Punjab-Haryana High Court
Bindu vs State Of Punjab on 27 July, 2023
Author: Anoop Chitkara
Bench: Anoop Chitkara
CRM-M-25111-2023
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CRM-M-25111-2023
Reserved on: 24.07.2023
Pronounced on: 27.07.2023
Bindu ...Pe oner
Versus
State of Punjab ...Respondent
CORAM: HON'BLE MR. JUSTICE ANOOP CHITKARA
Present: Mr. Manvinder, Advocate for the pe oner.
Mr. Shiva Khurmi, AAG, Punjab.
****
ANOOP CHITKARA, J.
FIR No. Dated Police Sta on Sec ons
116 26.06.2021 City Jagraon, 22 of NDPS Act
District Ludhiana
1. The pe oner incarcerated for viola ng the above-men oned provisions of
Narco cs Drugs and Psychotropic Substances Act, 1985 (NDPS Act) per the FIR cap oned above, on the allega ons of possession of 500 tablets of ETIZOLAM, has come up before this Court under Sec on 439 CrPC seeking bail.
2. In paragraph 10 of the bail applica on, the accused declares the following criminal antecedents:
Sr. No. FIR No. Dated Offences Police Sta on
1. 115 10.07.2020 379-B, 411 IPC Nihal Singh Wala,
District Moga
2. 285 16.12.2021 420, 120-B IPC City South Moga,
District Moga
3. 80 29.06.2020 420, 379, 411 City Jagraon,
IPC District Ludhiana
3. The pe oner contends that the pre-trial incarcera on would cause an
irreversible injus ce to the pe oner and family.
4. While opposing the bail, the conten on on behalf of the State is that the quan ty of contraband involved in the case falls into the commercial category, and given the criminal past, the accused is likely to indulge in crime once released on bail.
JYOTI 2023.07.27 16:40 I attest to the accuracy and integrity of this order/judgment. 1CRM-M-25111-2023 REASONING:
5. In Paramjeet Singh v. State of Punjab, 2022:PHHC:003983 [Para 8], CRM-M 50243 of 2021, this court observed, While considering each bail pe on of the accused with a criminal history, it throws an onerous responsibility upon the Courts to act judiciously with reasonableness because arbitrariness is the an thesis of law. The criminal history must be of cases where the accused was convicted, including the suspended sentences and all pending First Informa on Reports, wherein the bail pe oner stands arraigned as an accused. In reckoning the number of cases as criminal history, the prosecu ons resul ng in acqui al or discharge, or when Courts quashed the FIR; the prosecu on stands withdrawn, or prosecu on filed a closure report; cannot be included. Although crime is to be despised and not the criminal, yet for a recidivist, the contours of a playing field are marshy, and graver the criminal history, slushier the puddles.
6. A perusal of the pe on does not refer to any averment based on which this court is assured that if this recidivist is released on bail, then he shall not indulge in criminal behavior.
7. Thus, the quan ty allegedly involved in this case is commercial. Given this, the rigours of S. 37 of the NDPS Act apply in the present case. 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.
8. The pe on states that the accused is en tled to bail because of the non- examina on of independent witnesses. However, this plea would gather force only when the accused establishes a er cross-examina on that the police deliberately did not associate any independent witness even when they could have been made available, and in the facts and circumstances peculiar to this case, the argument does not sa sfy the requirements of sec on 37 of NDPS Act.
9. In State of Punjab v Baldev Singh, (1999) 6 SCC 172, Cons tu onal bench of Hon'ble Supreme Court holds, [14]. The provisions of Sec ons 100 and 165 Cr.P.C. are not inconsistent with the provisions of the NDPS Act and are applicable for effec ng search, seizure or arrest under the NDPS Act also. However, when an empowered officer carrying on the inves ga on including search, seizure or arrest under the provisions of the Code of Criminal Procedure comes across a person being in possession of the narco c drugs or the psychotropic substance, then he must follow from that stage onwards the provisions of the NDPS Act and con nue the inves ga on as provided thereunder. If the inves ga ng officer is not an empowered officer then it is expected of him that he must inform JYOTI 2023.07.27 16:40 I attest to the accuracy and integrity of this order/judgment. 2 CRM-M-25111-2023 the empowered officer under the NDPS Act, who should therea er proceed from the stage in accordance with the provisions of the NDPS Act. In Balbir Singh's case a er referring to a number of judgments, the Bench opined that failure to comply with the provisions of Cr.P.C. in respect of search and seizure and par cularly those of Sec ons 100, 102, 103 and 165 per se does not vi ate the prosecu on case. If there is such a viola on, what the courts have to see is whether any prejudice was caused to the accused. While apprecia ng the evidence and other relevant factors, the courts should bear in mind that there was such a viola on and evaluate the evidence on record keeping that in view.
