Rajbir Singh Alias Raja v. State of Punjab

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

31.03.2024 Chheharta, Amritsar 21-B, 27-A, 29, 61 NDPS Act

¶1The petitioner incarcerated in the FIR captioned above had come up before this Court under Section 483 of Bharatiya Nagarik Suraksha Sanhita, 2023, [BNSS], seeking regular bail.

¶2Per paragraph 13 of the bail application and 10 of the reply, the accused has the following criminal antecedents: Sr. No. FIR No. Date Offenses under Section Police Station

1.

19.04.2024 21-B, 27-A, 29, 61 of the NDPS Act Chheharta, Am-ritsar

2.

22.06.2024 21, 29/61/85 of the NDPS Act Longowal, San-grur

3.

29.05.2021 21 of the NDPS Act Chheharta, Am-ritsar

¶42023 21 of the NDPS Act Chheharta, Am-ritsar

¶3The facts and allegations are taken from the reply filed by the State:- "3. That it is submitted that as per the report furnished by the Station House Officer, Police Station Chheharta, Amritsar City, on

31.03.2024, the police party headed by Sub Inspector Jagga Singh, Police Station Chheharta, Amritsar in connection with patrolling and in search of bad elements had apprehended the accused Nishan Singh @ Pinta S/o Subeg Singh R/o Village Basarke, Police Station Gharinda, Amritsar Rural as he upon seeing the police party got perplexed and turned backwards, who took out one polythene bag from pocket of his 'payjama' and tried to throw on the ground. Upon asking about the contents of the polythene bag, he had disclosed that it contained heroin. The above said accused Nishan Singh @ Pinta was informed about his legal right to be searched before a Magistrate or some gazetted officer but he consented to be searched by Sub Inspector Jagga Singh. Therefore, the above said polythene bag was checked by Sub Inspector Jagga Singh and it was found containing 10 gm of heroin, one electronic weighing scale and drug money Rs. 2000/-, which were taken into police possession in accordance with law. Therefore, the present case FIR No. 54 dated

31.03.2024, under Sections 21-B, 27-A/61/85 NDPS Act, Police Station Chheharta, Amritsar was registered in this respect and the above said accused Nishan Singh @ Pinta was arrested in this case by SI Jagga Singh.

¶4That it is submitted that on the next day i.e. 01.04.2024, the accused Nishan Singh @ Pinta along with a parcel of contraband was produced before the Court of learned Judicial Magistrate First Class, Amritsar. The proceedings under Section 52A NDPS Act were initiated and police remand of the accused Nishan Singh @ Pinta was granted by the learned Magistrate.

¶5That during investigation of the present case FIR No. 54 dated

31.03.2024, the accused Nishan Singh @ Pinta made disclosure statement dated 03.04.2024 before the investigating officer that the 10 gm heroin, which was recovered from him, was brought by his elder brother Lovepreet Singh @ Labhu S/o Subeg Singh from some person and used to give him for selling it. Therefore, based on his disclosure statement, the above said Lovepreet Singh @ Labhu was also nominated as co-accused and offence under Section 29 NDPS Act was added in this case vide GD No. 35 dated 03.04.2024. After completion of police remand, the accused Nishan Singh @ Pinta was again produced before the learned jurisdictional Court and was sent to judicial custody.

¶6That during the course of investigation of the present case FIR No. 54 dated 31.03.2024, the co-accused Lovepreet Singh @ Labhu was arrested on 01.05.2024. He was produced before the learned jurisdictional Court and his police remand was obtained. During police remand, the co-accused Lovepreet Singh @ Labhu made disclosure statement dated 02.05.2024 before the investigating officer that the above said 10 gm of heroin which was recovered from his brother Nishan Singh @ Pinta was bought from Rajbir Singh @ Raja (present petitioner) by him. Therefore, based thereon, the present petitioner Rajbir Singh @ Raja was also nominated as co-accused in this case vide GD No. 56 dated 02.05.2024."

¶4On March 31, 2024, based on chance recovery, the Police seized 10 grams of heroin from the possession of the main accused, Nishan Singh. The Investigator claims to have complied with all the statutory requirements of the NDPS Act, 1985, and CrPC, 1973.

¶5During the custodial interrogation, the main accused, Nishan Singh, named his brother Lovepreet Singh as the owner of heroin and stated that he was asked by his brother to sell it. Based on this confession, the investigator arraigned and arrested him as an accused.

¶6During the custodial interrogation, the co-accused, Lovepreet Singh, named the petitioner Rajbir Singh as the seller of heroin. Based on this confession, the investigator arraigned the petitioner as an accused.

¶7The petitioner approached the Sessions Court for anticipatory bail, which was surprisingly denied.

