Ram Singh Alias Babba v. State of Punjab

CRM-M-24740-2023 1 2023:PHHC:073503o INoTHEooHIGHoCOURToOFoPUNJABo&oHARYANAoATo CHANDIGARH *** ooooo ooooCRM-M-24740-2023 Dateoofodecisiono:ooo19.05.2023 RamoSingho@oBabba ...oPetitioner Versus StateoofoPunjabo ...oRespondent CORAM:o HON'BLEoMR.JUSTICEoVIKASoBAHL Present:o Mr.A.S.oBrar,oAdvocate forotheopetitioner. Mr.FerryoSofat,oAddl.A.G.oPunjab. VIKASoBAHL,oJ.(ORAL)

¶1This is the second petition under Section 439 Cr.P.C. for grant of regular bail to the petitioner in FIR no.66 dated 29.08.2021 registered under Sections 22, 29 of the Narcotic Drugs and Psychotropic Substances Acto1985o(inoshorto"NDPSoAct")oatoPoliceoStationoAjitwal,oDistrictoMoga.

¶2Learned counsel for the petitioner has submitted that the petitioner has been in custody since 29.08.2021 and the investigation is complete and the challan has already been presented and there are 16 witnesses, out of which, only one witness has been examined and thus, the trial is likely to take time. It is further submitted that the previous bail application was dismissed as withdrawn on 27.07.2022 at that stage and even thereafter sufficient time has elapsed and the trial has not made much progress, thus, entitling the petitioner to file present bail petition. There are arguable points in the present case inasmuch as a joint reading of the FIR DAVINDER KUMAR (Annexure P-1) and the recovery memo (Annexure P-4) would show that as CRM-M-24740-2023 2 2023:PHHC:073503o per the case of the prosecution, the petitioner had allegedly thrown away a black coloured polythene bag which contained alleged intoxicant tablets and the ASI had picked up the black coloured polythene bag thrown by the petitioner from the ground. In such a situation, it is submitted that it cannot be stated that the petitioner was in conscious possession of the intoxicant tablets. Learned counsel for the petitioner has relied upon a judgment of a Coordinate Bench of this Court in CRM-M-16150-2021 dated 19.07.2021 titled as 'Balwinder Singh Vs. State of Punjab', and on another judgement passed in CRM-M-33733-2020 dated 15.03.2021 titled as 'Manjit Singh Vs. State of Punjab alongwith connected matters', to contend that in such a situation, it is matter of debate as to whether the petitioner could be stated to be in conscious possession of the narcotic tablets in question or not. It is furtherosubmittedothatotheopetitioneroisonotoinvolvedoinoanyootherocase.

¶3Learned State counsel, on the other hand, has opposed the present petition for regular bail and has submitted that the recovery has been effected from the conscious possession of the petitioner inasmuch as the police officials had seen the petitioner throw the polythene bag which contained the intoxicant tablets and thus, it could not be stated that the recovery is not from the conscious possession of the petitioner. It is further submitted that the recovery from the polythene bag is of commercial quantityoandothus,otheobarounderoSectiono37oofotheoNDPSoActowouldoapply.o

¶4This Court has heard learned counsel for the parties and has perusedotheopaperobook.

¶5In Balwinder Singh's case (Supra), a Coordinate Bench of this Courtohasoheldoasounder:o "Briefly stated, case of the prosecution against the petitioner is that on 04.03.2019 police party headed by ASI Ravinder Singh on 2023.05.22 12:40 patrolling duty were coming to Tehang Octroi via Saiflabad. When CRM-M-24740-2023 3 2023:PHHC:073503o they reached near Civil Hospital, Phillour they saw the petitioner coming on foot who on seeing the police party threw one heavy weight black coloured polythene bag and tried to run away. The police apprehended the petitioner and on search as per prescribed procedure recovered 55 intoxicant injections containing Buprenorhpine 2 ml each and 55 injections containing Avil 10 ml eachofromotheopolytheneobag.o XXX---XXX---XXXo On the other hand, learned State Counsel has argued that the petitioner kept in his conscious possession commercial quantity of intoxicant injections. Rigors of Section 37(1)(b) are fully applicable to the case of the petitioner. The petitioner does not deserve the concession of regular bail. Therefore, the petition may beodismissed. However learned State Counsel has conceded that the petitioner is notoinvolvedoinoanyootherocaseounderotheoNDPSoAct.o In CRM-M-13662-2020 titled as 'Niranjan Kumar @ Kaka Vs. State of Punjab' decided on 06.07.2020; CRM-M-14474-2020 titled as 'Dharminder Singh Vs. State of Punjab' decided on

