Charanjeet Singh Alias Channi Alias Charan Singh v. State of Punjab

ANOOP CHITKARA, J. FIR No. Dated Police Sta1on Sec1ons 56 22.06.2024 Sadar Jalalabad, 21(c), 23 of NDPS Act and Sectons 10, District Fazilka 11 & 12 of Aircra7 Act, 1934

¶1The pettoner apprehending arrest in the FIR captoned above has come up before this Court under Secton 438 CrPC, seeking antcipatory bail.

¶2In paragraph 13 of the bail applicaton and para 6 of the status report, the accused has the following criminal antecedents: Sr. No. FIR No. Dated Offenses Police Sta1on

¶157 23.09.2024 21 (c)/61/85 of NDPS Act Sadar Fazilka

¶3The facts and allegatons are taken from para 4 of the status report filed by the State. "4. That precisely the facts of the case are as under:- a) That the present FIR was registered as per leter of AC Coy Commander 'B' Coy 52 BN BSF BOP Jodha Bhaini wherein it was stated that on

22.06.2024 during search opera-on carried out by the B.S.F. officials in the area of BOP Jodha Wala, recovery of a drone and 01 packet containing heroin weighing 520 grams heroin was effected. Said recovered drone and contraband was handed over to police authori-es of PS Sadar, Jalalabad. In the said leter, names of four persons were men-oned as suspected persons involved in the drone ac-vity. Copy of said leter of BSF is appended order/judgment. 1 herewith as Annexure R-1 for the kind considera-on of this Hon'ble Court. b) As per leter supra, FIR no.56 dated 22.06.2024 was registered under sec-on 21(c), 23 of NDPS Act and sec-ons 10, 11, 12 of Aircra; Act at police sta-on, Sadar, Jalalabad against the present pe--oner Charanjeet Singh @ Channi, Gurmail Singh son of Bhagwan Singh, Kulwinder Singh son of Sona Singh residents of Hazara Ram Singh Wala and Baldev Singh son of Balbir Singh resident of village Jodha Bhaini. c) That a;er registra-on of said FIR, recovered contraband and drone were taken into police custody as per law."

¶4The pettoner's counsel prays for bail by imposing any stringent conditons and contends that further pre-trial incarceraton would cause an irreversible injustce to the pettoner and his family.

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

¶6It would be appropriate to refer to the following portons of the status report, which read as follows: "ROLE OF PETITIONER:

¶5That as per inves-ga-on carried out so far, role of the pe--oner has been established to the effect the pe--oner and his accomplice are ac-vely indulged in cross border trafficking of contraband. Therefore, the pe--oner cannot shirk his criminal liability."

¶7The substance tested positve for Diacetylmorphine by the laboratory. Dealing in 520 grams of heroin is a punishable offence under the NDPS Act in the following terms: Substance Name Heroin/ ChiEa/ Smack/ Brown Sugar Quantty detained 520 Gram Quantty type Commercial Drug Quan-ty in % to upper limit

208.00% of Intermediate Specified as small & Commercial in S.2(viia) & 2(xxiiia) NDPS Act, 1985 Notficaton No S.O.1055(E) dated 10/19/2001 Sr. No. 56 Common Name (Name of Narcotc Drug and Psychotropic Substance Heroin (Internatonal non-proprietary name (INN) Other non-proprietary name ****** order/judgment. 2 Small Quantty 5 Gram Commercial Quantty 250 Gram Declared as punishable under NDPS Act and as per schedule defined in S.2(xi) & 2(xxiii) NDPS Act, 1985 Notficaton 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 Narcotc Drug and Psychotropic Substance ****** (Internatonal non-proprietary name (INN) Other non-proprietary name ****** 2(xvi)(d) diacetylmorphine, that is, the alkaloid also known as dia-morphine or heroin and its salts; Explanaton.-- For the purposes of clauses (v) (vi), (xv) and (xvi) the percentages in the case of liquid preparatons shall be calculated on the basis that a preparaton containing one per cent. of a substance means a preparaton in which one gram of substance, if solid, or one mililitre of substance, if liquid, is Chemical Name contained in every one hundred mililitre of the preparaton and so on in proporton for any greater or less percentage: Provided that the Central Government may, having regard to the developments in the field of methods of calculatng percentages in liquid preparatons prescribed, by rules, any other basis which it may deem appropriate for such calculaton.

¶8The quantty allegedly involved in this case is commercial. Given this, the rigors of S. 37 of the NDPS Act and the pettoner must satsfy the twin conditons put in place by the Legislature under Secton 37 of the NDPS Act.

¶9The relevant porton of the order dated 23-09-2024 passed by a co-ordinate bench of this Court reads as follows: "xxx xxx In the mean-me arrest of present pe--oner is stayed -ll the next date of hearing, subject to joining of inves-ga-on."

¶10Para 4(i) of the status report filed by the DYSP Jalalabad, reads as follows: "i) That despite passing of the order dated 23.09.2024 by this Hon'bleJYOTI order/judgment. 3 Court, the present pe--oner has failed to join the inves-ga-on in the present case."

