Sanjay Kumar @ Sanju v. State of Punjab

CRM-M-19178-2023(O&M) 1 ooooo oooo2023:PHHC:081339o INoTHEooHIGHoCOURToOFoPUNJABo&oHARYANAoATo CHANDIGARH *** ooooo ooooooooCRM-M-19178-2023(O&M) Dateoofodecisiono:oo02.06.2023 SanjayoKumaro@oSanju ...oPetitioner Versus StateoofoPunjabo ...oRespondent CORAM:o HON'BLEoMR.JUSTICEoVIKASoBAHL Present:o Mr.ImpinderoSinghoDhaliwal,oAdvocateo forotheopetitioner. Mr.FerryoSofat,oAddl.A.G.oPunjab. VIKASoBAHL,oJ.(ORAL) CRM-23148-2023

¶1This is an application under Section 482 Cr.P.C. for preponmentoofotheodateoofohearingofromo05.07.2023oinotheomainopetition.

¶2For the reasons stated in the application, the application is allowed and main petition is preponed from 05.07.2023 to today itself for hearing. CRM-M-19178-2023

¶1This is the second petition under Section 439 Cr.P.C. for grant of regular bail to the petitioner in FIR no.70 dated 01.06.2021 registered under Section 22(c) of the Narcotic Drugs and Psychotropic Substances Act 1985 (in short "NDPS Act") at Police Station Gidderbaha, District Sri MuktsaroSahib.

¶2Learned counsel for the petitioner has submitted that the DAVINDER KUMAR petitioner has been in custody since 01.06.2021 (two years) and the CRM-M-19178-2023(O&M) 2 ooooo oooo2023:PHHC:081339o investigation is complete and the challan has already been presented and there are 20 prosecution witnesses, out of which, none have been examined as yet and thus, the conclusion of trial is likely to take time. It is further submitted that earlier bail petition of the petitioner was dismissed as withdrawn vide order dated 15.09.2022 at that stage and even thereafter, no progress has been made in the trial and Ramandeep Singh @ Ramna, the co-accused of the petitioner, who is similarly placed as the present petitioner, has been granted the concession of regular bail vide order dated

20.09.2022 passed in CRM-M-32303-2021 by this Court. It is contended that a perusal of FIR would show that it is the case of prosecution that the petitioner and co-accused had kept the intoxicant tablets in a transparent polythene bag, on account of which, the same could be seen and thus, the police party, even without secret information, was able to apprehend the petitioner and his co-accused alongwith the intoxicant tablets. It is argued that it has been repeatedly held by Coordinate Benches of this Court that it is highly unlikely for a person who has to carry contraband, to carry the same in a transparent polythene bag and on the basis of the said point alone, the concession of bail has been granted to the accused persons in such cases. Reference has been made to the various orders passed by the Coordinate Benches of this Court i.e. orderodatedo 02.08.2021opassedoin CRM-M-4408-2021 otitled as o Bantio Kauro @o Bhantio Kauro Vs.o Stateo of Punjab, BinderoKauro@oGogaoVs.oStateoofoPunjab reported as 2021(3) RCRo (Criminal)o 360, Jaskarano Singho @o Jassuo Vs.o Stateo ofo Punjab, reported as 2021(2)oRCRo(Criminal)o837, orderodatedo28.02.2020opassed in CRM-M-8026-2020 otitled aso Lakhwindero Singho @o Lakhao Vs.o Stateo of Punjab. DAVINDER KUMAR 3. On the other hand, learned State Counsel has opposed the CRM-M-19178-2023(O&M) 3 ooooo oooo2023:PHHC:081339o present petition for grant of regular bail to the petitioner and has submitted that in the present case, the recovery effected is of commercial quantity and thus, the bar under Section 37 of the Act of 1985 would be attracted. It is further submitted that the petitioner is involved in two other cases, out of whichooneoisounderotheoNDPSoAct.

