Sukhwinder Singh @ Bittu v. State of Punjab

ooCRM-M-55754-2023 ooooooo#1# ooooooooooo2023:PHHC:145183 INoTHEoHIGHoCOURToOFoPUNJABo&oHARYANAoAT CHANDIGARH. CRM-M-55754-2023 DateoofoDecision:-15.11.2023 SukhwinderoSingho@oBittu. ......Petitioner. Vs. .StateoofoPunjab ......Respondent. CORAM:- HON'BLEoMR.oJUSTICEoJASJIToSINGHoBEDI Present:- Mr.oPiyushoSharma,oAdvocateoforotheoPetitioner. Mr.oHarkanwaroJeetoSingh,oAssistantoAdvocateoGeneral,oPunjab. *** JASJIToSINGHoBEDI,oJ.(ORAL) TheoPrayeroinothisosecondopetitionounderoSectiono439oCr.PCois forotheograntooforegularobailoinocaseoFIRoNo.149odatedo31.05.2021ounder Sectionso22oofotheoNDPSoActoandoSectionso15,o15C,o22C,o29oofotheoNDPS ActoaddedolateroonoregisteredoatoPoliceoStationoSadaroFazilka,oDistrict Fazilka.

¶2TheopresentoFIRocameotoobeoregisteredoonotheobasisoofosecret informationoreceivedobyotheopoliceotootheoeffectothatooneoGurcharanoSingho@ Channuoindulgesoinosaleoofointoxicantotablets.ooPursuantotooreceiptoofotheosaid information,oGurcharanoSingho@oChannuowasoarrestedobyothepoliceoandoas manyoaso1050ointoxicantotabletsowereorecoveredofromohim.o oTheosaid recoveredotabletsowereofoundotoocontaino"Tramadol".ooItoisofurtherotheocaseoof theoprosecutionothatoduringotheocourseoofointerrogationotheosaidoGurcharan Singho@oChannuodisclosedothatoheohadoprocuredotheosaidotabletsofrom ooCRM-M-55754-2023 ooooooo#2# ooooooooooo2023:PHHC:145183 RavinderoSingho@oRavi.ooUponoarrestoofotheosaidoRavinderoSingho@oRavi, 115350ointoxicantotabletsoapartofromo51Kgsoofopoppyohuskoandoaocash amountoofoRs.1.77olacsowasorecovered.ooOnointerrogationoofoRavinderoSingh @oRavioheodisclosedothatoheoalongowithohisofatheroMangoSingho(grantedobail videoorderodatedo06.12.2021oinoCRM-M-50270-2021)oandohisobrotheroBittu @oSukhwinderoSingho(petitioner)ousedotoopurchaseotheocontrabandofrom KulbiroSingho@oGiani

¶3The o learned o counsel o for o the o petitioner o contends o that o the petitionerohadobeenofalselyoimplicatedoinotheopresentocase.oHeocontendsothat theonameoofotheopetitionerofiguredoinotheodisclosureostatementoofohisoco-accused,onamely,oRavindero@oRavi.oPursuantotoohisoarrest,onoorecovery whatsoeverohadobeenoeffected.oRelianceoisoplacedoonotheojudgmentsoinothe casesoofoTofanoSinghoVersusoStateoofoTamiloNadu,o2020oAIRo(Supreme Court)o5592,oRakeshoKumaroSinglaoVersusoUnionoofoIndia,o2021(1)oRCR (Criminal)o704,oSurinderoKumaroKhannaoVersusoIntelligenceoOfficer DirectorateoofoRevenueoIntelligence,o2018(3)oRCRo(Criminal)o954,oStateoby

(NCB)oBengaluruoVersusoPallulabidoAhmadoArimuttao&oAnr.o2022(1)oRCR (Criminal)o762,oSanjeevoChandraoAgarwalo&oAnr.oVersusoUnionoofoIndia 2021(4)oRCRo(Criminal)o590,oVijayoSinghoVersusoTheoStateoofoHaryana, bearingoSpecialoLeaveotooAppeal o(Crl.)oNo.(s).1266/2023 odecidedoon