¶11Despite the quantty being commercial, the pettoner flouted the orders passed by this Court while obtaining interim relief of stay of arrest. The pettoner's conduct in not joining the investgaton was tantamount to not meetng the standards of the first rider of the twin conditons of S. 37 of the NDPS Act, 1985, inserted by the Executve, passed by the Legislature, and upheld in judicial scrutny.

¶12Given the above, the pettoner has, prima facie, failed to satsfy the conditons of secton 37 of the NDPS Act to make a case for bail.

¶13In 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 conditons need to be satsfied before a person accused of possessing a commercial quantty of drugs or psychotropic substance is to be released on bail. The first conditon is to provide an opportunity to the Public Prosecutor, enabling to take a stand on the bail applicaton. The second stpulaton is that the Court must be satsfied 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 conditons is not met, the ban on grantng bail operates. The expression "reasonable grounds" means something more than prima facie grounds. It contemplates substantal probable causes for believing that the accused is not guilty of the alleged offence. Even on fulfilling one of the conditons, the reasonable grounds for believing that the accused is not guilty of such an offence, the Court stll 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 quantty would vary from case to case, depending upon its facts. [30]. From the summary of the law relatng to rigors of S.37 of NDPS Act, while grantng bail involving commercial quanttes, the following fundamental principles emerge:

(a). In case of inconsistency, S. 37 of the NDPS Act prevails over S. 439 CrPC. [Narcotcs Control Bureau v Kishan Lal, 1991

(1) SCC 705, Para 6].

(b). The limitatons on grantng of bail come in only when the queston of grantng bail arises on merits. [Customs, New Delhi v. AhmadalievaNodira, (2004) 3 SCC 549, Para 7].

(c). The provisions of Secton 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 conditons are to be mandatorily satsfied in additon to the standard order/judgment. 4 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 grantng opportunity to the Public Prosecutor, the other twin conditons which really have relevance are the Court's satsfacton 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 satsfacton contemplated regarding the accused being not guilty has to be more than prima facie grounds, considering substantal probable causes for believing and justfying 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 justfy satsfacton 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 conditons of S. 37 are cumulatve and not alternatve. [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 metculously to arrive at a positve finding as to whether or not the accused has commiEed 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. RaEan Mallik @ Habul, (2009) 2 SCC 624, Para 14].

(j). If the statements of the prosecuton witnesses are believed, then they would not result in a convicton. [Babua v. State of Orissa, (2001) 2 SCC 566, Para 3].

(k). Merely recording the submissions of the partes does not amount to an indicaton of a judicial mind or a judicious applicaton of mind. [UOI v. Prateek Shukla, 2021:INSC:165 [Para 11], (2021) 5 SCC 430, Para 12].

(l). Secton 37 departs from the long-established principle of presumpton of innocence in favour of an accused person untl proved otherwise. [Union of India v. Sanjeev v. Deshpande,

(2014) 13 SCC 1, Para 5].

(m). While considering the applicaton for bail concerning Secton 37, the Court is not called upon to record a finding of not guilty. [Union of India v. Shiv Shanker Kesari, (2007) 7 SCC 798, Para 11].

(n). The confessional statement recorded under Secton 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] order/judgment. 5

(o). In the absence of clarity on the quanttatve analysis of the samples from the laboratory, the prosecuton cannot be heard to state at this preliminary stage that the accused possessed a commercial quantty 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 quantty of psychotropic substances, such accused is not enttled to bail given Secton 37 of the Act as contemplated under the NDPS Act. [State by (NCB) Bengaluru v. Pallulabid Ahmad ArimuEa, 2022:INSC:26 [Para 11], 2022 SCC OnLine SC 47, Para 12].

(p). Bail must be subject to stringent conditons. [Sujit Tiwari v. State of Gujarat, 2020:INSC:101 [Para 12], 2020 SCC Online SC 84, Para 12]. [31]. Satsfying the feEers of S. 37 of the NDPS Act is candling the infertle eggs. The stringent conditons of secton 37 placed in the statute by the legislature do not create a bar for bail for specified categories, including the commercial quantty; 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 pettons under general penal statutes like IPC.

¶14A perusal of the bail petton and the documents aEached primafacie points towards the pettoner's involvement and does not make out a case for bail. The impact of crime would also not justfy bail. Any further discussions will likely prejudice the pettoner; this court refrains from doing so.

¶15Any observaton made hereinabove is neither an expression of opinion on the case's merits nor shall the trial Court advert to these comments.

¶16Pe11on dismissed. Interim orders, if any, are recalled with immediate effect. All pending applicatons, if any, are disposed of. (ANOOP CHITKARA) JUDGE

30.01.2025 Jyot-II Whether reportable: YES. order/judgment. 6

IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Reserved on: 10.01.2025 Pronounced on: 30.01.2025 Charanjeet Singh @ Channi @ Charan Singh ...Pettoner Versus State of Punjab …Respondent CORAM: HON'BLE MR. JUSTICE ANOOP CHITKARA Present: Mr. Kuldip Singh, Advocate, for the pettoner. Mr. Akshay Kumar, AAG, Punjab. ****