Punjab-Haryana High Court
Jagseer Singh @ Billa vs State Of Punjab on 29 July, 2024
Author: Anoop Chitkara
Bench: Anoop Chitkara
Neutral Citation No:=2024:PHHC:096697
CRM-M-13035-2024
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
CRM-M-13035-2024
Reserved on: 18.07.2024
Pronounced on: 29.07.2024
Jagseer Singh @ Billa ...Pe$$oner
Versus
State of Punjab ...Respondent
CORAM: HON'BLE MR. JUSTICE ANOOP CHITKARA
Present: Ms. Mehak Sawhney, Advocate
for the pe$$oner.
Mr. Gurpartap S. Bhullar, A.A.G., Punjab.
****
ANOOP CHITKARA, J.
FIR No. Dated Police Sta$on Sec$ons 137 20.07.2022 Sadar Sri Muktsar 22(c), 29, 61, 85 of NDPS Act, Sahib 1985
1. The pe$$oner incarcerated for viola$ng the above-men$oned provisions of Narco$cs Drugs and Psychotropic Substances Act, 1985 (NDPS Act) per the FIR cap$oned above, has come up before this Court under Sec$on 439 CrPC seeking bail.
2. In paragraph 12 of the bail applica$on, the accused declares that he is involved in one case, however as per status report, the pe$$oner has the following criminal antecedents:-
Sr. No. FIR No. Date Offences Police Sta$on 1. 115 28.07.2022 22 (c) of NDPS Act Gidderbaha 2. 49 13.05.2018 61 of Punjab Excise Act Sadar Bathinda
3. Pe$$oner's counsel prays for bail by imposing any stringent condi$ons and states that they would have no objec$on to the condi$ons, i.e., surrender of weapons. The pe$$oner contends that the further 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 in the commercial category.
5. Facts of the case are being taken from status report dated 17.07.2024 filed by 1 1 of 10 ::: Downloaded on - 31-07-2024 03:01:36 ::: Neutral Citation No:=2024:PHHC:096697 CRM-M-13035-2024 concerned DySP which reads as follows:-
"a. That the FIR in ques on was registered against one accused ie Jagseer Singh son of Pakhar Singh on the basis of recovery of contraband, On 20.07.2022, when the police party headed by ASI Rachhpal Singh while going in Govt vehicle No. PB-30Y-0861, for patrolling purposes and checking suspicious person, reached li1le behind GT road, Ferozepur road, then a person was seen coming on foot from the opposite side. The said person was carrying a plas c bag on his head. On seeing the police, the said person became nervous and tried to turn back. On suspicion, ASI Rachhpal Singh with the help of fellow officials apprehended the said person. ASI Rachhpal Singh suspected some intoxica ng ar cles with the said person. He sent message for sending I.O. at the spot.
b. That on being called, SI Jagsir Singh reached at the spot. A7er introducing himself to the said person nabbed by ASI Rachhpal Singh, Sl Jagsir Singh asked the said person his name and address who told his name as Jagsir Singh son of Pakhar Singh resident of Village Udeykaran. SI Jagsir Singh asked the said person that he (SI Jagsir Singh) suspected some intoxica ng ar cles in the plas c bag in his possession for which his person and his plas c bag are to be searched and he was also informed about his legal right that he can get the search conducted by any gaze1ed officer or magistrate. The said person replied that he wants the search to be conducted by a gaze1ed officer. Non-consent memo was prepared and the said person signed the same in the presence of the witnesses. Message was sent for sending gaze1ed officer at the spot."
6. The search of Jagseer Singh son of Pakhar Singh (not the pe$$oner) led to recovery of 2000 tablets Diazepam IP 5 mg. Batch No.T-1703, Mfg. Date October 2021, Exp. Date Sept. 2024, 85 boIles Chlorpheniramine Maleate & Codeine Phosphate syrup Onerex each boIle 100 ml. Batch no. ONCS1766, Mfg. Date June, 2022, Exp. Date May, 2024 and 115 boIles Chlorpheniramine Maleate & Codeine Phosphate syrup Omerex each boIle 100 ml. Batch No. LC22-037.
