Joginder Singh v. State of Punjab

ANOOP CHITKARA, J. FIR No. Dated Police Sta1on Sec1ons 206 04.10.2023 Sidhwan Bet, District Ludhiana 15, 22, 29, 61, 85 of NDPS Act

¶1The pe!!oner incarcerated in the FIR cap!oned above had come up before this Court under Sec!on 483 of Bhara!ya Nagarik Suraksha Sanhita, 2023, [BNSS], seeking regular bail.

¶2In paragraph 7 of the bail pe!!on, the accused declares that he has no criminal antecedents. However, as para 12 of the status report/custody cer!ficate, the accused has the following criminal antecedents: Sr. No. FIR No. Dated Offenses Police Sta1on

¶1116 14.05.2017 22, 25, 61, 85 of NDPS Act Sidhwan Bet

¶227 27.07.2021 61-1-114 of Excise Act and 15, Sidhwan Bet 21, 22, 61, 85 of NDPS Act

¶3The facts and allega!ons are taken from the status report filed by the State. On Oct 04, 2023, based on prior informa!on, the Police seized 90 kgs of poppy husk from a car driven by the pe!!oner in which another co-accused, Paramjit Singh @ Pamma, was also siEng. The Inves!gator claims to have complied with all the statutory requirements of the NDPS Act, 1985, and BNSS, 2023.

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

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

¶6Dealing in 90 kgs of poppy husk/straw is a punishable offense under the NDPS Act in the following terms: Substance Name Poppy straw Quan!ty detained 90 Kg Quan!ty type Commercial Drug Quan-ty in % to upper limit

180.00% of Intermediate Specified as small & Commercial in S.2(viia) & 2(xxiiia) NDPS Act, 1985 No!fica!on No S.O.1055(E) dated 10/19/2001 Sr. No. 110 Common Name (Name of Narco!c Drug and Psychotropic Substance Poppy straw (Interna!onal non-proprietary name (INN) Other non-proprietary name ****** Chemical Name ****** Small Quan!ty 1000 Gram (i.e. equivalent to 1 Kg) Commercial Quan!ty 50000 Gram (i.e. equivalent to 50 Kg) Declared as punishable under NDPS Act and as per schedule defined in S.2(xi) & 2(xxiii) NDPS Act, 1985 No!fica!on No S.15 & S.2(xviii) NDPS Act, S.O.821(E) dated 11/14/1985 Sr. No. S.2(xviii) Common Name (Name of Narco!c Drug and Psychotropic Substance ****** (Interna!onal non-proprietary name (INN) Other non-proprietary name ****** Chemical Name S.2(xviii) "poppy straw" means all parts (except the seeds) of the opium poppy aQer harves!ng whether in their original form or cut, crushed or powdered and whether or not juice has been extracted therefrom; S. 2(viiib)] "illicit traffic", in rela!on to narco!c drugs and psychotropic substances, means—

(i) cul!va!ng any coca plant or gathering any por!on of coca plant;

(ii) cul!va!ng the opium poppy or any cannabis plant;

(iii) engaging in the produc!on, manufacture, possession, sale, purchase, transporta!on, warehousing, concealment, use or consump!on, import inter-State, export inter-State, import into India, export from India or transhipment, of narco!c drugs or psychotropic substances; S.2 (xvii) "opium order/judgment. 2 poppy" means—

(a) the plant of the species Papaver somniferum L; and

(b) the plant of any other species of Papaver from which opium or any phenanthrene alkaloid can be extracted and which the Central Government may, by no!fica!on in the Official GazeUe, declare to be opium poppy for the purposes of this Act; S2. (xviii) "poppy straw" means all parts (except the seeds) of the opium poppy aQer harves!ng whether in their original form or cut, crushed or powdered and whether or not juice has been extracted therefrom;

¶7The 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.