17.05.2023,oStateoofoHaryanaoversusoSamarthoKumaro2022o(3)oRCR (Criminal)o991oandoVikrantoSinghoVersusoStateoofoPunjab,oCRM-M-39657-2020.",owhereinoitohasobeenoheldothatotheoaccusedocanobeograntedothe concessionooforegularobailowhereoheohasobeenonamedoinotheodisclosure statementoofohisoco-accusedoandothereoisonoootherocorroborativeoevidence againstotheoaccused.oAsotheopetitionerowasoinocustodyosinceo20.03.2023oand onlyo02ooutoofo16oprosecutionowitnessesohadobeenoexaminedosoofar,oheowas ooCRM-M-55754-2023 ooooooo#3# ooooooooooo2023:PHHC:145183 entitledotootheoconcessionoofobail,omoreso,owhenohisoco-accused,onamely, ManghoSinghohadobeenograntedotheoconcessionooforegularobailovideoorder

06.12.2021opassedoinoCRM-M-50270-2021(O&M)o(AnnexureoP-2)oeven thoughothereowereotwoootherocasesobearingoFIRoNo.86odatedo17.10.2022 underoSectiono15/18/29/61/85oNDPSoActoP.S.oCityo2oAboharoandoinoFIR No.75odatedo26.05.2022ounderoSectiono22oC/29/61/85oNDPsoActoP.S. Kabarwalaopendingoagainstohim.

¶4Theolearnedocounseloforotheorespondent-State,oonotheootherohand, contends o that o in o view o of o theo serious o allegations o levelled o against o the petitioner,oheowasonotoentitledotootheograntoofobail.ooHeowasoanoaccusedoinotwo otherocasesobearingoFIRoNo.86oofo17.10.2022oandoFIRoNo.75oofo26.05.2022. Therefore,ohisocaseowasodifferentofromothatoofohisoco-accusedowhoohadoclean antecedents. o Even o otherwise, o there o were o no o change o in o circumstances warrantingograntoofobailowhenotheofirstobailoapplicationoofotheopetitionerocame toobeowithdrawnoasorecentlyoasoono21.08.2023.oooHe,ohowever,oconcedesothat theopetitionerohadobeenonamedoinotheodisclosureostatement,owasoinocustody sinceo20.03.2023,o02ooutoofo16oprosecutionowitnessesohaveobeenoexaminedoso faroasoalsootheofactothatoco-accused,onamely,ooManghoSinghohadobeenogranted theoconcessionooforegularobail.

5.o Iohaveoheardotheolearnedocounseloforobothotheopartiesoatolength.

¶6TheoHon'bleoSupremeoCourtoinotheocaseoofoStateoofoHaryana VersusoSamarthoKumaro2022o(3)oRCRo(Criminal)o991,oheldoasounder:- "4.oTheoHighoCourtodecidedotoograntopre-arrestobailotoothe respondentsoonotheoonlyogroundothatonoorecoveryowas effectedofromotheorespondentsoandothatotheyohadobeen implicatedoonlyoonotheobasisoofotheodisclosureostatementoof theomainoaccusedoDineshoKumar.oTherefore,orelianceowas placedobyotheoHighoCourtoinotheomajorityojudgmentoofothis oCourtoinoooTofanoSinghov.oStateoofoTamiloNaduoreportedoino ooCRM-M-55754-2023 ooooooo#4# ooooooooooo2023:PHHC:145183

(2021) 4 SCC 1.

¶5But, it is contended by the learned Additional Advocate General appearing on behalf of the State of Haryana that on the basis of the anticipatory bail granted to the respondents, the Special Court was constrained to grant regular bail even to the main accused-Dinesh Kumar and he jumped bail. Fortunately, the main accused-Dinesh Kumar has again been apprehended. According to the learned Additional Advocate General, the respondent in the second of these appeals is also a habitual offender.

¶6Learned counsel appearing on behalf of the respondent in the first of these Appeals contends that the State is guilty of suppression of the vital fact that the respondent was granted regular bail after the charge-sheet was filed and that therefore, nothing survives in the appeal. But,we do not agree.

¶7The order of the Special Court granting regular bail to the respondents shows that the said order was passed in pursuance of the anticipatory bail granted by the High Court. Therefore, the same cannot be a ground to hold that the present appeals have become infructuous.