¶4Learned counsel for the petitioner, in rebuttal, has relied upon the judgment of Hon'ble Supreme Court in "Maulana Mohd. Amir Rashadi vs. State of U.P. and another", reported as 2012 (2) SCC 382 to contend that the facts and circumstances of the present case are to be seen while deciding a bail application and the bail application of the petitioner cannot be rejected solely on the ground that the petitioner is involved in other cases. The relevant portion of the said judgment is reproduced hereinbelow:- "As observed by the High Court, merely on the basis of criminal antecedents, the claim of the second respondent cannot be rejected. In other words, it is the duty of the Court to find out the role of the accused in the case in which he has been charged and other circumstances such as possibilityoofofleeingoawayofromotheojurisdictionoofotheoCourtoetc."o

¶5This Court has heard the learned counsel for the parties and has perusedotheopaperobook.

¶6A Coordinate Bench of this Court in Banti Kaur @ Bhanti Kaur'socaseo(Supra)ohasoheldoasounder:- "1. The petitioner has approached this Court seeking grant of regular bail in respect of a case registered against her vide FIR No.191, dated 8.10.2020, Police Station Cantt Bathinda, District Bathinda, under Section 22 of NDPS Act, wherein it is alleged that the petitioner was caught red-handed while carrying a transparent plastic polythene bag DAVINDER KUMAR whichowasofoundotoocontaino1000otabletsoofo'Clovidol'.o CRM-M-19178-2023(O&M) 4 ooooo oooo2023:PHHC:081339o

¶2Learned counsel for the petitioner submits that the petitioner has falsely been implicated in the instant case and that she has an unblemished record and is not involved in any other case and it is highly unlikely that any person who is carrying contraband would carry the same in a transparent bag so as to invite attention, including that the police.o

¶3Opposing the petition, learned State counsel has not disputed the fact that the contraband is alleged to have been carried in a transparent plastic polythene bag. He has however, submitted that the weight of the total recovered contraband works out to 410 grams of 'Tramadol' which would fall within the category of 'commercial quantity'. Learned State counsel has however, informed that the petitioner is not involved in any other case and has presently been behind bars since the last about 9 months ando17odays.o

¶4I have considered rival submissions addressed before this Court.o

¶5It is not disputed that the contraband was alleged to have been carried by the petitioner in a transparent polythene bag. It is certainly highly unlikely that a person who is committing an offence in respect of any contraband would do it in such a manner that his/her detection is inevitable. Carrying contraband in a transparent polythene bag making it clearly visible to others would surely invite attention of everybody who passes by. In these circumstances the case of the prosecution is rather rendered suspect particularly in view of the fact that the petitioner is not even stated to be a previous convict and is a lady who has been behind bars since the last about 9 months. In view of the aforesaid discussion particularly the fact that the petitioner is a lady and is not even a previous convict, the petition is accepted and the petitioner is ordered to be released on bail subject to her furnishing bail bonds to the satisfaction of learned DAVINDER KUMAR 2023.06.02 18:07 trial Court/Chief Judicial Magistrate/Duty Magistrate CRM-M-19178-2023(O&M) 5 ooooo oooo2023:PHHC:081339o concerned.o

2.8.2021ooooo oSd/-o(GURVINDERoSINGHoGILL)o JUDGE" A perusal of the said judgment would show that although, in the said case, recovery was of commercial quantity but it was found that since recovery was effected from a transparent polythene bag, the same made the case of the prosecution doubtful and it was observed therein that as it was highly unlikely that a person who is committing an offence with respect to the contraband, would carry the contraband in a transparent polytheneobagoinvitingotheoattentionoofoanybodyowhoopassedoby.

¶7Coordinate Bench in Jaskaran Singh @ Jassu's case (Supra), after considering several judgments on the same issue, had also granted the concession of regular bail to the petitioner in that case. Relevant portion of theojudgmentoisoreproducedoasounder:- "xxxoxxx

¶2Relies upon the decision of this Court in Lakhwinder Singh alias Lakha vs. State of Punjab (CRM-M No.8026 of 2020) and of Co-ordinate Benches in Binder Kaur alias Goga vs. State of Punjab (CRM-M No.4584 of 2020) and Mandir Singh vs. State of Punjab (CRM-M No.8035 of 2019) to contend that a person engaged in the trade of contraband would never be expected to carry the same in any transparentobagowhichowouldobeovisibleotootheonakedoeyes.o

¶3Per contra, the bail application is opposed on behalf of the State by contending that the recovery of commercial quantity of contraband was made from the car of the petitionerohimself.

