Punjab-Haryana High Court
Harvinder Singh vs State Of Punjab on 30 July, 2024
Author: Anoop Chitkara
Bench: Anoop Chitkara
Neutral Citation No:=2024:PHHC:097681
CRM-M-30598-2024
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CRM-M-30598-2024
Reserved on: 17.07.2024
Pronounced on: 30.07.2024
Harvinder Singh ...Pe oner
Versus
State of Punjab ...Respondent
CORAM: HON'BLE MR. JUSTICE ANOOP CHITKARA
Present: Mr. Simranjeet Singh, Advocate and
Mr. Aman Mi!al, Advocate,
for the pe oner.
Mr. Sukhdev Singh, AAG, Punjab.
****
ANOOP CHITKARA, J.
FIR No. Dated Police Sta2on Sec2ons 213 21.07.2023 Rama Mandi, Dis!. 22, 29, 61, 85 of NDPS Act Jalandhar and Sec on 25, 27, 54, 59 of Arms Act.
1. The pe oner incarcerated 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, has come up before this Court under Sec on 439 CrPC seeking bail.
2. In paragraph 13 of the bail pe on, the accused declares that he has no criminal antecedents.
3. The prosecu on's case is being taken from reply dated 10.07.2024 filed by the concerned Assistant Commissioner of Police, which reads as follows:
"4. That succinctly, the factual matrix of the ma er is that on 21.07.2023, ASI Sukhwinder Kumar No.505/JAL along with fellow Police personnel, were in their private vehicles and they were present at village Lamma Pind chowk, Jalandhar and then ASI Sukhwinder Kumar received secret informa-on to the effect that Sanju S/o Deepu, R/o Bansan Wali Gali, Rama Mandi, District Jalandhar, and Harvinder Singh @ Mannu S/o Lakhvir Singh, R/o Baba Buddha Ji Nagar, District Jalandhar, are both engaged in the sale of intoxicant pills and narco-c powder. It was further informed to 1 1 of 10 ::: Downloaded on - 03-08-2024 11:26:47 ::: Neutral Citation No:=2024:PHHC:097681 CRM-M-30598-2024 ASl Sukhwinder Kumar that the afore-men-oned persons namely Sanju and Harvinder Singh @ Mannu are present at the bridge near Surya Enclave to sell narco-cs pills and powder and were awai-ng their customers. If a raid can be conducted at the said loca-on near Surya Enclave bridge then the above-said persons may be apprehended.
5. That on the basis of above said informa-on, ASI Sukhwinder Kumar sent a wri en in-ma-on through Senior Constable Parmjit Singh No.666/JAL to the Police Sta-on Rama Mandi, District Jalandhar for the registra-on of FIR. Therefore, FIR No.213 dated 21.07.2023 U/s 22 NDPS Act (Sec-on 29 NDPS Act and Sec-on 25, 27 of Arms Act added and Sec-on 27 of Arms Act deleted later on), Police Sta-on Rama Mandi, Jalandhar was registered by the Police against 02 accused persons i.e 1) Sanju 2) Harvinder Singh @ Mannu (present pe--oner).
6. That ASI Sukhwinder Kumar, along with his fellow police personnel, reached near the Surya Enclave bridge and observed two persons standing there, who upon seeing the Police party tried to flee; however, they were apprehended by the police. Upon asking their iden--es, the first person iden-fied himself as Sanju and the second person iden-fied himself as Harvinder Singh @ Mannu (present pe--oner). ASI Sukhwinder Kumar disclosed his iden-ty to the above said persons and they were conveyed by ASl Sukhwinder Kumar that he had a suspicion that they were in possession of narco-cs. The above-said persons were further apprised about their legal right U/s 50 of the NDPS Act to get the search conducted in the presence of a Magistrate or a Gaze ed Officer. However, both persons expressed trust in ASI Sukhwinder Kumar and therefore, their separate consent memos were prepared by the Police.
7. That before conduc-ng search, ASI Sukhwinder Kumar tried to join witness from the public but everyone cited their inability. In the presence of his fellow police personnel, ASI Sukhwinder Kumar conducted the search of the first person namely Sanju and upon searching the right pocket of Sanju's pants, a plas-c envelope was recovered, which contained light pink-colored narco-c pills. Upon coun-ng the narco-c pills, the same came out to be 1,015 pills. The parcel thereof was prepared and the same was sealed by ASI Sukhwinder Kumar with his seal marked "SK." Subsequently, the search of the second person namely Harvinder Singh @ Mannu (present pe--oner) was conducted and from the right pocket of his pant, a plas-c envelope was recovered, which contained narco-c powder. Upon weighing, the same came out to be 150 grams. The parcel thereof was prepared by ASI 2 2 of 10 ::: Downloaded on - 03-08-2024 11:26:48 ::: Neutral Citation No:=2024:PHHC:097681 CRM-M-30598-2024 Sukhwinder Kumar and he sealed the same with his seal.
