Sukhpal Singh Khaira vs State Of Punjab on 4 January, 2024

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Punjab-Haryana High Court

Sukhpal Singh Khaira vs State Of Punjab on 4 January, 2024

Bench: Anoop Chitkara

                                                                Neutral Citation No:=2024:PHHC:000100




CRM-M-52458-2023

209               IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

                                                       CRM-M-52458-2023
                                                       Reserved on: 17.11.2023.
                                                       Pronounced on: 04.01.2024.

Sukhpal Singh Khaira                                   ...Pe$$oner

                                     Versus

State of Punjab                                        ...Respondent


CORAM:         HON'BLE MR. JUSTICE ANOOP CHITKARA

Present:       Mr. Vikram Chaudhri, Sr. Advocate with
               Mr. Keshavam Chaudhri, Advocate
               Mr. Parvez Chaudhary, Advocate
               Ms. Hargun Sandhu, Advocate
               Mr. Digvijay Singh, Advocate and
               Mr. Rishab Tiwari, Advocate
               for the pe$$oner.

               Mr. Harin P. Raval, Sr. Advocate
               Mr. Gurminder Singh, AG Punjab
               Mr. Luvinder Sofat, D.A.G., Punjab and
               Mr. Shiva Khurmi, A.A.G., Punjab.

                                     ****

ANOOP CHITKARA, J.

 FIR No.   Dated         Police Sta$on          Sec$ons
 35        05.03.2015    Sadar Jalalabad        21, 24, 25, 27, 28, 29, 30, 27-A, 27-B of
                                                Narco$cs      Drugs    and    Psychotropic
                                                Substances Act, 1985 [NDPS Act]and
                                                S. 25-A of Arms Act and Sec$on 88 of IT Act

1. The pe$$oner, an MLA from Punjab, and a former Leader of Opposi$on, who was ini$ally neither named nor prosecuted in the FIR cap$oned above, but his role surfaced during a further inves$ga$on conducted by a new Special Inves$ga$on Team [SIT] for viola$ng 27-A, 27-B of the NDPS Act, in addi$on to other provisions of FIR, came up before this Court under Sec$on 439 of the CrPC, 1973, seeking bail.

2. Counsel for the pe$$oner on instruc$ons argued that in case this Court grants bail to the pe$$oner, they would have no objec$on to any condi$on whatsoever and also refers to para no. 11 of the pe$$on in which it was explicitly men$oned that the pe$$oner would comply with all the condi$ons imposed by this Court. The pe$$oner contends that further pre-trial incarcera$on would cause an irreversible injus$ce to the pe$$oner and their family.

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3. 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, and they have collected suﬃcient evidence that prima facia points towards pe$$oner's dealings with the drugs trade and the interna$onal maﬁa.

FACTS:

4. Facts of the case are being taken from a reply dated 18.10.2023 ﬁled by the concerned Superintendent of Police, which reads as under: -

"[5]. That the brief background of the ma er is that case FIR No.35 dated

05.03.2015 was registered under Sec$ons 21, 24, 25, 27, 28, 29, 30 of the NDPS Act, 1985, 25 of the Arms Act, 66 of the Informa$on Technology Act, 2000 at Police Sta$on Sadar Jalalabad against 11 accused persons namely Harbans Singh, Subhash Chander, Gurdev Chand, Gurdev Singh, Manjit Singh UK, Sonia, Manjit Singh son of Satnam Singh, Anil Kumar alias Neelu, Shan$ Singh, Nirmal Singh and Kala Singh alias Kali. In this case, following recoveries were made from the aforesaid 11 accused persons: -

          SR.      NAME OF ACCUSED                RECOVERY EFFECTED            DATE OF
          NO.                                                                  PRESENTATION
                                                                               OF POLICE
                                                                               REPORT U/S 173
                                                                               CrPC, 1973
          1.       Harbans Singh                  (i) 300 gms of Heroin        06.09.2015
                   Son of Satnam Singh            (ii) 01 Country Made
                                                  Pistol .312 bore
                                                  (iii) 02 live cartridges
          2.       Subhash Chander                260 gms of Heroin            06.09.2015
                   Son of Shiva Di a
          3.       Gurdev Chand                   260 gms of Heroin            06.09.2015
                   Son of Nyamat Chand
          4.       Gurdev Singh                   (i) 350 gms of Heroin        06.09.2015
                   Ex Chairman                    (ii) 24 Gold Biscuits
                   Son of Shiv Singh              (iii) 01 Revolver .32 Bore
                                                  (iv) 25 live catridges
                                                  of .32 Bore
                                                  (v) 01 Pakistani SIM
                                                  Card
          5.       Manjit Singh U.K.,             (i) 300 gms of Heroin        06.09.2015
                   Son of Buta Singh              (ii) 01 Pakistani Mobile
                                                  (iii) 01 Pakistani SIM
                                                  Card
          6.       Sonia                          100 gms of Heroin            06.09.2015
                   Wife of Anil Kumar @
                   Neelu
          7.       Manjit Singh                   -                            06.09.2015
                   Son of Satnam Singh
          8.       Shenty Singh                   100 gms of Heroin            06.09.2015
                   Son of Charanjit Singh
          9.       Nirmal Singh @                 100 gms of Heroin            06.09.2015
                   Nimma
                   Son of Iqbal Singh

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CRM-M-52458-2023

        10.       Kala Singh @ Kaali     -                            18.10.2016
                  Son of Madhi
        11.       Anil Kumar @ Neelu     -                            31.08.2019
                  Son of Hans Raj (He
                  was earlier absconding
                  and was declared
                  proclaimed oﬀender on
                  01.12.2015 and was
                  subsequently arrested
                  on 16.04.2019)

A total 1.8 Kg of psychotropic substances (Heroin) was recovered from the aforesaid accused persons in addi$on to the following: -

(i) 24 Gold Biscuits (one gold biscuit was subsequently recovered from accused Kashmir Singh @ Billa)

(ii) 01 Country made Pistol .315 Bore alongwith 02 live cartridges.

(iii) 01 Revolver .32 Bore along with 25 live cartridges of .32 Bore.

(iv) 01 Pakistani Mobile

(v) 02 Pakistani SIM cards".

5. The other accused, from whose possession the police had ini$ally recovered a massive quan$ty of drugs, gold, and weapons, were prosecuted before Special Court, Fazilka. Before ﬁling a police report under Sec$on 173 Code of Criminal Procedure, 1973 [CrPC], on May 8, 2015, the pe$$oner had ﬁled CWP No.8999 of 2015 in this Court, seeking an inves$ga$on by CBI and other reliefs. On July 14, 2016, the State informed the Court that the pe$$oner had no cause of ac$on to maintain and con$nue with this writ pe$$on as the pe$$oner was not an accused in this case and the trial was already going on in which two witnesses had already been examined. Subsequently on Mar 16, 2017, due to subsequent events, the pe$$oner withdrew the CWP, without prejudice to approach again if the need arose.

6. In the trial, the tes$monies of PW4 Ajmer Singh & PW5 Jaswant Singh were recorded, and on July 06, 2016, a request was made by the prosecu$on to re-call them, which the Trial Court declined.

7. In between vide order dated June 11, 2017, the Government of Punjab had cons$tuted another Special Inves$ga$on Team headed by SSP Fazilka to inves$gate the maJer further.

8. The trial against ten accused persons against whom challan had been presented commenced in the Court of Special Judge Fazilka. At the ﬁnal stage of the ﬁrst trial, the State moved an applica$on under Sec$on 319 CrPC to summon the pe$$oner as an accused. The State ﬁled this applica$on based on the tes$monies of PW4, PW5, and PW13. On October 31, 2017, Special Judge Fazilka convicted and sentenced nine accused 3 3 of 35 ::: Downloaded on - 04-01-2024 23:17:28 ::: Neutral Citation No:=2024:PHHC:000100 CRM-M-52458-2023 to various terms men$oned in the judgment and acquiJed one accused, whereas accused namely Anil (A-11) has already been declared proclaimed oﬀender. ANer pronouncing the judgment of convic$on, the Sessions Judge also allowed the applica$on ﬁled by the Inves$gator under Sec$on 319 CrPC and issued non-bailable warrants against the pe$$oner. The State's counsel had supplied a photocopy of the judgment, and I have also gone through the same. Counsel for the pe$$oner submits that, per his informa$on, all the convicts have challenged the convic$on by ﬁling separate appeals pending adjudica$on.

9. The pe$$oner challenged the non-bailable warrants, and the order passed in the applica$on under Sec$on 319 CrPC by ﬁling CRR No. 4070 of 2017. On November 17, 2017, a Co-ordinate Bench of this Court dismissed the revision pe$$on but quashed non-bailable warrants.

10. Aggrieved by the dismissal of the revision pe$$on, the pe$$oner ﬁled SLP(Crl) No. 9063 of 2017 before the Hon'ble Supreme Court. On May 10, 2019, in Sukhpal Singh Khaira vs The State of Punjab, 2019 (6) SCC 638, a two-member Bench of Hon'ble Supreme Court, formulated a ques$on of law and referred the maJer to a Larger Bench.

11. On December 05, 2022, a Cons$tu$onal Bench of Hon'ble Supreme Court, In Sukhpal Singh Khaira vs The State of Punjab, decided the reference in the following terms: -

"[38]. For all the reasons stated above, we answer the ques$ons referred as hereunder.

[39]. (I) Whether the trial court has the power under Sec$on 319 CrPC for summoning addi$onal accused when the trial with respect to other co- accused has ended and the judgment of convic$on rendered on the same date before pronouncing the summoning order?

The power under Sec$on 319 CrPC is to be invoked and exercised before the pronouncement of the order of sentence where there is a judgment of convic$on of the accused. In the case of acqui al, the power should be exercised before the order of acqui al is pronounced. Hence, the summoning order has to precede the conclusion of trial by imposi$on of sentence in the case of convic$on. If the order is passed on the same day, it will have to be examined on the facts and circumstances of each case and if such summoning order is passed either aLer the order of acqui al or imposing sentence in the case of convic$on, the same will not be sustainable.

4 of 35 ::: Downloaded on - 04-01-2024 23:17:28 ::: Neutral Citation No:=2024:PHHC:000100 CRM-M-52458-2023 [40]. (II) Whether the trial court has the power under Sec$on 319 CrPC for summoning addi$onal accused when the trial in respect of certain other absconding accused (whose presence is subsequently secured) is ongoing/pending, having been bifurcated from the main trial? The trial court has the power to summon addi$onal accused when the trial is proceeded in respect of the absconding accused aLer securing his presence, subject to the evidence recorded in the split-up (bifurcated) trial poin$ng to the involvement of the accused sought to be summoned. But the evidence recorded in the main concluded trial cannot be the basis of the summoning order if such power has not been exercised in the main trial $ll its conclusion."

12. On February 9, 2023, a two-member Bench of Hon'ble Supreme Court passed the following order: -

"[1]. Indisputably, in the present cases the order under Sec$on 319 Cr.P.C. was passed by the learned High Court aLer the learned Trial Judge had pronounced the order of convic$on and sentence against the accused, who were being tried by the learned Trial Judge.

[2]. The order passed under Sec$on 319 Cr.P.C. against the present appellants was challenged before the learned Single Judge vide judgment dated 17th November, 2017 of the High Court by way of revision pe$$ons. The learned Single Judge rejected the revisions. Aggrieved thereby present appeals were ﬁled.

