Punjab-Haryana High Court
Inderjit Singh vs Union Of India on 30 August, 2024
Author: Anoop Chitkara
Bench: Anoop Chitkara
Neutral Citation No:=2024:PHHC:112887
CRM-M-2074-2024
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CRM-M-2074-2024
Reserved on: 05.08.2024
Pronounced on: 30.08.2024
Inderjit Singh ...Pe oner
Versus
Union of India ...Respondent
CORAM: HON'BLE MR. JUSTICE ANOOP CHITKARA
Present: Mr. Navkiran Singh, Advocate,
for the pe oner.
Ms. Gurmeet Kaur Gill, Senior Panel Counsel,
for the respondent-UOI.
****
ANOOP CHITKARA, J.
Criminal Dated Police Sta1on Sec1ons
Case No.
50 10.07.2022 NCB Chandigarh 8, 15, 18, 21, 25, 27-A, 28, 29,
60, 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, 1973, seeking regular bail.
2. Per paragraph 11 of the bail applica on and as per the reply/custody cer ficate, the accused has the following criminal antecedents:
Sr. No. FIR No. Dated Offenses Police Sta1on
1. 123 12.07.2004 15, 61, 85 of NDPS Act Siwani, Bhiwani
2. 55 10.07.2022 8, 15, 18, 21, 25, 29 Narco cs Control and 60 of NDPS Act Burearu, Chandigarh
3. The facts are being taken from paragraph 2 of the order dated 10.07.2024 passed by this Court, which reads as under:
"The facts of the case are being taken from the complaint as well as reply filed by the Narco cs Control Bureau (for short 'NCB') to the present pe on. On 10.07.2022, the NCB officials received a secret informa on that two persons namely Kuljeet Singh and Hemraj, deal in opium and poppy straw and start transpor ng the same through a truck and its registra on number was also provided. The informant further told that the truck would stop at a par cular Dhaba at Shahabad, Haryana, on 1 1 of 9 ::: Downloaded on - 01-09-2024 02:46:07 ::: Neutral Citation No:=2024:PHHC:112887 CRM-M-2074-2024 10.07.2022 in the morning, massive quan ty of opium and poppy straw have been concealed in the said truck. Based on this informa on, NCB complied with the procedural requirements of NDPS Act and proceeded towards the spot. They also informed the Police Sta on Shahbad and associated two independent witnesses and then proceeded towards the spot where they found the said truck parked in parking area of the dhaba. The police officials no ced that two persons were sleeping in the cabin of the truck and the police officials knocked at the door and they opened it. A3er that, the NCB officials complied with the provisions of NDPS Act and informed them about search etc. Subsequently, the search led to recovery of 194.2 Kg of poppy straw, 4.1 Kg opium and 6000 tablets of Diphenoxylate Hydrochloride. Subsequently, both the persons namely Kuljeet Singh and Hemraj were arrested. The inves ga on was handed over to another officer, who interrogated the accused. Subsequently, Kuljeet Singh made a statement under Sec on 67 of NDPS Act and confessed about dealing in opium and poppy straw."
4. 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 their family.
5. The State's counsel opposes bail and refers to the reply.
6. It would be appropriate to refer to the following por ons of the reply affidavit dated 31-07-2024, which read as follows:
"1. That the present case pertains to recovery of 194.200 kg Poppy-straw, 4.100 kg Opium and 6000 tablets of Diphenoxylate. It is submi;ed that the accused Kuljeet Singh and Hem Raj were arrested by a team of Narco cs Control Bureau, Chandigarh on 10.07.2022 on the basis of secret informa on and 194.200 kilogram of Poppy-straw, 4.100 kilogram of Opium and 6000 tablets of Lomo l containing Diphenoxylate were recovered from their conscious possession from a truck bearing registra on No.PB10-FV-5855 at New Sukhdev Khalsa Punjabi Dhaba, Shahabad without any permit or licence. During inves ga on, the accused Kuljeet Singh suffered a disclosure statement that the present pe oner had ordered for the seized contraband and the same was to be delivered to the present pe oner.
2. That in the present case, the co-accused Kuljeet Singh and Hemraj have specifically named the present pe oner as the person who had ordered 2 2 of 9 ::: Downloaded on - 01-09-2024 02:46:08 ::: Neutral Citation No:=2024:PHHC:112887 CRM-M-2074-2024 for the seized contraband and the same was to be delivered to him. The present pe oner has also admi;ed the manner and factum of recovery in his statement u/s 67 of NDPS Act and disclosed that earlier also 4-5 mes, he had ordered the contraband through Kuljeet Singh and sold it further in Retail and earned huge profit.
