Manpreet Singh Alias Mapi v. State Of Punjab
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH CRM-M-20610-2023 Date of Decision: 01.09.2023 Manpreet Singh @ Mapi ...PeƟƟoner
Versus
State of Punjab
...Respondent
CORAM:
HON'BLE MR. JUSTICE ANOOP CHITKARA
Present:
Mr. Vikasdeep Singh, Advocate for the peƟƟoner. Mr. Shiva Khurmi, AAG, Punjab.
**** ANOOP CHITKARA, J.
FIR No.
Dated Police StaƟon SecƟons 22.08.2021 Sultanpur Lodhi, District Kapurthala 21 (c) of NDPS Act, 25 Arms Act and SecƟon 411 IPC added later on 1.
The peƟƟoner incarcerated for violaƟng the above-menƟoned provisions of NarcoƟcs Drugs and Psychotropic Substances Act, 1985 (NDPS Act) per the FIR capƟoned above, on the allegaƟons of dealing in 255 grams of heroin, has come up before this Court under SecƟon 439 CrPC seeking bail. 2.
In paragraph 18 of the bail applicaƟon, the accused declares the following criminal antecedents:
Sr. No.
FIR No.
Dated Offences Police StaƟon 1.
27.07.2020 324, 307, 506, 148, 149 IPC Sultanpur Lodhi, Kapurthala 2.
29.01.2020 61 of Excise Act Talwandi Chaudhrian, Kapurthala 3.
01.07.2015 379-B, 323, 506, 34 IPC Sultanpur Lodhi, Kapurthala 4.
29.06.2016 379-B, 323, 506, 34 IPC Talwandi Chaudhrian, Kapurthala 5.
29.01.2016 457, 380, 427 IPC Talwandi Chaudhrian, Kapurthala 6.
10.06.2017 399, 402 IPC and 25 of Arms Act Talwandi Chaudhrian, Kapurthala 7.
30.03.2017 379-B, 482, 411 IPC Sultanpur Lodhi, Kapurthala 8.
06.09.2018 22 of NDPS Act Talwandi Chaudhrian, Kapurthala 9.
10.06.2016 457, 380 IPC Talwandi Chaudhrian, Kapurthala 10.
21.05.2016 457, 380 IPC Sultanpur Lodhi, Kapurthala 11.
11.05.2017 323, 324, 341, 336, 148, 149 IPC and 25, 27, 59-A of Arms Act Talwandi Chaudhrian, Kapurthala
12.
24.05.2019 61 of Excise Act Sultanpur Lodhi, Kapurthala 13.
01.06.2020 188 IPC Lohian 14.
23.08.2022 52-A Prisons Act Kotwali Kapurthala 15.
26.09.2022 52-A Prisons Act Kotwali Kapurthala 3.
The peƟƟoner contends that the pre-trial incarceraƟon would cause an irreversible injusƟce to the peƟƟoner and family. 4.
While opposing bail, the contenƟon on behalf of the State is that the quanƟty of contraband involved in the case falls into the commercial category, and given the criminal past, the accused is likely to indulge in crime once released on bail. REASONING:
5.
In Paramjeet Singh v. State of Punjab, 2022:PHHC:003983 [Para 8], CRM-M 50243 of 2021, this court observed, While considering each bail peƟƟon of the accused with a criminal history, it throws an onerous responsibility upon the Courts to act judiciously with reasonableness because arbitrariness is the anƟthesis of law. The criminal history must be of cases where the accused was convicted, including the suspended sentences and all pending First InformaƟon Reports, wherein the bail peƟƟoner stands arraigned as an accused. In reckoning the number of cases as criminal history, the prosecuƟons resulƟng in acquiƩal or discharge, or when Courts quashed the FIR; the prosecuƟon stands withdrawn, or prosecuƟon filed a closure report; cannot be included. Although crime is to be despised and not the criminal, yet for a recidivist, the contours of a playing field are marshy, and graver the criminal history, slushier the puddles.
