Punjab-Haryana High Court
Hari Singh vs State Of Haryana on 11 May, 2023
Author: Anoop Chitkara
Bench: Anoop Chitkara
Neutral Citation No:=2023:PHHC:069249
CRM-M-10559-2022 1
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CRM-M-10559-2022
Reserved on: 11.04.2023
Pronounced on: 11.05.2023
Hari Singh ...Petitioner
Versus
State of Haryana ...Respondent
CORAM: HON'BLE MR. JUSTICE ANOOP CHITKARA
Present: Mr. Kushager Goyal, Advocate for the petitioner(s).
Mr. Manish Bansal, Sr. DAG, Haryana.
****
ANOOP CHITKARA, J.
FIR No. Dated Police Station Sections 209 22.06.2021 City Mandi 22-C of NDPS Act. Dabwalia, District Sirsa
1. The petitioner incarcerated for violating the above-mentioned provisions of Narcotics Drugs and Psychotropic Substances Act, 1985 (NDPS Act) per the FIR captioned above, on the allegations of possessing 4500 tablets containing 450 grams of Tramadol, which primafacie is a commercial quantity, has come up before this Court under Section 439 CrPC seeking bail.
2. In paragraph 11 of the bail application, the accused declares the following criminal antecedents:
Sr. No. FIR No. Date Offences Police
Station
1 361 08.10.2020 22 of NDPS Act City Mandi
Dabwali,
District Sirsa
3. The petitioner contends that the pre-trial incarceration would cause an irreversible injustice to the petitioner and family.
4. While opposing the bail, the contention on behalf of the State is that the quantity of contraband involved in the case falls in the commercial category, and given the criminal past, the accused is likely to indulge in crime once released on bail.
REASONING:
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5. In Paramjeet Singh v. State of Punjab, CRM-M 50243 of 2021, this court observed, While considering each bail petition of the accused with a criminal history, it throws an onerous responsibility upon the Courts to act judiciously with reasonableness because arbitrariness is the antithesis of law. The criminal history must be of cases where the accused was convicted, including the suspended sentences and all pending First Information Reports, wherein the bail petitioner stands arraigned as an accused. In reckoning the number of cases as criminal history, the prosecutions resulting in acquittal or discharge, or when Courts quashed the FIR; the prosecution stands withdrawn, or prosecution filed a closure report; cannot be included. Although crime is to be despised and not the criminal, yet for a recidivist, the contours of a playing field are marshy, and graver the criminal history, slushier the puddles.
6. A perusal of the petition does not refer to any averment based on which this court is assured that if this recidivist is released on bail, then he shall not indulge in criminal behavior. Apart from this, the allegations
7. On June 22, 2021, the police had recovered possessing 4500 tablets containing 450 grams of Tramadol, from a bag which the petitioner was allegedly carrying in his hand.
8. The representative sample of tablets, (Same batch number) was tested by FSL, and based on the calculations made from the report, primafacie, the quantity allegedly involved in this case is commercial, subject to proof in trial. Given this, the rigours of S. 37 of the NDPS Act apply in the present case. The burden is on the petitioner to satisfy the twin conditions put in place by the Legislature under Section 37 of the NDPS Act.
9. By referring to para 16 of the bail petition, the petitioner claims bail on the grounds that the tablets tested by the laboratory did not represent the entire tablets allegedly seized from him. To answer this submission, it shall be appropriate to refer to Paragraph 5 of the reply affidavit dated 13-11-2022, filed by concerned DySP, which reads as follows:-
"(5) That on dated 23.06.2021, the recovered case property alongwith accused/petitioner were produced before the Illaqa Magistrate, Dabwall for the certification of inventory proceedings. During the inventory proceedings, the learned Illaqa Magistrate has specifically endorsed in the order dated 23.6.2021, Since all the boxes were having same batch number, therefore two samples i.e. two separate strips being of similar description as of entire case property has been extracted from one of the box. Each sample has been sealed with three seals of Court of undersigned ie "AK". It is further made clear that at the time of inventory, one big strip i.e. chain of five strip (consisting of 50 tablets) was taken out as sample instead of cutting the single strip (consist of
10 tablets) from the chain of five strips. As such the sample parcel containing two chain strips (consisting of 50 tablets in each chain strip) was drawn out for sampling thereof. The photographs taken at the time of inventory which shows the clear position of chain strip (consist of five strips i.e. total 50 tablets in a chain strip) is attached as Annexure R-1."
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10. A perusal of the reply, primafacie points out towards same batch number, and thus, at this stage, the petitioner is not entitled to bail on this point it being matter of proof in trial.