7. Pe$$oner seeks bail on the ground that the pe$$oner was roped in as an accused on the basis of disclosure statement of main accused Jagseer Singh son of Pakhar Singh wherein he had stated that he had purchased the contraband to supply the same to the pe$$oner and there is no evidence except that.
8. State counsel opposes the bail and submits that pe$$oner is a habitual offender and has criminal antecedents which points out towards pe$$oner's involvement and has referred to paras no.5 and 6 of the reply which reads as under:-
5. Role of the pe oner - The contraband recovered from the accused Jagsir Singh son of Pakhar Singh in the presence of the witnesses and in the presence of the gaze1ed officer, 2 2 of 10 ::: Downloaded on - 31-07-2024 03:01:36 ::: Neutral Citation No:=2024:PHHC:096697 CRM-M-13035-2024 also belonged to the pe oner to co-accused as the recovered contraband was to be supplied to the present pe oner also and co-accused.
6. Evidence against the pe oner -The accused Jagsir Singh son of Pakhar Singh bought the recovered contraband for supplying to the pe oner and co-accused. The pe oner ac vely par cipated in the commission of crime."
9. An analysis of the above said arguments would lead to the following outcome. Although the pe$$oner has criminal history and it would be one of the factor while considering the bail provided there is prima facie credible evidence which is sterling enough to stop the breach of rigors of Sec$on 37 of NDPS Act. As per reply, the evidence collected against the pe$$oner is that the main accused Jagseer Singh son of Pakhar Singh made disclosure statement that the contraband which was recovered from him was to be supplied to the pe$$oner and co-accused. In the reply, there is no evidence except disclosure statement. Even if hypothe$cally the disclosure statement is taken as proved, s$ll it does not mean that the pe$$oner would have actually purchased the contraband and the evidence is only his desire to purchase, thus the pe$$oner's possession would have been proved only when he had either paid the money or taken the possession himself or through some other source. The disclosure statement of Jagseer Singh son of Pakhar Singh did not say that he was only a courier, porter or transpor$ng the drugs which had already been purchased by the pe$$oner.
10. In Maulana Mohd Amir Rashadi v. State of U.P., (2012) 3 SCC 382, Hon'ble Supreme Court holds, [10] It is not in dispute and highlighted that the second respondent is a siNng Member of Parliament facing several criminal cases. It is also not in dispute that most of the cases ended in acquiIal for want of proper witnesses or pending trial. As observed by the High Court, merely on the basis of criminal antecedents, the claim of the second respondent cannot be rejected. In other words, it is the duty of the Court to find out the role of the accused in the case in which he has been charged and other circumstances such as possibility of fleeing away from the jurisdic$on of the Court etc.
11. While considering each bail pe$$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$$oner stands arraigned as an accused. In reckoning the number of cases as criminal history, the prosecu$ons resul$ng in acquiIal or discharge, or when Courts quashed the FIR; the prosecu$on stands withdrawn, or prosecu$on filed a closure report; cannot be included. Although crime is to be despised 3 3 of 10 ::: Downloaded on - 31-07-2024 03:01:36 ::: Neutral Citation No:=2024:PHHC:096697 CRM-M-13035-2024 and not the criminal, yet for a recidivist, the contours of a playing field are marshy, and graver the criminal history, slushier the puddles.