¶18Sec!on 37 of the NDPS Act mandates under sub-sec!on (1) (b) of sec!on 37 that no person accused of an offense punishable for offenses involving commercial quan!ty shall be released on bail unless- (i) the Public Prosecutor has been given an opportunity to oppose the applica!on of release, and (ii) where the Public Prosecutor opposes the applica!on, the Court is sa!sfied that there are reasonable grounds for believing that accused is not guilty of such offense and is not likely to commit any offense while on bail. Thus, the rigors of S. 37 of the NDPS Act apply in the present case, and the burden is on the pe!!oner to sa!sfy the twin condi!ons put in place by the Legislature under Sec!on 37 of the NDPS Act. Given the legisla!ve mandate of S. 37 of the NDPS Act, the Court can release a person accused of an offense punishable under the NDPS Act for possessing a commercial quan!ty of contraband only aQer recording reasonable sa!sfac!on of its rigors.

¶9The State's Counsel argues that a plain reading of Sec!on 37 reveals that the legislature intends to make the law stringent to curb the drug menace. It is further to be no!ced that the provisions are couched in nega!ve language, meaning that to grant bail, the Court needs to record a finding that there are reasonable grounds for believing

¶137Offences to be cognizable and non-bailable.—(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974),—

(a) every offence punishable under this Act shall be cognizable;

(b) no person accused of an offence punishable for offences under section 19 or section 24 or section 27A and also for offences involving commercial quantity shall be released on bail or on his own bond unless—

(i) the Public Prosecutor has been given an opportunity to oppose the application for such release, and (ii) where the Public Prosecutor opposes the application, the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail.

(2) The limitations on granting of bail specified in clause (b) of sub-section (1) are in addition to the limitations under the Code of Criminal Procedure, 1973 (2 of 1974) or any other law for the time being in order/judgment. 3 that the pe!!oner is not guilty of the offense. The burden of proof is also on the pe!!oner to sa!sfy the Court about his non-involvement in the case. While interpre!ng the provisions of Sec!on 37 of the NDPS Act, the Court must be guided by the objec!ve sought to be achieved by puEng these stringent condi!ons.

¶10Sa!sfying the feUers 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 exist, and the factors for bail become similar to the bail pe!!ons under general penal statutes like IPC. 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 them 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 an offense and is not likely to commit any offense while on bail. If either of these 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 the accused is not guilty of the alleged offense. Even on fulfilling one of the condi!ons, the reasonable grounds for believing that the accused is not guilty of such an offense, the Court s!ll cannot give a finding on the assurance that the accused is not likely to commit any such crime again.

¶11The pe!!oner's arguments did not point toward any material contradic!ons. It was a case of chance recovery. As such, S. 42 would not apply ini!ally, and recovery was not from the person. As such, S. 50 would also not aUract. Non-examina!on of independent witnesses is not illegal, and its outcome depends upon the nature of evidence tendered in the examina!on in chief and its cross-examina!on.

¶12The submissions made above and the grounds in the bail pe!!on do not shiQ the burden the legislature places on the accused under S. 37 of the NDPS Act. The pe!!oner has not stated anything in the bail pe!!on to discharge the burden put by the stringent condi!ons placed in the statute by the legislature under sec!on 37 of the NDPS Act. The inves!ga!on reveals sufficient prima facie evidence to connect the pe!!oner with the crime; thus, the pe!!oner fails to make out a case for bail. Any detailed discussions about the evidence may prejudice the case of the pe!!oner, the State, or the other accused.

¶13As per custody cer!ficate dated 06.11.2024, the pe!!oner's custody is one year order/judgment. 4 and one month, which cannot be considered prolonged.

