Jarnail Singh @ Kaka v. State of Punjab

CRM-M-60150-2022 1 INoTHEooHIGHoCOURToOFoPUNJABo&oHARYANAoATo CHANDIGARH *** ooooo CRM-M-60150-2022 Dateoofodecisiono:ooo05.01.2023 JarnailoSingho@oKaka ...oPetitioner Versus StateoofoPunjab ...oRespondent CORAM:o HON'BLEoMR.JUSTICEoVIKASoBAHL Present:o Ms.ManpreetoGhuman,oAdvocateo forotheopetitioner. Mr.AlankaroNarula,oAAG,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.64 dated 28.06.2022 registered under Sections 20, 29, 61 and 85 of the Narcotic Drugs and Psychotropic SubstancesoActo1985oatoPoliceoStationoBareta,oDistrictoMansa. Learned counsel for the petitioner has submitted that the petitioner has been in custody since 28.06.2022 and the investigation is complete and the challan has already been presented and there are 13 witnesses, out of which, none have been examined and thus, the trial is likely to take time. It is further submitted that there are arguable points in the present case inasmuch as as per the case of the prosecution, the petitioner was stated to be carrying the intoxicant powder in a transparent polythene bag on the oil tank which had fallen down. It is stated that that it is impossible to believe that a person who has to commit an offence with 2023.01.06 17:05 respect to contraband would carry the same in a transparent polythene bag and CRM-M-60150-2022 2 on the said point, learned counsel for the petitioner has referred to various orders passed by the Coordinate Benches of this Court i.e. ordero dated

02.08.2021opassedoinoCRM-M-4408-2021otitledoBantioKauro@oBhantioKaur Vs.oStateoofoPunjab,oBinderoKauro@oGogaoVs.oStateoofoPunjab reported as 2021(3)oRCRo(Criminal)o360,oJaskaranoSingho@oJassuoVs.oStateoofoPunjab, reported as 2021(2)oRCRo(Criminal)o837,oorderodatedo28.02.2020opassedoin CRM-M-8026-o 2020o titledo aso Lakhwindero Singho @o Lakhao Vs.o Stateo of Punjab. It is further contended that the said version with respect to there being a transparent polythene bag, is crafted by the prosecution in order to evade the mandatory provisions of Section 50 of the NDPS Act with respect to personal search. It is further stated that the petitioner cannot be stated to be in a conscious possession of the intoxicant powder as the transparent polythene bag, in which it was allegedly contained, had fallen down on the ground. Learned counsel for the petitioner has submitted that the petitioner had earlier filed a regular bail application in which the application for preponing of the date of hearing was filed and inadvertently instead of withdrawing the said application, the counsel had withdrawn the main case vide order dated