12. In Abida v. State of Haryana, 2022:PHHC:058722, CRM-M-5077-2022, decided on 13-05-2022, this court observed as follows:
[10]. Thus, both the twin condi$ons need to be sa$sfied before a person accused of possessing a commercial quan$ty of drugs or psychotropic substance is to be released on bail. The first condi$on is to provide an opportunity to the Public Prosecutor, enabling to take a stand on the bail applica$on. The second s$pula$on is that the Court must be sa$sfied that reasonable grounds exist for believing that the accused is not guilty of such offence, and is not likely to commit any offence while on bail. If either of these two condi$ons is not met, the ban on gran$ng bail operates. The expression "reasonable grounds"
means something more than prima facie grounds. It contemplates substan$al probable causes for believing that the accused is not guilty of the alleged offence. Even on fulfilling one of the condi$ons, the reasonable grounds for believing that the accused is not guilty of such an offence, the Court s$ll cannot give a finding on assurance that the accused is not likely to commit any such crime again. Thus, the grant of bail or denial of bail for possessing commercial quan$ty would vary from case to case, depending upon its facts.
[30]. From the summary of the law rela$ng to rigors of S.37 of NDPS Act, while gran$ng bail involving commercial quan$$es, the following fundamental principles emerge:
(a). In case of inconsistency, S. 37 of the NDPS Act prevails over S. 439 CrPC. [Narco$cs Control Bureau v Kishan Lal, 1991 (1) SCC 705, Para 6].
(b). The limita$ons on gran$ng of bail come in only when the ques$on of gran$ng bail arises on merits. [Customs, New Delhi v. Ahmadalieva Nodira, (2004) 3 SCC 549, Para 7].
(c). The provisions of Sec$on 37 of the NDPS Act provide the legal norms which have to be applied in determining whether a case for grant of bail has been made out. [UOI v. Prateek Shukla, 2021:INSC:165 [Para 11], (2021) 5 SCC 430, Para 12].
(d). In case the Court proposes to grant bail, two condi$ons are to be mandatorily sa$sfied in addi$on to the standard requirements under the provisions of the CrPC or any other enactment. [Union of India v. Niyazuddin SK &Anr, 2017:INSC:686 [Para 7], (2018) 13 SCC 738, Para 7].
(e). Apart from gran$ng opportunity to the Public Prosecutor, the other twin condi$ons which really have relevance are the Court's sa$sfac$on that there are reasonable grounds for believing that the accused is not guilty of the alleged offence.
[N.R. Mon v. Md. Nasimuddin, (2008) 6 SCC 721, Para 9].
(f). The sa$sfac$on contemplated regarding the accused being not guilty has to be more than prima facie grounds, 4 4 of 10 ::: Downloaded on - 31-07-2024 03:01:36 ::: Neutral Citation No:=2024:PHHC:096697 CRM-M-13035-2024 considering substan$al probable causes for believing and jus$fying that the accused is not guilty of the alleged offence. [Customs, New Delhi v. Ahmadalieva Nodira, (2004) 3 SCC 549, Para 7].
(g). The reasonable belief contemplated in the provision requires existence of such facts and circumstances as are sufficient in themselves to jus$fy sa$sfac$on that the accused is not guilty of the alleged offence. [State of Kerala v. Rajesh, 2020:INSC:88 [Para 21], AIR 2020 SC 721, Para 21].
(h). Twin condi$ons of S. 37 are cumula$ve and not alterna$ve. [Customs, New Delhi v. Ahmadalieva Nodira, (2004) 3 SCC 549, Para 7].
(i). At the bail stage, it is neither necessary nor desirable to weigh the evidence me$culously to arrive at a posi$ve finding as to whether or not the accused has commiIed an offence under the NDPS Act and further that he is not likely to commit an offence under the said Act while on bail. [Union of India v. RaIan Mallik @ Habul, (2009) 2 SCC 624, Para 14].
(j). If the statements of the prosecu$on witnesses are believed, then they would not result in a convic$on. [Babua v. State of Orissa, (2001) 2 SCC 566, Para 3].
(k). Merely recording the submissions of the par$es does not amount to an indica$on of a judicial mind or a judicious applica$on of mind. [UOI v. Prateek Shukla, 2021:INSC:165 [Para 11], (2021) 5 SCC 430, Para 12].