[3]. Since the Bench hearing the ma er in this Court found that it involves an important issue, the ma ers were referred to a Larger Bench. The Cons$tu$on Bench vide its judgment dated 05.12.2022 rendered in Sukhpal Singh Khaira v. The State of Punjab, reported in (2022) 17 SCC 246, has held that once the learned Trial Judge passes an order on sentence, the Court become functus oﬃcio and it is not within its jurisdic$on to pass an order under Sec$on 319 Cr.P.C.

[4]. Indisputably, in the present case, the orders under Sec$on 319 Cr.P.C. has been passed aLer the accused, who were facing trial, were convicted and sentenced.

[5]. In view of the law laid down by the Cons$tu$on Bench in Sukhpal Singh Khaira (Supra) these appeals are allowed. The order passed by the learned Trial Judge under Sec$on 319 Cr.P.C. against the appellants as well as by the learned Single Judge of the High Court are quashed and set aside."

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13. ANer this, the pe$$oner, Sukhpal Singh Khaira, and his PA, Munish Kumar, ﬁled an applica$on before the Ld. Judge Special Court, Fazilka, with a prayer to drop the proceedings, as an outcome of the order dated 09.02.2023 passed by the Hon'ble Supreme Court of India.

14. On April 13, 2023, the trial Court (Special Judge, Fazilka) passed the following order: -

"8. Resultantly, the applica$on having been ﬁled by the applicants stands disposed oﬀ with the following direc$ons: -

a) The proceedings of this case arising out of the summoning order dated 31.10.2017 under Sec$on 319 Cr.P.C. pronounced by learned predecessor of this Court, stand disposed without prejudice to the right of State/inves$ga$ng agency/SIT to carry out any inves$ga$ng/inquiry with regard to the involvement of the applicants and other suspects in the smuggling of drugs or to present charge sheet under Sec$on 173 Cr.PC.

b) The passports of both the applicants Sukhpal Singh Khaira and Manish Kumar be released to them forthwith against proper receipt and while retaining the photocopies of those passports on the ﬁle for further reference."

15. ANer that, on May 3, 2023, the trial Court made the following observa$ons: -

"[1]. Main ﬁle has been received with the record of trial arising out of FIR No.35 dated 05.03.2015 under Sec$ons 21, 24, 25, 27, 28, 29, 30 NDPS Act, Sec$on 25/54 Arms Act and Sec$on 66 IT Act 2000 which has been perused and considered.

[2]. By way of separate detailed orders dated 13.04.2023 and 17.04.2023 respec$vely, proceedings of this case against addi$onal accused Sukhpal Singh Khaira, Manish Kumar and Joga Singh have been dropped in view of the order dated 09.02.2023 passed by Hon'ble Supreme Court of India in Criminal Appeals No. 885 and 886 of 2019 on the basis of ra$o of judgment dated 05.12.2022 of Hon'ble Supreme Court of India in $tled as Sukhpal Singh Khaira versus The State of Punjab. By way of ra$o decidendi of this judgment, it has been held by the cons$tu$onal bench of Hon'ble Supreme Court that "once the trial judge passes an order on sentence, the court become functus oﬃcio and it is not within its jurisdic$on to pass an order under sec$on 319 Cr.PC."

[3]. Admi edly, it was on the basis of ra$o decidendi of judgment in Sukhpal Singh Khaira's case (Supra), that add$onal accused Sukhpal Singh 6 6 of 35 ::: Downloaded on - 04-01-2024 23:17:28 ::: Neutral Citation No:=2024:PHHC:000100 CRM-M-52458-2023 Khaira, Manish Kumar and Joga Singh have been exonerated from these proceedings vide orders as men$oned in para 1 of this order. Since, addi$onal accused Charanjit Kaur and Major Singh Bajwa were also summoned under sec$on 319 Cr.PC by way of same order dated 31.10.2017 vide which the above said accused Sukhpal Singh Khaira, Manish Kumar and Joga Singh were summoned as addi$onal accused, no further proceedings against addi$onal accused Charanjit Kaur and Major Singh Bajwa can be carried out on the basis of such summoning order dated 31.10.2017 in view of guiding principal laid down in Sukhpal Singh Khaira's case (supra). Hence, the proceedings of this Criminal Miscellaneous Pe$$on, so far as these arose out of the summoning order dated 31.10.2017 under Sec$on 319 Cr.PC stands dropped against addi$onal accused Charanjit Kaur and Major Singh Bajwa also. Before par$ng with this order, it is made clear that the dropping of these proceedings shall be without prejudice to the right of State/ inves$ga$ng agency/ SIT to carry out any inves$ga$on/ inquiry with regard to the involvement of these accused and other suspects in the smuggling of drugs or to present charge sheet under Sec$on 173 Cr.PC. Proceedings stands dropped accordingly. File be consigned to record room."

16. Subsequently, vide order dated September 4, 2023, the Director, Bureau of Inves$ga$on, Punjab, cons$tuted another SIT to inves$gate FIR No.35 of 2015. On September 28, 2023, vide rapat no.5, the SIT added oﬀences under Sec$on 27-A and 27- B of NDPS Act and also arraigned Gurpreet Singh @ Gopi, Kashmir Singh @ Billa, Major Singh Bajwa, Charanjit Kaur, Sukhpal Singh Khaira-pe$$oner, Joga Singh (PSO of the pe$$oner) and Munish Kumar (PA of pe$$oner) as addi$onal accused.

17. During the inves$ga$on, Gurdev Singh (A-6) [an Ex-chairman of the Market CommiJee, Dhilwan, and Ex-Sarpanch of Village Lakhan Ke Padde, falling in Bholath cons$tuency], had disclosed his proximity to the pe$$oner, and the Inves$gator gathered evidence of family rela$ons between him and the pe$$oner. Accused Gurdev Singh had disclosed to the Inves$gator that the pe$$oner had assured him of all help and protec$on in case he was trapped in any drug traﬃcking maJer. In return, Gurdev Singh (A-6) would provide funding to the elec$ons of the pe$$oner and money as and when he needed it.

18. The pe$$oner, Sukhpal Singh Khera, was arraigned as accused on 28.09.2023 and arrested on the same morning.

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19. Facts leading to the arrest of the pe$$oner given by the State in its reply dated 18.10.2023 ﬁled by the concerned Superintendent of Police, the relevant por$on of the same extracted as below: -

[10]. That during the pendency of the trial, an applica$on dated 21.09.2017 was moved under Sec$on 319 of the Code of Criminal Procedure, 1973 to summon Joga Singh, PSO of Sukhpal Singh Khaira, Sukhpal Singh Khaira, Manish, PA, Charanjit Kaur and Major Singh Bajwa.

The aforesaid applica$on was moved, inter-alia, on the following grounds:-

(i) During inves$ga$on of the case, accused Gurdev Singh, Ex Chairman, revealed that he had family rela$ons with Sukhpal Singh Khaira. He has been told by Sukhpal Singh Khaira that if he is trapped in any case of drug traﬃcking he would be protected by Sukhpal Singh Khaira (Case Diary No. 04 dated 08.03.2015 recorded by SI Jaswant Singh, SHO, PS Sadar Jalalabad).

(ii) It is also recorded in Case Diary No. 5 dated 09.03.2015 recorded by Sh. Ajmer Singh, DSP, Sub-Division Jalalabad that during inves$ga$on, accused Gurdev Singh revealed that he had family rela$ons with Sukhpal Singh Khaira. Accused Gurdev Singh provided funds and vehicles to Sukhpal Singh Khaira during elec$ons or whenever so required by Sukhpal Singh Khaira.

[11]. That during the interregnum, vide order No. 5952/C dated 06.11.2017 another SIT was formed by SSP, Fazilka comprising of SP/D, Fazilka, DSP/Sub Division, Jalalabad and SHO, PS Sadar Jalalabad. This SIT submi ed its report to DIG/Ferozepur on 25.06.2021 through SSP, Fazilka. However, this report was not accepted and kept pending by DIG, Ferozepur. In this report, there is no men$on of other 9 co-accused men$oned alongwith their roles in the ini$al ﬁndings of previous SIT. This SIT did not summon or arrest the co-accused including Sukhpal Singh Khaira even aLer 04 years of inves$ga$on. It did not appreciate the evidence brought on record against Sukhpal Singh Khaira in the chargesheet ﬁled on 06.09.2015 against aforesaid 09 accused and supplementary chargesheet ﬁled against one accused on 31.08.2019. Due to incomplete and unprofessional report of this SIT, Departmental Ac$on has been taken against members of this SIT, vide le er No. 3996-3997/Crime/Inv. 5 dated 03.10.2021.

[14]. That during the interregnum, accused Anil Kumar @ Neelu was arrested on 16.04.2019. Police Report under Sec$on 173(8) of the Code of Criminal Procedure to challan accused Anil Kumar @ Neelu was presented to court on 31.08.2019. In the challan ﬁled against Anil Kumar @ Neelu, it was men$oned that ﬁnal report under Sec$on 173(8) of the Code of Criminal Procedure shall be presented aLer the decision of Hon'ble Supreme Court in SLP No. 9063 of 2017 ﬁled by Sukhpal Singh Khaira and SLP No. 9150 of 2017 ﬁled by Joga Singh, PSO.

[15]. That trial against accused Anil Kumar @ Neelu is under progress in the trial court at Fazilka.

20. Feeling aggrieved, the pe$$oner ﬁled CRWP No. 9859 of 2023 to declare the arrest illegal and a viola$on of Ar$cle 21 of the Cons$tu$on of India and Sec$ons 41 & 80 CrPC, 1973. In the writ pe$$on, the pe$$oner had also challenged his arrest as void ab ini$o on the grounds of illegality and viola$on of Supreme Court judgments passed in 8 8 of 35 ::: Downloaded on - 04-01-2024 23:17:28 ::: Neutral Citation No:=2024:PHHC:000100 CRM-M-52458-2023 this FIR itself, in which the applica$on ﬁled by the State Government under Sec$on 319 CrPC for summoning the pe$$oner was refused by the Hon'ble Supreme Court, although it had been allowed by the Sessions court and aﬃrmed by the High court.

21. During the pendency of the above-men$oned criminal writ pe$$on, the counsel for the pe$$oner brought to the no$ce of this Court their inten$on to also ﬁle a regular bail pe$$on, and they wanted the same to be ﬁled before this Court for the reason that the writ pe$$on challenging the illegality of the arrest was being argued before this Court. ANer arguing extensively, the pe$$oner's counsel submiJed that he was seeking seeking interim bail under sec$on 482 CrPC, 1973, and he may be permiJed to withdraw the said prayer and ﬁle a separate bail pe$$on under Sec$on 439 CrPC, 1973, straightway to this Court. The pe$$oner's counsel further clariﬁed that they would not claim any prejudice for losing an opportunity before Sessions Court and by coming straightway to this Court.

22. Although Sessions Court and High Courts have concurrent bail jurisdic$on, as a prac$ce, the bail pe$$ons are ini$ally ﬁled before the Sessions Court and, aNer that, in the High Court. It is advantageous and beneﬁcial to the accused for the reason that even if the Sessions Court rejects the bail, they can s$ll get an opportunity to raise the same facts and refer the same judicial precedents before the High Court, in addi$on to new points, without wai$ng for the change in the circumstances. On the contrary, whenever an accused ﬁles bail straightway to the High Court, they lose this second inbuilt opportunity to get their maJer reviewed within the highest court of the said State.

