Harvinder Singh v. State Of Haryana

IN THE HIGH COURT OF PUNJAB AND HARYANA

AT CHANDIGARH

Reserved on: 07.07.2025

Pronounced on: 31.07.2025 Harvinder Singh

...Petitioner

Versus

State of Haryana

...Respondent

CORAM:

HON'BLE MR. JUSTICE ANOOP CHITKARA

Present:

Mr. Jagvinder Singh Santwal, Advocate for the petitioner.

Ms. Harpreet Kaur, AAG, Haryana.

**** ANOOP CHITKARA, J.

FIR No.

Dated Police Station Sections 25.01.2025 Rania, District Sirsa 15C/27A/61/85 of NDPS Act 1.

The petitioner incarcerated in the FIR captioned above had come up before this Court under Section 483 of Bharatiya Nagarik Suraksha Sanhita, 2023, [BNSS], seeking regular bail.

2.

In paragraph 18 of the bail petition, petitioner declares that he has no criminal antecedents.

3.

The facts and allegations are taken from the reply filed by the State. On 25.01.2025 based on chance recovery, the Police seized 56 kg 550 grams of poppy husk from the possession accused-Jaila Singh. The Investigator claims to have complied with all the statutory requirements of the NDPS Act, 1985, and BNSS 2023. 4.

The petitioner's counsel prays for bail by imposing any stringent conditions and contends that further pre-trial incarceration would cause an irreversible injustice to the petitioner and their family.

5.

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

It would be appropriate to refer to the following portions of the reply filed by the State, which read as follows:

"That during investigation, 5 days police remand of petitioner-accused Harvinder Singh was obtained from the Ld. Illaqa Magistrate and during police remand, on 26.01.2025, petitioner-accused Harvinder Singh again

suffered disclosure statement (Annexure R-3) and disclosed to the effect that "earlier on 25.01.2025, I had recorded false disclosure statement about purchase of 80 kg of poppy husk from Nizam resident Kota Rajasthan to protect my friend Rajender Singh (co-accused) son of Hardeep Singh resident Sant Nagar, currently resident of village Mirzapur, police station Ellenabad and my brother-in-law Davinder Singh (coaccused) son of Swarn Singh resident Naivala and mislead the police. Whereas, the truth is that my brother-in-law Davinder Singh (co-accused) having mobile no. 93060-xxxxx & 89305-xxxxx and my friend Rajender Singh (co-accused) having mobile no.

85291xxxxx, both together doing the business of selling narcotic substances and they buy poppy husk in large quantity and supply it in the areas of Ellenabad, Sant Nagar and Rania, from whom I (Petitioner-accused Harvinder Singh) also buy poppy husk at cheap rate and further sell it at higher rate. On 22.01.2025, I contacted Rajender Singh (co-accused) and purchased 80 kg of poppy husk from my village Sant Nagar near the tubewell room built on the roadside at the rate of Rs. 2800 per kg at night. Rajender Singh (co-accused) brought 80 kg of poppy husk in the car Innova bearing Reg. No. HR40G1000 of my brotherin-law Davinder Singh (co-accused). I went to him on my motorcycle bearing Reg. No. HR44H0187 TVS Star Plus and Rajender Singh (coaccused) handed over said Innova car bearing Reg. no.

HR40G1000 loaded with 80 kg of poppy husk to me and I gave my motorcycle to him. I sold said 80 kg of poppy husk on the same night to Jaila Singh (coaccused) at the rate Rs. 3900 per kg. and total Rs. 3,12,000/- and coaccused Jaila Singh gave me Rs. 70000/- in cash and had assured to pay the remaining amount after selling the poppy husk". In pursuance of his disclosure statement, petitioner-accused Harvinder Singh got demarcated the place of occurrence and also got recovered his motorcycle bearing Reg. No. HR44H0187 TVS Star Plus used in the crime of the present case and same was taken into police possession."

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.

The petitioner's counsel argued that the call details cannot be relied upon at the bail stage, and if the said evidence is ignored, then there is only the inadmissible evidence of the disclosure statement.

9.

In State Vs. Pallulabid Ahmad Arimutta and Ors., 2022 INSC 26

[MANU/SC/0053/2022], a three-member bench of Hon'ble Supre Court holds as follows: [10] It has been held in clear terms in Tofan Singh v. State of Tamil Nadu MANU/SC/0797/2020 : (2021) 4 SCC 1, that a confessional statement recorded Under Section 67 of the NDPS Act will remain inadmissible in the trial of an offence under the NDPS Act. In the teeth of the aforesaid decision, the arrests made by the Petitioner- NCB, on the basis of the confession/voluntary statements of the Respondents or the co-Accused Under Section 67 of the NDPS Act, cannot form the basis for overturning the impugned orders releasing them on bail. The CDR details of some of the Accused or the allegations of tampering of evidence on the part of one of the Respondents is an aspect that will be examined at the stage of trial.

