Rajwinder Singh Alias Raju v. State Of Punjab

-1IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

Reserved on: 07.05.2025

Pronounced on:19.05.2025 RAJWINDER SINGH ALIAS RAJU ...PETITIONER

VERSUS

STATE OF PUNJAB ...RESPONDENT

CORAM:

HON'BLE MR. JUSTICE ANOOP CHITKARA

Present:

Mr. P.S. Sekhon, Advocate for the petitioner.

Mr. Sukhwinder Singh Rai, DAG, Punjab.

**** ANOOP CHITKARA, J.

FIR No.

Dated Police Station Sections 15.04.2021 Bhadaur, District 22/25 and 29 of NDPS Act, Barnala 1.

The petitioner incarcerated in the FIR captioned above had come up before this Court under Section 439 Cr.P.C., seeking regular bail. 2.

Per paragraph 15 of the bail application, petitioner has clean antecedents. However, per para 10 of the reply, the petitioner has the following criminal antecedents: Sr. No.

FIR No.

Date Offenses Police Station 1.

17.04.2018 3/4/5 of Immoral City Rampura Traffic Act, 3.

The facts and allegations are taken from the reply filed by the State. On 15.04.2021, based on secret information, the Police seized intoxicant tablets, labeled Celcidal-100 SR (Tramadol Hydrochloride SR Tablets LP) 2000 Nos, from the co-accused Paramjit Singh alias Pamma and loose intoxicant tablets, 1170 No. from co-accused Gurmail Singh alias Golu. The Investigator claims to have complied with all the statutory requirements of the NDPS Act, 1985, and CrPC, 1973. During the custodial interrogation of the accused, they disclosed that the petitioner used to supply intoxicant tablets to them and they further retailed; based on the disclosure statement, the police arraigned the petitioner as an accused by incorporating S. 29 of the NDPS Act.

-24.

Counsel for the petitioner submits that the petitioner has been falsely implicated in the present case and no recovery has been effected from the conscious possession of the petitioner. He was not named in the FIR and has been arrayed as an accused in the present case on the basis of disclosure statement. On instructions he further submits that he has no objection if while granting bail, this Court imposes stringent conditions and undertakes that petitioner shall not indulge himself in the offence involving the commercial or intermediate quantity or the offence which falls under Section 19/24/27A of NDPS Act. He further submits that if the petitioner involves himself in the said offences, where the sentence imposed is more than 07 years, he has no objection if the State files application for cancellation of his bail. He further contends that further pre-trial incarceration would cause an irreversible injustice to the petitioner and his family. 5.

The State's counsel opposes bail and refers to the reply. 6.

It would be appropriate to refer to the evidence collected against the petition, which is taken from the reply, which reads as follows: "xxx xxx xxx xxx 6.

Evidence based on which petitioner was arraigned as an accused: That during investigation of the present case, it was established that present petitioner Rajwinder Singh @ Raju used to supply intoxicant tablets to co accused Paramjit Singh alias Pamma, Gurmail Singh alias Golu. That present petitioner used to set up the supply of intoxicants at disclosed place via his mobile number 78142-27388 and handed over boxes of intoxicant tablets to the co accused, which they further retailed. That the present petitioner was nominated as an accused in the present case and the offence under Section 29 of the NDPS Act, 1985 was added to the FIR, vide GD No.16 dated 17.04.2021.

7.

Evidence against the petitioner:

That the recovered intoxicant tablets from co accused Paramjit Singh alias Pamma, Gurmail Singh alias Golu was converted into representative samples as per the procedure and was sent to FSL laboratory for testing. That the FSL report stand received and as per report bearing number 704/2021/ Toxi/ RTFSL/ Bti/ Pb dated 04.06.2021, 'Tramadol hydrochloride' was found present in the contents recovered tablets of the present case. That the consignment of the recovered intoxicant tablets in the present case was supplied to co accused by the present petitioner. That the present petitioner is an important and main link in the supply chain of intoxicating drugs Thus, the present petitioner committed a serious offence of supplying/selling highly addictive and intoxicating drugs to common people. A copy of the FSL Report is attached herewith as ANNEXURE-R-1.

8.

Role of the petitioner:

That the present petitioner emerged out to be a crucial connection in supply of intoxicating drugs. That during investigation of the case the co accused acknowledged statement pertaining to receiving supply of boxes of intoxicant tablets at a disclosed place from the present petitioner.That intoxicant tablets with a brand name of Celcidal-100 SR (Tramadol Hydrochloride SR Tablets LP), 2000 Nos., and the loose intoxicant tablets, 1170 No. in contravention of the provisions of the NDPS Act, 1985 and the rule or order made or condition of license granted there under were recovered from the conscious possessing co accused. That a total of 31170 of intoxicating tablets were supplied by the present petitioner to the co accused for further sale. Thus, the present

-3petitioner played an important role in maintaining supply chain of intoxicating tablets."

REASONING:

7.

The quantity allegedly involved in this case is commercial. Given this, the rigors of S. 37 of the NDPS Act apply in the present case. The petitioner must satisfy the twin conditions put in place by the Legislature under Section 37 of the NDPS Act. 8.

