ::: Downloaded on - 31-10-2024 03:02:19 ::: Neutral Citation No:=2024:PHHC:140648 CRM-M-22714-2024 0 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.18 & S.2(xv) NDPS Act, S.O.821(E) dated 11/14/1985 Sr. No. S.2(xv) Common Name (Name of Narco c Drug and Psychotropic Substance ****** (Interna onal non-proprietary name (INN) Other non-proprietary name ****** S.2(xv) "opium" means--
(a) the coagulated juice of the opium poppy; and
(b) any mixture, with or without any neutral material, of the coagulated juice of the opium poppy, but does not include any prepara on containing not more than 0.2 per cent. of morphine; S.2 (xvii) "opium 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 Gaze,e, declare to be opium poppy for the purposes of this Act;
Explana on.-- For the purposes of clauses (v) (vi), (xv) and (xvi) the Chemical Name percentages in the case of liquid prepara ons shall be calculated on the basis that a prepara on containing one per cent. of a substance means a prepara on in which one gram of substance, if solid, or one mililitre of substance, if liquid, is contained in every one hundred mililitre of the prepara on and so on in propor on for any greater or less percentage:
Provided that the Central Government may, having regard to the developments in the field of methods of calcula ng percentages in liquid prepara ons prescribed, by rules, any other basis which it may deem appropriate for such calcula on.
9. 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.3
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10. 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.
11. 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 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 puSng these stringent condi ons.
12. Sa sfying the fe,ers 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 1
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.4
4 of 7 ::: Downloaded on - 31-10-2024 03:02:19 ::: Neutral Citation No:=2024:PHHC:140648 CRM-M-22714-2024 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.
13. It shall be appropriate to refer to para 11 of the status report filed by the concerned DySP, which reads as follows:
"11. xxx xxx xxx A. The role of the Pe oner:
i. It is submi"ed that from the disclosure statements given by the accused/pe oner and his accomplices it has become very clear that the said accused/Pe oner is in the business of illicit trade of narco cs like Opium, Poppy Husk, Intoxica ng medicines etc. since a long me as is evident from the list of FIRs registered against him at various police sta ons as men oned in Para 8 above.
ii. That the accused Pe oner is the kingpin of the said interstate of gang of drug smugglers which has become clear from the mutually corrobora ng statements given by his said accomplices Manjit Singh and Charanjit Singh during their inves ga on by the police according to which the accomplices Manjit Singh and Charanjit Singh used to get Opium from another accomplice by the name of Badri who used to get it from Mansaur (Madhya Pradesh).
iii. That Badri used to supply huge quan es of Opium to the said accomplices Manjit Singh and Charanjit Singh who used to bring it to Punjab and deliver it to the said accused who used to pay them heAy amounts to the tune of Rs.80,000/ and more per consignment through cash as well as through bank.
iv. That the role of the accused/pe oner becomes very clear from the statement of his accomplices Manjit Singh during the inves ga on by the police on 27.01.2024, excerpts of which are produced below for the ready reference of this Hon'ble Court:
".....that on the same day Gurdeep Singh stayed at a hotel outside the railway sta on Kota and the next morning called me to reach that hotel whereat me and Charanjit Singh reached where a person was already present regarding whom Gurdeep Singh told 5 5 of 7 ::: Downloaded on - 31-10-2024 03:02:19 ::: Neutral Citation No:=2024:PHHC:140648 CRM-M-22714-2024 us that the said person was Badri who would get opium from Mansaur in M.P. and would deliver it to them in Kota and then you deliver it further. Then that person aAer handing over 2kgs of opium to Gurdeep Singh went away. Then me, Charanjit and Gurdeep started for Pa ala with that Opium in my car and aAer reaching near Ghanour, Gurdeep got the car stopped and went to nearby fields along with the said opium and returned aAer an hour and aAer giving us Rs. 60,000/- went back and we also returned back. Then approximately aAer 1½ months I got a what's app call from Gurdeep Singh telling me that the same person would meet us at Kota Railway Sta on and shall deliver 2 kgs of opium to me and that I should deliver it to him at Pa ala.
AAer receiving that Opium I informed Gurdeep who instructed me to reach near Park Hospital whereat Gurdeep was already wai ng for us on a motorcycle. We delivered him the said 2 kgs opium and Gurdeep transferred Rs.1,10,000/- in my SBI account no.61230525352 from different nos. through Paytm and told me that Rs.20,000/- was the earlier balance, Rs. 80,000/- were of the present consignment and Rs.10,00/- were regarding diesel expenses etc. Then again aAer approximately aAer 1½ months I got a what's app call from Gurdeep Singh telling me that the same person would meet us at Kota Railway Sta on and shall deliver 2 kgs of opium to me and that I should deliver it to him at Pa ala. That when me and Charanjit Singh were coming to Pa ala with the said 2 kgs of opium, Gurdeep told us to stop near Ghanour where he met us and aAer taking opium from us paid Rs.60,000/- in cash and the balance Rs.20,000/- were transferred to my account through Paytm. That now again Gurdeep That gave a what's app call on 23.01.2024 informing that the same person would meet me at Kota Railway Sta on on 24.01.2024 to deliver 2.500 kgs of opium and that I should deliver it to him at Pa ala. That when we were coming to Pa ala in my car no. HR05BJ9475 Verna Hyundai to deliver the said 2.500 kgs of opium to Gurdeep then Gurdeep informed us to reach Sirhind Road Bye- pass and that when we were proceeding towards Sirhind Road from the New Bus Stand Pa ala and had reached near the DMW Bridge and when the police party already present thereat stopped us and searched our car the said 2.500kgs of opium were 6 6 of 7 ::: Downloaded on - 31-10-2024 03:02:19 ::: Neutral Citation No:=2024:PHHC:140648 CRM-M-22714-2024 recovered from it."
14. There is sufficient evidence of the pe oner's dealings with the co-accused, and the pe oner's previous criminal history indicates such involvement. In addi on, there is evidence of call details and bank transac ons.
15. 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.
16. As per custody cer ficate dated 15.10.2024, the pe oner's custody is eight months and fourteen days, which cannot be considered prolonged, and the ra o of Dheeraj Shukla does not apply.
17. The pe oner is not en tled to bail based on Dheeraj Kumar Shukla v. The State of U,ar Pradesh [SLP (Crl) 6690-2022], decided on 25 Jan 2023. Dheeraj Shukla would be a,racted when the three condi ons are fulfilled,
(a). The custody of more than two years and six months and the delay was not a,ributable to the accused.
(b). The trial is at an ini al stage.
(c) The pe oner is the first offender.
18. A perusal of the bail pe on and the documents a,ached primafacie points towards the pe oner's involvement and does not make out a case for bail. The impact of crime would also not jus fy bail. Any further discussions will likely prejudice the pe oner; this court refrains from doing so.
19. 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.
20. Pe00on dismissed. All pending applica ons, if any, stand disposed of.
(ANOOP CHITKARA)
25.10.2024 JUDGE
Jyo -II
Whether speaking/reasoned: Yes
Whether reportable: No.
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