Punjab-Haryana High Court
Jora Singh vs State Of Punjab on 11 April, 2023
Author: Anoop Chitkara
Bench: Anoop Chitkara
Neutral Citation No:=2023:PHHC:050460
CRM-M-18257-2022 (O&M) 1
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CRM-M-18257-2022 (O&M)
Reserved on: 10.03.2023
Pronounced on: 11.04.2023
Jora Singh ...Petitioner
Versus
State of Punjab ...Respondent
CORAM: HON'BLE MR. JUSTICE ANOOP CHITKARA
Present: Mr. Sandeep Lather, Advocate for the petitioner(s).
Mr. Virat Rana, AAG, Punjab
****
ANOOP CHITKARA, J.
FIR No. Dated Police Station Sections
0126 13.10.2020 Valtoha, Distt. Tarn 21-C NDPS (sec 29 NDPS
Taran added later on)
CRM- 6084-2023
A perusal of the medical report points out that the jail authorities have provided medical treatment and given the details of such report, no case for bail on medical grounds is made out. Application dismissed with liberty to file bail on medical grounds in case the health deteriorates.
CRM-M-18257-2022
1. The petitioner incarcerated for violating the above-mentioned provisions of Narcotics Drugs and Psychotropic Substances Act, 1985 (NDPS Act) per the FIR captioned above, on the allegations of engaging two of his accomplices to sell 500 grams of "Diphenoxylate Hydrochloride", that the petitioner had procured from Pakistan based drug mafia, had come up before this Court under Section 439 CrPC seeking bail.
2. In paragraph 8 of the bail application, the accused declares the following criminal antecedents:
Sr. No. FIR No. Date Offences Police
Station
1 10 27.12.2013 21, 25, 29, 61, 85 NDPS Act, 420, -
120-B IPC
2 141 24.09.2020 18, 21, 61,85 NDPS Act -
3 2 16.01.2020 23, 28, 29 NDPS Act, 186, 188, -
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CRM-M-18257-2022 (O&M) 2
353 IPC
4 200 2015 42 IPC, section 42 of Prison Act -
3. The petitioner contends that the pre-trial incarceration would cause an irreversible injustice to the petitioner and family.
4. While opposing the bail, the contention on behalf of the State is that the quantity of contraband involved in the case falls in the commercial category, and given the criminal past, the accused is likely to indulge in crime once released on bail.
REASONING:
5. In Paramjeet Singh v. State of Punjab, CRM-M 50243 of 2021, this court observed, While considering each bail petition of the accused with a criminal history, it throws an onerous responsibility upon the Courts to act judiciously with reasonableness because arbitrariness is the antithesis of law. The criminal history must be of cases where the accused was convicted, including the suspended sentences and all pending First Information Reports, wherein the bail petitioner stands arraigned as an accused. In reckoning the number of cases as criminal history, the prosecutions resulting in acquittal or discharge, or when Courts quashed the FIR; the prosecution stands withdrawn, or prosecution 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 petition 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. Apart from this, the allegations
7. The prosecution's case is mentioned in paras 2 to 5 of the reply affidavit, and it reads as follows:
" (2). That with regard to subject matter of the present petition, it is submitted that the petitioner has tried to conceal the material facts from this Hon'ble Court and has rather made misleading averments in the petition by twisting the facts as per his own suitability.
(3). That upshot facts leading to this case are that Balwinder Singh SI/ SHO of PS Valtoha along with police party in Government Vehicle No. PB-46-W 1806 whose driver HC Sukhpal Singh 1738 While inspecting the vehicle at village Valtoha side, they were checking the vehicle when a motorbike came from the side of village Asal Uttar and was stopped by the inspector. Attempting to turn back, the motorcycle fell and the riders of the motorcycle were apprehended by SHO with the help of fellow staff and asked for their and addresses. The person sitting behind him with Gurpreet singh @ Gopro Major Singh, village Kalanjar disclosed him that "I am posted as SHO at Balwinder Singh Inspector Police Station Valtoha and I am wearing uniform and my name plate affixed. I suspect you have some drugs You are to be searched but you have the legal right to have your search done in the presence of Gazetted Officer or a Magistrate who 2 2 of 5 ::: Downloaded on - 13-04-2023 01:25:15 ::: Neutral Citation No:=2023:PHHC:050460 CRM-M-18257-2022 (O&M) 3 said that we want to get our search done by the Gazetted Officer, on this non consent memo were prepared by those who had their own memo but the witnesses. On which SHO from 9878700264 informed to Sh. Rajbir Singh, PPS then Deputy Superintendent of Police Bhikhiwind regarding the situation and requested him to arrive on the spot. While introducing himself to the arrested persons, he said that I am Rajbir Singh DSP Sub Division Bhikhiwind and Gazetted Officer, you are to be searched but you have the legal right to get conduct his search on me or any other Gazetted Officer, but the petitioner and co- accused reposed their faith upon the Sh. Rajbir Singh, then DSP.
Accordingly, their consent memos were prepared at the spot. As per the instruction of DSP, the first search of Gursewak Singh @ Sonu S/o Suba Singh was conducted and during search 500 grams of heroin was recovered from the waist which was tied with a parna and same was taken into police possessions vide separate recovery memo. Thereafter the present FIR No. 126 dated 13.10.2020 under section 21 (C) of the NDPS Act has been registered at Police Station Valtoha, District Tarn Taran against Gurpreet NOHI BHALL Singh and Gursewak Singh aforesaid.
