Punjab-Haryana High Court
Sukhdev Singh @ Kali vs State Of Punjab on 14 January, 2025
Author: Anoop Chitkara
Bench: Anoop Chitkara
Neutral Citation No:=2025:PHHC:008903
CRM-M-51766-2024 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CRM-M-51766-2024
Date of decision: 14.01.2025
Sukhdev Singh @ Kali ...Petitioner
Versus
State of Punjab ...Respondent
CORAM: HON'BLE MR. JUSTICE ANOOP CHITKARA
Present: Mr. Gourav Kalsi, Advocate for
Mr. H.S.Batth, Advocate,
for the petitioner.
Mr. Akshay Kumar, AAG, Punjab.
****
ANOOP CHITKARA, J.
FIR No. Dated Police Station Sections
15 31.01.2024 Maqsudan, District 21(B), 29/21 (C) of the NDPS
Jalandhar Rural Act.
1. The petitioner incarcerated in the FIR captioned above had come up before this Court under Section 483 of Bharatiya Nagarik Suraksha Sanhita, 2023, [BNSS], seeking regular bail.
2. Per paragraph 7 of the bail application and the reply dated 26.11.2024, the accused has the following criminal antecedents:
Sr. No. FIR No. Dated Sections Police Station 1. 21 02.02.2024 21 of the NDPS Act Gharinda, Amritsar
3. The facts and allegations are taken from the reply filed by the State., which reads as follows:
"3. That FIR No.15 dated 31.01.2024 U/s 21(b), 21(c), 29 of NDPS Act offence U/s 15(c), 29 of NDPS Act added later on was registered at Police Station: Maqsudan, District Jalandhar Rural on the basis of the following incident:
i. On 31.01.2024, ASI Pipal Singh along with fellow police officials was going towards Kartarpur from Jalandhar in connection with patrolling and checking of bad elements and when the police officials reached at Bidhipur Bus Stand, one young person was seen standing on the left side of the main 1 1 of 7 ::: Downloaded on - 25-01-2025 05:41:06 ::: Neutral Citation No:=2025:PHHC:008903 CRM-M-51766-2024 -2- highway Jalandhar to Amritsar. On seeing the police officials, the said person took out a polythene bag from his right pocket and threw it on the ground.
Thereafter, he started walking briskly in service lane towards Amritsar side but he was apprehended.
ii. On enquiry, the said person disclosed his name as Gurpreet Singh @ Gopi, son of Gurcharan Singh, resident of Mohalla Gopal Nagar, Verowal Road, PS Jandiala Guru, Amritsar.
iii. ASI Pipal Singh informed the apprehended person about his name, rank and place of posting and said that he has suspicion that he is carrying intoxicant substance in the polythene bag thrown by him. Further, ASI Pipal Singh informed the apprehended person about his legal right to get the search conducted from a Magistrate or a Gazetted Officer. The said apprehended person reposed faith in ASI Pipal Singh and said that he can search the polythene bag. On this, the consent memo of accused Gurpreet Singh @ Gopi was prepared.
iv. Before conducting search, an effort was made to join independent witnesses but no one came forward to join the police party. On searching the polythene bag, 100 grams of heroin was found in it.
v. The recovered contraband was put into a plastic box and a parcel was prepared upon which ASI Pipal Singh put his seal 'P.S' and. Thereafter, form M-29 was prepared. A ruqa was sent to the Police Station through Constable Anamdeep Singh and instant case FIR was registered against Gurpreet Singh @ Gopi U/s 21(b) of NDPS Act, 1985.
4. That during interrogation, on 02.02.2024, accused Gurpreet Singh @ Gopi suffered a disclosure statement to the effect that he is involved in heroin trade for the last one year and he purchases heroin from Rashpal Singh and Rajandeep Singh @ Raja. Further, accused Gurpreet Singh @ Gopi disclosed that on the day he was caught ie. 31.01.2024, Rashpal Singh was present with him but he went to the bushes to answer nature' call and after seeing the police party, Rashpal Singh fled from the spot. Thus, vide G.D No. 4 dated 02.02.2024, Rashpal Singh and Rajandeep Singh @ Raja were nominated as an accused and offence U/s 29 of NDPS Act, 1985 was added in the instant case.