¶4Be that as it may, without prejudice to the merits of the submission raised on behalf of the petitioner, but considering that he is admittedly not involved in any other case under the NDPS Act, and also considering that he has remained in detention well above 05 months sinceDAVINDER KUMAR CRM-M-19178-2023(O&M) 6 ooooo oooo2023:PHHC:081339o

14.12.2019, at this stage, the petitioner may be released on regular bail to the satisfaction of the Ld. Trial Court/Duty Magistrate, concerned subject to imposition of appropriate termsoandoconditions. xxxoxxx"o

¶8Coordinate Bench of this Court in Binder Kaur @ Goga's caseo(Supra),ohadoheldoasounder:- "xxxoxxx

¶2Learned counsel for the petitioner has vehemently argued that in the present case the petitioner has been falsely implicated. He has further stated that the petitioner is a young lady of 38 years of age, having a family and has good antecedents. He has further stated that there is no past history of the petitioner and she is not involved in any other case till date. He has further contends that even as per the allegations contained in the FIR, the petitioner was carrying 1000 tablets containing Tramadol Hydrochloride salt in her hand, which was in a transparent polythene bag. Learned counsel states that the story put forward by the police is ex facie concocted because in case any person wishes to do the trading or to carry the contraband then it would never be put in a transparent bag. He has further pointed out that in the FIR it has been repeatedly recorded that bag was transparent in nature. He has further submitted that the petitioneroisoinocustodyosinceo08.11.2019.o xxxoxxx

¶4Learned State counsel has filed the custody certificate of the petitioner by way of affidavit of Rajdeep Singh Brar, Deputy Superintendent, Central Prison, Faridkot. Same is taken on record. As per the custody certificate the petitioner is in custody for a period of 02 months and 27 days and there is no other case against her. He further submits that after completion of investigation and presentation of challan, the charges have also been framed by the trial CRM-M-19178-2023(O&M) 7 ooooo oooo2023:PHHC:081339o Xxxoxxx

¶6At the time of deciding bail application there are various relevant factors, which can be taken into consideration. Prima facie probability of influencing witnesses is one of the element factor and also as to whether the petitioner is particularly involved in any other case is also a relevant factor. It is also relevant in any case for deciding the bail application as to what is the stage of the case. In the present case the investigation is already over and the petitioner is in custody for about three months and this Court while deciding the bail application would not go into the merits of the case. Nothing is apparent to show that petitioner may influence the witnesses. Therefore, without meaning any expression of opinion on the merits of the case, it is ordered that the petitioner be released on regular bail subject to her furnishing requisite bail bonds/surety bonds to the satisfactionoofotheotrialoCourt. xxxoxxx" A perusal of the above judgment would show that in fact, bail was granted on the said point in a case where the accused was in custody only for a period of three months. Similarly, in Lakhwinder Singh @ Lakha'socaseo(Supra),oCoordinateoBenchoofothisoCourtohadoheldohasounder:- "xxxoxxx

¶2Ld. Counsel for the Petitioner relies on a decision of a Co-ordinate Bench of this Court in 'CRM-M No.4584 of 2020 - Binder Kaur alias Goga vs. State of Punjab', to contend that it is unbelievable that a person engaged in the business of Drug Smuggling, will carry the contraband in a transparent Bag. The applicant, in the aforesaid case, in the given circumstances, considering that she was not involved in any other case under the NDPS Act and challan against her had already been submitted, was therefore released on bail by the Bench after she had remained in detention for 02 monthsoando27odays.oDAVINDER KUMAR CRM-M-19178-2023(O&M) 8 ooooo oooo2023:PHHC:081339o

¶3The detention undergone by the present Petitioner is much more being 08 months, and he is also not stated to be involvedoinoanyootherocaseounderotheoNDPSoAct.o

¶4Challan against the Petitioner has already been submitted andotheotrialoisostillopending.o

¶5As such, considering the long detention already undergone by the present Petitioner and without commenting on other merits of the case, he is ordered to be released on bail to the satisfaction of the Ld. Trial Court concerned.o

6.oDisposedooff."