¶8The petitioner's counsel prays for bail by imposing any stringent conditions and contends that further pre-trial incarceration would cause an irreversible injustice to the petitioner and their family.

¶9The State's counsel opposes bail and refers to the reply.

¶10It would be appropriate to refer to the following portions of the reply, which read as follows: "11.That it is respectfully submitted that keeping in view the totality of the facts and submissions made hereinabove, it is evident that the present petitioner Rajbir Singh @ Raja is involved in drug peddling and he is also involved in the aforementioned four other FIRs under NDPS Act. The present petitioner Rajbir Singh @ Raja was nominated as accused in this case on the basis of disclosure statement of the co-accused Lovepreet Singh @ Labhu who was involved in drug peddling with his brother i.e. the co-accused Nishan Singh @ Pinta who was found in conscious possession of 10 gm, of heroin and drug money. The recovered 10 gm heroin was purchased from the present petitioner Rajbir Singh @ Raja and this facts was also disclosed in his volunteer disclosure statement by the co-accused Lovepreet Singh @ Labhu as well as by the present petitioner Rajbir Singh @ Raja. As the present petitioner Rajbir Singh @ Raja along was in the business of heroin with main accused person, hence, as per provisions of Section 29 of NDPS Act, the present petitioner deserves parity of rigors Section 37 NDPS Act along with the main accused person Nishan Singh @ Pinta from whom 10 gm of heroin and drug money Rs 2000/-, were recovered. The present case FIR No. 54 dated 31.03.2024 is now pending for trial, charges have been framed and prosecution witnesses are being examined by the learned trial Court. Moreover, both the co-accused Nishan Singh @ Pinta and Lovepreet Singh @ Labhu are also in judicial custody in this case. As such, the present petitioner Rajbir Singh @ Raja is not entitled to the relief of regular bail. Therefore, the present petition is liable to be dismissed."

¶11Thus, the evidence collected so far consists of disclosure statements without any discovery of fact.

¶12In Tofan Singh v. State of Tamil Nadu, (2021) 4 SCC 1, the majority view of a three-member bench holds as follows: We answer the reference by stating:

(i) That the officers who are invested with powers under section 53 of the NDPS Act are "police officers" within the meaning of section 25 of the Evidence Act, as a result of which any confessional statement made to them would be barred under the provisions of section 25 of the Evidence Act, and cannot be taken into account in order to convict an accused under the NDPS Act.

(ii) That a statement recorded under section 67 of the NDPS Act cannot be used as a confessional statement in the trial of an offence under the NDPS Act.

¶13The status report filed by the police reveals that the investigator arraigned the petitioner as an accused based on the disclosure statement of the main accused, from whose possession the investigator had recovered the contraband. No other evidence is collected at this stage to connect the petitioner with the main accused. Thus, there is no justification to deny bail.

¶14Dealing in 10 grams of heroin is a punishable offense under the NDPS Act in the following terms: Substance Name Heroin/ Chi*a/ Smack/ Brown Sugar Quan!ty detained 10 Gram Quan!ty type Intermediate Drug Quan-ty in % to upper limit

4.00% 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. 56 Common Name (Name of Narco!c Drug and Psychotropic Substance Heroin (Interna!onal non-proprietary name (INN) Other non-proprietary name ****** Chemical Name Diacetylmorphine Small Quan!ty 5 Gram Commercial Quan!ty 250 Gram 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.(xvi)(d) NDPS Act, 1985 (61 of 1985), S.O. 821 (E) dated 11/14/1985 Sr. No. 2(xvi)(d) Common Name (Name of Narco!c Drug and Psychotropic Substance ****** (Interna!onal non-proprietary name (INN) Other non-proprietary name ****** Chemical Name 2(xvi)(d) diacetylmorphine, that is, the alkaloid also known as dia-morphine or heroin and its salts; Explana!on.-- For the purposes of clauses (v) (vi), (xv) and (xvi) the percentages in the case of liquid prepara!ons shall beSMRITI calculated on the basis that a prepara!on containing one per cent. of a substance means a prepara!on in which one gram of substance, if solid, or one mililitre of substance, if liquid, is contained in every one hundred mililitre of the prepara!on and so on in propor!on for any greater or less percentage: Provided that the Central Government may, having regard to the developments in the field of methods of calcula!ng percentages in liquid prepara!ons prescribed, by rules, any other basis which it may deem appropriate for such calcula!on.

¶15Given this, the rigors of S. 37 of the NDPS Act did not apply in the present case.