(4). That it is submitted that during investigation, two mobile phones of dual SIMS bearing its IMEI No. (1) 3506122236388701/01 (2) 356050533688/01(MI Core) and second mobile bearing its IMEI No. (1) 35641109855595/01 (2) 3564120985559553/01 (3-7) were recovered from the possessions of above named accused persons Gurpreet Singh and Gursewak Singh (non-petitioners) and further during investigation, accused Gursewak Singh disclosed before the Inspector/ SHO that the petitioner Jora Singh @ Baba is serving as Sewadar at Gurudwara Baba Bir Singh Ji Shaheeda Ratoke, where they met to each other and about one month ago, Gursewak Singh along with his friend Gurpreet Singh @ Goppi and Sukhwinder Singh @ Disco son of Tarsem Singh resident of Ward No. 12 Khem Karan went to above Gurudwara Sahib, where the petitioner Jora Singh met us and told that he will take heroin from the fencing of border from Pakistan side and you all person took the same and your share will be given you and accordingly, as per conspiration/ plan and the petitioner Jora Singh gave a Pakistan number 92309-00429 and told that when the work will be finish, then a whats app call will be made you by above said Pakistan number and on Saturday, a whats app call was received and caller person told that your work has been done and accordingly, on next day i.e. Sunday, Talong with his friend and Sukhwinder Singh @ Disco went to the field of NIDHI BHALLA Sukhwinder Singh @ Disco took the heroin one packet which was duly The High Couns Wrapped taped in a polythene bag and dragged the same in the land and after about four days, they took the one packet of heroin and keep the same in the house of Sukhwinder Singh @ Disco. Accordingly, the disclosure statement of Gursewak Singh recorded. Similarly, during the separate interrogation, accused Gurpreet Singh reiterated the version of co-accused Gursewak Singh and his disclosure statement was also recorded and the petitioner was nominated in this case by adding offence under section 29 of the NDPS Act was vide DDR No. 22 dated 15.10.2020.
(5). That it is further submitted that the chemical report was received and as the report of Chemical Examiner after analysis salt "Diphenoxylate Hydrochloride" was found in the sample parcels and the same falls under the ambit of commercial quantity. "
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8. S. 21 of NDPS Act makes dealing in Heroin as a punishable offence in following terms:
Substance Name Diphenoxylate
Quantity detained 500 Gram
Quantity type Commercial
Drug Quantity in % to upper limit of
1000.00%
Intermediate
Specified as small & Commercial in S.2(viia) & 2(xxiiia) NDPS Act, 1985 Notification No S.O.1055(E) dated 10/19/2001 Sr. No. 44 Common Name (Name of Narcotic Drug and Psychotropic Substance Diphenoxylate (International non-proprietary name (INN) Other non-proprietary name ****** 1-(3-cyano-3,3-diphenyIpropyI)-4-
Chemical Name phenylpiperidine-4-carboxylic acid ethyl ester Small Quantity 2 Gram Commercial Quantity 50 Gram Declared as punishable under NDPS Act and as per schedule defined in S.2(xi) & 2(xxiii) NDPS Act, 1985 Notification No S.O.826(E) dated 11/14/1985 Sr. No. 58 Common Name (Name of Narcotic Drug and Psychotropic Substance DIPHENOXYLATE (International non-proprietary name (INN) Other non-proprietary name ****** Ethyl 1-(3-Cyano-3, 3-diphenyIpropyl)-4- phenylpiperidine-4-carboxylic acid ethyl ester (the international non-proprietary name of which is Diphenoxylate), and its salts, preparations, admixtures, extracts and other substances containing any of these drugs, Chemical Name except preparations of diphnoxylate containing, per dosage unit, not more than 2.5 mg.
of diphenoxylate calculated as base, and a quantity of atrophine sulphate equivalent to at least one per cent of the dose of diphenoxylate.
9. Thus, the quantity allegedly involved in this case is primafacie commercial. Given this, the rigours of S. 37 of the NDPS Act apply in the present case. The burden is on the petitioner to satisfy the twin conditions put in place by the Legislature under Section 37 of the NDPS Act.
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10. The petition states that the accused is entitled to bail because the investigation is complete and the challan stands presented. In a case involving a commercial quantity of substance mentioned under the NDPS Act and its notifications, the bail is subject to the legislative restrictions mentioned in section 37. This argument does not wriggle out of the satisfaction required to overcome the legislative intent and statutory mandate.
11. The stand that the accused is in custody for sufficient time is also not a legal ground to overcome the rigors of S. 37 of the NDPS Act at this stage because of the petitioner's criminal antecedents.
12. The grounds taken in the bail petition do not shift the burden placed by the legislature on the accused under S. 37 of the NDPS Act. The petitioner has not stated anything to discharge the burden put by the stringent conditions placed in the statute by the legislature under section 37 of the NDPS Act. Thus, the petitioner has failed to make a case for bail at this stage.
13. A perusal of the bail petition and the documents attached, primafacie points towards the petitioner's involvement and does not make out a case for bail. Any further discussions are likely to prejudice the petitioner; this court refrains from doing so.
14. Any observation made hereinabove is neither an expression of opinion on the merits of the case nor shall the trial Court advert to these comments.
Petition dismissed in terms mentioned above. However, considering the petitioner's custody, the ends of justice will meet by expediting the trial. This court requests the concerned trial court to take up this trial on priority and endeavor to conclude it by July 31, 2023. The expediting of the trial is subject to the condition that the petitioner shall not seek any adjournment, and if he does so, this order expediting the trial shall stand recalled automatically under section 362, read with 482 CrPC, without any further reference to this court. All pending applications, if any, stand disposed of.
(ANOOP CHITKARA)
JUDGE
11.04.2023
sonia arora
Whether speaking/reasoned: Yes
Whether reportable: No.
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