24.06.2020; CRM-M-21020-2020 titled as 'Amritpal Singh Lamberdar Vs. State of Punjab' decided on 11.08.2020; CRMM6433-2018 titled as 'Pawan Kumar Vs. State of Punjab' decided on 23.02.2018 and CRM-M-16380-2020 titled as 'Buta Singh Vs. State of Punjab' decided on 13.08.2020 where recovery of narcotic/psychotropic drug/substance was made from bag allegedly thrown on the road side by the accused, the case was considered to involve question as to whether the accused could be said to be in conscious possession thereof and the accused was grantedoregularobail.o In 'Chitta Biswas @ Subhash Vs. State of West Bengal' Criminal Appeal No.245 of 2020 SLP (Criminal) No.8823 of 2019 decided on 07.02.2020 where recovery of 46 bottles of phensydryl cough syrup containing codeine mixture above commercial quantity was made from the accused who was in custody since 21.07.2018 and out of 10 prosecution witnesses only 4 prosecution witnesses had been examined, the accused was granted bail by Hon'ble Supreme Court.o In the present case recovery of intoxicant injections was allegedly made from polythene bag allegedly thrown on the road side. The case involves debatable question as to whether the petitioner can be said to be in conscious possession of the contraband recovered I attest to the accuracy and from the polythene bag lying on the road side. The petitioner is not CRM-M-24740-2023 4 2023:PHHC:073503o involved in any other case under the NDPS Act. Rigors of Section 37(1)(b) of the NDPS Act stand satisfied by due implication. Further, the petitioner is in custody since 04.03.2019. Prosecution evidence is yet to be recorded. The trial is likely to take long time dueotoorestrictionsoimposedotoopreventospreadoofoCovid-19.o In view of the above referred judicial precedents and facts and circumstances of the case but without commenting on the merits of the case, I am of the considered view that the petitioner deserves theoconcessionooforegularobail.o Therefore, the petition is allowed and the petitioner is ordered to be released on regular bail on furnishing of bail bonds to the satisfaction of the trial Court/Duty Magistrate/Chief Judicial Magistrateoconcerned.o However, bail is granted to the petitioner subject to the condition that he will not commit any offence under the NDPS Act after his release on bail and in case of involvement of the petitioner in commission of any offence under the NDPS Act in future, his bail in the present case shall also be liable to be cancelled on applicationotoobeofiledoinothisoregard."o A perusal of the above judgment would show that although in the said case also, the recovery effected was of commercial quantity but, since the recovery of the polythene bag therein was after the same had been thrown on the ground, thus, it was observed that it was a debatable issue whether the petitioner could be said to be in conscious possession of the narcotic recovered or not. It was also observed that the rigors of Section 37(1)o(B)oofotheoNDPSoActostoodosatisfiedobyodueoimplication.o

¶6Even in Manjit Singh's (supra) case, a Coordinate Bench of this Court dealt with a case in which, the allegation was that the petitioner therein was holding a polythene bag and on seeing the police party, he threw the said polythene bag. It was observed that it was not possible to conclude that the recovery effected was made from the conscious possession of the petitioner therein or not. The said case was also a case of 2023.05.22 12:40 commercialoquantity.o CRM-M-24740-2023 5 2023:PHHC:073503o

¶7With respect to the rigors of Section 37 of the NDPS Act, it would be relevant to note the various cases wherein the Hon'ble Supreme Court and High Courts have granted bail / suspension of sentence in cases involvingocommercialoquantity.

¶8In Criminal Appeal No.965 of 2021 titled as Dheeren Kumar Jaina v. Union of 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.

¶9A coordinate Bench of this Court in a detailed judgment titled as AnkushoKumaro@oSonuov.oStateoofoPunjab reported as 2018 (4) RCR (Criminal) 84, had considered the provision of Section 37 of the NDPS Act in extenso and had granted bail in a case which involved commercial quantity.oTheorelevantoportionoofotheosaidojudgmentoisoreproducedoasounder:o- "oxxx--xxx--xxx But, so far as second part of Section 37 (1) (b) (ii), i.e. regarding the satisfaction of the Court based on reasons to believe that the accused would not commit 'any offence' after 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 neutral qua future possibleoconductoofotheopetitioner."2023.05.22 12:40 CRM-M-24740-2023 6 2023:PHHC:073503o 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

¶10Further, 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".