10. The pe on states that the quan ty of substance allegedly recovered is marginally above the commercial quan ty. This submission is more compassionate than legal. Once the quan ty is greater than commercial, it is immaterial for the purpose of bail. Once it is in statute, Judges have no la tude. Given the legisla ve mandate under sec on 37 of the NDPS Act, an accused is not en tled to bail if the quan ty is marginally above the commercial quan ty.
11. Counsel for the pe oner submits that the inves gator conducted search and seizure viola ng sec ons 42 and 50 of the NDPS.
12. Whether the Inves gator complied with the mandatory provisions of sec ons 42 and 50 of the NDPS Act is a ques on of fact to be adjudicated in the trial. However, before this court treats the compliance as illegal, the prosecu on needs an opportunity to prove that they had complied with the mandatory provisions per law. Such stage would come only during the trial and certainly not at the bail stage, where it would be hit by the maxim Audi alteram partem. The excep on to this would be applicable only when the non-compliance of the mandatory provisions of sec ons 42 and 50 of the NDPS Act is apparent on the face of the special report under sec on 57 of the NDPS Act and other documents of search and seizure, and in the opinion of the court, the lapse is non-rec fiable, a er recording a finding that it is an incurable defect, the court might consider gran ng bail on such viola ons.
13. In State of H.P. v. Prithi Chand, (1996) 2 SCC 37, Hon'ble Supreme Court holds, [3]. The ques on is whether the learned Sessions Judge was jus fied, at the stage of taking cognizance of the offence, in discharging the accused, even before the trial was conducted on merits, on the ground that the provisions of Sec on 50 of the Act had not been complied with. This Court in State of Punjab v. Balbir Singh [(1994)3 SCC 299] : (AIR 1994 SCW 1802) has considered the provisions of the Act. Sec on 50 has been held to be mandatory. In paragraph 16, this Court has held that it is obligatory on the part of the empowered or the authorised officer to inform the suspect that, if so required, he would be produced before a Gaze ed Officer or a Magistrate and JYOTI 2023.07.27 16:40 I attest to the accuracy and integrity of this order/judgment. 3 CRM-M-25111-2023 search would be conducted in his presence. It was impera ve on the part of the Officer to inform the person of the above right and if he failed to do the same, it amounted to viola on of the requirement of Sec on 50 of the Act. It was held that when the person was searched he must have been aware of his right and that it could be done only if the authorised or empowered Officer informed him of the same. Accordingly, this Court by implica on read the obliga on on the part of authorised Officer to inform the person to be searched of his right to informa on that he could be searched in the presence of the Gaze ed Officer or the Magistrate. In Saiyad Mohd. Saiyaad Umar Saiyed v. State of Gujarat [1995(3) JT SC 489] a three-Judge Bench of this Court had reiterated the above view and held that having regard to the grave consequences that might entail the possession of illicit ar cles under the Act, viz., the shi ing of the onus to the accused and the severe punishment to which he became liable, the Legislature had enacted safeguards contained in Sec on 50. Compliance of the safeguards in Sec on 50 is mandatory obliging the Officer concerned to inform the person to be searched of his right to demand that search could be conducted in the presence of a Gaze ed Officer or a Magistrate. The possession of illicit ar cle has to be sa sfactorily established before the Court. The Officer who conducts search must state in his evidence that he had informed the accused of his right to demand, while he is searched, in the presence of a Gaze ed Officer or a Magistrate and that the accused had not chosen to so demand. If no evidence to that effect is given, the Court must presume that the person searched was not informed of the protec on the law gives him and must find that possession of illicit ar cles was not established. The presump on under Ar cle 114, illustra on (e) of the Evidence Act, that the official duty was properly performed, therefore, does not apply. It is the duty of the Court to carefully scru nise the evidence and sa sfy that the accused had been informed by the concerned Officer that he had a right to be searched before a Gaze ed Officer or a Magistrate and that the person had not chosen to so demand.