¶8In cases of this nature, the respondents may be able to take advantage of the decision in o Tofan Singh v. State of Tamil Nadu (supra), perhaps at the time of arguing the regular bail application or at the time of final hearing after conclusion of the trial.

¶9To grant anticipatory bail in a case of this nature is not really warranted. Therefore, we are of the view that the High Court fell into an error in granting anticipatory bail to the respondents.

¶10In view of the above, the appeals are allowed. The impugned orders are set-aside. As a consequence, the Appellant-State is entitled to take steps, in accordance with law. Femphasisosupp#iedG <. .noVi9a4oSinghoVersusoTheoS a eoofoHar4ana%o3earingoS)e/ia" ;ea2eo oo&))ea"o(Cr"7*o#o7(s*71288<2023o$e/i$e$oono1770572023,oitowasohe#d ooCRM-M-55754-2023 ooooooo#5# ooooooooooo2023:PHHC:145183 asounder:- "The petitioner is alleged to have committed offences under Sections 15 and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter called the NDPS Act". His application for anticipatory bail was rejected by the High Court. The allegations in the FIR are that 1.7 Kg of Poppy Straw (Doda Post) was recovered from the co-accused. The petitioner concededly was not present at the spot but was named by the co-accused. That apart there is no other material to implicate the petitioner. The prosecution urges that another case with allegations of commission of offence under the NDPS Act are pending against the petitioner. It is not denied that in those proceedings he was granted bail. Having regard to these circumstances, the petitioner is directed to the enlarged on anticipatory bail, subject to such terms and conditions as the trial Court may impose. The petition is allowed. All pending applications are disposed of." >emphasisosupp#ied' B. o (hiso,ourtoinotheocaseoofoVi,ran oSinghoVersusoS a eoofoPun9a3% CRM-M-3+857-2020,ohe#doasounder:- "It is not in dispute that the petitioners have not been named in the FIR. No recovery has been effected from the petitioners and the alleged recovery has been effected from two co-accused Rakesh Sharma and Ravdeep Singh alias Sheru. The petitioners are sought to be implicated solely on the basis of the disclosure statement made by the co-accused Rakesh Sharma and Ravdeep Singh @ Sheru and even after the petitioners were arrayed as accused in pursuance of the disclosure statements, no recovery had been made from the petitioners. The petitioners have been in custody since 06.11.2020 (Vikrant Singh), 05.12.2020 (Subash Chander) and

23.04.2021 (Davinder Singh) and challan in the present case has already been presented and there are 32 witnesses, ooCRM-M-55754-2023 ooooooo#8# ooooooooooo2023:PHHC:145183 out of whom only one has been examined and thus, the trial is likely to take time on account of Covid-19 Pandemic. The petitioners are not involved in any other case. With respect to the call details, suffice to say that no dates on which the said calls had been allegedly made by the coaccused, Rakesh Sharma and Ravdeep Singh alias Sheru to the petitioners or vice-versa have been mentioned in the affidavit or in the report under Section 173 Cr.P.C. Moreover, even the transcript of the said conversations are not a part of the record under Section 173 Cr.P.C. A Division Bench of this Court in Narcotics Control Bureau's case (supra), was pleased to observe as under:- Still further, no conversation detail between accused Ramesh Kumar Patil and accused Sandeep has been produced by the prosecution. Mere call details is not sufficient to prove that Sandeep accused was also involved in the business of narcotic drugs or he had any connected with Ramesh Kumar Patil. In view of the above, no case is made out for grant of leave to appeal against the acquittal of Sandeep accused." In judgment of the Gujarat High Court in Yash Jayeshbhai Champaklal Shah's case (supra), it has been observed as under:- "Having heard learned advocates for the appearing parties, it emerges on record that the applicant is not found in possession of any contraband article. Over and above that, the call data records may reveal that in an around the time of incident, he was in contact with the co-accused who were found in possession of contraband. Since there is no recording of conversation in between the accused, mere contacts with the co-accused who were found in possession cannot be treated to be a corroborative material in absence of substantive material found against the accused." A perusal of the above judgment would show that without the transcript of the conversations exchanged ooCRM-M-55754-2023 ooooooo#7# ooooooooooo2023:PHHC:145183 between the co-accused, mere call details would not be considered to be corroborative material in absence of substantive material found against the accused. In the present case, there is no other material against the petitioners. Keeping in view the above-said facts and circumstances, as well as law laid down in the judgments noticed hereinabove, the present petitions are allowed and the petitioners are ordered to be released on bail on their furnishing bail/surety bonds to the satisfaction of the concerned trial Court/Duty Magistrate and subject to their not being required in any other case. >emphasisosupp#ied' +. (hiso,ourtoinotheocaseoofoRan9i oSinghoVersusoS a eoofoPun9a3% CRM-M-25528-2023%o$e/i$e$oono1770772023,ohe#doasounder:- "8. Coming back to the facts of the present case, it is pertinent to note here that other than the instant FIR in which the petitioner has been nominated as an accused on the basis of the disclosure statement of the arrested accused, the petitioner is also an accused in two other cases under the NDPS Act. In addition, he had been an accused in three other cases, though he has been acquitted in the said cases. It is highly unlikely that the petitioner would have been implicated in multiple FIRs at the whims and fancies of the Investigating Agency.