3. That in the present case, there is sufficient incrimina ng material against the pe oner in the form of call detail records. The call detail records have established the close connec on of the pe oner with the other co-accused. The pe oner was using the mobile no.8847064298, which was registered in the name of Prakash Singh i.e. father of the pe oner. The co-accused Kuljeet singh was using Mob. No.7888845272 which was registered in the name of Anuj Tarar. The co-accused Ram Kishor Soni (yet to be arrested) was using mob. No.9572049864. The CDR analysis reports show that there are 15 calls between the present pe oner and Kuljeet Singh and 15 calls with Ram Soni from the period 01-07-22 to 10-07-22. The CAF and details of call analysis are a;ached herewith as Annexure R-1. The CDR analysis shows that the present pe oner was con nuously in contact with other accused for the purpose of illegal sale-purchase and transporta on of seized drugs. The complaint against the present pe oner and co-accused Kuljeet Singh, Jaspreet Singh, Hemraj had already been filed in the trial court. However, the inves ga on regarding other co-accused i.e Ram Kishore Soni @ Ramsoni, Tuntun etc, the suppliers of Narco cs are pending as they are absconding."
7. Possession of 194.200 kgs of poppy straw is a punishable offense under the NDPS Act in the following terms:
Substance Name Poppy straw
Quan ty detained 194.2 Kg
Quan ty type Commercial
Drug Quan ty in % to upper limit
388.40%
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. 110 Common Name (Name of Narco c Drug and Psychotropic Substance Poppy straw (Interna onal non-proprietary name (INN) 3 3 of 9 ::: Downloaded on - 01-09-2024 02:46:08 ::: Neutral Citation No:=2024:PHHC:112887 CRM-M-2074-2024 Other non-proprietary name ****** Chemical Name ****** Small Quan ty 1000 Gram (i.e. equivalent to 1 Kg) Commercial Quan ty 50000 Gram (i.e. equivalent to 50 Kg) 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.15 & S.2(xviii) NDPS Act, S.O.821(E) dated 11/14/1985 Sr. No. S.2(xviii) Common Name (Name of Narco c Drug and Psychotropic Substance ****** (Interna onal non-proprietary name (INN) Other non-proprietary name ****** S.2(xviii) "poppy straw" means all parts (except the seeds) of the opium poppy aKer harves ng whether in their original form or cut, crushed or powdered and whether or not juice has been extracted therefrom; S. 2(viiib)] "illicit traffic", in rela on to narco c drugs and psychotropic substances, means--
(i) cul va ng any coca plant or gathering any por on of coca plant;
(ii) cul va ng the opium poppy or any cannabis plant;
(iii) engaging in the produc on, manufacture, possession, sale, purchase, transporta on, warehousing, concealment, use or consump on, import inter-State, export inter-State, import into Chemical Name India, export from India or transhipment, of narco c drugs or psychotropic substances; 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 GazeQe, declare to be opium poppy for the purposes of this Act;
S2. (xviii) "poppy straw" means all parts (except the seeds) of the opium poppy aKer harves ng whether in their original form or cut, crushed or powdered and whether or not juice has been extracted therefrom;
8. Possession of 4.1 kgs of opium is a punishable offense under the NDPS Act in the following terms:
Substance Name "Opium" Quan ty detained 4.1 Kg 4 4 of 9 ::: Downloaded on - 01-09-2024 02:46:08 :::
Neutral Citation No:=2024:PHHC:112887 CRM-M-2074-2024 Quan ty type Commercial Drug Quan ty in % to upper limit 164.00% 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) 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 ****** Chemical 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 GazeQe, declare to be opium poppy for the purposes of this Act;
Explana on.-- For the purposes of clauses (v) (vi), (xv) and (xvi) the 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 5 5 of 9 ::: Downloaded on - 01-09-2024 02:46:08 ::: Neutral Citation No:=2024:PHHC:112887 CRM-M-2074-2024 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. Possession of Diphenoxylate is also a punishable offense under the NDPS Act in the following terms:
Substance Name Diphenoxylate 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. 44 Common Name (Name of Narco c Drug and Psychotropic Substance Diphenoxylate (Interna onal non-proprietary name (INN) Other non-proprietary name ****** 1-(3-cyano-3,3-diphenyIpropyI)-4-phenylpiperidine-4-
Chemical Name carboxylic acid ethyl ester Small Quan ty 2 Gram Commercial Quan ty 50 Gram 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.O.826(E) dated 11/14/1985 Sr. No. 58 Common Name (Name of Narco c Drug and Psychotropic Substance DIPHENOXYLATE (Interna onal non-proprietary name (INN) Other non-proprietary name ****** Ethyl 1-(3-Cyano-3, 3-diphenyIpropyl)-4- phenylpiperidine-4-carboxylic acid ethyl ester (the interna onal non-proprietary name of which is Diphenoxylate), and its salts, prepara ons, admixtures, extracts and other Chemical Name substances containing any of these drugs, except prepara ons of diphnoxylate containing, per dosage unit, not more than 2.5 mg.
