Punjab-Haryana High Court
Charanjeet Singh Alias Channi Alias ... vs State Of Punjab on 30 January, 2025
Author: Anoop Chitkara
Bench: Anoop Chitkara
Neutral Citation No:=2025:PHHC:014117
CRM-M-47526-2024
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CRM-M-47526-2024
Reserved on: 10.01.2025
Pronounced on: 30.01.2025
Charanjeet Singh @ Channi @ Charan Singh ...Pe oner
Versus
State of Punjab ...Respondent
CORAM: HON'BLE MR. JUSTICE ANOOP CHITKARA
Present: Mr. Kuldip Singh, Advocate,
for the pe oner.
Mr. Akshay Kumar, AAG, Punjab.
****
ANOOP CHITKARA, J.
FIR No. Dated Police Sta1on Sec1ons 56 22.06.2024 Sadar Jalalabad, 21(c), 23 of NDPS Act and Sec ons 10,
District Fazilka 11 & 12 of Aircra7 Act, 1934
1. The pe oner apprehending arrest in the FIR cap oned above has come up before this Court under Sec on 438 CrPC, seeking an cipatory bail.
2. In paragraph 13 of the bail applica on and para 6 of the status report, the accused has the following criminal antecedents:
Sr. No. FIR No. Dated Offenses Police Sta1on
1. 57 23.09.2024 21 (c)/61/85 of NDPS Act Sadar Fazilka
3. The facts and allega ons are taken from para 4 of the status report filed by the State.
"4. That precisely the facts of the case are as under:-
a) That the present FIR was registered as per le er of AC Coy Commander 'B' Coy 52 BN BSF BOP Jodha Bhaini wherein it was stated that on 22.06.2024 during search opera-on carried out by the B.S.F. officials in the area of BOP Jodha Wala, recovery of a drone and 01 packet containing heroin weighing 520 grams heroin was effected. Said recovered drone and contraband was handed over to police authori-es of PS Sadar, Jalalabad. In the said le er, names of four persons were men-oned as suspected persons involved in the drone ac-vity. Copy of said le er of BSF is appended 1 1 of 6 ::: Downloaded on - 31-01-2025 06:20:42 ::: Neutral Citation No:=2025:PHHC:014117 CRM-M-47526-2024 herewith as Annexure R-1 for the kind considera-on of this Hon'ble Court.
b) As per le er supra, FIR no.56 dated 22.06.2024 was registered under sec-on 21(c), 23 of NDPS Act and sec-ons 10, 11, 12 of Aircra; Act at police sta-on, Sadar, Jalalabad against the present pe--oner Charanjeet Singh @ Channi, Gurmail Singh son of Bhagwan Singh, Kulwinder Singh son of Sona Singh residents of Hazara Ram Singh Wala and Baldev Singh son of Balbir Singh resident of village Jodha Bhaini.
c) That a;er registra-on of said FIR, recovered contraband and drone were taken into police custody as per law."
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 his family.
5. The State's counsel opposes bail and refers to the status report.
6. It would be appropriate to refer to the following por ons of the status report, which read as follows:
"ROLE OF PETITIONER:
5. That as per inves-ga-on carried out so far, role of the pe--oner has been established to the effect the pe--oner and his accomplice are ac-vely indulged in cross border trafficking of contraband. Therefore, the pe--oner cannot shirk his criminal liability."
7. The substance tested posi ve for Diacetylmorphine by the laboratory. Dealing in 520 grams of heroin is a punishable offence under the NDPS Act in the following terms:
Substance Name Heroin/ ChiEa/ Smack/ Brown Sugar Quan ty detained 520 Gram Quan ty type Commercial Drug Quan-ty in % to upper limit 208.00% 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. 56 Common Name (Name of Narco c Drug and Psychotropic Substance Heroin (Interna onal non-proprietary name (INN) Other non-proprietary name ****** Chemical Name Diacetylmorphine 2 2 of 6 ::: Downloaded on - 31-01-2025 06:20:42 ::: Neutral Citation No:=2025:PHHC:014117 CRM-M-47526-2024 Small Quan ty 5 Gram Commercial Quan ty 250 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.(xvi)(d) NDPS Act, 1985 (61 of 1985), S.O. 821 (E) dated 11/14/1985 Sr. No. 2(xvi)(d) Common Name (Name of Narco c Drug and Psychotropic Substance ****** (Interna onal non-proprietary name (INN) Other non-proprietary name ****** 2(xvi)(d) diacetylmorphine, that is, the alkaloid also known as dia-morphine or heroin and its salts;
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 Chemical Name 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.
8. The quan ty allegedly involved in this case is commercial. Given this, the rigors of S. 37 of the NDPS Act and the pe oner must sa sfy the twin condi ons put in place by the Legislature under Sec on 37 of the NDPS Act.
9. The relevant por on of the order dated 23-09-2024 passed by a co-ordinate bench of this Court reads as follows:
"xxx xxx In the mean-me arrest of present pe--oner is stayed -ll the next date of hearing, subject to joining of inves-ga-on."
10. Para 4(i) of the status report filed by the DYSP Jalalabad, reads as follows:
"i) That despite passing of the order dated 23.09.2024 by this Hon'ble 3 3 of 6 ::: Downloaded on - 31-01-2025 06:20:42 ::: Neutral Citation No:=2025:PHHC:014117 CRM-M-47526-2024 Court, the present pe--oner has failed to join the inves-ga-on in the present case."
11. Despite the quan ty being commercial, the pe oner flouted the orders passed by this Court while obtaining interim relief of stay of arrest. The pe oner's conduct in not joining the inves ga on was tantamount to not mee ng the standards of the first rider of the twin condi ons of S. 37 of the NDPS Act, 1985, inserted by the Execu ve, passed by the Legislature, and upheld in judicial scru ny.
12. Given the above, the pe oner has, prima facie, failed to sa sfy the condi ons of sec on 37 of the NDPS Act to make a case for bail.
13. In Abida v. State of Haryana, 2022:PHHC:058722, [Para 10], 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. AhmadalievaNodira, (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 4 4 of 6 ::: Downloaded on - 31-01-2025 06:20:42 ::: Neutral Citation No:=2025:PHHC:014117 CRM-M-47526-2024 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, 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 commiEed 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. RaEan 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] 5 5 of 6 ::: Downloaded on - 31-01-2025 06:20:42 ::: Neutral Citation No:=2025:PHHC:014117 CRM-M-47526-2024
(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 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 ArimuEa, 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 feEers 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.
14. A perusal of the bail pe on and the documents aEached 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.
15. 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.
16. Pe11on dismissed. Interim orders, if any, are recalled with immediate effect. All pending applica ons, if any, are disposed of.
(ANOOP CHITKARA)
JUDGE
30.01.2025
Jyo -II
Whether speaking/reasoned: Yes
Whether reportable: YES.
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