Harpal Singh v. State of Punjab

ANOOP CHITKARA, J. FIR No. Dated Police Sta/on Sec/ons 05 21.01.2024 Sarai Amanat Khan, 21-C, 29 of NDPS Act Dis,. Tarn Taran

¶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.

¶2In paragraph 8 of the bail pe!!on, the accused has men!oned that he was earlier named in two FIRs, however, no FIR was registered against him under NDPS Act prior to the registra!on of the present FIR against him. However, as per the reply, the accused has the following criminal antecedents: Sr. No. FIR No. Dated Offenses Police Sta/on

¶104 12.01.2022 323, 379, 427, 506, 148, 149 IPC Cha!wind, Dis,. Amritsar

¶3The facts and allega!ons are taken from the reply filed by the State. On Jan 21, 2024, based on a chance recovery, the Police seized 270 grams of heroin from the pocket of co-accused Naseeb's Jacket that he was wearing. The pe!!oner, Harpal Singh, was a pillion rider along with Naseeb, and the third co-accused, Jaques, was driving the bike. The Inves!gator claims to have complied with all the statutory requirements of the NDPS Act, 1985, and CrPC, 1973.

¶4The 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 order/judgment. 1 pe!!oner and his family.

¶5The State's counsel opposes bail and refers to the reply.

¶6It would be appropriate to refer to the following por!ons of the reply, which read as follows: "4. xxx xxx Upon this, the inves"ga"ng officer searched all the apprehended persons in the presence of DSP according to procedure, then from the pocket of the jacket worn by Naseeb Singh, one weighted polythene packet color black was found, upon which Naseeb Singh was asked about it, then he told in a nervous voice that the said polythene bag packet contains heroin and when the recovered weighted polythene packet was weighed with the help of electronic scale, it came to be 270 grams of heroin including the polythene packet and in this regard, the present case FIR No.05 dated 21.01.2024, under sec"on 21 (C)/29 of the NDPS Act was registered at police sta"on Sarai Amanat Khan, District Tarn Taran against the pe""oner namely Harpal Singh as well as co-accused namely Jaques Singh and Naseeb Singh. During the course of inves"ga"on, the paper box of the motorcycle was checked from which Rs.1,53,000/- drug money was also recovered. Role of the pe""oner

¶8That as far as role of the pe""oner is concerned, it is submi;ed that the pe""oner has commi;ed the serious offence as 270 grams of heroin along with drug money of Rs.1,53,000/- has been recovered from the pe""oner as well as co-accused and the contraband recovered in the present case falls under the purview of commercial quan"ty, as such, the present pe""on is liable to be dismissed in view of the stringent provisions contained in sec"on 37 of the NDPS Act. EVIDENCE AGAINST THE PETITIONER:

¶9As far as evidence against the pe""oner is concerned, it is submi;ed that commercial quan"ty of heroin along with drug money of Rs.1,53,000/- have been recovered from the pe""oner as well as co-accused in the present case in the presence of Gaze;ed Officer and the FSL report pertaining to the contraband recovered in the present case has also been received and as per the report, the salt contains in the same is found to be Diacetylmorphine (Heroin). As such, there is sufficient evidence against the pe""oner as well as co-accused and they are likely to be convicted in the present case." order/judgment. 2

¶7Dealing with270 grams of heroin and drug money falls in the commercial category. 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.

¶8A perusal of the reply does not men!on any criminal conspiracy or the awareness of the pe!!oner that the main accused Naseeb had kept heroin in his jacket. Regarding the recovery of money from the motorcycle's storage space, the pe!!oner was neither its driver nor is shown as its owner. Thus, the evidence against the pe!!oner is only siBng on the bike and, as such, is on lesser foo!ngs of the driver of the bike and of Naseeb from whose jacket the heroin was recovered.

¶9For 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.

¶10In 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]. order/judgment. 3

(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 order/judgment. 4 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.

¶11As per paragraph 7 of the bail pe!!on, the pe!!oner has been in custody since

21.01.2024. As per the custody cer!ficate dated 05.11.2024, the pe!!oner's total custody in this FIR is around nine & half months.

¶12Given the quality of evidence 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.

¶13The inves"ga"on indicates that the pe""oner is not the main accused, so the pe""oner's bail shall not be treated as a precedent for gran"ng bail to the other co-accused with a higher role.

¶14Without 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 order/judgment. 5

¶15Given 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.

¶16While 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)

¶17This order is subject to the pe!!oner's complying with the following terms.

¶18The 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 the Court.

¶19Given 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 fiUeen 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 order/judgment. 6

¶20The 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."

¶21Any observa!on made hereinabove is neither an expression of opinion on the case's merits nor shall the trial Court advert to these comments.

¶22A 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!ng bonds.

¶23Pe//on allowed in terms men!oned above. All pending applica!ons, if any, stand disposed of. (ANOOP CHITKARA) JUDGE

20.11.2024 Jyo!-II Whether reportable: No. order/judgment. 7

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