Punjab-Haryana High Court
Sukhdev Singh Alias Sebi vs State Of Punjab on 15 February, 2023
Author: Anoop Chitkara
Bench: Anoop Chitkara
Neutral Citation No:=2023:PHHC:028506
CRM-M-48150-2022
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CRM-M-48150-2022
Reserved on: 07.02.2023
Pronounced on: 15.02.2023
Sukhdev Singh @ Sebi
...Pe oner
Versus
State of Punjab
...Respondent
CORAM: HON'BLE MR. JUSTICE ANOOP CHITKARA
Present: Mr. Ruhani Chadha, Advocate
for the pe oner.
Mr. Virat Rana, AAG, Punjab.
****
ANOOP CHITKARA, J.
FIR No. Dated Police Sta/on Sec/ons 128 20.08.2022 Subhanpur District 21 and 29 of NDPS Act Kapurthala 1. The pe oner, apprehending arrest for viola ng the above-men oned
provisions of Narco cs Drugs and Psychotropic Substances Act, 1985 (NDPS Act) per the FIR cap oned above, on the allega ons of possessing 500 grams of heroin and Rs. 13,40,000/- proceeds of sale of drugs, has come up before this Court under Sec on 438 CrPC seeking an cipatory bail.
2. In paragraph 15 of the bail applica on, the accused declares the following criminal antecedents:
Sr. No. FIR No. Date Offences Police Sta on 1. 140 20.08.2022 21(b) and 29 of NDPS Act Kartarpur, District Jalandhar 2. 140 01.09.2019 21 of NDPS Act Subhanpur, District Kapurthala 3. 76 10.06.2022 21(b) of NDPS Act Subhanpur, District Kapurthala 4. 139 01.09.2019 21 of NDPS Act Subhanpur, District Kapurthala 5. 180 31.08.2019 22 and 29 of NDPS Act Kotwali 6. 162 06.08.2019 21, 22 and 29 of NDPS Act Kotwali 1 1 of 5 ::: Downloaded on - 30-05-2023 00:47:12 ::: Neutral Citation No:=2023:PHHC:028506 CRM-M-48150-2022 3. The pe oner's counsel argued that the pre-trial incarcera on would cause an irreversible injus ce to the pe oner and family.
4. While opposing the bail, the State's counsel contends that given the criminal past, the accused is likely to indulge in crime once released on bail.
REASONING:
5. In Paramjeet Singh v. State of Punjab, CRM-M 50243 of 2021, this court observed, While considering each bail pe on of the accused with a criminal history, it throws an onerous responsibility upon the Courts to act judiciously with reasonableness because arbitrariness is the an thesis of law. The criminal history must be of cases where the accused was convicted, including the suspended sentences and all pending First Informa on Reports, wherein the bail pe oner stands arraigned as an accused. In reckoning the number of cases as criminal history, the prosecu ons resul ng in acquiGal or discharge, or when Courts quashed the FIR; the prosecu on stands withdrawn, or prosecu on filed a closure report; cannot be included. Although crime is to be despised 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. The possession of heroin is an offence under NDPS Act, as per the following details:
Substance Name Heroin/ Chi4a/ Smack
Quan/ty detained (in Grams) 500
Quan/ty type Commercial
Drug Quan/ty in % to commercial
200.00%
quan/ty
Specified as small & Commercial in S.2(viia) & 2(xxiiia) NDPS Act, 1985 No/fica/on No S.O.1055(E) dated 10/19/2001 Sr. No. 56 Common Name (Name of Narco/c Drug and Psychotropic Substance Heroin (Interna/onal non-proprietary name (INN) Other non-proprietary name ****** Chemical Name Diacetylmorphine Small Quan/ty (in gm.) 5 Commercial Quan/ty (in gm.) 250
7. Thus, the quan ty involved in the present case is heroin, subject to tes ng of substance by the laboratory.
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8. On Aug 20, 2022, the police received secret informa on that the pe oner sells drugs from his house and even at that me, he has kept drugs in his house. Subsequently, the Inves gator, aJer complying with the procedural requirements of NDPS Act, searched the pe oner's house and recovered 500 grams of heroin and Rs. 13,40,000/-. Since the pe oner was not present in his house, he could not be arrested.