5. That on 02.02.2024, Rashpal Singh along with Rajandeep Singh @ Raja was arrested in the instant case. During interrogation, the Rashpal Singh suffered a disclosure statement to the effect that the he along with Rajandeep Singh @ Raja are involved in heroin trade for the last 2-3 years and Gurpreet Singh @ Gopi had purchased 100 grams of heroin (recovered contraband) from Rashpal Singh and Rajandeep Singh @ Raja. Furthermore, Rashpal Singh disclosed that on 31.01.2024, he was accompanying Gurpreet Singh @ 2 2 of 7 ::: Downloaded on - 25-01-2025 05:41:07 ::: Neutral Citation No:=2025:PHHC:008903 CRM-M-51766-2024 -3- Gopi but he was in bushes to answer nature's call. When Rashpal Singh saw that Gurpreet Singh @ Gopi has been apprehended, he became perplexed and he hide a polythene bag containing 550 grams of heroin in the bushes and fled from the spot. Thereafter, on the basis of the disclosure statement suffered by the Rashpal Singh, one polythene bag containing 550 grams of heroin was recovered in the presence of Sh. Palwinder Singh, PPS, DSP/Kartarpur from the spot described by him and offence U/s 21(c) of NDPS Act, 1985 was added in the instant case.
PETITIONER NOMINATED AS AN ACCUSED:
6. That on 06.02.2024, Rashpal Singh suffered another disclosure statement to the effect that he along with Gurpreet Singh @ Gopi, Sandeep Singh @ Bhutto, Sukhdev Singh @ Kali and Rajandeep Singh @ Raja are involved in heroin trade and he has got 2 kanal land near the border with Pakistan. About 10 days ago, Gurpreet Singh @ Gopi, Sandeep Singh @ Bhutto, Sukhdev Singh @ Kali and Rajandeep Singh @ Raja came to the petitioner's house and told him that they have ordered heroin from Pakistan which will come via drone and they have to send the location of drop point to someone in Pakistan.
Thereafter, location of the drop point was sent to an unknown person in Pakistan from Rashpal Singh's phone and next day, 2kg heroin was dropped at Rashpal Singh's land via drone. Thus, on the basis of the disclosure statement suffered by the Rashpal Singh, Sandeep Singh @ Bhutto and Sukhdev Singh @ Kali were nominated as an accused in the instant case vide G.D No. 29 dated 06.02.2024.
7. That on 12.03.2024, the petitioner, who was already in custody in FIR No. 21 dated 02.02.2024 U/s 21 NDPS Act, 1985 registered at PS: Gharinda, Amritsar, was brought on production warrant in the instant case and subsequently arrested."
4. The petitioner's counsel prays for bail by imposing any stringent conditions and contends that further pre-trial incarceration would cause an irreversible injustice to the petitioner and their family.
5. The State's counsel opposes bail and refers to the reply.
6. The quantity allegedly involved in this case is commercial. Given this, the rigors of S. 37 of the NDPS Act apply in the present case. The petitioner must satisfy the twin conditions put in place by the Legislature under Section 37 of the NDPS Act.
7. In Abida v. State of Haryana, 2022:PHHC:058722, [Para 10], CRM-M-5077- 2022, decided on 13-05-2022, this court observed as follows:
33 of 7 ::: Downloaded on - 25-01-2025 05:41:07 ::: Neutral Citation No:=2025:PHHC:008903 CRM-M-51766-2024 -4- [10]. Thus, both the twin conditions need to be satisfied before a person accused of possessing a commercial quantity of drugs or psychotropic substance is to be released on bail. The first condition is to provide an opportunity to the Public Prosecutor, enabling to take a stand on the bail application. The second stipulation is that the Court must be satisfied that reasonable grounds exist for believing that the accused is not guilty of such offence, and is not likely to commit any offence while on bail. If either of these two conditions is not met, the ban on granting bail operates. The expression "reasonable grounds"
means something more than prima facie grounds. It contemplates substantial probable causes for believing that the accused is not guilty of the alleged offence. Even on fulfilling one of the conditions, the reasonable grounds for believing that the accused is not guilty of such an offence, the Court still cannot give a finding on assurance that the accused is not likely to commit any such crime again. Thus, the grant of bail or denial of bail for possessing commercial quantity would vary from case to case, depending upon its facts.