In Abida v. State of Haryana, 2022:PHHC:058722, [Para 10], CRM-M-50772022, decided on 13-05-2022, this court observed as follows: [10].

Thus, both the twin conditions need to be satisfied before a person accused of possessing a commercial quantity of drugs or psychotropic substance is to be released on bail. The first condition is to provide an opportunity to the Public Prosecutor, enabling to take a stand on the bail application. The second stipulation is that the Court must be satisfied 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 conditions is not met, the ban on granting bail operates. The expression "reasonable grounds" means something more than prima facie grounds. It contemplates substantial probable causes for believing that the accused is not guilty of the alleged offence.

Even on fulfilling one of the conditions, the reasonable grounds for believing that the accused is not guilty of such an offence, the Court still 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 quantity would vary from case to case, depending upon its facts.

[31].

Satisfying the fetters of S. 37 of the NDPS Act is candling the infertile eggs. The stringent conditions of section 37 placed in the statute by the legislature do not create a bar for bail for specified categories, including the commercial quantity; 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 petitions under general penal statutes like IPC. 9.

Thus, the evidence collected so far consists of disclosure statements and the petitioner's confession without discovering any facts. Such statements can be proven subject to the mandatory restrictions imposed in S. 25 & 26 of the Indian Evidence Act, 1872/ S. 23 of BSA, 2023.

10.

In 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.

-4- (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. 11.

No recovery has been effected from the petitioner and petitioner is not the main accused. Contraband was recovered from the co-accused and there is no ground to deny bail. The 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. Consequently, the petitioner has satisfied the first rider of section 37 of the NDPS Act. Regarding the second rider of S. 37, this court will put very stringent conditions in this order to ensure that the petitioner does not repeat the offense. 12.

For now, the petitioner has prima facie satisfied the first condition of section 37 of the NDPS Act to make a case for bail. Regarding the second rider of S. 37, this court will put very stringent conditions in this order to ensure that the petitioner does not repeat the offense.

13.

As per paragraph 11 of the bail petition, the petitioner has been in custody since 14.08.2024. Per the custody certificate dated 04.05.2025, the petitioner's total custody in this FIR is 08 months and 02 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 for further pre-trial incarceration at this stage.

14.

The evidence collected might be prima facie sufficient to launch prosecution or even to frame the charges; however, it is insufficient to deny bail. 15.

Given the penal provisions invoked, the legal admissibility of evidence collected against the petition, coupled with the prima facie analysis of the nature of allegations, and the other factors peculiar to this case, there would be no justifiability for further pre-trial incarceration at this stage, subject to compliance with the terms and conditions mentioned in this order.

16.

Without commenting on the case's merits, in the facts and circumstances unique and 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 this Court's official webpage.

CONDITIONS:

17.

Given 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. 18.

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

1.

AADHAR number

-52.

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

3.

Mobile number (If available) 4.

E-Mail id (If available) 19.

This order is subject to the petitioner's complying with the following terms. 20.

The 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. 21.

Given the background of allegations against the petitioner, it becomes paramount to protect 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 firearms. [This restriction is being imposed based on the preponderance of the evidence of probability and not of evidence of certainty, i.e., beyond a 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, and ammunition, if any, along with the arms license to the concerned authority within fifteen days of release from prison and inform the Investigator of the compliance. However, subject to the Indian Arms Act, 1959, the petitioner shall be entitled to renew and reclaim them in case of acquittal in this case, provided otherwise permissible under 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 offense. 22.

The conditions mentioned above imposed by this court are to endeavor to reform and ensure the accused does not repeat the offense and also to block the menace of drug abuse. In Mohammed Zubair v. State of NCT of Delhi, 2022:INSC:735 [Para 28], Writ Petition (Criminal) No 279 of 2022, Para 29, decided on July 20, 2022, A Three-Judge bench of Hon'ble Supreme Court holds that "The bail conditions imposed by the Court must not only have a nexus to the purpose that they seek to serve but must also be proportional to the purpose of imposing them. The courts, while imposing bail conditions must balance the liberty of the accused and the necessity of a fair trial. While doing so, conditions that would result in the deprivation of rights and liberties must be eschewed." 23.

In Md. Tajiur Rahaman v. The State of West Bengal, decided on 08-Nov-2024, SLP (Crl) 12225-2024, Hon'ble Supreme Court holds in Para 7, "It goes without saying that if the petitioner is found involved in such like offence in future, the concession of bail granted to him today will liable to be withdrawn and the petitioner is bound to face the necessary consequences."

24.

This bail is conditional, and the foundational condition is that if the petitioner indulges in any non-bailable offense, the State may file an application for cancellation of

-6this bail before the Trial Court, which shall be at liberty to cancel this bail. 25.

Any observation made hereinabove is neither an expression of opinion on the case's merits nor shall the trial Court advert to these comments. 26.

A 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.

27.

Petition allowed in terms mentioned above. All pending applications, if any, stand disposed of.

(ANOOP CHITKARA) JUDGE 19.05.2025 renubala Whether speaking/reasoned:

Yes Whether reportable:

No.