Davinder Singh v. State of Punjab

INoTHEoHIGHoCOURToOFoPUNJABoANDoHARYANAoATo CHANDIGARHo oCRM-M-11246-2023o(O&M)o DateoofoDecision:o24.07.2023ooooooooooooo o DAVINDERoSINGHo o o o o o o o o o …Petitionero o Versuso STATEoOFoPUNJABo o o o o o o o o o …Respondento o CORAM:oo HON'BLEoMR.oJUSTICEoHARSHoBUNGERo Presento:o Mr.oPuneetoJindal,oSenioroAdvocateo o o withoMr.oTajinderoSingh,oAdvocateo o o forotheopetitioner.o o o o Mr.oHarjinderoS.oSidhu,oA.A.G.,oPunjab.oo o o o HARSHoBUNGER,oJ.oo o o Prayeroinotheopresentopetition,ofiledounderoSectiono439oofotheo CodeoofoCriminaloProcedureo(foroshorto`theoCr.P.C.'),oisoforograntooforegularo bailotootheopetitioneroinocaseoFIRoNo.0081odatedo27.06.2022o(AnnexureoP-1),o registeredounderoSectionso18oando22oofotheoNarcoticoDrugsoandoPsychotropico Substanceso Act,o 1985o (foro shorto `NDPSo Act'),o ato Policeo Stationo Dirba,o DistrictoSangrur.o

2.o o Replyo byo wayo ofo ano affidavito ofo Sh.o Prithvio Singh,o P.P.S.,o Deputyo Superintendento ofo Police,o Subo Divisiono Dirba,o ono behalfo ofo respondent-StateoofoPunjab,ohasobeenofiled,owhichoisoalreadyoonorecord.o

3.o o Briefly,otheoabove-saidocaseoFIRowasoregisteredoonotheobasisoofo ruqaosentobyoASIoDarshanoSingh,oPoliceoStationoDirba;owherein,oitowasostatedo thatoono27.06.2022,owhileoheoalongowithotheofellowoemployees,owasogoingo fromoVillageoKadialotooVillageoMunsiwala,oonoaoprivateovehicleoalongowitho laptop,oprinteroandoinverter,oinoconnectionowithopatrollingoandocheckingoofo I attest to the accuracy and P a g e 1 | 9

suspiciouso personso theno aroundo 10:30o a.m.,o wheno theyo reachedo nearo theo culvertoofochoeoofoVillageoMunsiwala,othenofromotheosideoofoVillageoSamura,o oneo youngo boyo waso seeno comingo ono footo alongsideo theo choeo whoo waso wearingoblackocolouredoturbano(patka),owhiteocolouredoshirtoandolightocoffeeo colouredotrouseroandowasoalsoocarryingoaoweightyobagoinohisohand.oItoisostatedo thatoonoseeingotheopoliceopartyoahead,oheogotonervousoandotriedotoothrowoawayo theobagoandorunotowardsopaddyofields.oHowever,oheowasoapprehendedowitho theohelpoofopoliceoparty.oUponoenquiry,oheodisclosedohisonameoasoDavindero Singho(petitioner)osonoofoPritamoSinghoresidentoofoMunsiwalaoPoliceoStationo Dirba.oItoisofurtherostatedothatowhenoheo(ASIoDarshanoSingh)omovedotootheo weightyobagolyingonearotheofootpathoofotheochoeothrownobyoDavinderoSingh,o heosawothatonearotheobag,ostripsoofointoxicantotabletsowerescatteredoandooneo transparentowrapperowasothere,oinowhichoopiumowasovisible.oItoisostatedothato uponotheotabletsomakeo`AlprazolamoTabletsoIPoti.5omgo(ALPRASAFEoti.5)'o waso written.o Thereafter,o ASIo Darshano Singho contactedo theo Inspectoro Gurpartapo Singh,o SHOo Policeo Stationo Dirbao ando apprisedo himo abouto theo circumstancesoandoheowasoaskedotoosendoaocompetentoofficeroatotheospotoforo investigation.oAccordingly,otheoruqaowasopreparedoandosentotootheoPoliceo StationofororegistrationoofoFIR.o

