Angrej Singh v. State of Punjab

ANOOP CHITKARA, J. FIR No. Dated Police Station Sections

01.08.2022 Kulgari, Dis,. Ferozepur 22 of NDPS Act (Sec ons 120-B, 212, 216 IPC added later on)

¶1The pe

oner incarcerated in the FIR cap oned above had come up before this Court under Sec on 439 CrPC, 1973, seeking regular bail.

¶2As per paragraph 9 of the bail pe

on and the custody cer ficate, the accused has the following criminal antecedents: Sr. No. FIR No. Dated Offenses Police Station

1.

25.07.2022 166, 167, 195, 471, 218, 120-B IPC, Sec ons 21, 59 of NDPS Act and Sec on 13 of Preven on of Corrup on Act, 1988 Can, Ferozepur, Dis,. Ferozepur

¶3The facts and allega ons are taken from the reply filed by the State, which reads as follows: "6. That it has been found that the FIR No. 99 dated 01.08.2022 under Sec on 22 NDPS Act, Sec ons 212, 216 120-B IPC was registered at Police Sta on Kulgari District Ferozepur (Sec on 212 and 216 IPC deleted later on) on the complaint of DSP Yadwinder Singh against Parminder Singh Bajwa. That it is per nent to men on here that one FIR No.90 dated 25.07.2022 under Sec ons 166, 167, 195, 218, 471 and 120-B IPC, Sec on 21, 59 NDPS Act, 13-PC Act Police Sta on Can5. Ferozepur was registered against Parminder Singh Bajwa and others. The inves ga on of the said case was conducted by the then Deputy Superintendent of Police, Sub Division Guruharsahai, District Ferozepur, namely Sh. Yadwinder Singh P.P.S, during the course of inves ga on it came on record that accused Parminder Singh Bajwa was living in a rented accommoda on at Krishna Enclave, Moga Road. Thus, during the course of inves ga on, search warrants were obtained from the Ld. Duty Magistrate, Ferozepur, Ms. Mandeep Kaur JMIC on

30.07.2022, along with the permission to break open the locks.

¶7That the search of the abovesaid house was conducted on 31.07.2022, by the police party, in presence of the Execu ve Magistrate and videography of the same was also got conducted. That 3710 intoxica ng tablets and 4kg 709 grams of intoxica ng powder was recovered from the spot. Thus, FIR No. 99 (Supra) was registered against 1) Parminder Singh Bajwa under Sec on 22 NDPS Act, in accordance with the provisions of the NDPS Act."

¶4The Inves gator claims to have complied with all the statutory requirements of the NDPS Act, 1985, and CrPC, 1973.

¶5The pe

oner's counsel prays for bail by imposing any stringent condi ons and contends that further pre-trial incarcera on would cause an irreversible injus ce to the pe

oner and his family.

¶6The State's counsel opposes bail and refers to the reply.

¶7It would be appropriate to refer to the following por ons of the reply, which read as follows: "17. ROLE OF THE PETITIONER That as per the inves ga on conducted in FIR No. 99 (Supra) and as per the ques oning of pe

oner/accused Angrej Singh No.145/FZR, on

20.07.2022 at about 09:00 PM he went the house of Inspector Parminder Singh Bajwa at Krishan Enclave Ferozepur. That he also stated that at that

me he alongwith Rajpal Singh, Joginder Singh and Parminder Singh Bajwa's driver Lovepreet Singh were present in the house. That he also stated that, they all went to take Rs.5 lacs and heroin from Inspector Parminder Singh Bajwa, for plan ng recovery in FIR No.88 dated

20.07.2022 under Sec on 21 NDPS Act, Police Sta on Can5. Ferozepur. That he also stated that inspector Parminder Singh Bajwa gave them the heroin from the almirah of his bedroom. That he alongwith Rajpal and Joginder Singh bought Rs.5 lacs, 1 kg Heroin and 1 kit bag in which Rs. 25 lacs were there from the house of Inspector Parminder Singh Bajwa, which were given to them by Inspector Parminder Singh Bajwa himself. EVIDENCE COLLECTED AGAINST THE PETITIONER That during the inves ga on in the present FIR No. 99 (Supra), it has been found that pe

oner alongwith Rajpal and Joginder Singh went to the house of Inspector Parminder Singh and bought Rs. 5 lacs, 1 kg Heroin and 1 kit bag in which Rs. 25 lacs to plant the same in FIR No. 88 (Supra). That during the further inves ga on, the statement of accused/pe

oner Angrej Singh was corroborated by the accused namely Joginder Singh in his disclosure statement before the Inves ga ng Officer, whereby he stated that on 20.07.2022, Inspector Parminder Singh Bajwa in front of him, gave ASI Angrej Singh (accused/pe

oner) 1 Kg heroin and Rs. 5 lacs to register an FIR."