6.
A perusal of the peƟƟon does not refer to any averment based on which this court is assured that if this recidivist is released on bail, then he shall not indulge in criminal behavior. Apart from this, the allegaƟons 7.
On 22.08.2021, the police party was patrolling in Kapurthala. At that Ɵme, they noƟced a male, who came on a motor bike and when the said bike driver saw the police, then he threw one polythene bag from the right side of his trouser and also tried to flee. However, in the said process his bike slipped and fell on the road. This read suspicion in the mind of the police team and ASI got suspicious that this person was carrying a head thrown some contraband. AŌer this, ASI gave an opƟon to the peƟƟoner to get his search conducted before a GazeƩed Officer or a Judicial Magistrate which was his legal right. However, the peƟƟoner expressed his full faith in the ASI and subsequently the police party conducted his search and found one country made pistol and two live cartridges. When the police party picked up the polythene bag which was thrown by
peƟƟoner-Manpreet Singh then the police recovered heroin from it which weighed 255 grams. Thush, prima facie the allegaƟons point towards the recovery of not only of commercial quanƟty of heroin but also of a country made pistol from peƟƟoner's body and also the heroin which prima facie is connected to the peƟƟoner. In addiƟon to that the trial has already started and as per the State, out of 12 witnesses 01 witness has been examined. State assures that they will not delay the trial at their end. 8.
The weight of alleged heroin is 255 grams and the quanƟty greater than 250 grams would fall in commercial quanƟty in the following terms: Substance Name Heroin/ ChiƩa/ Smack QuanƟty detained 255 Gram QuanƟty type Commercial Drug QuanƟty in % to upper limit of Intermediate 102.00% Specified as small & Commercial in S.2(viia) & 2(xxiiia) NDPS Act, 1985 NoƟficaƟon No S.O.1055(E) dated 10/19/2001 Sr. No.
Common Name (Name of NarcoƟc Drug and Psychotropic Substance (InternaƟonal non-proprietary name (INN) Heroin Other non-proprietary name ****** Chemical Name Diacetylmorphine Small QuanƟty 5 Gram Commercial QuanƟty 250 Gram Declared as punishable under NDPS Act and as per schedule defined in S.2(xi) & 2(xxiii) NDPS Act, 1985 NoƟficaƟon 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 NarcoƟc Drug and Psychotropic Substance (InternaƟonal 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; ExplanaƟon.-- For the purposes of clauses (v) (vi), (xv) and (xvi) the percentages in the case of liquid preparaƟons shall be calculated on the basis that a preparaƟon containing one per cent. of a substance means a preparaƟon in
which one gram of substance, if solid, or one mililitre of substance, if liquid, is contained in every one hundred mililitre of the preparaƟon and so on in proporƟon for any greater or less percentage: Provided that the Central Government may, having regard to the developments in the field of methods of calculaƟng percentages in liquid preparaƟons prescribed, by rules, any other basis which it may deem appropriate for such calculaƟon.
9.
Thus, the quanƟty allegedly involved in this case is commercial. Given this, the rigours of S. 37 of the NDPS Act apply in the present case. The burden is on the peƟƟoner to saƟsfy the twin condiƟons put in place by the Legislature under SecƟon 37 of the NDPS Act.
10.
The peƟƟon states that the accused is enƟtled to bail because of the nonexaminaƟon of independent witnesses. However, this plea would gather force only when the accused establishes aŌer cross-examinaƟon that the police deliberately did not associate any independent witness even when they could have been made available, and in the facts and circumstances peculiar to this case, the argument does not saƟsfy the requirements of secƟon 37 of NDPS Act. In State of Punjab v Baldev Singh, (1999) 6 SCC 172, ConsƟtuƟonal bench of Hon'ble Supreme Court holds, [14]. The provisions of SecƟons 100 and 165 Cr.P.C. are not inconsistent with the provisions of the NDPS Act and are applicable for effecƟng search, seizure or arrest under the NDPS Act also.