23. Vide order dated Oct 11, 2023, this Court permiJed the pe$$oner to ﬁle a separate pe$$on for bail before this Court, not rou$ng it through the Sessions Court. In this background and the excep$onal circumstances, this Court had heard the present bail pe$$on on merits without deciding the legality of ﬁling bail straightway in this Court.

REASONING:

24. I have heard Mr. Vikram Chaudhary, Sr. Advocate, Ld. Counsel for the pe$$oner, Mr. Harin P. Raval, Sr. Advocate and Mr. Gurminder Singh, Advocate General for the State of Punjab, and other counsel for the parties at length on various dates and gone through the record. The following paragraphs will reﬂect the arguments and counter arguments addressed by the par$es and its outcome.

25. The present FIR, in which the police arrested the pe$$oner on September 28, 2023, traces back to March 05, 2015. The Inves$gator had received secret and 9 9 of 35 ::: Downloaded on - 04-01-2024 23:17:28 ::: Neutral Citation No:=2024:PHHC:000100 CRM-M-52458-2023 excep$onally reliable informa$on that an interna$onal drug maﬁa was opera$ng at the Pakistan border, and one person named Harbans Singh, who owned land at the border of India and Pakistan was facilita$ng the drug smuggling, taking advantage of the proximity to Pakistan border. ANer comple$ng the procedural requirement, a substan$al number of police oﬃcials raided the premises and recovered massive amounts of Heroin, gold, and pistols from various accused. ANer comple$on of the inves$ga$on, the Inves$gator ﬁled a police report under Sec$on 173(2) CrPC against eleven accused. Since the 11th accused, Anil Kumar, could not be traced, he was men$oned as a proclaimed oﬀender. The pe$$oner was neither named as an accused in the FIR nor in the report under Sec$on 173 CrPC.

26. Mr. Vikram Chaudhary, Sr. Advocate, Ld. Counsel for the pe$$oner referred to para 5.1 of the bail pe$$on and argued that the pe$$oner had been arrested because he parted ways with the Aam Aadmi Party [AAP], which is now the ruling party in Punjab. He referred to para 5.6 of the bail pe$$on and stated that it is regime revenge by fabrica$ng, padding, and crea$ng false evidence. He further referred to por$ons of para 5 to substan$ate his submission. On this, Mr. Harin P. Raval, Sr. Advocate and Mr. Gurminder Singh, Ld. Advocate General for the State of Punjab vehemently denied such allega$ons and termed them as false, baseless, and ﬁgments of imagina$ons, and further stated that FIR was registered when the present ruling party (AAP) was not even in power; as such, the allega$ons are simply to divert aJen$on from the pe$$oner's involvement in the heinous crime and his connec$on with Pakistani smugglers and foreign handlers. An analysis of these submissions leads to an outcome that the allega$ons and counter-allega$ons need evidence, and at the bail stage, this Court cannot comment on the same; as such, the Court is refraining from making any comments on these arguments.

27. The pe$$oner's counsel's next submission is that the arrest itself was illegal and has referred to various por$ons of the grounds of the bail pe$$on. Ld. Advocate General, Punjab countered the said submission mainly on the ground that the pe$$oner had ﬁled a separate criminal writ pe$$on challenging his arrest as illegal, and as such, these points could not be considered in the present bail pe$$on. I agree with the Advocate General, Punjab, and the scope of these submissions might need an answer in the connected writ pe$$on, but certainly, given the fact that the same pleas have been taken up in both the pe$$ons, as the criminal writ pe$$on which was ﬁled ﬁrst, these points have to be considered in the said pe$$on and not in the present pe$$on which is ﬁled later. Advocate General, Punjab has referred explicitly to the aﬃdavit of Sukhpal Singh Khaira dated 12.09.2016 ﬁled in CWP No.8999 of 2015 in which he had explicitly 10 10 of 35 ::: Downloaded on - 04-01-2024 23:17:28 ::: Neutral Citation No:=2024:PHHC:000100 CRM-M-52458-2023 made the following statement which reads as follows: -

"5. That the period of 1 year 9 months of no ac$on against the deponent has not derailed the inves$ga$on in any manner and has not caused any prejudice to anyone. The deponent is not reques ng the Hon'ble Court to restrain the Respondent-State to inves gate the ma er against him but is only beseeching the court to grant him one month me if the inves ga ng agency ﬁnally decides to arraign the deponent as an accused in the FIR. The $me is sought only for the purpose of availing legal remedies to the deponent. The State can demonstrate the nature of evidence and allega$ons as collected against the deponent at the $me of arguments while availing those legal remedies, but, if the deponent is arrested on any day all of a sudden the same shall cause serious viola$on of Ar$cle 21 of the Cons$tu$on of India. As the deponent is a poli$cal ﬁgure and elec$ons are going to be conducted in the State of Punjab within 6 months, the fear and apprehension of geRng involved in this case would seriously hamper the deponent's poli$cal campaign as required during the elec$on process. The Hon'ble High Court many a $mes before has rescued the persons situated alike as the deponent having fear of false implica$on due to poli$cal vende a." (Emphasis supplied)

28. The pe$$oner's counsel argued that the Hon'ble Supreme Court has granted no leave and liberty to the State of Punjab to conduct any further inquiry/inves$ga$on insofar as the pe$$oner is concerned. Further, no applica$on for review or recall of the order passed by the Hon'ble Supreme Court has ever been ﬁled or pending before the Hon'ble Supreme Court on behalf of the State of Punjab, and it is not discernible how, why, and under what circumstances could the said Court issue any direc$on for further inquiry/inves$ga$on qua the pe$$oner as also to ﬁle a charge sheet under Sec$on 173 CrPC once the Supreme Court had nulliﬁed the proceedings ini$ated against him.

29. Counsel for the pe$$oner further argued that prosecu$on could not take into considera$on the evidence which was part of the trial at ﬁrst stage and this fact is very much clear from judgment of Hon'ble Supreme Court passed in the case of pe$$oner, while deciding the reference and had stated as follows:

"The trial court has the power to summon addi$onal accused when the trial is proceeded in respect of the absconding accused aLer securing his presence, subject to the evidence recorded in the split-up (bifurcated) trial poin$ng to the involvement of the accused sought to be summoned. But the evidence recorded in 11

11 of 35 ::: Downloaded on - 04-01-2024 23:17:28 ::: Neutral Citation No:=2024:PHHC:000100 CRM-M-52458-2023 the main concluded trial cannot be the basis of the summoning order if such power has not been exercised in the main trial $ll its conclusion."

30. Ld. Advocate General contended that the inves$ga$on against Anil (A-11) was going on; and while ﬁling the police report against the ten accused, it was explicitly men$oned that the pe$$oner was a suspect, and further inves$ga$on was being conducted. Further inves$ga$on brought the evidence to the surface and Gurdev Singh, who is one of the accused, (Government of Punjab conveys that they are in the process of giving him pardon and are exploring steps to declare him as an approver), and is a poli$cal acquaintance and supporter of the pe$$oner. In a nutshell, the Inves$gator found further evidence about the exchange of calls between Gurdev Singh (A-6), Charanjit Kaur, and Major Singh Bajwa, who was the handler of a drug cartel and pe$$oner. The prosecu$on referred to the inves$ga$on conducted in this regard by Ravinder Pal Singh, who has also tes$ﬁed as PW-13 in the ﬁrst session trial $tled 'State of Punjab vs. Harbans Singh and others,'. He further submits that the evidence that was adduced during the ﬁrst trial has to be read in the light of the observa$ons made by Hon'ble Cons$tu$onal Bench (Supra) and the fact remains that State referred to the cartel and at that $me, they did not arraign the pe$$oner as an accused.

31. Ld. AG referred to the reply and further submiJed that Gurdev Singh used to give the proceeds of the drugs to Sukhpal Singh Khaira since 1997 and was funding the elec$ons of Sukhpal Singh Khaira, and in return, Sukhpal Singh Khaira would assure protec$on from the drug detec$ons squads. Gurdev Singh was working as per the dictates of his handler opera$ng from the United Kingdom. Apart from this the members of the interna$onal drug cartel, Sukhpal Singh Khaira and Gurdev Singh had close associa$on with Ranjit Singh alias Dara, a resident of Muthada, who is absconding in cases registered against him in Districts Fatehgarh Sahib and Pa$ala. The said Ranjit Singh @ Dara was wanted in the famous Bhola Drug case. The technical details about the movement and Call Detail Records and the conversa$on between Gurdev Singh, Charanjit Kaur, Major Singh Bajwa, and Sukhpal Singh Khaira conﬁrmed his involvement and depicted the nexus among the members of the drug cartel. The SIT recommended an inves$ga$on based on the suspicious role of Sukhpal Singh Khaira and submiJed its report on 14.03.2016 to IGP Bathinda. The fact that despite such a report and its acceptance, he could successfully avoid lawful inves$ga$on into the crime and his involvement is grounds for denying him bail.

32. Ld. Advocate General, Punjab, submits that the inves$ga$on was con$nuing, and it was explicitly men$oned in the police report under Sec$on 173 CrPC that one person 12 12 of 35 ::: Downloaded on - 04-01-2024 23:17:28 ::: Neutral Citation No:=2024:PHHC:000100 CRM-M-52458-2023 was an absconder, and an inves$ga$on was going on. It cannot be said that the remaining would be absolved simply because prosecu$on was launched against some of the accused. He further submits that the Inves$ga$ng Agency was previously siding with the pe$$oner. Despite the availability of the clinching evidence, they chose not to prosecute him as an accused. He submiJed that crime never dies, and now the present regime, which is making all-out eﬀorts to curb the drug menace and control corrup$on in government employees, has launched against all out ini$a$ves against these maﬁas, corrupt government oﬃcials, and their supporters. Ld. Advocate General, Punjab further argued that the pe$$oner is not en$tled to bail solely for the reason that ini$ally, at his instance and due to his clout, the Inves$ga$ng Agency sided with him, and now, in case this Court grants bail, there is a likelihood of pe$$oner hampering the evidence and inﬂuencing the trial. He further submits that even per call details, the pe$$oner was constantly in touch with the co-accused, who operates from the United Kingdom. This, coupled with the recovery of the Pakistani SIM card, establishes an interna$onal connec$on, and the convic$on of other accused by the Special Court establishes the involvement of such pe$$oner in drug cartel, and as such, is not en$tled to bail. He further submits that the pe$$oner is the kingpin because he had given patronage to the maﬁa and has massive assets that are dispropor$onate to the non-source of income, corrobora$ng the majority of such assets and drug money that he received as a share in helping in dealing with the interna$onal drug maﬁa. He further submits that the fresh evidence collected by the Punjab Police is corroborated by the Enforcement Directorate, which has launched a separate prosecu$on against the pe$$oner for money laundering and uncounted wealth.