22.11.2022. It is further submitted that even after passing of the order dated

22.11.2022,onoowitnessohasobeenoexaminedoandotheotrialohasonotomadeomadeoany progress.oo Learned State counsel, on the other hand, has opposed the present petition for grant of regular bail to the petitioner and has submitted that even in case, the recovery was effected from a transparent plastic polythene bag, the same cannot be construed to mean that the petitioner was not in conscious possession of the intoxicant powder. It is pointed out that the petitioner is involved in one more case. The other facts as stated by learned counsel for the DAVINDER KUMAR petitioner,ohowever,ohaveonotobeenodisputedobyolearnedoStateocounsel.o CRM-M-60150-2022 3 Learned counsel for the petitioner, in rebuttal, has submitted that the petitioner is on bail in the said case and has relied upon the judgment of Hon'ble Supreme Court in "Maulana Mohd. Amir Rashadi vs. State of U.P. and another", reported as 2012 (2) SCC 382 to contend that the facts and circumstances of the present case are to be seen while deciding a bail application and the bail application of the petitioner cannot be rejected solely on the ground that the petitioner is involved in other cases. Theorelevantoportionoofotheosaidojudgmentoisoreproducedohereinbelow:- "As observed by the High Court, merely on the basis of criminal antecedents, the claim of the second respondent cannot be rejected. In other words, it is the duty of the Court to find out the role of the accused in the case in which he has been charged and other circumstances such as possibility of fleeing away from theojurisdictionoofotheoCourtoetc."o This Court has heard learned counsel for the parties and has perusedotheopaperobook. The Coordinate Bench of this Court in Banti Kaur @ Bhanti Kaur'socaseo(Supra)ohasoheldoasounder:-o "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 to contain 1000otabletsoofo'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 2023.01.06 17:05 would carry the same in a transparent bag so as to invite CRM-M-60150-2022 4 attention,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 410 grams of 'Tramadol' which would fall within the category of 'commercial quantity'. 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 months and 17odays.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 transparent polythene bag. It is certainly highly unlikely that a person who is committing an offence in respect of any contraband would do it in such a manner that his/her detection is inevitable. Carrying contraband in a transparent polythene bag making it clearly visible to others would surely invite attention of everybody who passes by. 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 since the last about 9 months. 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 of learned trial Court/Chief Judicial Magistrate/Duty Magistrate concerned.

2.8.2021o Sd/-o(GURVINDERoSINGHoGILL)o JUDGE"o 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 2023.01.06 17:05 case of the prosecution doubtful and it was observed therein that as it was CRM-M-60150-2022 5 highly unlikely that a person who is committing an offence with respect to the contraband,owouldocarryotheocontrabandoinoaotransparentopolytheneobag.o The 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:-o "xxxoxxxo

¶2Relies 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 engaged in the trade of contraband would never be expected to carry the same in any transparent bag which would be visible to theonakedoeyes.o

¶3Per contra, the bail application is opposed on behalf of the State by contending that the recovery of commercial quantity of contrabandowasomadeofromotheocaroofotheopetitionerohimself.o

¶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 imposition of appropriateotermsoandoconditions.o Xxxoxxx"o The Coordinate Bench of this Court in Binder Kaur @ Goga's caseo(Supra),ohadoheldoasounder:-o "xxxoxxxo

¶2Learned counsel for the petitioner has vehemently argued that in the present case the petitioner has been falsely implicated. He DAVINDER KUMAR has further stated that the petitioner is a young lady of 38 years CRM-M-60150-2022 6 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 was in a transparent polythene bag. Learned counsel states that the story put forward by the police is ex facie concocted because in case any person wishes to do the trading or to carry the contraband then it would never be put in a transparent bag. He has further pointed out that in the FIR it has been repeatedly recorded that bag was transparent in nature. He has further submitted that the petitioner is in custody since

08.11.2019.o xxxoxxxo

¶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. As per the custody certificate the petitioner is in custody for a period of 02 months and 27 days and there is no other case against her. He further submits that after completion of investigation and presentation of challan, the charges have also beenoframedobyotheotrialoCourt.o Xxxoxxxo

¶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 DAVINDER KUMAR ordered that the petitioner be released on regular bail subject to CRM-M-60150-2022 7 her furnishing requisite bail bonds/surety bonds to the satisfactionoofotheotrialoCourt.o Xxxoxxx"o 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's case (Supra),otheoCoordinateoBenchoofothisoCourtohadoheldohasounder:-o "xxxoxxxo

¶2Ld. 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', to contend that it is unbelievable that a person engaged in the business of Drug Smuggling, will carry the contraband in a transparent Bag. 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 had remainedoinodetentionoforo02omonthsoando27odays.o

¶3The detention undergone by the present Petitioner is much more being 08 months, and he is also not stated to be involved in anyootherocaseounderotheoNDPSoAct.o

¶4Challan against the Petitioner has already been submitted and theotrialoisostillopending.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 satisfaction of theoLd.oTrialoCourtoconcerned.o