[31]. Satisfying the fetters of S. 37 of the NDPS Act is candling the infertile eggs. The stringent conditions of section 37 placed in the statute by the legislature do not create a bar for bail for specified categories, including the commercial quantity; however, it creates hurdles by placing a reverse burden on the accused, and once crossed, the rigors no more subsist, and the factors for bail become similar to the bail petitions under general penal statutes like IPC.
8. It would be appropriate to refer to the evidence collected against the petition, which is taken from the reply, which reads as follows:
"ROLE OF THE PETITIONER:
8. That the petitioner was nominated as an accused in the instant case on the basis of the disclosure statement suffered by accused Rashpal Singh from whom 550 grams of heroin was recovered. It is pertinent to mention herein that the petitioner is a part of heroin trade on India-Pakistan border and recovery of 100 grams and 550 grams of heroin was effected from co-
accused Gurpreet Singh and Rashpal Singh respectively. EVIDENCE AGAINST THE PETITIONER:
9. That 06.02.2024, Rashpal Singh suffered a disclosure statement to the effect that he along with Gurpreet Singh @ Gopi, Sandeep Singh @ Bhutto, Sukhdev Singh @ Kali and Rajandeep Singh @ Raja are involved in heroin trade and he has got 2 kanal land near the border with Pakistan. About 10 days ago, Gurpreet Singh @ Gopi, Sandeep Singh @ Bhutto, Sukhdev Singh @ Kali and Rajandeep Singh @ Raja came to the petitioner's house and told him that they have ordered heroin from Pakistan which will come via drone and they have to send the location of drop point to someone in Pakistan. Thereafter, location of the drop point was sent to an unknown person in Pakistan from Rashpal Singh's phone and next day, 2kg heroin was dropped at Rashpal Singh's land via drone"
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9. Thus, the evidence collected so far consists of disclosure statements without any discovery of fact.
10. In Tofan Singh v. State of Tamil Nadu, (2021) 4 SCC 1, the majority view of a three-member bench holds as follows:
We answer the reference by stating:
(i) That the officers who are invested with powers under section 53 of the NDPS Act are "police officers" within the meaning of section 25 of the Evidence Act, as a result of which any confessional statement made to them would be barred under the provisions of section 25 of the Evidence Act, and cannot be taken into account in order to convict an accused under the NDPS Act.
(ii) That a statement recorded under section 67 of the NDPS Act cannot be used as a confessional statement in the trial of an offence under the NDPS Act.
11. The status report filed by the police reveals that the investigator arraigned the petitioner as an accused based on the disclosure statement of the main accused, from whose possession the investigator had recovered the contraband. No other evidence is collected at this stage to connect the petitioner with the main accused. Thus, there is no justification to deny bail. Consequently, the petitioner has satisfied the first rider of section 37 of the NDPS Act. Regarding the second rider of S. 37, this court will put very stringent conditions in this order to ensure that the petitioner does not repeat the offense.
12. For now, the petitioner has prima facie satisfied the first condition of section 37 of the NDPS Act to make a case for bail. Regarding the second rider of S. 37, this court will put very stringent conditions in this order to ensure that the petitioner does not repeat the offense.
13. As per paragraph 5 of the bail petition, the petitioner has been in custody since 12.03.2024. Per the custody certificate dated 13.01.2025, the petitioner's total custody in this FIR is 09 months and 29 days. Given the penal provisions invoked viz-a-viz pre-trial custody, coupled with the primafacie analysis of the nature of allegations, and the other factors peculiar to this case, there would be no justifiability for further pre-trial incarceration at this stage.
14. The investigation indicates that the petitioner is not the main accused, so the petitioner's bail shall not be treated as a precedent for granting bail to the other co- accused with a higher role.