¶11The Hon'ble Supreme Court of India vide order dated

12.10.2020 passed in Criminal Appeal No.668 of 2020 titled as "Amit Singh @ Moni v. Himachal Pradesh" 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.

¶12In Criminal Appeal No.827 of 2021 titled as Mukarram Hussain v. State of Rajasthan and another, the Hon'ble Apex Court vide judgment dated 16.8.2021 was also pleased to grant bail wherein the quantityoofotheocontrabandowasocommercialoinonature.

¶13A Co-ordinate Bench of this Court in CRM-M 10343 of 2021 titled as Ajay Kumar @ Nannu v. State of Punjab and other connected matters, vide Order dated 31.03.2021, after taking into consideration the stipulations of Section 37 of the NDPS Act, was pleased to grant regular bail in a case involving commercial quantity and a condition was imposed DAVINDER KUMAR on the petitioner therein while granting the said bail and the said condition CRM-M-24740-2023 7 2023:PHHC:073503o wasoincorporatedoinoparao21oofotheosaidojudgment,owhichoreadsoasounder: "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 applicationotoobeofiledobyotheoprosecutionoinothisoregard."

¶14Further, 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, Harpal Singh v. National Investigating Agency and another, 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 State (NCT of Delhi) v. Lokesh Chadha; (2021) 5 SCC 724 was also taken into account and the provisions of Section 37 of NDPS Act were considered and the sentence of the 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 Daler Singh v. State of Punjab; reported as 2007 (1) R.C.R. (Criminal) 316 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 better footing than that of suspension of sentence, which is after conviction.o DAVINDER KUMAR 15. In the present case, the petitioner has been in custody since CRM-M-24740-2023 8 2023:PHHC:073503o

29.08.2021 and the investigation is complete and the challan has already been presented and there are 16 witnesses, out of which, only one witness has been examined and thus, the trial is likely to take time and the petitioner is stated to be not involved in any other case. There are arguable points in favour of the petitioner. including the point as to whether the recovery in the present case could be stated to be from the conscious possession of the petitioner or not inasmuch as, as per the case of the prosecution, the polythene bag was thrown upon seeing the police party and thus, in view of the judgments cited by learned counsel for the petitioner, it would be a matter of debate as to whether the petitioner could be stated to have been in conscious possession of the alleged contraband or not and the same would be finally adjudicated during the course of the trial Court but the same raises a strong prima face argument in favour of the petitioner at this stage. Moreover, the petitioner is not involved in any other case and thus, keeping in view the law laid down in Ankush Kumar @ Sonu's case (supra), it could be reasonably said that the petitioner is not likely to commit any offence while he is on bail. Moreover, this Court proposes to impose such conditionsothatowouldomeetotheoobjectoofoSectiono37oofotheoActoofo1985.o

¶17Accordingly, the petition is allowed and the petitioner is directed to be released on regular bail on his furnishing bail/surety bonds to the satisfaction of the concerned trial Court/Duty Magistrate and subject to him not being required in any other case. The petitioner shall also abide by theofollowingoconditions:-

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

¶2The petitioner will not pressurize / intimidate the prosecutionowitness(s).o I attest to the accuracy and 3. The petitioner will appear before the trial Court on the CRM-M-24740-2023 9 2023:PHHC:073503o dateofixed,ounlessopersonalopresenceoisoexempted.o

¶4The petitioner shall not commit an offence similar to the offence of which he is accused of, or for commission of whichotheyoareosuspected.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 from disclosing such facts to the Court or to any police officer orotamperowithotheoevidence.o

¶18In case of breach of any of the above conditions, the prosecution shall be at liberty to move an application for cancellation of bail,obeforeothisoCourt.o

¶19Nothing stated above shall be construed as a final 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 for the purpose ofoadjudicatingotheopresentobailopetition. oooooooooooo(VIKASoBAHL) ooooooooJUDGE Mayo19,o2023 DavinderoKumar Whetherospeakingo/oreasoned Yes/No Whetheroreportable Yes/No