33. The reply stated that during the pendency of the inves$ga$on, vide order No. 3227-31/Reader dated 09.03.2015, an SIT was cons$tuted by IGP Bathinda to inves$gate the case above FIR No. 35 of 2015, registered in the police sta$on, Sadar Jalalabad. During the inves$ga$on of the case, the police report under Sec$on 173 (2) of CrPC was presented to the court on 06.09.2015 against nine accused (except the absconding accused Kala Singh @ Kaali and Anil Kumar @ Neelu) out of eleven accused persons men$oned above. The reply does men$on that further inves$ga$on of other accused persons shall con$nue, and supplementary police report(s) under sec$on 173(8) of the CrPC shall be presented to the court at the proper $me. Report under Sec$on 173(8) ﬁled against Kala Singh @ Kaali on 18.10.2016. Accused Anil Kumar alias Neelu was declared a proclaimed oﬀender on 01.12.2015 and was ul$mately arrested on 16.04.2019, against whom a charge sheet under Sec$on 173(8) of CrPC was ﬁled on 31.08.2019. The trial of Anil Kumar @ Neelu is pending in the Special Court, Fazilka, Panjab. The reply also states that the inves$ga$on conducted by SIT collected massive 13 13 of 35 ::: Downloaded on - 04-01-2024 23:17:28 ::: Neutral Citation No:=2024:PHHC:000100 CRM-M-52458-2023 evidence of the accused being part of an interna$onal drug cartel and added oﬀence under Sec$on 27-A and 27-B of NDPS Act vide rapat no.5 dated 28.09.1993, the involvement of the following nine persons who are facilita$ng drug traﬃcking in the State of Punjab as well as cross the border on an interna$onal level: -

(i) Gurpreet Singh @ Gopi

(ii) Kashmir Sing @ Billa

(iii) Major Singh Bajwa

(iv) HC Joga Singh No. 4/24 IRB

(v) Sukhpal Singh Khaira (Pe$$oner)

(vi) Charanjit Kaur

(vii) Baljit Kaur @ Bindo

(viii) Manish PA

(ix) Harjit Singh, PSO

34. Since this Court is adjudica$ng bail pe$$on, the evidence whatever gathered by the State before the considera$on of their applica$on under Sec$on 319 CrPC, that is not relevant at this stage in view of the order of Hon'ble Supreme Court. This Court is taking into considera$on evidence collected thereaNer. It is clariﬁed that these observa$ons are only for the purpose of deciding the present bail pe$$on, with no bearing whatsoever, while adjudica$ng the other pe$$on and any subsequent pe$$on, or at the $me of discharge, or faces the trial, if the stage arises.

35. An analysis of the response leads to a clear inference that the evidence collected against the pe$$oner, which does not form part of the ﬁrst trial, is sketchy and inconclusive. However, it remains undisputed that the quan$ty which is aJributed to the pe$$oner with the aid of Sec$ons 27-A, 27-B, and 29 of NDPS Act, which was ini$ally recovered from most co-accused (convicts) falls under the commercial category. Sec$on 371 of the NDPS Act mandates under sub-sec$on (1) (b) of sec$on 37, that no person accused of an oﬀence punishable for oﬀences involving commercial quan$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 oﬀence and is not likely to commit any oﬀence while on bail. Thus, the rigors of S. 37 of the NDPS Act apply in the present case, and the burden 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 sec$on 19 or sec$on 24 or sec$on 27A and also for oﬀences involving commercial quan$ty shall be released on bail or on his own bond unless--

(i) the Public Prosecutor has been given an opportunity to oppose the applica$on for such release, and (ii) where the Public Prosecutor opposes the applica$on, the court is sa$sﬁed 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 limita$ons on gran$ng of bail speciﬁed in clause (b) of sub-sec$on (1) are in addi$on to the limita$ons under the Code of Criminal Procedure, 1973 (2 of 1974) or any other law for the $me being in force on gran$ng of bail.

14 of 35 ::: Downloaded on - 04-01-2024 23:17:28 ::: Neutral Citation No:=2024:PHHC:000100 CRM-M-52458-2023 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 oﬀence punishable under the NDPS Act for possessing a commercial quan$ty of contraband only aNer recording reasonable sa$sfac$on of its rigors.

36. Ld. Advocate General submiJed that mere 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 puVng these stringent condi$ons. The movement and call details chart of Gurdev Singh, Charanjit Kaur, and Major Singh Bajwa (Drug cartel handler), nexus within the cartel and conversa$on Chart, and the interpreta$on of call detail of Sukhpal Singh Khaira, Gurdev Singh, Charanjit Kaur & Major Singh Bajwa was veriﬁed by ASI/LR Ravinderpal Singh, which points out towards the pe$$oner's involvement. These technical details and analysis clearly show the nexus and the business associa$on among the cartel members.

ANALYSIS OF JUDICIAL PRECEDENTS CONCERNING S. 37 NDPS ACT:

37. 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.

38. In Narco$cs Control Bureau v Kishan Lal, 1991 (1) SCC 705, Supreme Court holds, [6]. Sec$on 37 as amended starts with a non-obstante clause sta$ng that notwithstanding anything contained in the Code of Criminal Procedure, 1973 no person accused of an oﬀence prescribed therein shall be released on bail unless the condi$ons contained therein were sa$sﬁed. The Narco$c Drugs And Psychotropic Substances Act is a special enactment as already noted it was enacted with a view to make stringent provision for the control and regula$on of opera$ons rela$ng to narco$c drugs and psychotropic substances. That being the underlying object and par$cularly when the provisions of Sec$on 37 of Narco$c Drugs And Psychotropic Substances Act are in nega$ve terms limi$ng the scope of the applicability of the provisions of Criminal Procedure Code regarding bail, in our view, it cannot be held that the High Court's powers to grant bail under Sec$on 439 Criminal Procedure Code are not subject to the limita$on men$oned under Sec$on 37 of Narco$c Drugs And Psychotropic Substances Act. The non-obstante clause with which the 15 15 of 35 ::: Downloaded on - 04-01-2024 23:17:28 ::: Neutral Citation No:=2024:PHHC:000100 CRM-M-52458-2023 Sec$on starts should be given its due meaning and clearly it is intended to restrict the powers to grant bail. In case of inconsistency between Sec$on 439 Criminal Procedure Code and Sec$on 37 of the Narco$c Drugs and Psychotropic Substances Act, 1985 Sec$on 37 prevails.

39. In Union of India v. Thamisharasi, 1995 (4) SCC 190, Supreme Court holds, [9]. The ques$on, therefore, is: Whether Sec$on 37 of the N.D.P.S. Act is an inconsistent provision of this kind to exclude the applicability merely of the proviso to sub-sec$on (2) of Sec$on 167 Criminal Procedure Code when sub-sec$on (2) of Sec$on 167 is expressly made applicable by the N.D.P.S. Act ? The non-obstante clause at the beginning of clauses (a) and

(b) thereof are inconsistent with the corresponding provisions of the Code. Clause (a) makes every oﬀence punishable under this Act to be cognizable. Clause (b) imposes limita$ons on gran$ng of bail speciﬁed therein which are in addi$on to the limita$ons under the Code of Criminal Procedure on gran$ng of bail as stated in sub-sec$on (2) of Sec$on 37. Clause (b) of sub-sec$on (1) speciﬁes the two limita$ons on gran$ng of bail, namely, (1) an opportunity to the Public Prosecutor to oppose the bail applica$on and (2) sa$sfac$on of the court that there are reasonable grounds for believing that the accused is not guilty of such oﬀence and that he is not likely to commit any oﬀence while on bail. The learned Addi$onal Solicitor General contends that these limita$ons on gran$ng of bail speciﬁed in clause (b) of sub-sec$on (1) of Sec$on 37 indicate that the applicability of the proviso to sub-sec$on (2) of Sec$on 167 Criminal Procedure Code is excluded in such cases. We are unable to accept this conten$on.

[10]. The limita$ons on gran$ng of bail speciﬁed in clause (b) of sub- sec$on (1) of Sec$on 37 come in only when the ques$on of gran$ng bail arises on merits. By its very nature the provision is not aJracted when the grant of bail is automa$c on account of the default in ﬁling the complaint within the maximum period of custody permiJed during inves$ga$on by virtue of sub-sec$on (2) of Sec$on 167 Criminal Procedure Code The only fact material to aJract the proviso to sub-sec$on (2) of Sec$on 167 is the default in ﬁling the complaint within the maximum period speciﬁed therein to permit custody during inves$ga$on and not the merits of the case which $ll the ﬁling of the complaint are not before the court to determine the existence of reasonable grounds for forming the belief about the guilt of the accused. The learned Addi$onal Solicitor General submiJed that this belief can be formed during inves$ga$on by reference to the contents of the case diary even before the chargesheet has been ﬁled. This is fallacious $ll the complaint is ﬁled the accused is supplied no material from which he can discharge the burden placed on him by Sec$on 37(1)(b) of the N.D.P.S. Act. In our opinion, such a construc$on of clause (b) of sub-sec$on (1) of Sec$on 37 is not permissible.

40. In Union of India v Ram Samujh, 1999 (9) SCC 429, decided on 30 Aug 1999, Supreme Court holds, [8]. To check the menace of dangerous drugs ﬂooding the market, the Parliament has provided that the person accused of oﬀences under the NDPS Act should not be released on bail during trial unless mandatory condi$ons provided in Sec$on 37, namely,

(i) there are reasonable grounds for believing that accused is not guilty of such oﬀence; and

(ii) that he is not likely to commit (sic) while on bail are sa$sﬁed. The High Court has not given any jus$ﬁable reason for not abiding by the aforesaid 16 16 of 35 ::: Downloaded on - 04-01-2024 23:17:28 ::: Neutral Citation No:=2024:PHHC:000100 CRM-M-52458-2023 mandate while ordering the release of the respondent accused on bail. Instead of aJemp$ng to take a holis$c view of the harmful socio- economic consequences and health hazards which would accompany traﬃcking illegally in the dangerous drugs, the Court should implement the law in the spirit with which the Parliament, aNer due delibera$on, has amended.

41. In Union of India v. Merajuddin, (1999) 6 SCC 43, a three Judges Bench of Supreme Court while cancelling the bail, observed in Para 3, as follows, The High Court appears to have completely ignored the mandate of Sec. 37 of the Narco$c Drugs and Psychotropic Substances Act while gran$ng him bail. The High Court overlooked the prescribed procedure.

42. In Supdt. Narco$cs Central Bureau Chennai v R Paulsamy, (2000) 9 SCC 549, decided on 30 Mar 2000, Supreme Court holds, [6]. In the light of Sec$on 37 of the Act no accused can be released on bail when the applica$on is opposed by the public prosecutor unless the Court is sa$sﬁed that there are reasonable grounds for believing that he is not guilty of such oﬀences and that he is not likely to commit any oﬀence while on bail. It is unfortunate that maJers which could be established only in oﬀence regarding compliance with Secs. 52 and 57 have been pre-judged by the learned single Judge at the stage of considera$on for bail. The minimum which learned single Judge should have taken into account was the factual presump$on in law posi$on that oﬃcial acts have been regularly performed. Such presump$on can be rebuJed only during evidence and not merely saying that no document has been produced before the learned single Judge during bail stage regarding the compliance of the formali$es men$oned in those two sec$ons.

43. In Babua v. State of Orissa, (2001) 2 SCC 566, Supreme Court holds, [3]. In view of Sec$on 37(1)(b) of the Act unless there are reasonable grounds for believing that the accused is not guilty of such oﬀence and that he is not likely to commit any oﬀence while on bail alone will en$tle him to a bail. In the present case, the pe$$oner aJempted to secure bail on various grounds but failed. But those reasons would be insigniﬁcant if we bear in mind the scope of Sec$on 37(1)(b) of the Act. At this stage of the case all that could be seen is whether the statements made on behalf of the prosecu$on witnesses, if believable, would result in convic$on of the pe$$oner or not. At this juncture, we cannot say that the accused is not guilty of the oﬀence if the allega$ons made in the charge are established. Nor can we say that the evidence having not been completely adduced before the Court that there are no grounds to hold that he is not guilty of such oﬀence. The other aspect to be borne in mind is that the liberty of a ci$zen has got to be balanced with the interest of the society. In cases where narco$c drugs and psychotropic substances are involved, the accused would indulge in ac$vi$es which are lethal to the society. Therefore, it would certainly be in the interest of the society to keep such persons behind bars during the pendency of the proceedings before the Court, and the validity of Sec$on 37(1)(b) having been upheld, we cannot take any other view.