¶9With respect to the bar under Section 37 of the Act of 1985, it would be relevant to refer to various judgments passed by the Hon'ble Supreme Court as well as this High Court in cases involving commercial quantity.o

¶10In CriminaloAppealoNo.965oofo2021otitledoasoDheerenoKumar Jainao v.o Uniono ofo India, the Hon'ble Supreme Court in a case where allegation in the chargesheet was with respect to 120 kg of contraband i.e. "ganja", thus, being of commercial quantity, was pleased to grant bail after setting aside the order of the High Court where the said application for grant oforegularobailohadobeenorejected.o

¶11A co-ordinate Bench of this Court in a detailed judgment titled as AnkushoKumaro@oSonuov.oStateoofoPunjab reported as 2018o(4)oRCR (Criminal)o84, had considered the provision of Section 37 of the Act of 1985 in extenso and had granted bail in a case which involved commercial quantity.oTheorelevantoportionoofotheosaidojudgmentoisoreproducedoasounder:o "oxxx--xxx--xxxo But, so far as second part of Section 37 (1) (b) (ii), i.e. regarding the satisfaction of the Court based on reasons to DAVINDER KUMAR 2023.06.02 18:07 believe that the accused would not commit 'any offence' after CRM-M-19178-2023(O&M) 9 ooooo oooo2023:PHHC:081339o coming out of the custody, is concerned, this Court finds that this is the requirement which is being insisted by the State, despite the same being irrational and being incomprehensible from any material on record. As held above, this Court cannot go into the future mental state of the mind of the petitioner as to what he would be, likely, doing after getting released on bail. Therefore, if this Court cannot record a reasonable satisfaction that the petitioner is not likely to commit 'any offence' or 'offence under NDPS Act' after being released on bail, then this court, also, does not have any reasonable ground to be satisfied that the petitioner is likely to commit any offence after he is released on bail. Hence, this satisfaction of the Court in this regard is neutraloquaofutureopossibleoconductoofotheopetitioner."o The Special Leave Petition (Criminal) Diary No.42609 of 2018 filed against the aforesaid judgment of the Co-ordinate Bench of this Court, wasodismissedobyotheoHon'bleoSupremeoCourt.o

¶12Further, vide order dated 25.02.2021 in CRM-M-20177-2020, a Co-ordinate Bench of this Court granted regular bail to an accused who was involved in a case wherein recovery was of 3.8 kgs of "charas" (commercial quantity) after being in custody for 1 year and 7 months. The said order was upheld by the Hon'ble Supreme Court vide order dated 24.08.2021 in a Petition for Special Leave to Appeal (Crl.) No.5852/2021 titled as "NarcoticoControloBureauov.oVipanoSoodoandoanother".o

¶13The Hon'ble Supreme Court of India vide order dated

12.10.2020 passed in Criminal Appeal No.668 of 2020 titled as "Amit Singho@oMoniov.oHimachaloPradesh" was pleased to grant regular bail in a case involving 3 kg and 800 grams of "charas" primarily on the ground of substantial custody and also, the fact that the trial would likely take time to conclude.o CRM-M-19178-2023(O&M) 10 ooooo oooo2023:PHHC:081339o

¶14In Criminal Appeal No.827 of 2021 titled as Mukarram Hussainov.oStateoofoRajasthanoandoanother, the Hon'ble Apex Court vide judgment dated 16.8.2021 was also pleased to grant bail wherein the quantityoofotheocontrabandowasocommercialoinonature.o

¶15A Co-ordinate Bench of this Court in CRM-M 10343-2021 titled as AjayoKumaro@oNannuov.oStateoofoPunjab and other connected matters, vide order dated 31.03.2021, after taking into consideration the stipulations of Section 37 of the Act of 1985, was pleased to grant regular bail in a case involving commercial quantity and a condition was imposed on the petitioner therein while granting the said bail and the said condition wasoincorporatedoinoparao21oofotheosaidojudgment,owhichoreadsoasounder:o "21. However, the petitioners are granted regular bail subject to the condition that they shall not commit any offence under the NDPS Act after their release on bail and in case of commission of any such offence by them after their release on bail, their bail in the present case shall also be liable to be cancelled on application to be filed by the prosecutionoinothisoregard."