(l). Sec$on 37 departs from the long-established principle of presump$on of innocence in favour of an accused person un$l proved otherwise. [Union of India v. Sanjeev v. Deshpande, (2014) 13 SCC 1, Para 5].
(m). While considering the applica$on for bail concerning Sec$on 37, the Court is not called upon to record a finding of not guilty. [Union of India v. Shiv Shanker Kesari, (2007) 7 SCC 798, Para 11].
(n). The confessional statement recorded under Sec$on 67 of the NDPS Act is inadmissible in the trial of an offence under the NDPS Act. [Tofan Singh v. State of Tamil Nadu, 2020:INSC:620, (2021) 4 SCC 1]
(o). In the absence of clarity on the quan$ta$ve analysis of the samples from the laboratory, the prosecu$on cannot be heard to state at this preliminary stage that the accused possessed a commercial quan$ty of psychotropic substances as contemplated under the NDPS Act. [Bharat Chaudhary v. Union of India, 2021:INSC:877 [Para 11], 2021 SCC OnLine SC 1235, Para 10].
(p). When there is evidence of conscious possession of commercial quan$ty of psychotropic substances, such accused is 5 5 of 10 ::: Downloaded on - 31-07-2024 03:01:36 ::: Neutral Citation No:=2024:PHHC:096697 CRM-M-13035-2024 not en$tled to bail given Sec$on 37 of the Act as contemplated under the NDPS Act. [State by (NCB) Bengaluru v. Pallulabid Ahmad ArimuIa, 2022:INSC:26 [Para 11], 2022 SCC OnLine SC 47, Para 12].
(p). Bail must be subject to stringent condi$ons. [Sujit Tiwari v. State of Gujarat, 2020:INSC:101 [Para 12], 2020 SCC Online SC 84, Para 12].
[31]. Sa$sfying the feIers of S. 37 of the NDPS Act is candling the infer$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 subsist, and the factors for bail become similar to the bail pe$$ons under general penal statutes like IPC.
13. In Tofan Singh v. State of Tamil Nadu, 2020:INSC:620, the majority view of the larger bench of Hon'ble Supreme Court is that a confessional statement is not admissible in evidence. This view has been followed by Hon'ble Supreme Court in Cr.A 1273 of 2021, Sanjeev Chandra Agarwal v. Union of India, decided on 25th October, 2021. Given the nature of evidence, the previous criminal history of the pe$$oner is not being considered strictly at this stage as a factor for denying bail.
14. The status report filed by the police reveals that the inves$gator arraigned the pe$$oner as an accused based on the disclosure statement of the main accused from whose possession the inves$gator had recovered the contraband. There is no other evidence collected at this stage to connect the pe$$oner with the main accused. Thus, there is no jus$fica$on to deny bail. Consequently, the pe$$oner has sa$sfied the first rider of sec$on 37 of the NDPS Act. Regarding the second rider of S. 37, this court will put very stringent condi$ons in this order to ensure that the pe$$oner does not repeat the offence.
15. The possibility of the accused influencing the inves$ga$on, tampering with evidence, in$mida$ng witnesses, and the likelihood of fleeing jus$ce, can be taken care of by imposing elabora$ve and stringent condi$ons. In Sushila Aggarwal v. State (NCT of Delhi), 2020:INSC:106 [Para 92], (2020) 5 SCC 1, Para 92, the Cons$tu$onal Bench held that unusually, subject to the evidence produced, the Courts can impose restric$ve condi$ons.
16. Without commen$ng on the case's merits, in the facts and circumstances peculiar to this case, and for the reasons men$oned above, the pe$$oner makes a case for bail, subject to the following terms and condi$ons, which shall be over and above and irrespec$ve of the contents of the form of bail bonds in chapter XXXIII of CrPC, 1973.
