Rampal Singh v. State of Punjab

CRM-M-8339-2023 1 2023:PHHC:045389o INoTHEooHIGHoCOURToOFoPUNJABo&oHARYANAoATo CHANDIGARH ***o ooooo oooCRM-M-8339-2023 Dateoofodecisiono:ooo27.03.2023 RampaloSingh ...oPetitioner Versus StateoofoPunjab ...oRespondent CORAM:o HON'BLEoMR.JUSTICEoVIKASoBAHL Present:o Mr.SandeepoKumaroPassi,oAdvocate forotheopetitioner. Mr.RohitoAhuja,oDAG,oPunjab. VIKASoBAHL,oJ.(ORAL) This is a second petition under Section 439 Cr.P.C. for grant of regular bail to the petitioner in FIR no.33 dated 26.02.2021 registered under Section 22(b) of the Narcotic Drugs and Psychotropic Substances Act 1985 (inoshorto"NDPSoAct")oatoPoliceoStationoCityoKotkapura,oDistrictoFaridkot. Learned counsel for the petitioner has submitted that the petitioner was initially arrested on 26.02.2021 and was granted interim bail on 12.04.2021 and the interim bail was continued till 04.03.2022 and since

04.03.2022 the petitioner has been in custody and thus, period of total custody of petitioner is 1 year 2 months and 3 days as per the custody certificate and there are 17 witnesses, out of which, none have been examined and thus, the trial is likely to take time and the petitioner is not involved in any other case. It is also submitted that there are several arguable points in favour of the petitioner including the fact that even as per CRM-M-8339-2023 2 2023:PHHC:045389o the case of the prosecution, the alleged recovery has been effected from a transparent polythene bag which the petitioner along with co-accused were carrying on a motor cycle. Learned counsel for the petitioner has relied upon various orders passed by coordinate Benches of this Court i.e., order dated 02.08.2021 passed in CRM-M-4408-2021 titled as "BantioKauro@ Bhantio Kauro Vs.o Stateo ofo Punjab, Bindero Kauro @o Gogao Vs.o Stateo of Punjab reported as 2021(3) RCR (Criminal) 360, JaskaranoSingho@oJassu Vs.oStateoofoPunjab, reported as 2021(2) RCR (Criminal) 837 and order dated 28.02.2020 passed in CRM-M-8026-2020 titled as LakhwinderoSingh @oLakhaoVs.oStateoofoPunjab, to contend that it is highly unlikely that a person engaged in the business of drug smuggling, will carry the contraband in a transparent bag. It is further submitted that the said allegation of the petitioner carrying intoxicant tablets in a transparent bag is raised by the police only in order to circumvent the provision of Section 50 of the NDPS Act.o Learned State counsel, on the other hand, has opposed the present petition for regular bail and has submitted that the petitioner was the person riding the motor cycle and the police officials had caught the petitioner along with other two co-accused and intoxicant tablets were recovered from a transparent bag which was being carried by the petitioner and the two other co-accused and as per the FSL report, the said tablets contained 386.12 grams of Tramadol Hydrochloride which would fall within the category of commercial quantity and thus, the bar under Section 37oofotheoNDPSoActowouldoapply.o This Court has heard learned counsel for the parties and has perusedotheopaperobook. DAVINDER KUMAR Coordinate Bench of this Court in Banti Kaur @ Bhanti CRM-M-8339-2023 3 2023:PHHC:045389o Kaur'socaseo(supra)ohasoheldoasounder:- "1. The petitioner has approached this Court seeking grant of regular bail in respect of a case registered against her vide FIR No.191, dated 8.10.2020, Police Station Cantt Bathinda, District Bathinda, under Section 22 of NDPS Act, wherein it is alleged that the petitioner was caught red-handed while carrying a transparent plastic polythene bag which was found toocontaino1000otabletsoofo'Clovidol'.o

¶2Learned counsel for the petitioner submits that the petitioner has falsely been implicated in the instant case and that she has an unblemished record and is not involved in any other case and it is highly unlikely that any person who is carrying contraband would carry the same in a transparent bag so as to inviteoattention,oincludingothatotheopolice.o

¶3Opposing the petition, learned State counsel has not disputed the fact that the contraband is alleged to have been carried in a transparent plastic polythene bag. He has however, submitted that the weight of the total recovered contraband works out to 410ogramsoofo'Tramadol'owhichowouldofallowithinotheocategory ofo'commercialoquantity'. Learned State counsel has however, informed that the petitioner is not involved in any other case and has presently been behind bars since the last about 9 monthsoando17odays.o