11. The petitioner seeks bail on the same grounds based on which a co-ordinate bench of this court had granted bail in commercial quantity of substance under NDPS Act and refers to CRM-M-53412-2021, Sham Lal v. State of Punjab. A perusal of this order does not mention that the petitioners before the said court had a criminal history under NDPS Act, as is the position in the present case. As such this ruling does not apply to the petitioner. Furthermore, in Dheeraj Kumar Shukla Vs. The State of Uttar Pradesh, SLP (Crl) No.6690/2022, relied upon in Sham Lal Supra, the custody was of 2 years 6 months, trial was at an initial stage, and the accused was a first offender. Thus, Dheeraj Kumar Shukla would be attracted only when the three conditions are fulfilled,
(a). The custody of more than 2 years and 6 months and the delay was not attributable to accused.
(b). Trial is at an initial stage.
(c) The petitioner is the first offender.
after this order, Hon'ble Supreme Court has given more judgments, and this Court is bound to follow those.
12. In paragraph 4, the petitioner claims that they had represented to the concerned SP about false implication and as such he is entitled to bail. The petitioner is permitted to seek the State's response on this representation during trial; however, this would not override the twin conditions of section 37 of NDPS Act, and the petitioner fails to make a case for bail even on this ground.
13. In para 8, the petition states that the accused is entitled to bail because of the non-examination of independent witnesses. However, this plea would gather force only when the accused establishes after cross-examination that the police deliberately did not associate any independent witness even when they could have been made available, and in the facts and circumstances peculiar to this case, the argument does not satisfy the requirements of section 37 of NDPS Act.
14. In State of Punjab v Baldev Singh, (1999) 6 SCC 172, Constitutional bench of Hon'ble Supreme Court holds, [14]. The provisions of Sections 100 and 165 Cr.P.C. are not inconsistent with the provisions of the NDPS Act and are applicable for effecting search, seizure or arrest under the NDPS Act also. However, when an empowered officer carrying on the investigation including search, seizure or arrest under the provisions of the Code of 3 3 of 6 ::: Downloaded on - 13-05-2023 03:38:05 ::: Neutral Citation No:=2023:PHHC:069249 CRM-M-10559-2022 4 Criminal Procedure comes across a person being in possession of the narcotic drugs or the psychotropic substance, then he must follow from that stage onwards the provisions of the NDPS Act and continue the investigation as provided thereunder. If the investigating officer is not an empowered officer then it is expected of him that he must inform the empowered officer under the NDPS Act, who should thereafter proceed from the stage in accordance with the provisions of the NDPS Act. In Balbir Singh's case after referring to a number of judgments, the Bench opined that failure to comply with the provisions of Cr.P.C. in respect of search and seizure and particularly those of Sections 100, 102, 103 and 165 per se does not vitiate the prosecution case. If there is such a violation, what the courts have to see is whether any prejudice was caused to the accused. While appreciating the evidence and other relevant factors, the courts should bear in mind that there was such a violation and evaluate the evidence on record keeping that in view.
15. In para 14 of the bail, the petitioner claims that the investigator conducted search and seizure violating section 50 of the NDPS.
16. Whether the Investigator complied with the mandatory provisions of section 50 of the NDPS Act is a question of fact to be adjudicated in the trial. However, before this court treats the compliances as illegal, the prosecution needs an opportunity to prove that they had complied with the mandatory provisions per law. Such stage would come only during the trial and certainly not at the bail stage, where it would be hit by the maxim Audi alteram partem. The exception to this would be applicable only when the non-compliance of the mandatory provisions of section 50 of the NDPS Act is apparent on the face of the special report under section 57 of the NDPS Act and other documents of search and seizure, and in the opinion of the court, the lapse is non-rectifiable, after recording a finding that it is an incurable defect, the court might consider granting bail on such violations.
17. In State of H.P. v. Prithi Chand, (1996) 2 SCC 37, Hon'ble Supreme Court holds, [3]. The question is whether the learned Sessions Judge was justified, at the stage of taking cognizance of the offence, in discharging the accused, even before the trial was conducted on merits, on the ground that the provisions of Section 50 of the Act had not been complied with. This Court in State of Punjab v. Balbir Singh [(1994)3 SCC 299] : (AIR 1994 SCW 1802) has considered the provisions of the Act. Section 50 has been held to be mandatory. In paragraph 16, this Court has held that it is obligatory on the part of the empowered or the authorised officer to inform the suspect that, if so required, he would be produced before a Gazetted Officer or a Magistrate and search would be conducted in his presence. It was imperative on the part of the Officer to inform the person of the above right and if he failed to do the same, it amounted to violation of the requirement of Section 50 of the Act. It was held that when the person was searched he must have been aware of his right and that it could be done only if the authorised or empowered Officer informed him of the same. Accordingly, this Court by implication read the obligation on the part 4 4 of 6 ::: Downloaded on - 13-05-2023 03:38:05 ::: Neutral Citation No:=2023:PHHC:069249 CRM-M-10559-2022 5 of authorised Officer to inform the person to be searched of his right to information that he could be searched in the presence of the Gazetted Officer or the Magistrate. In Saiyad Mohd. Saiyaad Umar Saiyed v. State of Gujarat [1995(3) JT SC 489] a three-Judge Bench of this Court had reiterated the above view and held that having regard to the grave consequences that might entail the possession of illicit articles under the Act, viz., the shifting of the onus to the accused and the severe punishment to which he became liable, the Legislature had enacted safeguards contained in Section 50. Compliance of the safeguards in Section 50 is mandatory obliging the Officer concerned to inform the person to be searched of his right to demand that search could be conducted in the presence of a Gazetted Officer or a Magistrate. The possession of illicit article has to be satisfactorily established before the Court. The Officer who conducts search must state in his evidence that he had informed the accused of his right to demand, while he is searched, in the presence of a Gazetted Officer or a Magistrate and that the accused had not chosen to so demand. If no evidence to that effect is given, the Court must presume that the person searched was not informed of the protection the law gives him and must find that possession of illicit articles was not established. The presumption under Article 114, illustration (e) of the Evidence Act, that the official duty was properly performed, therefore, does not apply. It is the duty of the Court to carefully scrutinise the evidence and satisfy that the accused had been informed by the concerned Officer that he had a right to be searched before a Gazetted Officer or a Magistrate and that the person had not chosen to so demand.