of diphenoxylate calculated as base, and a quan ty of atrophine sulphate equivalent to at least one per cent of the dose of diphenoxylate.
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10. 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.
11. The pe oner's counsel argued that the call details cannot be relied upon at the bail stage, and if the said evidence is ignored, then there is only the inadmissible evidence of the disclosure statement.
12. In State Vs. Pallulabid Ahmad ArimuQa and Ors., 2022 INSC 26 [MANU/SC/0053/2022], a three-member bench of Hon'ble Supre Court holds as follows:
[10]It has been held in clear terms in Tofan Singh v. State of Tamil NaduMANU/SC/0797/2020 : (2021) 4 SCC 1, that a confessional statement recorded Under Sec on 67 of the NDPS Act will remain inadmissible in the trial of an offence under the NDPS Act. In the teeth of the aforesaid decision, the arrests made by the Pe oner-NCB, on the basis of the confession/voluntary statements of the Respondents or the co-Accused Under Sec on 67 of the NDPS Act, cannot form the basis for overturning the impugned orders releasing them on bail. The CDR details of some of the Accused or the allega ons of tampering of evidence on the part of one of the Respondents is an aspect that will be examined at the stage of trial. For the aforesaid reason, this Court is not inclined to interfere in the orders dated 16th September, 2019, 14th January, 2020,16th January, 2020, 19th December, 2019 and 20th January, 2020 passed in SLP (Crl.)No@ Diary No. 22702/2020, SLP (Crl.) No. 1454/2021, SLP (Crl.) No. 1465/2021, SLP(Crl.) No. 1773-74/2021 and SLP (Crl.) No. 2080/2021 respec vely. The impugned orders are, accordingly, upheld and the Special Leave Pe ons filed by the Pe oner-NCB seeking cancella on of bail granted to the respec ve Respondents, are dismissed as meritless.
13. A perusal of the abovemen oned order points out that while dealing with a challenge to bail, the Hon'ble Supreme Court did not consider the call details as evidence to cancel the bail. However, no specific direc ons were issued to Courts subordinate to the Hon'ble Supreme Court to ignore call details as evidence while considering bails.
14. Sec on 371 of the NDPS Act mandates under sub-sec on (1) (b) of sec on 37 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.
77 of 9 ::: Downloaded on - 01-09-2024 02:46:08 ::: Neutral Citation No:=2024:PHHC:112887 CRM-M-2074-2024 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 aKer recording reasonable sa sfac on of its rigors.
15. 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 puZng these stringent condi ons.
16. Sa sfying the feQers 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 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.
88 of 9 ::: Downloaded on - 01-09-2024 02:46:08 ::: Neutral Citation No:=2024:PHHC:112887 CRM-M-2074-2024 Thus, the grant or denial of bail for possessing commercial quan ty would vary from case to case, depending upon its facts, and the parameters for an cipatory bail are stringent compared to the regular bail when the accused is in judicial custody.
17. The grounds in the bail pe on do not shiK 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 an cipatory bail. Any detailed discussions about the evidence may prejudice the case of the pe oner, the State, or the other accused.
18. A perusal of the bail pe on and the documents aQached primafacie points towards the pe oner's involvement and does not make out a case for 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. Pe on dismissed. Interim orders, if any, are recalled with immediate effect. All pending applica ons, if any, stand disposed of.
(ANOOP CHITKARA)
JUDGE
30.08.2024
Jyo -II
Whether speaking/reasoned: Yes
Whether reportable: YES
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