15. Without commenting on the case's merits, in the facts and circumstances peculiar to this case, and for the reasons mentioned above, the petitioner makes a case for bail. This order shall come into force from the time it is uploaded on this Court's official webpage.
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16. Given above, provided the petitioner is not required in any other case, the petitioner shall be released on bail in the FIR captioned above subject to furnishing bonds to the satisfaction of the concerned Court and due to unavailability before any nearest Ilaqa Magistrate/duty Magistrate. Before accepting the surety, the concerned Court must be satisfied that if the accused fails to appear, such surety can produce the accused.
17. While furnishing a personal bond, the petitioner shall mention the following personal identification details:
1. AADHAR number
2. Passport number (If available) and when the attesting officer/court considers it appropriate or considers the accused a flight risk.
3. Mobile number (If available)
4. E-Mail id (If available)
18. This order is subject to the petitioner's complying with the following terms.
19. The petitioner shall abide by all statutory bond conditions and appear before the concerned Court(s) on all dates. The petitioner shall not tamper with the evidence, influence, browbeat, pressurize, induce, threaten, or promise, directly or indirectly, any witnesses, Police officials, or any other person acquainted with the facts and circumstances of the case or dissuade them from disclosing such facts to the Police or the Court.
20. Given the background of allegations against the petitioner, it becomes paramount to protect the drug detection squad, their family members, as well as the members of society, and incapacitating the accused would be one of the primary options until the filing of the closure report or discharge, or acquittal. Consequently, it would be appropriate to restrict the possession of firearm(s). [This restriction 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 sanction]. Given the nature of the allegations and the other circumstances peculiar to this case, the petitioner shall surrender all weapons, firearms, and ammunition, if any, along with the arms license to the concerned authority within fifteen days from release from prison and inform the Investigator about the compliance. However, subject to the Indian Arms Act, 1959, the petitioner shall be entitled to renew and take it back in case of acquittal in this case, provided otherwise permissible in the concerned rules. Restricting firearms would instill confidence in the victim(s), their families, and society; it would also restrain the accused from influencing the witnesses and repeating the offense.
21. The conditions mentioned above imposed by this court are to endeavor to reform and ensure the accused does not repeat the offense and also to block the menace of drug abuse. In Mohammed Zubair v. State of NCT of Delhi, 2022:INSC:735 [Para 28], Writ 6 6 of 7 ::: Downloaded on - 25-01-2025 05:41:07 ::: Neutral Citation No:=2025:PHHC:008903 CRM-M-51766-2024 -7- Petition (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 conditions imposed by the Court must not only have a nexus to the purpose that they seek to serve but must also be proportional to the purpose of imposing them. The courts, while imposing bail conditions must balance the liberty of the accused and the necessity of a fair trial. While doing so, conditions that would result in the deprivation of rights and liberties must be eschewed."
22. In Md. Tajiur Rahaman v. The State of West Bengal, decided on 08-Nov-2024, SLP (Crl) 12225-2024, Hon'ble Supreme Court holds in Para 7, "It goes without saying that if the petitioner is found involved in such like offence in future, the concession of bail granted to him today will liable to be withdrawn and the petitioner is bound to face the necessary consequences."
23. This bail is conditional, and the foundational condition is that if the petitioner indulges in any non-bailable offense, the State may file an application for cancellation of this bail before the Sessions Court, which shall be at liberty to cancel this bail.
24. Any observation made hereinabove is neither an expression of opinion on the case's merits nor shall the trial Court advert to these comments.
25. A certified copy of this order would not be needed for furnishing bonds, and any Advocate for the Petitioner can download this order along with case status from the official web page of this Court and attest it to be a true copy. If the attesting officer wants to verify its authenticity, such an officer can also verify its authenticity and may download and use the downloaded copy for attesting bonds.
26. Petition allowed in terms mentioned above. All pending applications, if any, stand disposed of.
(ANOOP CHITKARA) JUDGE 14.01. 2025 smriti Whether speaking/reasoned: Yes Whether reportable: No. 7 7 of 7 ::: Downloaded on - 25-01-2025 05:41:07 :::