¶16Section 2 (vii-a) of the NDPS Act defines commercial quantity as the quantity greater than the quantity specified in the schedule. Section 2 (xxiii-a) defines a small quantity as a quantity less than the quantity specified in the table of the NDPS Act. The remaining quantity falls in an undefined category, generally called an intermediate quantity. All sections in the NDPS Act specify an offence and mention the minimum and maximum sentence, depending upon the quantity of the substance. The commercial quantity mandates a minimum sentence of ten years of imprisonment and a minimum fine of Rupees One hundred thousand, and bail is subject to the riders mandated in S. 37 of the NDPS Act. When the quantity is less than commercial, the restrictions of Section 37 of the NDPS Act will not attract, and the factors for bail become similar to the offence regular statutes.

¶17In Sami Ullaha v Superintendent Narcotic Control Bureau, (2008) 16 SCC 471, the Hon'ble Supreme Court holds that in intermediate quantity, the rigors of the provisions of Section 37 may not be justified.

¶18The prolonged incarceration, generally militates against the most precious fundamental right guaranteed under Article 21 of the Constitution and in such a situation, the conditional liberty must override the statutory embargo created under Section 37(1) i(b)(ii) of the NDPS Act.

¶19The pre-trial incarceration should not be a replica of post-conviction sentencing. There is sufficient primafacie evidence connecting the petitioner with the alleged crime. However, per paragraph 7 of the bail petition, the petitioner has been in custody since

18.05.2024. Per the custody certificate dated 07.12.2024, the petitioner's total custody in this FIR is 06 months and 17 days. Given the penal provisions invoked viz-a-viz pre-trial custody, coupled with the primafacie analysis of the nature of allegations, and the other factors peculiar to this case, there would be no justifiability further pre-trial incarceration at this stage,.

¶20Without commenting on the case's merits, in the facts and circumstances peculiar to this case, and for the reasons mentioned above, the petitioner makes a case for bail. This order shall come into force from the time it is uploaded on the official webpage of this Court.

¶21Given above, provided the petitioner is not required in any other case, the petitioner shall be released on bail in the FIR captioned above subject to furnishing bonds to the satisfaction of the concerned Court and due to unavailability before any nearest Ilaqa Magistrate/duty Magistrate. Before accepting the surety, the concerned Court must be satisfied that if the accused fails to appear, such surety can produce the accused.

¶22While furnishing a personal bond, the petitioner shall mention the following personal identification details:

¶1AADHAR number

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

¶3Mobile number (If available)

¶4E-Mail id (If available)

¶23This order is subject to the petitioner's complying with the following terms.

¶24The petitioner shall abide by all statutory bond conditions and appear before the concerned Court(s) on all dates. The petitioner 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.

¶25The possibility of the accused influencing the investigation, tampering with evidence, intimidating witnesses, and the likelihood of fleeing justice can be taken care of by imposing elaborative and stringent conditions. In Sushila Aggarwal v. State (NCT of Delhi), 2020:INSC:106 [Para 92], (2020) 5 SCC 1, Para 92, the Constitutional Bench held that unusually, subject to the evidence produced, the Courts can impose restrictive conditions.

¶26Given the background of allegations against the petitioner, it becomes paramount to protect the drug detection squad, their family members, as well as the members of society, and incapacitating the accused would be one of the primary options until the filing of the closure report or discharge, or acquittal. Consequently, it would be appropriate to restrict the possession of firearm(s). [This restriction 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 sanction]. Given the nature of the allegations and the other circumstances peculiar to this case, the petitioner shall surrender all weapons, firearms, ammunition, if any, along with the arms license to the concerned authority within fifteen days from release from prison and inform the Investigator about the compliance. However, subject to the Indian Arms Act, 1959, the petitioner shall be entitled to renew and take it back in case of acquittal in this case, provided otherwise permissible in the concerned rules. Restricting firearms would instill confidence in the victim(s), their families, and society; it would also restrain the accused from influencing the witnesses and repeating the offence.

¶27This bail is conditional, and the foundational condition is that if the petitioner repeats the offense, the State may file an application for cancellation of this bail before the Sessions Court, which shall be at liberty to cancel this bail.

¶28Any observation made hereinabove is neither an expression of opinion on the case's merits nor shall the trial Court advert to these comments.

¶29A certified copy of this order would not be needed for furnishing bonds, and any Advocate for the Petitioner can download this order along with case status from the official web page of this Court and attest it to be a true copy. If the attesting officer wants to verify its authenticity, such an officer can also verify its authenticity and may download and use the downloaded copy for attesting bonds.

¶30Petition allowed in terms mentioned above. All pending applications, if any, stand disposed of. (ANOOP CHITKARA) JUDGE

19.12. 2024 smriti

IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Reserved on: 09.12.2024 Pronounced on: 19.12. 2024 Rajbir Singh @ Raja ... PETITIONER VS. State of Punjab .. RESPONDENT CORAM: HON'BLE MR. JUSTICE ANOOP CHITKARA Present: Mr. Raghav Soni, Advocate, for the petitioner. Mr. Akshay Kumar, AAG, Punjab. ****