4.o o Aso pero theo replyo filedo byo theo learnedo Stateo counsel,o ladyooooooooooooooo Sub-InspectoroAnita,oInchargeoPoliceoPostoKohrian,oreachedoatotheospotoando sawo theo stripso ofo intoxicanto tabletso scatteredo nearo theo heavyo weigho bag,oo opiumowasovisibleoinoaotransparentopolytheneoenvelopeoando230ostrips,oeacho containingo 10-10o tablets,o totalo 2300o intoxicanto tabletso markao Alprazolamo Tabletso IPo 0.5o mgo (Alprasafeo 0.5),o batcho No.PCCAA916,o MFG.o Dateo 03/2022,oEXP.oDateo02/2025,owereorecovered.oUponocheckingotheopolytheneo I attest to the accuracy and P a g e 2 | 9

envelope,o 250o gramso ofo opiumo waso recovered.o Ono 28.06.2022,ooooooooooooooooo DavinderoSingho(petitioner)oalongowithocaseopropertyowasoproducedobeforeo theolearnedoSuboDivisionaloJudicialoMagistrare,oSunam;owhereotheosampleso wereo drawno ando sento foro examination;o whereupon,o theo FSLo reporto datedo

16.08.2022owasoreceivedoandotheoingredientsofoundopresentoinotheoparcelso wereoreportedoasoundero:-o o o PARCELoNo.1o Alprazolamo Foundopresent,oaverageoti.48omg/tableto ino theo tabletso containedo ino theo parcelo No.1.o o o o o PARCELoNo.2o Meconicoacido Foundo presento ino theo contento ofo theo parceloNo.2.o Morphineo ando -do-o othero Alkaloidso ofoopiumo Quantityo ofo 4.25%o (ino theo contento ofo theo parcelo Morphineo No.2)o o

5.o o Thereafter,otheopetitionerofiledoanoapplicationounderoSectiono439o ofotheoCr.P.C.oforograntooforegularobailobeforeotheoCourtoofolearnedoJudge,o SpecialoCourt,oSangrur;ohowever,otheosameowasodismissedovideoorderodatedo

04.10.2022.oFurthermore,otheopetitionobeingoCRM-M-4268-2023oforograntoofo regularo bailo filedo byo theo petitionero beforeo thiso Court,o waso dismissedo aso withdrawnoono01.02.2023.o

6.o o Hence,oinstantoisotheosecondopetitionoforograntooforegularobailo filedobyotheopetitionerobeforeothisoCourt.o

7.o o Learnedocounseloforotheopetitionerocontendsothatotheopetitioneroiso innocentoandohasofalselyobeenoimplicatedoinotheopresentocaseoasonoorecoveryo asoallegedoinotheoFIR,owasomadeofromohim.oLearnedocounselofurtherosubmitso I attest to the accuracy and P a g e 3 | 9

thatotheopetitionerohasonoopreviousocriminaloantecedentsoandotheoinstantoFIRo isoanooutcomeoofoaopoliticalorivalryoofovillageoasopetitioneroisooneoofotheoPancho havingoelectedoono30.12.2018.oItoisosubmittedothatoalthoughoasoperotheoFIR,o theopetitioneroisoshownotoobeoarrestedonearotheo`Choe'oatoaroundo10:30oA.Mo ono27.06.2022;owhereas,ohewasoarrestedofromohisohouseoonotheosameodayoi.e.o ono27.06.2022,o mucho earliero ato aroundo6:30o inotheo morning.o Ito iso furthero submittedothatotheopoliceoofficialsocameotootheohouseoofotheopetitioneroinotheo earlyomorningoinoaoprivateovehicleobearingoNo.PB-11BL-1473o(Makeo`Marutio Suzuki'oModeloSwiftoVDI)andodemandedomoneyoinolieuoofonotoinvolvingohimo inoanyoFIRounderotheoNDPSoActoandoitoisoonlyowhenotheopetitionerorefusedotoo accedeotootheirodemandoforobribe,othenoheowasotakenoinotheoprivateovehicleobyo theo policeo officialso ando theo CCTVo cameraso installedo ato theo houseo ofo theo petitionerohaveorecordedotheoentireoincident.oCertainorelevantophotographso takenofromotheoCCTVofootageohaveobeenoattachedoasoAnnexureoP-3oandoPeno DriveocontainingoCCTVofootageoisoalsooplacedoonorecordoasoAnnexureoA-1o byo wayo ofo filingo CRM-18329-2023.o Learnedo counselo foro theo petitionero submitso thato theopetitionero hasonothingotoo doo withotheo allegedo crime.o Heo furtherosubmitsothatotheomandatoryoprovisionsoofoNDPSoAct,ohaveonotobeeno compliedo with.o Ito iso nexto submittedo thato theo petitionero waso arrestedo ono