44. In Bijando Singh v. Md. Ibocha, 2001 LawSuit(SC) 1470, decided on Supreme Court 17 17 of 35 ::: Downloaded on - 04-01-2024 23:17:28 ::: Neutral Citation No:=2024:PHHC:000100 CRM-M-52458-2023 holds, [3]. Being aggrieved by the order of the Special Court (NDPS), releasing the accused on bail, the appellant moved the Guwaha$ High Court against the said order on the ground that the order gran$ng bail is contrary to the provisions of law and the appropriate authority never no$ced the provisions of Sec$on 37 of the Narco$c Drugs And Psychotropic Substances Act. The High Court, however, being of the opinion that if the aJendance of the accused is secured by means of bail bonds, then he is en$tled to be released on bail. The High Court, thus, in our opinion, did not consider the provisions of Sec$on 37 of the Narco$c Drugs And Psychotropic Substances Act.

45. In Customs, New Delhi v. Ahmadalieva Nodira, (2004) 3 SCC 549, (Decided on 11- 03-2004) a three Judges Bench of Supreme Court holds, [7]. The limita$ons on gran$ng of bail come in only when the ques$on of gran$ng bail arises on merits. Apart from the grant of opportunity to the public prosecutor, the other twin condi$ons which really have relevance so far the present accused-respondent is concerned, are (1) the sa$sfac$on of the Court that there are reasonable grounds for believing that the accused is not guilty of the alleged oﬀence and that he is not likely to commit any oﬀence while on bail. The condi$ons are cumula$ve and not alterna$ve. The sa$sfac$on contemplated regarding the accused being not guilty has to be based for reasonable grounds. The expression "reasonable grounds" means something more than prima facie grounds. It contemplates substan$al probable causes for believing that the accused is not guilty of the alleged oﬀence. The reasonable belief contemplated in the provision requires existence of such facts and circumstances as are suﬃcient in themselves to jus$fy sa$sfac$on that the accused is not guilty of the alleged oﬀence.

46. In N.C.B. Trivandrarum v. Jalaluddin, 2004 LawSuit(SC) 1598, (Decided on 22-04- 2004) Supreme Court observed, [3]. ...Be that as it may another mandatory requirement of Sec$on 37 of the Act is that where Public Prosecutor opposes the bail applica$on, the court should be sa$sﬁed that there are reasonable grounds for believing that the accused is not guilty of such oﬀence and he is not likely to commit any oﬀence while on bail. In the impugned order we do not ﬁnd any such sa$sfac$on recorded by the High Court while gran$ng bail nor there is any material available to show that the High Court applied its mind to these mandatory requirements of the Act.

47. In Ranjitsing Brahmajeetsing Sharma v. State of Maharashtra, (2005) 5 SCC 294, a three-member bench of Supreme Court, while dealing with a similar provision under MCOCA, holds, [35]. Presump$on of innocence is a human right. [see Narendra Singh and Another v. State of M. P., (2004) 10 SCC 699] Ar$cle 21 in view of its expansive meaning not only protects life and liberty but also envisages a fair procedure. Liberty of a person should not ordinarily be interfered with unless there exist cogent grounds therefor. Sub-Sec$on (4) of Sec$on 21 must be interpreted keeping in view the aforemen$oned salutary principles. Giving an opportunity to the public prosecutor to oppose an applica$on for release of ah accused appears to be reasonable restric$on 18 18 of 35 ::: Downloaded on - 04-01-2024 23:17:28 ::: Neutral Citation No:=2024:PHHC:000100 CRM-M-52458-2023 but clause (b) of Sub-sec$on (4) of Sec$on 21 must be given a proper meaning.

[36]. Does this statute require that before a person is released on bail, the court, albeit prima facie, must come to the conclusion that he is not guilty of such oﬀence? Is it necessary for the court to record such a ﬁnding? Would there be any. machinery available to the court to ascertain that once the accused is enlarged on bail, he would not commit any oﬀence whatsoever?

[37]. Such ﬁndings are required to be recorded only for the purpose of arriving at an objec$ve ﬁnding on the basis of materials on records only for grant of bail and for no other purpose.

[45]. It is furthermore, trite that for the purpose of considering an applica$on for grant of bail, although detailed reasons are not necessary to be assigned, the order gran$ng bail must demonstrate applica$on of mind at least in serious cases as to why the applicant has been granted or denied the privilege of bail.

[46]. The duty of the court at this stage is not to weigh the evidence me$culously but to arrive at a ﬁnding on the basis of broad probabili$es. However, while dealing with a special statute like MCOCA having regard to the provisions contained in sub-sec$on (4) of Sec$on 21 of the Act, the court may have to probe into the maJer deeper so as to enable it to arrive at a ﬁnding that the materials collected against the accused during the inves$ga$on may not jus$fy a judgment of convic$on. The ﬁndings recorded by the court while gran$ng or refusing bail undoubtedly would be tenta$ve in nature, which may not have any bearing on the merit of the case and the trial court would, thus, be free to decide the case on the basis of evidence adduced at the trial, without in any manner being prejudiced thereby.

48. In Union of India v. Shiv Shanker Kesari, (2007) 7 SCC 798, the Hon'ble Supreme Court holds, [6]. As the provision itself provides no person shall be granted bail unless the two condi$ons are sa$sﬁed. They are; the sa$sfac$on of the Court that there are reasonable grounds for believing that the accused is not guilty and. that he is not likely to commit any oﬀence while on bail. Both the condi$ons have to be sa$sﬁed. If either of these two condi$ons is not sa$sﬁed, the bar operates and the accused cannot be released on bail. [7]. The expression used in Sec$on 37(1)(b)(ii) is "reasonable grounds". The expression means something more than prima facie grounds. It connotes substan$al probable causes for believing that the accused is not guilty of the oﬀence charged and this reasonable belief contemplated in turn points to existence of such facts and circumstances as are suﬃcient in themselves to jus$fy recording of sa$sfac$on that the accused is not guilty of the oﬀence charged.

[8]. The word "reasonable" has in law the prima facie meaning of reasonable in regard to those circumstances of which the actor, called on to act reasonably, knows or ought to know. It is diﬃcult to give an exact deﬁni$on of the word 'reasonable'. Stroud's Judicial Dic$onary, Fourth Edi$on, page 2258 states that it would be unreasonable to expect an exact deﬁni$on of the word "reasonable'. Reason varies it, its conclusions according to the idiosyncrasy of the individual, and the $mes and circumstances in which he thinks. The reasoning which built up the old scholas$c logic sounds now like the jingling of a child's toy. (See :

Municipal Corpora$on of Delhi v. M/s Jagan Nath Ashok Kumar and another, (1987)4 SCC 497 and Gujarat Water Supplies and Sewerage 19 19 of 35 ::: Downloaded on - 04-01-2024 23:17:28 ::: Neutral Citation No:=2024:PHHC:000100 CRM-M-52458-2023 Board v. Unique Erectors (Gujarat) Pvt Ltd and another [(1989)1 SCC 532].

[9]. It is oNen said "an aJempt to give a speciﬁc meaning to the word 'reasonable' is trying to count what is not number and measure what is not space". The author of 'Words and Phrases' (Permanent Edi$on) has quoted from in re Nice &., Schreiber 123 F. 987, 988 to give a plausible meaning for the said word. He says, "the expression 'reasonable' is a rela$ve term, and the facts of the par$cular controversy must be considered before the ques$on as to what cons$tutes reasonable can be determined". It is not meant to be expedient or convenient but certainly something more than that.

[10]. The word 'reasonable' signiﬁes "in accordance with reason". In the ul$mate analysis it is a ques$on of fact, whether a par$cular act is reasonable or not depends on the circumstances in a given situa$on. (See : Municipal Corpora$on of Greater Mumbai and another v. Kamla Mills Ltd., 2003(4) RCR(Civil) 265 : (2003)6 SCC 315)."

[11]. The Court while considering the applica$on for bail with reference to Sec$on 37 of the Act is not called upon to record a ﬁnding of not guilty. It is for the limited purpose essen$ally conﬁned to the ques$on of releasing the accused on bail that the Court is called upon to see if there are reasonable grounds for believing that the accused is not guilty and records its sa$sfac$on about the existence of such grounds. But the Court has not to consider the maJer as if it is pronouncing a judgment of acquiJal and recording a ﬁnding of not guilty.

[12]. Addi$onally, the Court has to record a ﬁnding that while on bail the accused is not likely to commit any oﬀence and there should also exist some materials to come to such a conclusion.

49. In N.R. Mon v. Md. Nasimuddin, (2008) 6 SCC 721, Supreme Court holds, [9]. ...The limita$ons on gran$ng of bail come in only when the ques$on of gran$ng bail arises on merits. Apart from the grant opportunity to the Public Prosecutor, the other twin condi$ons which really have relevance so far as the present accused-respondent is concerned, are: the sa$sfac$on of the court that there are reasonable grounds for believing, that the accused is not guilty of the alleged oﬀence and that he is not likely to commit any oﬀence while on bail. The condi$ons are cumula$ve and not alterna$ve. The sa$sfac$on contemplated regarding the accused being not guilty has to be based on reasonable grounds. The expression "reasonable grounds" means something more than prima facie grounds. It contemplates substan$al probable causes for believing that the accused is not guilty of the alleged oﬀence. The reasonable belief contemplated in the provision requires existence of such facts and circumstances as are suﬃcient in themselves to jus$fy sa$sfac$on that the accused is not guilty of the alleged oﬀence. In the case hand the High Court seems to have completely overlooked underlying object of Sec$on 37.

50. In Union of India v. RaJan Mallik @ Habul, (2009) 2 SCC 624, Supreme Court holds, [14]. We may, however, hasten to add that while considering an applica$on for bail with reference to Sec$on 37 of the Narco$c Drugs and Psychotropic Substances Act, the Court is not called upon to record a ﬁnding of 'not guilty'. At this stage, it is neither necessary nor desirable to weigh the evidence me$culously to arrive at a posi$ve ﬁnding as to whether or not the accused has commiJed oﬀence under the Narco$c Drugs And Psychotropic Substances Act. What is to be seen is whether there is reasonable ground for believing that the accused is not guilty of the oﬀence(s) he is charged with and further that he is not likely to 20 20 of 35 ::: Downloaded on - 04-01-2024 23:17:28 ::: Neutral Citation No:=2024:PHHC:000100 CRM-M-52458-2023 commit an oﬀence under the said Act while on bail. The sa$sfac$on of the Court about the existence of the said twin condi$ons is for a limited purpose and is conﬁned to the ques$on of releasing the accused on bail.

51. In Union of India v. Sanjeev v. Deshpande, (2014) 13 SCC 1, a three-judges bench of Supreme Court holds, [5]. ...In other words, Sec$on 37 departs from the long-established principle of presump$on of innocence in favour of an accused person un$l proved otherwise.