¶4I have considered rival submissions addressed before this Court.o

¶5It is not disputed that the contraband was alleged to have been carried by the petitioner in a transparentopolytheneobag.oIt isocertainlyohighlyounlikelyothatoaopersonowhooisocommittingoan offenceo ino respecto ofo anyo contrabando wouldo doo ito ino sucho a mannero thato his/hero detectiono iso inevitable.o Carrying contrabandoinoaotransparentopolytheneobagomakingoitoclearly visibleotooothersowould surely invite attention of everybody who passesoby. In these circumstances the case of the prosecution is rather rendered suspect particularly in view of the fact that the petitioner is not even stated to be a previous convict and is a lady who has been behind bars sinceotheolastoabouto9omonths. In view of the aforesaid discussion particularly the fact that the petitioner is a lady and is not even a previous convict, the petition is accepted and the petitioner is ordered to be released on bail subject to her furnishing bail bonds to the satisfaction 2023.03.28 17:19 of learned trial Court/Chief Judicial Magistrate/Duty CRM-M-8339-2023 4 2023:PHHC:045389o Magistrateoconcerned.o

2.8.2021ooooo oo(GURVINDERoSINGHoGILL)o JUDGE" A perusal of the said judgment would show that although, in the said case, recovery was of commercial quantity but it was found that since recovery was effected from a transparent polythene bag, the same made the case of the prosecution doubtful and it was observed therein that as it was highly unlikely that a person who is committing an offence with respect to some contraband, would carry the contraband in a transparent polytheneobagoinvitingotheoattentionoofoeverybodyowhoopassesoby.o A Coordinate Bench in Jaskaran Singh @ Jassu's case (supra), after considering the several judgments on the same issue, had also granted the concession of regular bail to the petitioner in that case. Relevant portionoofotheojudgmentoisoreproducedoasounder:- "2. Relies upon the decision of this Court in Lakhwinder Singh alias Lakha vs. State of Punjab (CRM-M No.8026 of 2020) and of Co-ordinate Benches in Binder Kaur alias Goga vs. State of Punjab (CRM-M No.4584 of 2020) and Mandir Singh vs. State of Punjab (CRM-M No.8035 of 2019) to contend that a person engagedoinotheotradeoofocontrabandowouldoneverobeoexpectedoto carryotheosameoinoanyotransparentobagowhichowouldobeovisibleoto theonakedoeyes.o

¶3Per contra, the bail application is opposed on behalf of the State by contending that the recoveryoofocommercialoquantity of contrabandowasomadeofromotheocaroofotheopetitionerohimself.

¶4Be that as it may, without prejudice to the merits of the submission raised on behalf of the petitioner, but considering that he is admittedly not involved in any other case under the NDPS Act, and also considering that he has remained in detention well above 05 months since 14.12.2019, at this stage, the petitioner may be released on regular bail to the satisfaction of the Ld. Trial Court/Duty Magistrate, concerned subject to impositionoofoappropriateotermsoandoconditions."o Coordinate Bench of this Court in Binder Kaur @ Goga's case CRM-M-8339-2023 5 2023:PHHC:045389o (supra),ohadoheldoasounder:- "2. Learned counsel for the petitioner has vehemently argued that in the present case the petitioner has been falsely implicated. He has further stated that the petitioner is a young lady of 38 years of age, having a family and has good antecedents. He has further stated that there is no past history of the petitioner and she is not involved in any other case till date. He has further contends that even as per the allegations contained in the FIR, the petitioner was carrying 1000 tablets containing Tramadol Hydrochloride salt in her hand, which wasoinoaotransparentopolytheneobag.oLearnedocounselostatesothat theostoryoputoforwardobyotheopoliceoisoexofacieoconcoctedobecause inocaseoanyopersonowishesotoodootheotradingoorotoocarryothe contrabandothenoitowouldoneverobeoputoinoaotransparentobag.oHe hasofurtheropointedooutothatoinotheoFIRoitohasobeenorepeatedly recordedothatobagowasotransparentoinonature. He has further submittedothatotheopetitioneroisoinocustodyosinceo08.11.2019.o xxxo xxx xxx

¶4Learned State counsel has filed the custody certificate of the petitioner by way of affidavit of Rajdeep Singh Brar, Deputy Superintendent, Central Prison, Faridkot. Same is taken on record. Asoperotheocustodyocertificateotheopetitioneroisoinocustody foroaoperiodoofo02omonthsoando27odaysoandothereoisonooother caseoagainstoher. He further submits that after completion of investigation and presentation of challan, the charges have also beenoframedobyotheotrialoCourt.o xxx xxx xxx

¶6At the time of deciding bail application there are various relevant factors, which can be taken into consideration. Prima facie probability of influencing witnesses is one of the element factor and also as to whether the petitioner is particularly involved in any other case is also a relevant factor. It is also relevant in any case for deciding the bail application as to what is the stage of the case. In the present case the investigation is already over and the petitioner is in custody for about three months and this Court while deciding the bail application would not go into the merits of the case. Nothing is apparent to show that petitioner may influence the witnesses. Therefore, without meaning any expression of opinion on the merits of the case, it is ordered that the petitioner be released on regular bail 2023.03.28 17:19 subject to her furnishing requisite bail bonds/surety bonds to CRM-M-8339-2023 6 2023:PHHC:045389o theosatisfactionoofotheotrialoCourt." A perusal of the above judgment would show that in fact, bail was granted on the said point in a case where the accused was in custody only for a period of three months. Similarly, in Lakhwinder Singh @ Lakha'socaseo(supra),oCoordinateoBenchoofothisoCourtohadoheldohasounder:- "2. Ld. Counsel for the Petitioner relies on a decision of a Co-ordinate Bench of this Court in 'CRM-M No.4584 of 2020-Binder Kaur alias Goga vs. State of Punjab', toocontendothatoit isounbelievableothatoaopersonoengagedoinotheobusinessoofoDrug Smuggling,owillocarryotheocontrabandoinoaotransparentoBag. The applicant, in the aforesaid case, in the given circumstances, considering that she was not involved in any other case under the NDPS Act and challan against her had already been submitted, was therefore released on bail by the Bench after she hadoremainedoinodetentionoforo02omonthsoando27odays.o