9. The pe oner offers explana on to seek an cipatory bail:
(a) The pe oner contends that no recovery was effected from his conscious possession and was falsely roped up him due to poli cal rivalry. He further stated that on the same day, he was also roped up in another FIR under NDPS Act in which he was not named and no recovery was effected.
b) The pe oner's claim is that there is no evidence to connect the pe oner with the alleged recovery.
c) In para 5, the pe oner claims that he was residing at Mohalla Aariya Nagar, Tehsil Sahib Road, District Kapurthala and no recovery was effected from the said house and in fact the police had recovered the contraband from an adjacent house and fastened the said recovery on the pe oner.
d) In para 6, the pe oner stated that he had given his land on rent and the land from which the police had recovered the contraband was not residen al and he was referred to the rent agreement as Annexure P-2.
e) In para 7, the pe oner claims that although his antecedents have not cleared but majority of the cases were registered on the basis of disclosure statement of the co-accused and no recovery was effected from his possession.
f) The police did not associate independent witness.
10. The recovery was from the pe oner's house and there is nothing to discredit the place of recovery or to believe that it was not from his house but from adjoining land. A perusal of the aforesaid explana on does not probabalize anything in favour of the pe oner. He did not men on the details or kind of dispute and cryp cally men ons "some dispute". The burden on the accused in commercial quan ty is not that light as it can be explained by such sketchy and flimsy explana ons. Apart from this, the pe on 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.
11. The pe on states that the accused is en tled to bail because of the non- examina on of independent witnesses. However, this plea would gather force only 3 3 of 5 ::: Downloaded on - 30-05-2023 00:47:13 ::: Neutral Citation No:=2023:PHHC:028506 CRM-M-48150-2022 when the accused establishes aJer cross-examina on 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 sa sfy the requirements of sec on 37 of NDPS Act.
12. In State of Punjab v Baldev Singh, (1999) 6 SCC 172, Cons tu onal bench of Hon'ble Supreme Court holds, [14]. The provisions of Sec ons 100 and 165 Cr.P.C. are not inconsistent with the provisions of the NDPS Act and are applicable for effec ng search, seizure or arrest under the NDPS Act also. However, when an empowered officer carrying on the inves ga on including search, seizure or arrest under the provisions of the Code of Criminal Procedure comes across a person being in possession of the narco c drugs or the psychotropic substance, then he must follow from that stage onwards the provisions of the NDPS Act and con nue the inves ga on as provided thereunder. If the inves ga ng 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 thereaJer proceed from the stage in accordance with the provisions of the NDPS Act. In Balbir Singh's case aJer 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 par cularly those of Sec ons 100, 102, 103 and 165 per se does not vi ate the prosecu on case. If there is such a viola on, what the courts have to see is whether any prejudice was caused to the accused. While apprecia ng the evidence and other relevant factors, the courts should bear in mind that there was such a viola on and evaluate the evidence on record keeping that in view.
13. The pe on states that the quan ty of substance allegedly recovered is marginally above the commercial quan ty. This submission is more compassionate than legal. Once the quan ty is greater than commercial, it is immaterial for the purpose of bail. Once it is in statute, Judges have no la tude. Given the legisla ve mandate under sec on 37 of the NDPS Act, an accused is not en tled to bail if the quan ty is marginally above the commercial quan ty.
14. Ld. counsel for the pe oner submits that the inves gator conducted search and seizure viola ng sec ons 42 and 50 of the NDPS.
15. The grounds taken in the bail pe on do not shiJ the burden placed by the legislature on the accused under S. 37 of the NDPS Act. The pe oner has not stated anything to discharge the burden put by the stringent condi ons placed in the statute by the legislature under sec on 37 of the NDPS Act. Thus, the pe oner has failed to make a case for an cipatory bail under sec on 438 CrPC.
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16. Any observa on made hereinabove is neither an expression of opinion on the case's merits, neither the court taking up regular bail nor the trial Court shall advert to these comments.
Pe//on dismissed in aforesaid terms. It is clarified that this court had not granted any interim protec on to the pe oner. All pending applica ons, if any, stand disposed.
(ANOOP CHITKARA)
JUDGE
15.02.2023
Jyo -II
Whether speaking/reasoned: Yes
Whether reportable: No.
Neutral Citation No:=2023:PHHC:028506
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