52. In Union of India v. Niyazuddin, (2018) 13 SCC 738, (Decided on 28-07-2017) Supreme Court holds, [7]. ...Sec$on 37 of the NDPS Act contains special provisions with regard to grant of bail in respect of certain oﬀences enumerated under the said Sec$on. They are :- (1) In the case of a person accused of an oﬀence punishable under Sec$on 19, (2) Under Sec$on 24, (3) Under Sec$on 27A and (4) Of oﬀences involving commercial quan$ty. The accusa$on in the present case is with regard to the fourth factor namely, commercial quan$ty. Be that as it may, once the Public Prosecutor opposes the applica$on for bail to a person accused of the enumerated oﬀences under Sec$on 37 of the NDPS Act, in case, the court proposes to grant bail to such a person, two condi$ons are to be mandatorily sa$sﬁed in addi$on to the normal requirements under the provisions of the Cr.P.C. or any other enactment. (1) The court must be sa$sﬁed that there are reasonable grounds for believing that the person is not guilty of such oﬀence; (2) that person is not likely to commit any oﬀence while on bail. [8]. There is no such considera$on with regard to the mandatory requirements, while releasing the respondents on bail. [9]. Hence, we are sa$sﬁed that the maJer needs to be considered afresh by the High Court. The impugned order is set aside and the maJer is remiJed to the High Court for fresh considera$on. It will be open to the par$es to take all available conten$ons before the High Court.

53. In Satpal Singh v. State of Punjab, (2018) 13 SCC 813, (Decided on 27-03-2018) a bench of three judges of Supreme Court directed that since the quan$ty involved was commercial, as such High Court could not have and should not have passed the order under sec$ons 438 or 439 CrPC, without reference to Sec$on 37 of the NDPS Act.

54. In State of Kerala v. Rajesh, (2020) 12 SCC 122 (Decided on 24-01-2020), the While canceling the post-arrest bail granted to the accused, Hon'ble Supreme Court has held that any concession of release granted sans no$cing the mandate of sec. 37(1)(b)(ii) is bad in law. While discussing the broad parameters laid down for grant of bail in the NDPS case, the Court has held that the expression "reasonable grounds" means something more than prima facie grounds. It contemplates substan$al probable cause for believing that the accused is not guilty of the alleged oﬀence. Hon'ble Supreme Court holds, [21]. The expression "reasonable grounds" means something more than prima facie grounds. It contemplates substan$al probable causes for 21 21 of 35 ::: Downloaded on - 04-01-2024 23:17:28 ::: Neutral Citation No:=2024:PHHC:000100 CRM-M-52458-2023 believing that the accused is not guilty of the alleged oﬀence. The reasonable belief contemplated in the provision requires existence of such facts and circumstances as are suﬃcient in themselves to jus$fy sa$sfac$on that the accused is not guilty of the alleged oﬀence. In the case on hand, the High Court seems to have completely overlooked the underlying object of Sec$on 37 that in addi$on to the limita$ons provided under the CrPC, or any other law for the $me being in force, regula$ng the grant of bail, its liberal approach in the maJer of bail under the NDPS Act is indeed uncalled for.

55. In Sujit Tiwari v. State of Gujarat, 2020 SCC Online SC 84, (Decided on 28-01-2020) in the given facts, Supreme Court granted bail, by observing, [10]. The prosecu$on story is that the appellant was aware of what his brother was doing and was ac$vely helping his brother. At this stage we would not like to comment on the merits of the allega$ons levelled against the present appellant. But other than the few WhatsApp messages and his own statement which he has resiled from, there is very liJle other evidence. At this stage it appears that the appellant may not have even been aware of the en$re conspiracy because even the prosecu$on story is that the brother himself did not know what was loaded on the ship $ll he was informed by the owner of the vessel. Even when the heroin was loaded in the ship it was supposed to go towards Egypt and that would not have been a crime under the NDPS Act. It seems that Suprit Tiwari and other 7 crew members then decided to make much more money by bringing the ship to India with the inten$on of disposing of the drugs in India. During this period the Master Suprit Tiwari took the help of Vishal Kumar Yadav and Irfan Sheikh who had to deliver the consignment to Suleman who had to arrange the money aNer delivery. The main allega$on made against the appellant is that he sent the list of the crew members aNer dele$ng the names of 4 Iranians and EsthekharAlam to Vishal Kumar Yadav and Irfan Sheikh through WhatsApp with a view to make their disembarka$on process easier. Even if we take the prosecu$on case at the highest, the appellant was aware that his brother was indulging in some illegal ac$vity because obviously such huge amount of money could not be made otherwise. However, at this stage it cannot be said with certainty whether he was aware that drugs were being smuggled on the ship or not, though the allega$on is that he made such a statement to the NCB under Sec$on 67 of the NDPS Act.

[11]. At this stage, without going into the merits, we feel that the case of the appellant herein is totally diﬀerent from the other accused. Reasonable possibility is there that he may be acquiJed. He has been behind bars since his arrest on 04.08.2017 i.e. for more than 2 years and he is a young man aged about 25 years. He is a B.Tech Graduate. Therefore, under facts and circumstances of this case we feel that this is a ﬁt case where the appellant is en$tled to bail because there is a possibility that he was unaware of the illegal ac$vi$es of his brother and the other crew members. The case of the appellant is diﬀerent from that of all the other accused, whether it be the Master of the ship, the crew members or the persons who introduced the Master to the prospec$ve buyers and the prospec$ve buyers.

[12]. We, however, feel that some stringent condi$ons will have to be imposed upon the appellant.

56. In UOI v. Prateek Shukla, (2021) 5 SCC 430, (decided on 8-3-2021), Hon'ble 22 22 of 35 ::: Downloaded on - 04-01-2024 23:17:28 ::: Neutral Citation No:=2024:PHHC:000100 CRM-M-52458-2023 Supreme Court holds, [12]. ...Merely recording the submissions of the par$es does not amount to an indica$on of a judicial or, for that maJer, a judicious applica$on of mind by the Single Judge of the High Court to the basic ques$on as to whether bail should be granted. 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...

57. In Shreyansh Jhabak v. State of ChhaVsgarh, decided on 20.9.2021, Law Finder Doc Id # 2004763, Supreme Court holds, [4]. No recovery has been made from the the pe$$oner. The pe$$oner has been implicated on the basis of statements made by a co-accused under Sec$on 164 of the Code of Criminal Procedure. There is apparently no other material against him. Inves$ga$on was completed in December, 2020 and the ﬁnal report has been ﬁled. A co-accused has also been enlarged on bail.

[6]. The High Court arrived at the prima facie conclusion that the pe$$oner was habitual oﬀender only on the basis of statements of co- accused, which would be inadmissible. There were no materials against the pe$$oner apart from the statements of the co-accused. [7]. In the circumstances, we deem it appropriate to grant bail to the pe$$oner on stringent condi$ons to be imposed by the Trial Court, including but not limited to the condi$ons with regard to sure$es, bail bonds etc. Apart from repor$ng to the inves$ga$ng authority on a regular basis, the pe$$oner shall not leave the jurisdic$on of the Trial Court without leave of the Court.

58. In UOI through NBC, Lucknow v. Md. Nawaz Khan (2021) 10 SCC 100, (Decided on 22-09-2021), Hon'ble Supreme Court holds, [28]. As regards the ﬁnding of the High Court regarding absence of recovery of the contraband from the possession of the respondent, we note that in Union of India v. RaJan Mallik, (2009) 2 SCC 624, a two-judge Bench of this Court cancelled the bail of an accused and reversed the ﬁnding of the High Court, which had held that as the contraband (heroin) was recovered from a specially made cavity above the cabin of a truck, no contraband was found in the `possession' of the accused. The Court observed that merely making a ﬁnding on the possession of the contraband did not fulﬁl the parameters of Sec$on 37(1)(b) and there was non-applica$on of mind by the High Court.

[29]. In line with the decision of this Court in RaJan Mallik (supra), we are of the view that a ﬁnding of the absence of possession of the contraband on the person of the respondent by the High Court in the impugned order does not absolve it of the level of scru$ny required under Sec$on 37(1)(b)

(ii) of the NDPS Act.

59. In Bharat Chaudhary v. Union of India, 2021 SCC OnLine SC 1235, a three-judges bench of Hon'ble Supreme Court holds, [10]. ANer carefully examining the arguments advanced by learned counsel for the par$es and having cursorily glanced at the records, we are of the opinion that the impugned order cancelling the bail granted in favour of Bharat Chaudhary [A-4], is not sustanabile in view of the fact that the records sought to be relied upon by the prosecu$on show that one test report dated 6th December, 2019, two test reports dated 17th December, 23 23 of 35 ::: Downloaded on - 04-01-2024 23:17:28 ::: Neutral Citation No:=2024:PHHC:000100 CRM-M-52458-2023 2019 and one test report dated 21st December, 2019 in respect of the sample pills/tablets drawn and sent for tes$ng by the prosecu$ng agency conclude with a note appended by the Assistant Commercial Examiner at the foot of the reports sta$ng that "quan$ta$ve analysis of the samples could not be carried out for want of facili$es". In the absence of any clarity so far on the quan$ta$ve analysis of the samples, the prosecu$on cannot be heard to state at this preliminary stage that the pe$$oners have been found to be in possession of commercial quan$ty of psychotropic subtances as contemplated under the NDPS Act. Further, a large number of the tablets that have been seized by the DRI admiJedly contain herbs/medicines meant to enhance male potency and they do not aJract the provisions of the NDPS Act. Most importantly, none of the tablets were seized by the prosecu$on during the course of the search conducted, either at the oﬃce or at the residence of A-4 at Jaipur, on 16th March, 2020. Reliance on printouts of Whatsapp messages downloaded from the mobile phone and devices seized from the oﬃce premises of A-4 cannot be treated at this stage as suﬃcient material to establish a live link between him and A-1 to A-3, when even as per the prosecu$on, scien$ﬁc reports in respect of the said devices is s$ll awaited.

60. In State by (NCB) Bengaluru v. Pallulabid Ahmad ArimuJa, 2022 SCC OnLine SC 47, (Decided on 10-01-2022), a three-judge bench of Hon'ble Supreme Court holds, [11]. It has been held in clear terms in Tofan Singh v. State of Tamil Nadu, (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.

[12]. However, the evidence brought before us against Mohammed Afzal [A-2], respondent in SLP (Crl.) No. 1569/2021, subject maJer of the second case i.e., NCB Case FN No. 48/01/07/2019/BZU, who was granted bail vide order dated 08th January, 2020, will have to be treated on an en$rely diﬀerent foo$ng. There are speciﬁc allega$ons levelled against the said respondent regarding recovery of substan$al commercial quan$$es of drugs from a rented accommoda$on occupied by him pursuant to which he was arrested on 16th June, 2019. This aspect has been completely overlooked while passing the order dated 08th January, 2020 wherein, the only reason that appears to have weighed with the High Court for releasing him on bail is that his case stands on the same foo$ng as A-1, A-3 and A-4 who had been enlarged on bail vide orders dated 11th October, 2019, 16th September, 2019 and 09th September, 2019, in connec$on with the second case registered by the Department. We are of the ﬁrm view that A-2 cannot seek parity with the aforesaid co-accused and no 24 24 of 35 ::: Downloaded on - 04-01-2024 23:17:28 ::: Neutral Citation No:=2024:PHHC:000100 CRM-M-52458-2023 such beneﬁt could have been extended to him in view of Sec$on 37 of the Act when he was found to be in conscious possession of commercial quan$ty of psychotropic substances, as contemplated under the NDPS Act. That being the posi$on, the pe$$oner-NCB succeeds in SLP (Crl.) No. 1569/2021. The bail granted to the respondent-Mohmmed Afzal [A-2] is cancelled forthwith at this stage and he is directed to surrender before the Sessions Court/Special Judge (NDPS) within a period of two weeks, for being taken into custody.