¶16Further, a Division Bench of this Court vide judgment dated

31.08.2021 passed in CRM-8262-2021 in CRA-S-3721-SB of 2015 titled as, HarpaloSinghov.oNationaloInvestigatingoAgencyoandoanother, granted suspension of sentence in a case where the recovery was of commercial quantity. In the abovementioned order, the Division Bench had taken into consideration the right vested with an accused person/convict under Article 21 of the Constitution of India with regard to speedy trial. Further, the judgment of Hon'ble the Supreme Court in Stateo(NCToofoDelhi)ov.oLokesh Chadha;o(2021)o5oSCCo724 was also taken into account and the provisions DAVINDER KUMAR of Section 37 of the Act of 1985 were considered and the sentence of the CRM-M-19178-2023(O&M) 11 ooooo oooo2023:PHHC:081339o applicant-appellant therein was suspended after primarily considering the period of custody of the applicant-appellant therein and also the fact that the appeal was not likely to be heard in near future. Reference in the order was also made to the Division Bench judgment of this Court in DaleroSinghov. StateoofoPunjab;o2007o(1)oR.C.R.o(Criminal)o316 and the view taken in Daler Singh's case (supra) was reiterated and followed. In the above said judgment, it was also noticed that the grounds for regular bail stand on a betterofootingothanothatoofosuspensionoofosentenceowhichoisoafteroconviction.o

¶17In the present case, the petitioner is in custody since

01.06.2021 and the investigation has been completed and the challan has been presented and out of 20 prosecution witnesses, none have been examined as yet and thus, the conclusion of trial is likely to take time. As per the case of the prosecution, the petitioner, alongwith co-accused, was stated to be carrying the intoxicant tablets in a transparent polythene bag and the intoxicant tablets in the said transparent polythene bag were seen by the police party from a distance, without there being any secret information and the petitioner was thereafter apprehended. Thus, keeping in view the facts and circumstances as well as law laid down in the abovesaid judgments,othereoisoaostrongoprimaofacieopointoinofavouroofotheopetitioner.o

¶18Keeping in view the abovesaid facts and circumstances as also the law laid down in the abovecited judgments, this Court deems it appropriate to grant the concession of regular bail to the petitioner. Further, this Court proposes to impose such conditions that would meet the object of Sectiono37oofotheoActoofo1985.

¶19Accordingly, the present petition is allowed and the petitioner is ordered to be released on regular bail on his furnishing bail/surety bonds DAVINDER KUMAR to the satisfaction of the trial Court/Duty Magistrate, subject to him not CRM-M-19178-2023(O&M) 12 ooooo oooo2023:PHHC:081339o being required in any other case. The petitioner shall also abide by the followingoconditions:-o

¶1The petitioner will not tamper with the evidence during the trial.o

¶2The petitioner will not pressurize/intimidate the prosecution witness(s).

¶3The petitioner will appear before the trial Court on the date fixed,ounlessopersonalopresenceoisoexempted.o

¶4The petitioner shall not commit an offence similar to the offence of which he is an accused, or for commission of which heoisosuspected.o

¶5The petitioner shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him/her from disclosing such facts to the Court or to any police officer or tamper with theoevidence.o

¶20In case of breach of any of the above conditions, the prosecution shall be at liberty to move an application for cancellation of bail beforeothisoCourt.

¶21However, nothing stated above shall be construed as an expression of opinion on the merits of the case and the trial would proceed independently of the observations made in the present case which are only forotheopurposeoofoadjudicatingotheopresentobailoapplication. oooooooooooo(VIKASoBAHL) ooooooooJUDGE Juneo02,o2023 DavinderoKumar Whetherospeakingo/oreasoned Yes/No Whetheroreportable Yes/No