¶8The quan ty allegedly involved in this case is commercial. Given this, the rigors of S. 37 of the NDPS Act apply in the present case. The pe

oner must sa sfy the twin condi ons put in place by the Legislature under Sec on 37 of the NDPS Act.

¶9The co-accused namely Rajpal Singh and Joginder Singh were already granted bail on 29.10.2024 and pe

oner is also on similar foo ng.

¶10For now, the pe

oner has prima facie sa sfied the first condi on of sec on 37 of the NDPS Act to make 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 offense.

¶11In 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].

(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 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.

¶12As per paragraph 5 of the bail pe

on, the pe

oner has been in custody since

27.09.2022. As per the custody cer ficate dated 05.11.2024, the pe

oner's total custody in this FIR is two years, one months and five days.

¶13The prolonged incarcera on, generally militates against the most precious fundamental right guaranteed under Ar cle 21 of the Cons tu on and in such a situa on, the condi onal liberty must override the statutory embargo created under Sec on 37(1)(b)(ii) of the NDPS Act.

¶14Given the penal provisions invoked viz-a-viz pre-trial custody, coupled with the primafacie analysis of the nature of allega ons, and the other factors peculiar to this case, there would be no jus fiability of further pre-trial incarcera on at this stage.

¶15Without 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. This order shall come into force from the me it is uploaded on this Court's official webpage.

¶16Given 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 subject to furnishing bonds to the sa sfac on of the concerned Court and due to unavailability before any nearest Ilaqa Magistrate/duty Magistrate. Before accep ng the surety, the concerned Court must be sa sfied that if the accused fails to appear, such surety can produce the accused.

¶17While furnishing a personal bond, the pe

oner shall men on the following personal iden fica on details:

¶1AADHAR number

¶2Passport number (If available) and when the a,es ng officer/court considers it appropriate or considers the accused a flight risk.

¶3Mobile number (If available)

¶4E-Mail id (If available)

¶18This order is subject to the pe

oner's complying with the following terms.

¶19The pe

oner shall abide by all statutory bond condi ons and appear before the concerned Court(s) on all dates. The pe

oner 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

¶20Given 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, and ammuni on, if any, along with the arms license to the concerned authority within fiTeen days from release from prison and inform the Inves gator about the compliance. However, subject to the Indian Arms Act, 1959, the pe

oner shall be en tled to renew and take it back in case of acqui,al in this case, provided otherwise permissible in the concerned rules. Restric ng firearms would ins ll confidence in the vic m(s), their families, and society; it would also restrain the accused from influencing the witnesses and repea ng the offense.

¶21The condi ons men oned 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 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."

¶22Any observa on made hereinabove is neither an expression of opinion on the case's merits nor shall the trial Court advert to these comments.

¶23Regarding delay in fling the reply, no ac on is required to be taken against any official because of the reasons men oned in the order dated 25-10-2024.

¶24A cer fied copy of this order would not be needed 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. If the a,es ng officer wants to verify its authen city, such an officer can also verify its authen city and may download and use the downloaded copy for a,es

¶25Petition allowed in terms men oned above. All pending applica ons, if any, stand disposed of. (ANOOP CHITKARA) JUDGE

20.11.2024 Jyo -II

IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CRM-M-16736-2023 Reserved on: 06.11.2024 Pronounced on: 20.11.2024 Angrej Singh ...Pe oner Versus State of Punjab …Respondent CORAM: HON'BLE MR. JUSTICE ANOOP CHITKARA Present: Mr. Tarun Sharma, Advocate, for the pe oner. Mr. Sukhdev Singh, AAG, Punjab. ****