61. In Narco$cs Control Bureau v. Mohit Aggarwal, Criminal Appeal Nos. 1001-1002 of 2022, decided on 19.7.2022, Supreme Court holds, [11]. It is evident from a plain reading of the non-obstante clause inserted in sub-sec$on (1) and the condi$ons imposed in sub-sec$on (2) of Sec$on 37 that there are certain restric$ons placed on the power of the Court when gran$ng bail to a person accused of having commiJed an oﬀence under the NDPS Act. Not only are the limita$ons imposed under Sec$on 439 of the Code of Criminal Procedure, 1973 to be kept in mind, the restric$ons placed under clause (b) of sub-sec$on (1) of Sec$on 37 are also to be factored in. The condi$ons imposed in subsec$on (1) of Sec$on 37 is that (i) the Public Prosecutor ought to be given an opportunity to oppose the applica$on moved by an accused person for release and (ii) if such an applica$on is opposed, then the Court must be sa$sﬁed that there are reasonable grounds for believing that the person accused is not guilty of such an oﬀence. Addi$onally, the Court must be sa$sﬁed that the accused person is unlikely to commit any oﬀence while on bail.

[13]. The expression "reasonable ground" came up for discussion in "State of Kerala and others v. Rajesh and others" (2020) 12 SCC 122 and this Court has observed as below:

"20. The expression "reasonable grounds" means something more than prima facie grounds. It contemplates substan$al probable causes for believing that the accused is not guilty of the alleged oﬀence. The reasonable belief contemplated in the provision requires existence of such facts and circumstances as are suﬃcient in themselves to jus$fy sa$sfac$on that the accused is not guilty of the alleged oﬀence. In the case on hand, the High Court seems to have completely overlooked the underlying object of Sec$on 37 that in addi$on to the limita$ons provided under the CrPC, or any other law for the $me being in force, regula$ng the grant of bail, its liberal approach in the maJer of bail under the NDPS Act is indeed uncalled for."

[14]. To sum up, the expression "reasonable grounds" used in clause (b) of Sub-Sec$on (1) of Sec$on 37 would mean credible, plausible and grounds for the Court to believe that the accused person is not guilty of the alleged oﬀence. For arriving at any such conclusion, such facts and circumstances must exist in a case that can persuade the Court to believe that the accused person would not have commiJed such an oﬀence. Dove-tailed with the aforesaid sa$sfac$on is an addi$onal considera$on that the accused person is unlikely to commit any oﬀence while on bail. [15]. We may clarify that at the stage of examining an applica$on for bail in the context of the Sec$on 37 of the Act, the Court is not required to record a ﬁnding that the accused person is not guilty. The Court is also not expected to weigh the evidence for arriving at a ﬁnding as to whether 25 25 of 35 ::: Downloaded on - 04-01-2024 23:17:28 ::: Neutral Citation No:=2024:PHHC:000100 CRM-M-52458-2023 the accused has commiJed an oﬀence under the NDPS Act or not. The en$re exercise that the Court is expected to undertake at this stage is for the limited purpose of releasing him on bail. Thus, the focus is on the availability of reasonable grounds for believing that the accused is not guilty of the oﬀences that he has been charged with and he is unlikely to commit an oﬀence under the Act while on bail.

62. In Mohd. Muslim alias Hussain v. State (NCT of Delhi), 2023 SCC OnLine SC 352, Supreme Court holds, [20]. A plain and literal interpreta$on of the condi$ons under Sec$on 37 (i.e., that Court should be sa$sﬁed that the accused is not guilty and would not commit any oﬀence) would eﬀec$vely exclude grant of bail altogether, resul$ng in puni$ve deten$on and unsanc$oned preven$ve deten$on as well. Therefore, the only manner in which such special condi$ons as enacted under Sec$on 37 can be considered within cons$tu$onal parameters is where the court is reasonably sa$sﬁed on a prima facie look at the material on record (whenever the bail applica$on is made) that the accused is not guilty. Any other interpreta$on, would result in complete denial of the bail to a person accused of oﬀences such as those enacted under Sec$on 37 of the NDPS Act.

63. In Ankush Kumar @ Sonu v. State of Punjab, (2018) SCC Online P&H 1259, a single bench of Punjab and Haryana High Court observed, [43]. However, more problem lies with the second part of Sec$on 37 (1)

(b)(ii), which requires the Court to be sa$sﬁed that there are reasonable grounds for declaring that the accused is not likely to commit 'any oﬀence' while on bail. This part of Sec$on 37(1)(b)(ii) militates against the ra$onale and reasoning considered by the Hon'ble Supreme Court in the above said case of Nikesh Tarachand Shah's case (supra), wherein it has implied that if such language extends in opera$on not only to the oﬀence under the special Act but also to any oﬀence under any other legal provision where such condi$ons are not required to be applied for grant of bail then such language enters the realm of uncons$tu$onality. Therefore, this language is also arbitrary on that count because it requires the Court to sa$sfy itself that the pe$$oner is not likely to commit any oﬀence on the earth while on bail. Had this Sec$on restricted the requirement of the sa$sfac$on of the Court that the accused is not likely to commit any oﬀence under NDPS Act, then probably it could have some ra$onal behind it. However, since the language of the second part has been thrown open the en$re criminal arena to be considered by the Court before grant of bail under NDPS Act, therefore, this language does not have even the nexus to the object to be achieved by NDPS Act. [44]. Moreover, a Court of law would always be well advised to keep in mind that 'prophesy is not thy domain'. No Court, howsoever trained, can be "reasonably" sa$sﬁed that a person would not commit any oﬀence, may be even under NDPS Act, aNer coming out of the custody. It can only be a guess-work, which may or may not turn out to be correct. However, it is not the guess-work which is mandated, but it is 'reasonable sa$sfac$on'. It can occur to mind that if a person is a ﬁrst oﬀender then he is not likely to commit an oﬀence again or that if a person has commiJed, say; ten oﬀences then he is more likely to commit oﬀence again. But it has to be kept in mind that the second, third, fourth and the Nth oﬀence is always commiJed by an accused only aNer ﬁrst, having commiJed the ﬁrst oﬀence. Likewise, there cannot be any 'reason' and, 26 26 of 35 ::: Downloaded on - 04-01-2024 23:17:28 ::: Neutral Citation No:=2024:PHHC:000100 CRM-M-52458-2023 therefore, the 'reasonable ground' to believe that if a person has commiJed ten oﬀences, he is again likely to commit the oﬀence. Examples galore in daily life when a criminal calls it a day, say, aNer 10th crime also. ANer all scriptures do tell us as to how Maharishi Balmiki turned into a "Maharishi" and created that Epic, which became a trea$es of one of the biggest religion of the world. Furthermore, as observed above, an oﬀence is a conduct of a person as reﬂected into facts or set of facts made punishable by law, the Court cannot grope into approxima$on and to arrive at any degree of sa$sfac$on as to whether a person would indulge in set of facts aNer coming out of the custody. The crime being based on mens-rea is a func$on of mental state of an individual, which cannot be guessed by any Court in advance, by any means. Moreover, as observed above, it is not the guess-work by Court qua possibility of future conduct and mental state of accused, which is required under second part of Sec$on 37(1)(b)(ii). It is the reasonable 'sa$sfac$on' on the basis of the material on record which is required. By extension of any human logic, it cannot be said that the Court can record, any degree of sa$sfac$on, based on some reasonable ground, as to whether a person would commit an oﬀence or whether he would not commit an oﬀence aNer coming out of the custody. Neither the Court would be able to record a sa$sfac$on that the accused would, likely, commit the oﬀence aNer coming out of the custody, nor would the Court be able to record a sa$sfac$on that the accused would not commit any oﬀence aNer coming out of the custody. Hence, the second part of Sec$on 37(i)(b) (ii) requires a humanly impossible act on the part of the Court. Since the second part of Sec$on 37 (1)(b)(ii) requires a sa$sfac$on of the Court, which is impossible by extension of any human logic, therefore, this is an irra$onal requirement. There is no ra$onal way for a Court to record its sa$sfac$on or to arrive at this sa$sfac$on qua possible future conduct and mental state of an accused. Any record rela$ng only to the past conduct of a person cannot be reasonably made a basis for future reasonable predic$on, as against the guess work, regarding the possible mental state or possible conduct of that person. Even the sophis$cated psychological theories of human behaviour, using sophis$cated sta$s$cal tools of factoriza$on, based on common minimum behavioural factors in large number of people, are s$ll struggling to ﬁnd a credible answer in this regard.

[48]. But, so far as second part of Sec$on 37(1)(b)(ii), i.e. regarding the sa$sfac$on of the Court based on reasons to believe that the accused would not commit 'any oﬀence' aNer coming out of the custody, is concerned, this Court ﬁnds that this is the requirement which is being insisted by the State, despite the same being irra$onal and being incomprehensible from any material on record. As held above, this Court cannot go into the future mental state of the mind of the pe$$oner as to what he would be, likely, doing aNer geVng released on bail. Therefore, if this Court cannot record a reasonable sa$sfac$on that the pe$$oner is not likely to commit 'any oﬀence' or 'oﬀence under NDPS Act' aNer being released on bail, then this Court, also, does not have any reasonable ground to be sa$sﬁed that the pe$$oner is likely to commit any oﬀence aNer he is released on bail. Hence, the sa$sfac$on of the Court in this regard is neutral qua future possible conduct of the pe$$oner. However, it has come on record that earlier also, the pe$$oner was involved in a case, but he has been acquiJed in that case. So his antecedents are also clear as of now. Moreover, since this Court has already recorded a prima- facie sa$sfac$on that pe$$oner is not involved even in the present case and that earlier also the pe$$oner was involved in a false case, then this 27 27 of 35 ::: Downloaded on - 04-01-2024 23:17:28 ::: Neutral Citation No:=2024:PHHC:000100 CRM-M-52458-2023 Court can, to some extent, venture to believe that the pe$$oner would not, in all likelihood, commit any oﬀence aNer coming out of the custody, if at all, the Court is permiJed any liberty to indulge in prophesy.

64. The main argument of counsel for the pe$$oner is that the phone calls are old, and the calls made between the pe$$oner and his PSO and Secretary were done in the ordinary course of business and cannot be aJributed as having been made for the drug trade. He further submits that even if these call records are not intercepted for tapping, mere records of receiving phone calls do not disclose the conversa$on. The en$re evidence against the pe$$oner revolves around these speciﬁc phone calls, which are actually between Gurdev Singh, the pe$$oner, etc. While ﬁling the police report under Sec$on 173 (2) CrPC against 10 accused, they did not name the pe$$oner as an accused, and this is the main categoric submission to this Court in the writ pe$$on that the pe$$oner ﬁled. He further submits that, thus, prac$cally speaking, except old call details between the pe$$oner and his PSO, and Secretary, there is no new evidence that the Inves$gator has collected against the pe$$oner, and as such, on this ground alone, the pe$$oner is en$tled to bail.