6.oDisposedooff." In the present case, a perusal of FIR itself would show that as per the case of the prosecution, the petitioner alongwith co-accused was carrying intoxicant pills in a transparent plastic envelope and thus, the ratio of law as laidodownoinotheoabovesaidojudgmentsowouldoapplyoinotheopresentocase. 2023.01.06 17:05 With respect to the bar under Section 37 of the Act of 1985, it CRM-M-60150-2022 8 wouldobeorelevantotooreferotoovariousojudgmentsopassedobyotheoHon'bleoSupreme Court as well as by this High Court. In CriminaloAppealoNo.965oofo2021otitled asoDheerenoKumaroJainaov.oUnionoofoIndia, 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 Court where the said applicationoforograntooforegularobailohadobeenorejected.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 upheldobyotheoHon'bleoSupremeoCourtovideoorderodatedo24.08.2021oinoaoPetition for Special Leave to Appeal (Crl.) No.5852/2021 titled as "NarcoticoControl Bureauov.oVipanoSoodoandoanother".o The Hon'ble Supreme Court of India vide order dated 12.10.2020 passed in Criminal Appeal No.668 of 2020 titled as "AmitoSingho@oMoniov. HimachaloPradesh" 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,otheofactothatotheotrialowouldolikelyotakeotimeotooconclude.o In Criminal Appeal No.827 of 2021 titled as MukarramoHussain v.oStateoofoRajasthanoandoanother, the Hon'ble Apex Court vide judgment dated 16.8.2021 was also pleased to grant bail wherein the quantity of the contrabandowasocommercialoinonature.o A Co-ordinate Bench of this Court in CRM-M 10343-2021 titled as AjayoKumaro@Nannuov.oStateoofoPunjab and other connected matters, vide Order dated 31.03.2021, after taking into consideration the stipulations of DAVINDER KUMAR Section 37 of the Act of 1985, was pleased to grant regular bail in a case CRM-M-60150-2022 9 involving commercial quantity and a condition was imposed on the petitioner therein while granting the said bail and the said condition was incorporated in parao21oofotheosaidojudgment,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."o 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, Harpalo Singho v.o Nationalo Investigatingo Agencyo ando 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 judgment of Hon'ble the Supreme Court in Stateo(NCToofoDelhi)ov.oLokeshoChadha;

(2021)o5oSCCo724 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 DaleroSinghov.oStateoofoPunjab;o2007o(1) R.C.R.o(Criminal)o316oand 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 sentenceowhichoisoafteroconviction.oo In the present case, the petitioner has been in custody since CRM-M-60150-2022 10

28.06.2022 and the investigation is complete and the challan has already been presented and there are 13 witnesses, out of which, none have been examined and thus, the trial is likely to take time and the petitioner is stated to have beeen carrying the intoxicant powder in a transparent polythene bag and thus, keeping in view the judgments referred to hereinabove, the said aspect would raise a strong arguable point in favour of the petitioner which would be finally adjudicated during the course of the trial. Further, this Court proposes to impose such conditions that would meet the object of Sectiono37oofotheoActoofo1985.o Accordingly, the present petition is allowed and the petitioner is ordered to be released on regular bail on his furnishing bail/surety bonds to the satisfaction of the trial Court/Duty Magistrate, subject to his not being required inoanyootherocase.oTheopetitioneroshalloalsooabideobyotheofollowingoconditions:-o

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

2.o The petitioner will not pressurize/intimidate the prosecutionowitness(s).o

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

4.o The petitioner shall not commit an offence similar to the offence of which he is accused, or for commission of which heoisosuspected.o

5.o The 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 CRM-M-60150-2022 11 Nothing stated above shall be construed as a final 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 ofoadjudicatingotheopresentobailopetition. oooooooooooo(VIKASoBAHL) ooooooooJUDGE Januaryo05,o2023 DavinderoKumar Whetherospeakingo/oreasoned Yes/No Whetheroreportable Yes/No