66 of 10 ::: Downloaded on - 31-07-2024 03:01:36 ::: Neutral Citation No:=2024:PHHC:096697 CRM-M-13035-2024 This order shall come into force from the $me it is uploaded on the official webpage of this Court.
17. In Madhu Tanwar and Anr. v. State of Punjab, 2023:PHHC:077618 [Para 10, 21], CRM-M-27097-2023, decided on 29-05-2023, this court observed, [10] The exponen$al growth in technology and ar$ficial intelligence has transformed iden$fica$on techniques remarkably. Voice, gait, and facial recogni$on are incredibly sophis$cated and pervasive. Impersona$on, as we know it tradi$onally, has virtually become impossible. Thus, the remedy lies that whenever a judge or an officer believes that the accused might be a flight risk or has a history of fleeing from jus$ce, then in such cases, appropriate condi$ons can be inserted that all the expenditure that shall be incurred to trace them, shall be recovered from such person, and the State shall have a lien over their assets to make good the loss.
[21] In this era when the knowledge revolu$on has just begun, to keep pace with exponen$al and unimaginable changes the technology has brought to human lives, it is only fiNng that the dependence of the accused on surety is minimized by giving alterna$ve op$ons. Furthermore, there should be no insistence to provide permanent addresses when people either do not have permanent abodes or intend to re-locate.
18. Given above, provided the pe$$oner is not required in any other case, the pe$$oner shall be released on bail in the FIR cap$oned above, in the following terms:
(a). Pe$$oner to furnish personal bond of Rs. Ten thousand (INR 10,000/); AND
(b) To give one surety of Rs. Twenty-five thousand (INR 25,000/-), to the sa$sfac$on of the concerned court, and in case of non-availability, to any nearest Ilaqa Magistrate/duty Magistrate. Before accep$ng the surety, the concerned officer/court must sa$sfy that if the accused fails to appear in court, then such surety can produce the accused before the court.
OR
(b). Pe$$oner to hand over to the concerned court a fixed deposit for Rs.
Ten thousand only (INR 10,000/-), with the clause of automa$c renewal of the principal and the interest rever$ng to the linked account, made in favor of the 'Chief Judicial Magistrate' of the concerned district, or blocking the aforesaid amount in favour of the concerned 'Chief Judicial Magistrate'. Said fixed deposit or blocking funds can be from any of the banks where the stake of the State is more than 50% or from any of the well-established and stable private sector banks. In case the bankers are 7 7 of 10 ::: Downloaded on - 31-07-2024 03:01:36 ::: Neutral Citation No:=2024:PHHC:096697 CRM-M-13035-2024 not willing to make a Fixed Deposit in such eventuality it shall be permissible for the pe$$oner to prepare an account payee demand draX favouring concerned Chief Judicial Magistrate for a similar amount.
(c). Such court shall have a lien over the funds un$l the case's closure or discharged by subs$tu$on, or up to the expiry of the period men$oned under S. 437-A CrPC, 1973, and at that stage, subject to the proceedings under S. 446 CrPC, the en$re amount of fixed deposit, less taxes if any, shall be endorsed/returned to the depositor.
(d). The pe$$oner is to also execute a bond for aIendance in the concerned court(s) as and when asked to do so. The presenta$on of the personal bond shall be deemed acceptance of the declara$ons made in the bail pe$$on and all other s$pula$ons, terms, and condi$ons of sec$on 438(2) of the Code of Criminal Procedure, 1973, and of this bail order.
(e). While furnishing personal bond, the pe$$oner shall men$on the following personal iden$fica$on details:
1. AADHAR number
2. Passport number, (If available), when the aIes$ng officer/court thinks appropriate or considers the accused as a flight risk.
3. Mobile number (If available)
4. E-Mail id (If available)
19. The pe$$oner shall not influence, browbeat, pressurize, make any inducement, threat, or promise, directly or indirectly, to the witnesses, the police officials, or any other person acquainted with the facts and the circumstances of the case, to dissuade them from disclosing such facts to the police, or the court, or to tamper with the evidence.