¶9When there are multiple FIRs against a person over a significant period of time (in this case 18 years), then even though he may have been acquitted in some of those cases, the twin conditions as envisaged under Section 37 of the NDPS Act that he has not committed an offence and was not likely to commit an offence cannot be satisfied.

¶10Keeping in view the conduct of the petitioner and his criminal antecedents, his custodial interrogation would certainly be necessary to effect necessary recoveries and to take the investigation to its logical conclusion.

¶11In view of the above, I find no merit in the present ooCRM-M-55754-2023 ooooooo#8# ooooooooooo2023:PHHC:145183 petition. Therefore, the same stands dismissed. >emphasi5edosupp#ied'

¶01(hiso,ourtoinoSonioSingho=oCha!,auroSahi3%oCRM-M-31845-2022%o$e/i$e$oono2071072022,ohe#doasounder:- "The Counsel for the petitioner contends that the petitioner is not named in the FIR nor in the secret information. He has been named only in the disclosure statement of his co-accused which is inadmissible in evidence and even otherwise since the recovery effected from him of 3 Kgs of Poppy Husk is of non commercial quantity, therefore the rigors of Section 37 of NDPS Act did not apply to the petitioner. Since the petitioner was in custody since 26.05.2022 and the trial was not likely to be concluded in the near future, he deserved the concession of bail. The Counsel for the State on the other hand contends that the petitioner is a trafficker along with his co-accused. As per the disclosure statement 200 Kgs of Poppy Husk was to be supplied to the petitioner. Further he is involved in two other cases under the NDPS Act as also one case under the Excise Act and, therefore, did not deserve the concession of bail in view of his antecedents. I have heard counsel for both the sides at length. Admittedly, the petitioner in the present case is named in the disclosure statement of the arrested accused. Subsequently thereto 3Kgs of Poppy Husk was recovered at his instance which is a non commercial quantity. It may be relevant to mention here that limitations to the grant of bail under Section 37 of the NDPS Act are in addition to those prescribed under Cr.PC or any other law inforce on the grant of bail as has been set out by the Hon'ble Supreme Court in Satpal Singh Vs. State of Punjab 2018(5) RCR (Criminal) 152. In the present case, the petitioner is involved in two other cases under the NDPS Act. Thus, as he is a habitual offender, he is not entitled to the grant of bail even under Section 439 Cr.PC keeping in view his ooCRM-M-55754-2023 ooooooo#9# ooooooooooo2023:PHHC:145183 antecedents.oEvenootherwise,oassumingothatotheorigorsoof Sectiono37oofotheoNDPSoActodidonotoapplyotootheopetitioner, thatobyoitselfowouldonotoipsoofactooleadotootheograntoofobailoto theopetitioner.o Inoviewoofotheoaboveodiscussion,oIofindonoomeritoinothe presentopetitionoandotheosameoisothereforeodismissed.o (emphasisosupplied)