65. The founda$onal submission made by Ld. Advocate General for the State of Punjab is that the summoning of an accused under Sec$on 319 of the Code of Criminal Procedure and further inves$ga$on by the SIT are separate and dis$nct aspects of the criminal jus$ce system. In the ﬁrst charge sheet submiJed by the police in this case, it was very clearly men$oned that further inves$ga$on against the suspects is s$ll underway, along with an inves$ga$on against the named accused absconding. ANer the arrest of absconding accused Anil Kumar @ Neelu, a chargesheet was presented against him on 31.08.2019, in which his name was men$oned along with the fact that in the mean$me, the Court has exercised power under Sec$on 319 of the CrPC based on evidence recorded in court, which was made subject maJer of challenge and as SLP was pending, the police had reserved the right to further inves$ga$on and ﬁled a supplementary chargesheet under Sec$on 173 (8) of the CrPC, it is submiJed that the trial against one of the accused, Anil, is s$ll con$nuing before Special Court, Fazilka. There is no bar to move an applica$on under Sec$on 319 of CrPC during the trial's pendency if further evidence comes up against any other person or accused. On the same analogy, there is no bar on the police to further inves$gate the crime against the accused who have not faced trial earlier. The trial against Anil Kumar alias Neelu is in progress with the competent Court at Fazilka and inves$ga$on is going on. The pe$$oner was never put up before the ld. Trial Court for its adjudica$on. There is nothing to disagree with this jurisprudence and there is nothing available in record that can fully counter this argument; however, it neither jus$fy further custody nor fastens 28 28 of 35 ::: Downloaded on - 04-01-2024 23:17:28 ::: Neutral Citation No:=2024:PHHC:000100 CRM-M-52458-2023 the rigors of S. 37 of NDPS Act.

66. Sa$sfying the feJers of S. 37 of the NDPS Act is candling the infer$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, i.e., punishable under sec$on 19 or sec$on 24 or sec$on 27A and also for oﬀences involving commercial quan$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. 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$ons is not met, the bar on gran$ng bail operates. The expression "reasonable grounds" means something more than prima facie grounds. It contemplates substan$al probable causes for believing the accused is not guilty of the alleged oﬀence. Even on fulﬁlling one of the condi$ons, the reasonable grounds for believing that the accused is not guilty of such an oﬀense, the Court s$ll cannot give a ﬁnding on the assurance that the accused is not likely to commit any such crime again. Thus, the grant or denial of bail for possessing commercial quan$ty would vary from case to case, depending upon its facts.

67. The record reveals that the pe$$oner has been arraigned, arrested, and interrogated prima facia on the evidence of calls with the handler from UK, PSO, and PA; unexplained money that points out its source to the drug trade; and confessional statement of co-accused recorded aNer the decision of the prosecu$ons' applica$on ﬁled under S. 319 CrPC.

68. Given above, this Court cannot take into considera$on the evidence collected and produced before the trial Court $ll the decision of applica$on under Sec$on 319 CrPC. However, aNer that whatever evidence the prosecu$on has gathered and collected, can be taken into considera$on while deciding the present pe$$on.

69. The pe$$oner's custodial interroga$on did not lead to the recovery of any other incrimina$ng evidence, and once an accused has already been subjected to custodial interroga$on, the parameters to assess the evidence collected so far are diﬀerent than while dealing with an an$cipatory bail because the accused in such a situa$on was not subjected to the custodial interroga$on, which is undoubtedly more produc$ve to 29 29 of 35 ::: Downloaded on - 04-01-2024 23:17:28 ::: Neutral Citation No:=2024:PHHC:000100 CRM-M-52458-2023 gather evidence. Given this background, the calls between the pe$$oner and his PSO, PA, and the handler from UK; the dispropor$onate money which the Enforcement Directorate has already seized; absence of any recovery or any incrimina$ng evidence during the pe$$oner's custodial interroga$on; and the eviden$ary value of a disclosure statement made by a co-accused, whose pardon has been approved, and the absence of any other evidence connec$ng the pe$$oner, it can be inferred at this stage that for the purpose of sa$sfying the rigors of sec$on 37 of NDPS Act, the pe$$oner cannot be said to be primafacie guilty for any allega$ons, and its most likely eﬀect on the ﬁnal outcome would be suﬃcient for sa$sfac$on of condi$ons of Sec$on 37 of NDPS Act. Any detailed discussions about the evidence may prejudice the case of the prosecu$on, pe$$oner, or the other accused. Regarding the second rider of S. 37, this Court will put very stringent condi$ons in this order to ensure that the pe$$oner does not repeat the oﬀence. Given the above, once the pe$$oner has sa$sﬁed the riders of sec$on 37 of the NDPS Act, the bail has to be dealt with under CrPC, 1973, and there is no jus$ﬁca$on to deny bail. Suﬃce it to say that due to the reasons men$oned above, and keeping in view the nature of the allega$ons, the pe$$oner has sa$sﬁed the twin condi$ons of sec$on 37 and has crossed the hurdles, jus$fying the disrup$on of any further pretrial incarcera$on.

70. 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$onal Bench held that unusually, subject to the evidence produced, the Court can and is imposing stringent and restric$ve condi$ons.

71. Thus, 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.

72. 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 30 30 of 35 ::: Downloaded on - 04-01-2024 23:17:28 ::: Neutral Citation No:=2024:PHHC:000100 CRM-M-52458-2023 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 ﬁVng 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.

73. 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. One Lac (INR 1,00,000/); AND

(b) To give one surety of Rs. Five Lacs (INR 5,00,000/-), 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). The pe$$oner to hand over to the concerned court a ﬁxed deposit for Rs. One Lac only (INR 1,00,000/-), with the clause of automa$c renewal of the principal and the interest rever$ng to the linked account, made in favor of the 'Chief Judicial Magistrate' of the concerned district, or blocking the aforesaid amount in favour of the concerned 'Chief Judicial Magistrate'. Said ﬁxed deposit or blocking funds can be from any of the banks where the stake of the State is more than 50% or from any of the well-established and stable private sector banks. In case the bankers are not willing to make a Fixed Deposit in such eventuality it shall be permissible for the pe$$oner to prepare an account payee demand draN 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$$oner is to also execute a bond for aJendance in the concerned court(s) as and when asked to do so. The presenta$on of the personal bond shall be deemed acceptance of the declara$ons made in the bail pe$$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.

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(e). While furnishing personal bond, the pe$$oner shall men$on the following personal iden$ﬁca$on details:

1. AADHAR number

2. Passport number

3. Mobile number

4. E-Mail

74. The pe$$oner shall hand over his passport to the Inves$gator/ Police Sta$on, within 24 hours of his release from the jail, with liberty to seek permission to travel abroad. Once, and if, the trial Court takes cognizance of the maJer, this condi$on will be subject to the concerned Court's discre$on.

75. 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.

76. 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 or in earlier orders.

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.

77. The pe$$oner is directed not to keep more than one prepaid SIM, i.e., one pre- paid mobile phone number, $ll the conclusion of the trial; however, this restric$on is only on prepaid SIMs [mobile numbers] and not on post-paid connec$ons or landline numbers. The pe$$oner must comply with this condi$on within ﬁNeen days of release from prison. The concerned DySP shall also direct all the telecom service providers to deac$vate all prepaid SIM cards and prepaid mobile numbers issued to the pe$$oner, except the one that is men$oned as the primary number/ default number linked with the AADHAAR card and further that $ll the no objec$on from the concerned SHO, the mobile service providers shall not issue second pre-paid SIM/ mobile number in the pe$$oner's name. Since, as on date, in India, there are only four prominent mobile service providers, namely BSNL, Airtel, Vodafone-Idea, and Reliance Jio, any other telecom service provider are directed to comply with the direc$ons of the concerned Superintendent of Police/Commissioner of Police, issued in this regard and disable all prepaid mobile phone numbers issued in the name of the pe$$oner, except the main number/default number linked with AADHAR, by taking such informa$on from the 32 32 of 35 ::: Downloaded on - 04-01-2024 23:17:28 ::: Neutral Citation No:=2024:PHHC:000100 CRM-M-52458-2023 pe$$oner's AADHAR details or any other source, for which they shall be legally en$tled by this order. This condi$on shall con$nue $ll the comple$on of the trial or closure of the case, whichever is earlier. In Vernon v. The State of Maharashtra, 2023 INSC 655, [para 45], while gran$ng bail under Unlawful Ac$vi$es (Preven$on) Act, 2002, Supreme Court had directed imposi$on of the similar condi$on, which reads as follows, "(d) Both the appellants shall use only one Mobile Phone each, during the $me they remain on bail and shall inform the Inves$ga$ng Oﬃcer of the NIA, their respec$ve mobile numbers."

78. Given the background of allega$ons against the pe$$oner, it becomes paramount to protect the drug detec$on squad, their family members, as well as the members of society, and incapacita$ng the accused would be one of the primary op$ons un$l the ﬁling of the closure report or discharge, or acquiJal. Consequently, it would be appropriate to restrict the possession of ﬁrearm(s). [This restric$on is being imposed based on the preponderance of evidence of probability and not of evidence of certainty, i.e., beyond reasonable doubt; and as such, it is not to be construed as an intermediate sanc$on]. Given the nature of the allega$ons and the other circumstances peculiar to this case, the pe$$oner shall surrender all weapons, ﬁrearms, ammuni$on, if any, along with the arms license to the concerned authority within ﬁNeen days from release from prison and inform the Inves$gator about the compliance. However, subject to the Indian Arms Act, 1959, the pe$$oner shall be en$tled to renew and take it back in case of acquiJal in this case, provided otherwise permissible in the concerned rules. Restric$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.

79. 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 aNer that in Sec$on 437-A of the Cr.P.C., if not canceled due to non-appearance or breach of condi$ons.

80. In return for the protec$on from further incarcera$on at this stage, the Court believes that the accused shall also reciprocate through desirable behaviour. If the pe$$oner again indulges in drugs, then while considering grant of bail in such cases, the concerned Courts may keep it as a factor that this Court had granted a ﬁnal opportunity to the pe$$oner to mend his ways.

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81. 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 witnesses. 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".

82. 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.

83. If the pe$$oner ﬁnds bail condi$on(s) as viola$ng fundamental, human, or other rights, or causing diﬃculty due to any situa$on, then for modiﬁca$on of such term(s), the pe$$oner may ﬁle a reasoned applica$on before this Court, and aNer taking cognizance, even to the Court taking cognizance or the trial Court, as the case may be, and such Court shall also be competent to modify or delete any condi$on.

84. This order does not, in any manner, limit or restrict the rights of the Police or the inves$ga$ng agency from further inves$ga$on as per law.

85. In case the Inves$gator/Oﬃcer-In-Charge of the concerned Police Sta$on arraigns another sec$on of any penal oﬀence in this FIR, and if the new sec$on prescribes maximum sentence which is not greater than the sec$ons men$oned above, then this bail order shall be deemed to have also been passed for the newly added sec$on(s). However, suppose the newly inserted sec$ons prescribe a sentence exceeding the maximum sentence prescribed in the sec$ons men$oned above, then, in that case, the Inves$gator/Oﬃcer-In-Charge shall give the pe$$oner no$ce of a minimum of seven days providing an opportunity to avail the remedies available in law.

86. 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.

87. 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 aJest it to be a true copy. In case the aJes$ng oﬃcer 34 34 of 35 ::: Downloaded on - 04-01-2024 23:17:28 ::: Neutral Citation No:=2024:PHHC:000100 CRM-M-52458-2023 wants to verify the authen$city, such an oﬃcer can also verify its authen$city and may download and use the downloaded copy for aJes$ng bonds.

Pe''on allowed in aforesaid terms. All pending applica$ons, if any, stand disposed.



                                                  (ANOOP CHITKARA)
                                                      JUDGE
04.01.2024
Jyo$ Sharma


Whether speaking/reasoned:          Yes
Whether reportable:                 YES.




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Punjab-Haryana High Court