However, when an empowered officer carrying on the invesƟgaƟon including search, seizure or arrest under the provisions of the Code of Criminal Procedure comes across a person being in possession of the narcoƟc drugs or the psychotropic substance, then he must follow from that stage onwards the provisions of the NDPS Act and conƟnue the invesƟgaƟon as provided thereunder. If the invesƟgaƟng officer is not an empowered officer then it is expected of him that he must inform the empowered officer under the NDPS Act, who should thereaŌer proceed from the stage in accordance with the provisions of the NDPS Act. In Balbir Singh's case aŌer referring to a number of judgments, the Bench opined that failure to comply with the provisions of Cr.P.C.
in respect of search and seizure and parƟcularly those of SecƟons 100, 102, 103 and 165 per se does not viƟate the prosecuƟon case. If there is such a violaƟon, what the courts have to see is whether any prejudice was caused to the accused. While appreciaƟng the evidence and other relevant factors, the courts should bear in mind that there was such a violaƟon and evaluate the evidence on record keeping that in view.
11.
The peƟƟon states that the quanƟty of substance allegedly recovered is marginally above the commercial quanƟty. This submission is more compassionate than legal. Once the quanƟty is greater than commercial, it is immaterial for the purpose of bail. Once it is in statute, Judges have no laƟtude. Given the legislaƟve mandate under secƟon 37 of the NDPS Act, an accused is not enƟtled to bail if the quanƟty is marginally above the commercial quanƟty.
12.
The stand that the accused is in custody for sufficient Ɵme is also not legal grounds to overcome the rigors of S. 37 of the NDPS Act at this stage. 13.
The grounds taken in the bail peƟƟon do not shiŌ the burden placed by the legislature on the accused under S. 37 of the NDPS Act. The peƟƟoner has not stated anything to discharge the burden put by the stringent condiƟons placed in the statute by the legislature under secƟon 37 of the NDPS Act. Thus, the peƟƟoner has failed to make a case for bail at this stage.
14.
A perusal of the bail peƟƟon and the documents aƩached, primafacie points towards the peƟƟoner's involvement and does not make out a case for bail. Any further discussions are likely to prejudice the peƟƟoner; this court refrains from doing so.
15. Any observaƟon made hereinabove is neither an expression of opinion on the merits of the case nor shall the trial Court advert to these comments. The peƟƟon is dismissed. All pending applicaƟons, if any, stand closed. However, considering the peƟƟoner's right to speedy trial coupled with the pre-trial incarceraƟon, this court requests the concerned trial court to make all endeavours to conclude the trial by Dec 31, 2023, of which the prosecuƟon evidence be completed by Oct 31, 2023, and latest by Nov 30, 2023, and the remaining Ɵme to provide an opportunity to the accused to lead defence evidence, if so desired, and to conclude its hearing. To meet the deadline, an endeavour be made to speed up the process for service and to pass the necessary direcƟons in this regard.
It is clarified that if expediƟng this trial disturbs the docket of the concerned court, then a balance be struck, and if, on this account, any delay happens, then an extension can be sought by menƟoning such reasons. It is clarified that this order speeding up the trial is subject to the condiƟon that neither the peƟƟoner shall seek any adjournment nor try to use any tacƟcs to delay the trial. If they do so, this order of expediƟng the trial shall stand automaƟcally recalled by resorƟng to SecƟon 362, read with SecƟon 482 Code of Criminal Procedure, 1973, without any further reference to this court.
law. It is clarified that if the trial is not concluded by the date menƟoned above, and if the delay is not aƩributable to the peƟƟoner, then the peƟƟoner may file an applicaƟon for bail before the trial court, which shall decide it expediƟously and consider the bail on the grounds of pre-trial custody, and all the previous orders of dismissal passed by the trial court or High Court shall not come in the way. (ANOOP CHITKARA) JUDGE 01.09.2023 JyoƟ-II Whether speaking/reasoned:
Yes Whether reportable:
No.