[4]. It is to be seen whether the accused has been afforded such a right and whether the authorised Officer has violated the mandatory requirement, as a question of fact, has to be proved at the trial. In Pooran Mal v. Director of Inspection [(1974) 1 SCC 345] : (AIR 1974 SC
348) a Constitution Bench of this Court had held that power of search and seizure, is, in any system of jurisprudence, an overriding power of the State for the protection of social security and that power is necessarily regulated by law. A search by itself is not a restriction on the right to hold and enjoy property, though seizure is a temporary restriction to the right of possession and enjoyment of the property seized. However, the seizure will be only temporary and limited for the purpose of the investigation. The power of search and seizure is an accepted norm is our criminal law envisaged in Sections 96 to 103 and 165 of the Criminal Procedure Code, 1973 [for short, "the Code"]. The Evidence Act permits relevancy as the only test of admissibility of evidence. The evidence obtained under an illegal search and seizure does not exclude relevant evidence on that ground. It is wrong to invoke the spirit of Constitution to exclude such evidence. The decisions of the American Supreme Court spelling out certain Constitutional protections in regard to search and seizure are not applicable to exclude the evidence obtained on an illegal search. Courts in India refuse to exclude relevant evidence merely on the ground that it is obtained by illegal search and seizure. When the test of admissibility of evidence lies in relevancy, unless there is an express or necessarily implied prohibition in the Constitution or other law, evidence obtained as a result of illegal search and seizure, is not liable to be shut out. Search and seizure are not a new weapon in the armoury of those whose duty it is to maintain social security in its broadest sense. If the safeguards are generally on the lines adopted 5 5 of 6 ::: Downloaded on - 13-05-2023 03:38:05 ::: Neutral Citation No:=2023:PHHC:069249 CRM-M-10559-2022 6 by the Code, they would be regarded as adequate and render the restrictions imposed as reasonable measures.
[7]. It would thus be settled law that every deviation from the details of the procedure prescribed for search, does not necessarily lead to the conclusion that search by the police renders the recovery of the articles pursuant to the illegal search, irrelevant evidence nor the discovery of the fact inadmissible at the trial. Weight to be attached to such evidence depends on facts and circumstances in each case. The Court is required to scan the evidence with care and to act upon it when it is proved and the Court would hold that the evidence would be relied upon.
18. The stand that the accused is in custody for sufficient time is also not a legal ground to overcome the rigors of S. 37 of the NDPS Act at this stage.
19. The grounds taken in the bail petition do not shift the burden placed by the legislature on the accused under S. 37 of the NDPS Act. The petitioner has not stated anything to discharge the burden put by the stringent conditions placed in the statute by the legislature under section 37 of the NDPS Act. Thus, the petitioner has failed to make a case for bail at this stage.
20. A perusal of the bail petition and the documents attached, primafacie points towards the petitioner's involvement and does not make out a case for bail. Any further discussions are likely to prejudice the petitioner; this court refrains from doing so.
21. Any observation made hereinabove is neither an expression of opinion on the merits of the case nor shall the trial Court advert to these comments. Petition dismissed in terms mentioned above. However, considering the petitioners'custody of more than 1 year and 10 months, this court requests the concerned trial court to make all endeavours to conclude the trial by Sep 30, 2023, of which the prosecution evidence be completed by Aug 31, 2023, and the remaining time to provide an opportunity to the accused to lead defence evidence, if so desired. It is clarified that this order expediting the trial is subject to the condition that neither the petitioner shall seek any adjournment nor try to use any tactics to delay the trial. If they do so, this order of expediting the trial shall stand automaticallyrecalled by resorting to Section 362, read with Section 482 Code of Criminal Procedure, 1973, without any further reference to this court. The petition is disposed of with the aforesaid liberty and observations. All pending applications, if any, stand closed.
(ANOOP CHITKARA)
JUDGE
11.05.2023
sonia arora
Whether speaking/reasoned: Yes
Whether reportable: No.
Neutral Citation No:=2023:PHHC:069249
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