27.06.2022oandosinceothen,oheoisoinocustodyoandoallotheowitnessesoareoofficialo witnesses.oLearnedocounselofurtherosubmitsothatotheochallanowasopresentedoono

26.09.2022;ochargesowereoframedoono04.10.2022oandosinceothen,ononeoofotheo prosecutionowitnessesohaveobeenoexamined.oThus,otheotrialoisolikelyotootakeo someotimeotooconcludeoandonoousefulopurposeowouldobeoservedobyokeepingo theoopetitioneroobehindootheoobarsooforooindefiniteooperiod.ooItooisoostatedoothatootheoo I attest to the accuracy and P a g e 4 | 9

petitionero iso readyo ando willing to abide by all the conditions as may be imposed by this Court or by the trial Court; accordingly, prayer for grant of regular bail is made.

¶8Per contra, learned State counsel opposed the plea of petitioner for grant of regular bail on the ground of seriousness and gravity of offence. He further submits that as per the FSL report, the recovery of contraband effected from the petitioner falls under the category of "commercial quantity", hence bar under Section 37 of the NDPS Act is attracted. However, it is fairly conceded by learned State counsel that the petitioner is in custody since 27.06.2022; investigation in the case is complete, challan stands presented and charges have also been framed. Learned State counsel also concedes that no other case is pending against the petitioner.

¶9I have heard learned counsel for the parties and perused the paper book as well as reply filed by learned State counsel. I have also gone through the CCTV footage, which although shows the presence of police in a house, which is claimed to be that of the petitioner; however, there is no video reflecting that the petitioner was taken away alongwith the police party during that period.

¶10Be that as it may, the said fact would be subject matter of trial before the trial Court and no opinion is required to be given at this stage.

¶11Keeping in view the fact that the petitioner has been in custody since 27.06.2022 and there is no other case pending against him; accordingly it is apposite to refer to a few judgments rendered by Hon'ble Supreme Court.

¶12The Hon'ble Supreme Court in Nitish Adhikary @ Bapan v.

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State of West Bengal (Special Leave(Crl.) no. 5769 of 2022) held as under:- " xxxx The petitioner seeks enlargement on bail in F.I.R. No. 612 of 2020 dated 17.10.2020 filed under Section 21(c) and 37 of the NDPS 2 Act, registered at Police Station Bongaon, West Bengal. During the course of the hearing, we are informed that the petitioner has undergone custody for a period of 01 year and 07 months as on 09.06.2022. The trial is at a preliminary stage, as only one witness has been examined. The petitioner does not have any criminal antecedents. Taking into consideration the period of sentence undergone by the petitioner and all the attending circumstances but without expressing any views in the merits of the case, we are inclined to grant bail to the petitioner. The petitioner is accordingly, directed to be released on bail subject to him furnishing bail bonds to the satisfaction of the Trial Court. The Special Leave Petition is disposed of on the aforestated terms. Pending application(s), if any, shall stand disposed of."

13.