¶14In Union of India (NCB) v. Khalil Uddin, decided on 21 Oct 2022, 2022 SCC OnLine SC 2109, Hon'ble Supreme Court holds, [4]. According to the prosecu!on, contraband material weighing about 13 kgs. of morphine was found in a motor vehicle which was driven by co-accused named Md. Jakir Hussain. During the course of inves!ga!on, it was found that the motor vehicle was recorded in the name of Md. Nizam Uddin who had executed a sale leUer and handed over the custody of the vehicle to accused Md. Abdul Hai and that accused Md. Jakir Hussain was the driver employed by accused Md. Abdul Hai and that contraband material in ques!on was to be handed over to accused-Khalil Uddin, an owner of a tea shop. [5]. The High Court by its order which is presently under challenge, directed release of both the accused as stated above on bail aQer they had undergone custody to the tune of about a year. Ques!oning grant of relief to said accused, the instant appeals have been preferred. [7]. What emerges from the record is that large quan!ty of contraband weighing about 13 kgs of morphine was found in a car which was driven by Md. Jakir Hussain. Whether the role played by said Md. Jakir Hussain could get connected with both the accused is a ques!on. [8]. The answer to said ques!on could be the statement recorded of Md. Nizam Uddin. The statement of Md. Jakir Hussain recorded under Sec!on 67 of the Act has also named his owner accused Abdul Hai. We are conscious of the fact that the validity and scope of such statements under Sec!on 67 has been pronounced upon by this Court in Tofan Singh v. State of Tamil Nadu . In State by

(NCB) Bengaluru v. Pallulabid Ahmad Arimu/a , the rigour of law lay down by this Court in Tofan Singh was held to be applicable even at the stage of grant of bail. [9]. However, going by the circumstances on record, at this stage, on the strength of the statement of Md. Nizam Uddin, though allegedly retracted later, the maUer stands on a different foo!ng. In our considered view, in the face of the mandate of Sec!on 37 of the Act, the High Court could not and ought not to have released the accused on bail. We, therefore, allow these appeals, set aside the view taken by the High Court and direct that both the appellants be taken in custody forthwith. [10]. We have been given to understand that the charge-sheet has been filed. In the circumstances, we direct the Trial Court to take up the maUer and conclude the proceedings as early as possible and preferably within six months from the receipt of this order.

¶15In Narayan Takri v. State of Odisha, decided on 10 Sep 2024, SLP (Crl.) 8198-2024, Hon'ble Supreme Court holds, order/judgment. 5 The pe!!oners are in custody since 28th May, 2022 for alleged commission of alleged offence under Sec!on 20(b)(ii)(c) of the Narco!c Drugs and Psychotropic Substances Act, 1985. As per the FIR allega!on, 125.3 kg. of "Ganja" was recovered from the pe!!oners. [3]. It is not in dispute that the trial has commenced and that three prosecu!on witnesses have been examined !ll date. [4]. Learned counsel for the pe!!oners submits that the third prosecu!on witness was examined as far back as on 28th January, 2024 and since then, no other prosecu!on witness has been examined. There is, however, no such averment in the pe!!on. [5]. Learned counsel appearing for the respondent submits that every endeavor shall be made on behalf of the prosecu!on to have all the witnesses examined by the end of this year. [6]. The trial court is encouraged to expedite the trial and give its decision as early as possible, in accordance with law. [7]. We, however, do not see any reason to interfere the impugned judgment and order at this stage; however, it is clarified that in the event the trial is not completed by the end of this year, the pe!!oners shall be at liberty to renew their prayer for bail before the trial court.

¶16The pe!!oner's custody of around one year and one month cannot be termed prolonged, given the minimum sentence prescribed for the offense, which is ten years, coupled with the pe!!oner's criminal history.

¶17Any observa!on made hereinabove is neither an expression of opinion on the case's merits nor shall the trial Court advert to these comments.

¶18Pe11on dismissed. All pending applica!ons, if any, stand disposed of. (ANOOP CHITKARA) JUDGE

18.11.2024 Jyo!-II Whether reportable: No. order/judgment. 6

IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Reserved on: 08.11.2024 Pronounced on: 18.11.2024 Joginder Singh ...Pe!!oner Versus State of Punjab …Respondent CORAM: HON'BLE MR. JUSTICE ANOOP CHITKARA Present: Mr. Raman Kumar, Advocate for the pe!!oner. Mr. Jasjit Singh, DAG, Punjab. ****