¶3TheodetentionoundergoneobyotheopresentoPetitioneroisomuch moreobeingo08omonths, and he is also not stated to be involved inoanyootherocaseounderotheoNDPSoAct.o

¶4Challan against the Petitioner has already been submitted andotheotrialoisostillopending.o

¶5As such, considering the long detention already undergone by the present Petitioner and without commenting on other merits of the case, he is ordered to be released on bail to the satisfactionoofotheoLd.oTrialoCourtoconcerned.o

6.oDisposedooff." With respect to the bar under Section 37 of the Act of 1985, it would be relevant to refer to various judgments passed by the Hon'ble Supreme Court as well as by this High Court granting bail/suspension of sentence in cases involving commercial quantity. In 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 Courtowhereotheosaidoapplicationoforograntooforegularobailohadobeenorejected.o CRM-M-8339-2023 7 2023:PHHC:045389o A co-ordinate Bench of this Court in a detailed judgment titled as "Ankush Kumar @ Sonu v. State of Punjab" reported as 2018 (4) RCR (Criminal) 84, had considered the provision of Section 37 of the Act of 1985 in extenso and had granted bail in a case which involved commercial quantity.oTheorelevantoportionoofotheosaidojudgmentoisoreproducedoasounder:o "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 regardoisoneutraloquaofutureopossibleoconductoofotheopetitioner."o 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 Further, 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".o The Hon'ble Supreme Court of India vide order dated I attest to the accuracy1 a2nd.10.2020 passed in Criminal Appeal No.668 of 2020 titled as "Amit CRM-M-8339-2023 8 2023:PHHC:045389o 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.o In 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.o A Co-ordinate Bench of this Court in CRM-M 10343-2021 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 Act of 1985, was pleased to grant regular bail in a case involving commercial quantity and a condition was imposed on the petitioner therein while granting the said bail and the said condition wasoincorporatedoinoparao21oofotheosaidojudgment,owhichoreadsoasounder:o "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." Further, 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 vs. 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 DAVINDER KUMAR judgment of Hon'ble the Supreme Court in State (NCT of Delhi) v. Lokesh CRM-M-8339-2023 9 2023:PHHC:045389o Chadha reported as (2021) 5 SCC 724 was also taken into account and the provisions of Section 37 of the Act of 1985 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 whichoisoafteroconviction.o In the present case, the petitioner has been in custody for a period of more than 1 year 2 months and 3 days and is stated to be not involved in any other case and out of 17 witnesses, none have been examined and thus, the trial is likely to take time. Although, the recovery effected in the present case is of commercial quantity, but there are arguable points in favour of the petitioner, inasmuch as, as per the prosecution's case, the petitioner was stated to have been carrying a "transparent polythene bag/ while riding a motor cycle along with the other co-accused. In the judgments reproduced hereinabove, Co-ordinate Benches of this Court had found the said point to be a debatable issue and observed that it was highly unlikely for a person who intends to commit an offence with respect to some contraband, to carry the same in a transparent polythene bag, making it visible to everybody who passes by. The said issue raises arguable points in favour of the petitioner which would be finally determined during the course of trial. Moreover, this Court proposes to impose such conditions DAVINDER KUMAR thatowouldomeetotheoobjectoofoSectiono37oofotheoNDPSoAct. CRM-M-8339-2023 10 2023:PHHC:045389o Accordingly the present 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 trial Court/Duty Magistrate, subject to him not being required in any other case. The petitioner shall also abide by the following conditions:-o

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

¶2The petitioner will not pressurize/intimidate the prosecution witness(s).

¶3The petitioner will appear before the trial Court on the date fixed,ounlessopersonalopresenceoisoexempted.o

¶4The petitioner shall not commit an offence similar to the offence of which he is accused, or for commission of which he isosuspected.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/her from disclosing such facts to the Court or to any police officer or tamper with theoevidence.o However, it is made clear that in case, any act is done by the petitioner to threaten the complainant or any of the witnesses, then it would be open to the State to move an application for cancellation of bail granted tootheopetitioner.o Nothing stated above shall be construed as an 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 ofoadjudicatingotheopresentobailoapplication. oooooooooooo(VIKASoBAHL) ooooooooJUDGE Marcho27,o2023 DavinderoKumar Whetherospeakingo/oreasoned Yes/No 2023.03.28 17:19 Whetheroreportable Yes/No