In Shariful Islam @ Sarif v. State of West Bengal (Special Leave to Appeal (Crl) 4173 of 2022 dated 04.08.2022), the Hon'ble Supreme Court held that:- " 1. Heard learned counsel appearing for the petitioner, learned counsel appearing for the State of West Bengal and carefully perused the material available on record.

¶2Taking into consideration the fact that the petitioner is reported to be in custody since 27.12.2021 and has suffered incarceration for over 1 year 6 months and there being no likelihood of completion of trial in the near

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future, which fact cannot be controverted by the learned counsel appearing for the State, we are inclined to grant him bail.

¶3The petitioner is, therefore, directed to be released on bail, subject to such terms and conditions which the concerned Trial Court may deem fit and find appropriate to impose upon him.

¶4The Special Leave Petition stands disposed of on the above terms.

¶5Pending application filed in the matter also stands disposed of."

14.

In Karnail Singh v. State of Odisha (Criminal Appeal no. 2027 of 2022 dated 22.11.2022), Hon'ble Supreme Court held as under:- "The appellant in the present case was only a Khalasi of the vehicle who did not run away while the others ran away and have still not been apprehended. He has been in custody from 21.03.2021 i.e. more than a year and a half. In view of the aforesaid facts and circumstances, we grant bail to the appellant on terms and conditions to the satisfaction of the trial Court."

15.

Further, Hon'ble Supreme Court vide judgment dated 25.1.2023 arising out of SLP No.6690 of 2022, titled as "Dheeraj Kumar Shukla Vs. State of Uttar Pradesh" has granted bail in a case registered under the NDPS Act, where the accused alongwith co-accused was found in possession of 'commercial' quantity of 'Ganja' and had been behind bars since the last two and a half years while observing that in the absence of any criminal antecedents, the conditions of Section 37 of the NDPS Act could be dispensed with at that stage, particularly when there was delay in conclusion

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16.

In this case, the petitioner is in custody since 27.06.2022. Investigation in the case is complete, challan stands presented on 26.09.2022 and even charges have been framed on 04.10.2022. The petitioner does not have any criminal antecedents and trial in the case is likely to take some time to conclude.

17.

In the instant case, the alleged recovery falls under the category of commercial quantity and bar of Section 37 of the NDPS Act is attracted, however, while dealing with Section 37 of the NDPS Act, the Court is not called upon to record a finding of "not guilty" and it is only required to say that there are reasonable grounds to believe that the accused is not guilty of the offence. In the facts and circumstances of the present case and on an assessment of material on record especially, the fact that the petitioner is not involved in any other case under the NDPS Act, I am of the prima facie view at this stage that the petitioner may not have committed the alleged offence and he is un-likely to commit an offence under the NDPS Act, while on bail.

18.

Keeping in view the aforementioned circumstances and the legal position as indicated above, present petition is allowed and the petitioner namely, Davinder Singh, is ordered to be released on regular bail subject to his furnishing bail/surety bonds to the satisfaction of the trial Court/Illaqa Magistrate/Duty Magistrate concerned. However, the concerned Station House Officer shall be informed about the release of petitioner and the petitioner shall inform the concerned Station House Officer about his address at which he intends to reside during the pendency of case/trial and any change in the address shall be communicated to the concerned Station House Officer, forthwith. The petitioner would also furnish his telephone

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number to the concerned Station House Officer. He would also furnish his undertaking to the effect that he will not indulge in any illegal activity. The petitioner shall also appear before the concerned Police Station/Station House Officer on first Monday of every month till the conclusion of trial.

19.

In addition, the petitioner (or anyone on his behalf) shall prepare a Fixed Deposit Receipt (F.D.R.) in the sum of Rs.50,000/- and submit the same with the trial Court. The same would be liable to be forfeited as per law, in case the petitioner remains absent from trial without any sufficient cause.

20.

Nothing expressed hereinabove shall be construed to be an observation on merits of the case and the facts and circumstances recorded above are only for consideration of the prayer for bail at this stage.

21.

The petition is accordingly disposed of.

22.

All pending application(s), if any, shall also stand closed.

July 24th, 2023

(HARSH BUNGER) gurpreet

JUDGE