[4]. It is to be seen whether the accused has been afforded such a right and whether the authorised Officer has violated the mandatory requirement, as a ques on of fact, has to be proved at the trial. In Pooran Mal v. Director of Inspec on [(1974) 1 SCC 345] : (AIR 1974 SC
348) a Cons tu on Bench of this Court had held that power of search and seizure, is, in any system of jurisprudence, an overriding power of the State for the protec on of social security and that power is necessarily regulated by law. A search by itself is not a restric on on the right to hold and enjoy property, though seizure is a temporary restric on to the right of possession and enjoyment of the property seized. However, the seizure will be only temporary and limited for the purpose of the inves ga on. The power of search and seizure is an accepted norm is our criminal law envisaged in Sec ons 96 to 103 and 165 of the Criminal Procedure Code, 1973 [for short, "the Code"]. The Evidence Act permits relevancy as the only test of admissibility of evidence. The evidence obtained under an illegal search and seizure does not exclude relevant evidence on that ground. It is wrong to invoke the spirit of Cons tu on to exclude such evidence. The decisions of the American Supreme Court spelling out certain Cons tu onal protec ons in regard to search and seizure are not applicable to exclude the evidence obtained on an illegal search. Courts in India refuse to exclude relevant evidence merely on the JYOTI 2023.07.27 16:40 I attest to the accuracy and integrity of this order/judgment. 4 CRM-M-25111-2023 ground that it is obtained by illegal search and seizure. When the test of admissibility of evidence lies in relevancy, unless there is an express or necessarily implied prohibi on in the Cons tu on or other law, evidence obtained as a result of illegal search and seizure, is not liable to be shut out. Search and seizure are not a new weapon in the armoury of those whose duty it is to maintain social security in its broadest sense. If the safeguards are generally on the lines adopted by the Code, they would be regarded as adequate and render the restric ons imposed as reasonable measures.
[7]. It would thus be se led law that every devia on from the details of the procedure prescribed for search, does not necessarily lead to the conclusion that search by the police renders the recovery of the ar cles pursuant to the illegal search, irrelevant evidence nor the discovery of the fact inadmissible at the trial. Weight to be a ached to such evidence depends on facts and circumstances in each case. The Court is required to scan the evidence with care and to act upon it when it is proved and the Court would hold that the evidence would be relied upon.
14. The stand that the accused is in custody for sufficient me is also not legal grounds to overcome the rigors of S. 37 of the NDPS Act at this stage.
15. The grounds taken in the bail pe on do not shi the burden placed by the legislature on the accused under S. 37 of the NDPS Act. The pe oner has not stated anything 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. Thus, the pe oner has failed to make a case for bail at this stage.
16. 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. Any further discussions are likely to prejudice the pe oner; this court refrains from doing so.
17 Any observa on made hereinabove is neither an expression of opinion on the merits of the case nor shall the trial Court advert to these comments.
The pe on is dismissed. All pending applica ons, if any, stand closed. However, considering the pe oner's right to speedy trial coupled with the pre-trial incarcera on, this court requests the concerned trial court to make all endeavours to conclude the trial by Dec 31, 2023, of which the prosecu on evidence be completed by Oct 31, 2023, and latest by Nov 30, 2023, and the remaining me to provide an opportunity to the accused to lead defence evidence, if so desired, and to conclude its hearing. To meet the deadline, an endeavour be made to speed up the process for service and to pass the necessary direc ons in this regard. It is clarified that if expedi ng this trial disturbs the docket of the concerned court, then a balance be struck, and if, on this account, any JYOTI 2023.07.27 16:40 I attest to the accuracy and integrity of this order/judgment. 5 CRM-M-25111-2023 delay happens, then an extension can be sought by men oning such reasons. It is clarified that this order speeding up the trial is subject to the condi on that neither the pe oner shall seek any adjournment nor try to use any tac cs to delay the trial. If they do so, this order of expedi ng the trial shall stand automa cally recalled by resor ng to Sec on 362, read with Sec on 482 Code of Criminal Procedure, 1973, without any further reference to this court. If any of the accused is on bail and fail(s) to a end the trial without any sufficient cause, then they be dealt with strictly but in accordance with law.
(ANOOP CHITKARA)
JUDGE
27.07.2023
Jyo -II
Whether speaking/reasoned: Yes
Whether reportable: No.
JYOTI
2023.07.27 16:40
I attest to the accuracy and
integrity of this order/judgment. 6