¶11In oSamarthoKumaro (supra)otheoHon'bleoSupremeoCourtohad clearlyoheldothatoanoaccusedowhoohadobeenonamedoinotheodisclosureostatement ofoaoco-accusedowasonotoentitledotootheograntoofoanticipatoryobailobutocouldobe grantedoregularobail.oHowever,oinoVijayoSingho(supra)oaosomewhatocontrary viewowasotakenoandotheoaccusedothereinowasograntedotheoconcessionoof anticipatoryobailoevenothoughoheohadobeenoanoaccusedoinoanotherocaseounder theoNDPSoActoinowhichoheowasoonobail.oInoVikrantoSingho(supra)othisoCourt heldothatowhereoanoaccusedohadobeenonamedoinotheodisclosureostatementoof hisoco-accusedoandothereowereoCDRs/WhatsAppocalls/chatsobetweenothe arrestedoaccusedoandotheopersononamedoinoaodisclosureostatementothenoinothe absenceoofotheocontentsoofotheoconversation/chatsobailocouldonotobeodeniedoto theosaidoaccused.oInoRanjitoSingho(supra)oandoSonioSingho@oChamkaur Sahibo(supra)oitohasobeenoheldobyothisoCourtothatowhereothereowereomultiple FIRsoagainstoanoaccusedooveroaoperiodoofotimeothen,oevenothoughoheohadobeen namedoinoaodisclosureostatement,oheowasonotoentitledotootheoconcessionoof bail.o

¶12Comingobackotootheofactsoandocircumstancesoofotheopresentocase, otherothanotheoinstantoFIRoinowhichotheopetitionerohasobeenonominatedoasoan accusedoonotheobasisoofotheodisclosureostatementoofohisoco-accused,othe petitioneroisoalsooanoaccusedoinotwoootherocasesounderotheoNDPSoActowhich wereoregisteredosubsequentotootheoregistrationoofotheoinstantoFIR.oItoisohighly unlikelyothatotheopetitionerowouldohaveobeenoimplicatedoinomultipleoFIRsoat ooCRM-M-55754-2023 ooooooo#10# ooooooooooo2023:PHHC:145183 theowhimsoandofanciesoofotheoinvestigatingoagency.o

¶13Inofact,owhenothereoareomultipleoFIRsoagainstoanoaccusedooveroa significantoperiodoofotime,othenotheotwinoconditionsoasoenvisagedounder Sectiono37oofotheoNDPSoActothatoheohadonotocommittedoanooffenceoandowas notolikelyotoocommitoanooffenceocannotobeosatisfied.oFurther,otheolimitationoto theograntoofobailounderoSectiono37oofotheoNDPSoActoareoinoadditionotoothose prescribedounderotheoCr.P.C.ooroanyootherolawoinoforceoonotheograntoofobail. Thus,oaohabitualooffenderoisonotoentitledotootheograntoofobailoevenounderothe provisionsoofotheoCr.P.C.okeepingoinoviewohisocriminaloantecedentsoeven though,ohisoco-accusedowhooareosimilarlyosituatedomayohaveobeenograntedothe saidoconcession. Further o the o earlier o bail o application o of o the o petitioner o was withdrawn o as o recently o as o on o 21.08.2023 o and o there o are o no o changed circumstancesowarrantingograntoofobail.ooAsoregardsotheoco-accusedoMangh Singhobeingograntedobail,oitoisopertinentotoomentionohereothatonoootherocase underotheoNDPSoActostandsoregisteredoagainstohimoandothereforeoheohadobeen grantedotheoconcessionoofobail.o oTheocaseoofotheopetitioneroisomaterially differentofromothatoofoManghoSinghoaso02ootherocasesounderotheoNDPSoAct standoregisteredoagainstotheopetitioner.

¶14Inoviewoofotheoabove,oIofindonoomeritoinotheopresentopetition. Therefore,otheosameostandsodismissed.

15.o However,otheopetitioneroisoatolibertyotoorenewohisoprayeroforothe grantoofobailoifothereoisoanyosignificantodelayoinotheoconclusionoofotheotrial.ooo (oJASJIToSINGHoBEDIo) JUDGE Novembero15,o2023 Vinay Whetherospeaking/reasoned Yes/No Whetheroreportable Yes/No