20. Pe$$oner to comply with their undertaking made in the bail pe$$on, made before this court through counsel as reflected at the beginning of this order. If the pe$$oner fails to comply with any of such undertakings, then on this ground alone, the bail might be canceled, and the vic$m/complainant may file any such applica$on for the cancella$on of bail, and the State shall file the said applica$on.
21. Given the background of allega$ons against the pe$$oner, it becomes paramount to protect the drug detec$on squad, their family members, as well as the members of society, and incapacita$ng the accused would be one of the primary op$ons un$l the 8
8 of 10 ::: Downloaded on - 31-07-2024 03:01:36 ::: Neutral Citation No:=2024:PHHC:096697 CRM-M-13035-2024 filing of the closure report or discharge, or acquiIal. Consequently, it would be appropriate to restrict the possession of firearm(s). [This restric$on is being imposed based on the preponderance of evidence of probability and not of evidence of certainty, i.e., beyond reasonable doubt; and as such, it is not to be construed as an intermediate sanc$on]. Given the nature of the allega$ons and the other circumstances peculiar to this case, the pe$$oner shall surrender all weapons, firearms, ammuni$on, if any, along with the arms license to the concerned authority within fiXeen days from release from prison and inform the Inves$gator about the compliance. However, subject to the Indian Arms Act, 1959, the pe$$oner shall be en$tled to renew and take it back in case of acquiIal in this case, provided otherwise permissible in the concerned rules. Restric$ng firearms would ins$ll confidence in the vic$m(s), their families, and society; it would also restrain the accused from influencing the witnesses and repea$ng the offence.
22. During the trial's pendency, if the pe$$oner repeats or commits any offence where the sentence prescribed is more than seven years or violates any condi$on as s$pulated in this order, it shall always be permissible to the respondent to apply for cancella$on of this bail. It shall further be open for any inves$ga$ng agency to bring it to the no$ce of the court seized of the subsequent applica$on that the accused was earlier cau$oned not to indulge in criminal ac$vi$es. Otherwise, the bail bonds shall remain in force throughout the trial and aXer that in Sec$on 437-A of the Cr.P.C., if not canceled due to non-appearance or breach of condi$ons.
22. The condi$ons men$oned above imposed by this court are to endeavour that the accused does not repeat the offence and to ensure the safety of the society. In Mohammed Zubair v. State of NCT of Delhi, 2022:INSC:735 [Para 28], Writ Pe$$on (Criminal) No 279 of 2022, Para 29, decided on July 20, 2022, A Three-Judge bench of Hon'ble Supreme Court holds that "The bail condi$ons imposed by the Court must not only have a nexus to the purpose that they seek to serve but must also be propor$onal to the purpose of imposing them. The courts while imposing bail condi$ons must balance the liberty of the accused and the necessity of a fair trial. While doing so, condi$ons that would result in the depriva$on of rights and liber$es must be eschewed."
23. Any Advocate for the pe$$oner and the Officer in whose presence the pe$$oner puts signatures on personal bonds shall explain all condi$ons of this bail order in any language that the pe$$oner understands.
24. Any observa$on made hereinabove is neither an expression of opinion on the merits of the case nor shall the trial Court advert to these comments.
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25. There would be no need for a cer fied copy of this order for furnishing bonds, and any Advocate for the Pe oner can download this order along with case status from the official web page of this Court and a1est it to be a true copy. In case the a1es ng officer wants to verify the authen city, such an officer can also verify its authen city and may download and use the downloaded copy for a1es ng bonds.
Pe%%on allowed in aforesaid terms. All pending applica$ons, if any, stand disposed.
(ANOOP CHITKARA)
JUDGE
29.07.2024
Jyo$ Sharma
Whether speaking/reasoned: Yes
Whether reportable: No.
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