8. That the aforemen-oned two parcels were taken into police custody through a recovery memo and the above-said persons namely Sanju and Harvinder Singh @ Mannu were arrested by the Police and they were produced before the Ld. Court of JMIC, Jalandhar and the Ld. Magistrate prepared samples of the above-said intoxicants so as to send the same for chemical examina-on."
4. Counsel for the pe oner seeks bail on the grounds of lack of conscious possession and also that the material which was recovered from the pe oner was paracetamol and not the drugs. He submits that he would have no objec on in case any stringent condi ons this Court might put upon the pe oner. The pe oner contends that the further pre-trial incarcera on would cause an irreversible injus ce to the pe oner and family.
5. State counsel opposes the bail and submits that the pe oner was in the company of co-accused from whom they had recovered commercial quan ty of contraband, as such, he is not en tled to bail.
6. An analysis of the above arguments would lead to the outcome that it would be appropriate to refer para 11 of the reply, which reads as follows:
11. That as per the result report received from the office of Director, FSL SAS Nagar vide Report No.2379/2023/Toxi/FSL/Pb dated 29.09.2023;
the result is as follow:-
"The contents of Envelopes No.1 and 2 under reference have been analysed separately by chemical, TLC and instrumental analysis. On the basis of analysis, Alprazolam has been found present in the tablets contained in Envelope No.1 and Acetaminophen (Paracetamol Analgesic) and Diclofenac Sodium (Analgesic) have been found present in the content of the Envelope No.2"
7. As men oned in above cap oned reply, search of pe oner- Harvinder Singh @ Mannu had led to recovery of 150 grams of narco c powder, whereas, recovery from co-accused Sanju was 1015 pills. An analysis of the above cap oned report men oned presence of alprazolam in the tablets. As per para 7 above, the tablets were recovered from co-accused Sanju. As per report of the FSL, 150 grams of powder was recovered from envelope number 2 which contains paracetamol and as per para 7 above, the 3 3 of 10 ::: Downloaded on - 03-08-2024 11:26:48 ::: Neutral Citation No:=2024:PHHC:097681 CRM-M-30598-2024 powder was recovered from the pocket of pe oner- Harvinder Singh.
8. Thus, prima facie both the accused Harvinder Singh and Sanju were possessing separate packets. There is nothing to show that how the pe oner can also be held liable for the possession of tablets by co-accused Sanju and vice versa. Thus, the evidence collected so far does not point out any connec on between pe oner and the recovery of tablets from co-accused Sanju. The powder which was recovered from the pe oner was tested to be any prohibited substance under the NDPS Act. On the face of it, the pe oner has complied with the rigorous of Sec on 37 of NDPS Act.
9. The quan ty allegedly involved in this case is commercial. Given this, the rigours of S. 37 of the NDPS Act apply in the present case. The burden 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.
10. For the me being, the pe oner, who is already incarcera ng since 22.05.2024, has prima facie sa sfied the first condi on of sec on 37 of the NDPS Act to make out a case for bail. 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.
11. 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:
[10]. 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 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 offence, and is not likely to commit any offence while on bail. If either of these two condi ons is not met, the ban on gran ng bail operates. 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. Even on fulfilling one of the condi ons, the reasonable grounds for believing that the accused is not guilty of such an offence, the Court s ll 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 quan ty would vary from case to case, depending upon its facts.
[30]. From the summary of the law rela ng to rigors of S.37 of NDPS Act, while gran ng bail involving commercial quan es, the following fundamental principles emerge:
(a). In case of inconsistency, S. 37 of the NDPS Act prevails over S. 439 CrPC. [Narco cs Control Bureau v Kishan Lal, 1991 (1) SCC 705, Para 6].4
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(b). The limita ons on gran ng of bail come in only when the ques on of gran ng bail arises on merits. [Customs, New Delhi v. AhmadalievaNodira, (2004) 3 SCC 549, Para 7].
(c). 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. [UOI v. Prateek Shukla, 2021:INSC:165 [Para 11], (2021) 5 SCC 430, Para 12].
(d). In case the Court proposes to grant bail, two condi ons are to be mandatorily sa sfied in addi on to the standard requirements under the provisions of the CrPC or any other enactment. [Union of India v. Niyazuddin SK &Anr, 2017:INSC:686 [Para 7], (2018) 13 SCC 738, Para 7].
(e). Apart from gran ng opportunity to the Public Prosecutor, the other twin condi ons which really have relevance are the Court's sa sfac on that there are reasonable grounds for believing that the accused is not guilty of the alleged offence. [N.R. Mon v. Md. Nasimuddin, (2008) 6 SCC 721, Para 9].
(f). The sa sfac on contemplated regarding the accused being not guilty has to be more than prima facie grounds, considering substan al probable causes for believing and jus fying that the accused is not guilty of the alleged offence. [Customs, New Delhi v. Ahmadalieva Nodira, (2004) 3 SCC 549, Para 7].
(g). 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. [State of Kerala v. Rajesh, 2020:INSC:88 [Para 21], AIR 2020 SC 721, Para 21].
(h). Twin condi ons of S. 37 are cumula ve and not alterna ve. [Customs, New Delhi v. Ahmadalieva Nodira, (2004) 3 SCC 549, Para 7].
(i). At the bail 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 commi!ed an offence under the NDPS Act and further that he is not likely to commit an offence under the said Act while on bail. [Union of India v. Ra!an Mallik @ Habul, (2009) 2 SCC 624, Para 14].
(j). If the statements of the prosecu on witnesses are believed, then they would not result in a convic on. [Babua v. State of Orissa, (2001) 2 SCC 566, Para 3].
(k). Merely recording the submissions of the par es does not amount to an indica on of a judicial mind or a judicious applica on of mind. [UOI v. Prateek Shukla, 2021:INSC:165 [Para 11], (2021) 5 SCC 430, Para 12].
(l). Sec on 37 departs from the long-established principle of presump on of innocence in favour of an accused person un l 5 5 of 10 ::: Downloaded on - 03-08-2024 11:26:48 ::: Neutral Citation No:=2024:PHHC:097681 CRM-M-30598-2024 proved otherwise. [Union of India v. Sanjeev v. Deshpande, (2014) 13 SCC 1, Para 5].
(m). While considering the applica on for bail concerning Sec on 37, the Court is not called upon to record a finding of not guilty. [Union of India v. Shiv Shanker Kesari, (2007) 7 SCC 798, Para 11].
(n). The confessional statement recorded under Sec on 67 of the NDPS Act is inadmissible in the trial of an offence under the NDPS Act. [Tofan Singh v. State of Tamil Nadu, 2020:INSC:620, (2021) 4 SCC 1]
(o). In the absence of clarity on the quan ta ve analysis of the samples from the laboratory, the prosecu on cannot be heard to state at this preliminary stage that the accused possessed a commercial quan ty of psychotropic substances as contemplated under the NDPS Act. [Bharat Chaudhary v. Union of India 2021:INSC:877 [Para 11], 2021 SCC OnLine SC 1235, Para 10].
(p). When there is evidence of conscious possession of commercial quan ty of psychotropic substances, such accused is not en tled to bail given Sec on 37 of the Act as contemplated under the NDPS Act. [State by (NCB) Bengaluru v. Pallulabid Ahmad Arimu!a, 2022:INSC:26 [Para 11], 2022 SCC OnLine SC 47, Para 12].
(p). Bail must be subject to stringent condi ons. [Sujit Tiwari v. State of Gujarat, 2020:INSC:101 [Para 12], 2020 SCC Online SC 84, Para 12].
[31]. Sa sfying the fe!ers 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, including the commercial quan ty; 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 pe ons under general penal statutes like IPC.
12. 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 Courts can impose restric ve condi ons.
13. Without commen ng on the case's merits, 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.
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14. 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 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 fiTng 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.
15. 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. Ten thousand (INR 10,000/); AND
(b) To give one surety of Rs. Twenty-five thousand (INR 25,000/-), 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 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). Pe oner to hand over to the concerned court a fixed deposit for Rs.
Ten thousand only (INR 10,000/-), 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 7 7 of 10 ::: Downloaded on - 03-08-2024 11:26:48 ::: Neutral Citation No:=2024:PHHC:097681 CRM-M-30598-2024 permissible for the pe oner to prepare an account payee demand draX 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 a!endance 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.
(e). While furnishing personal bond, the pe oner shall men on the following personal iden fica on details:
1. AADHAR number
2. Passport number, (If available), when the a!es ng officer/court thinks appropriate or considers the accused as a flight risk.
3. Mobile number (If available)
4. E-Mail id (If available)
16. 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. 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.
17. 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 acqui!al. 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 fiXeen days from release from prison and inform the Inves gator about the compliance. However, subject to the Indian 8
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18. 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 aXer that in Sec on 437-A of the Cr.P.C., if not canceled due to non-appearance or breach of condi ons.
19. The condi ons men oned above imposed by this court are to endeavour to reform and the accused does not repeat the offence, and also to bock the menace of drugs abuse. 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."
20. 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.
21. If the pe oner finds the bond amount beyond social and financial reach, it may be brought to the no ce of this Court for appropriate reduc on. Further, 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 aXer 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.
22. 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.
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23. 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.
24. 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.
25. In return for the protec on from incarcera on, the Court believes that the accused shall also reciprocate through desirable behavior.
26. 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 a est it to be a true copy. In case the a es-ng officer wants to verify the authen-city, such an officer can also verify its authen-city and may download and use the downloaded copy for a es-ng bonds.
Pe22on allowed in aforesaid terms. All pending applica ons, if any, stand disposed.
(ANOOP CHITKARA)
30.07.2024 JUDGE
Jyo -II
Whether speaking/reasoned: Yes
Whether reportable: No
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