For the aforesaid reason, this Court is not inclined to interfere in the orders dated 16th September, 2019, 14th January, 2020, 16th January, 2020, 19th December, 2019 and 20th January, 2020 passed in SLP (Crl.) No@ Diary No. 22702/2020, SLP (Crl.) No. 1454/2021, SLP (Crl.) No. 1465/2021, SLP (Crl.) No. 1773-74/2021 and SLP (Crl.) No. 2080/2021 respectively. The impugned orders are, accordingly, upheld and the Special Leave Petitions filed by the Petitioner-NCB seeking cancellation of bail granted to the respective Respondents, are dismissed as meritless. 10.

A perusal of the abovementioned order points out that while dealing with a challenge to bail, the Hon'ble Supreme Court did not consider the call details as evidence to cancel the bail. However, no specific directions were issued to Courts subordinate to the Hon'ble Supreme Court to ignore call details as evidence while considering bails. 11.

Section 371 of the NDPS Act mandates under sub-section (1) (b) of section 37 that no person accused of an offense punishable for offenses involving commercial quantity shall be released on bail unless- (i) the Public Prosecutor has been given an opportunity to oppose the application of release, and (ii) where the Public Prosecutor opposes the application, the Court is satisfied that there are reasonable grounds for believing that accused is not guilty of such offense and is not likely to commit any offense while on bail. Thus, the rigors of S. 37 of the NDPS Act apply in the present case, and the burden is on the petitioner to satisfy the twin conditions put in place by the Legislature under Section 37 of the NDPS Act. Given the legislative mandate of S. 37 of the NDPS Act, the Court can release a person accused of an offense punishable under the NDPS Act for possessing a commercial quantity of contraband only after recording reasonable satisfaction of its rigors.

1 37. Offences to be cognizable and non-bailable.-(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974),- (a) every offence punishable under this Act shall be cognizable; (b) no person accused of an offence punishable for offences under section 19 or section 24 or section 27A and also for offences involving commercial quantity shall be released on bail or on his own bond unless- (i) the Public Prosecutor has been given an opportunity to oppose the application for such release, and (ii) where the Public Prosecutor opposes the application, the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail.

(2) The limitations on granting of bail specified in clause (b) of sub-section (1) are in addition to the limitations under the Code of Criminal Procedure, 1973 (2 of 1974) or any other law for the time being in force on granting of bail.

12.

A plain reading of Section 37 reveals that the legislature intends to make the law stringent to curb the drug menace. It is further to be noticed that the provisions are couched in negative language, meaning that to grant bail, the Court needs to record a finding that there are reasonable grounds for believing that the petitioner is not guilty of the offense. The burden of proof is also on the petitioner to satisfy the Court about his non-involvement in the case. While interpreting the provisions of Section 37 of the NDPS Act, the Court must be guided by the objective sought to be achieved by putting these stringent conditions.

13.

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 exist, and the factors for bail become similar to the bail petitions under general penal statutes like IPC. 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 them 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 an offense and is not likely to commit any offense while on bail. If either of these 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 the accused is not guilty of the alleged offense. Even on fulfilling one of the conditions, the reasonable grounds for believing that the accused is not guilty of such an offense, the Court still cannot give a finding on the assurance that the accused is not likely to commit any such crime again. 14.

The grounds in the bail petition do not shift the burden the legislature places on the accused under S. 37 of the NDPS Act. The petitioner has not stated anything in the bail petition to discharge the burden put by the stringent conditions placed in the statute by the legislature under section 37 of the NDPS Act. The investigation reveals sufficient prima facie evidence to connect the petitioner with the crime; thus, the petitioner fails to make out a case for bail. Any detailed discussions about the evidence may prejudice the case of the petitioner, the State, or the other accused. 15.

The petitioner's counsel first argument is that the arrest is based on disclosure statemen and so does the petitioner's involvement without any independent corroboration. As such, petitioners are entitled to bail. Counsel for the state opposes such argument and submits that there is sufficient digital evidence and petitioner's involvement in the case. An analysis of these arguments would point out that although it is a case of disclosure statement but a reference to the reply dated 9th May 2025 clearly

points out towards digital evidence. It would be appropriate to refer to following portions of the reply which duly corroborate such evidence and petitioner's involvement, which reads as follows:- "8.That during investigation, it has been found on 24.01.2025 at 10:29 PM, main accused Jaila Singh made whatsapp call with on his mobile no. petitioner-accused Harvinder Singh 9416167510. Screen shot of of said whatsapp call is attached herewith as Annexure R-4.

9. That on 18.04.2025, mobile phones of main accused Jaila Singh and petitioner-accused Harvinder Singh have been deposited with CFL Panchkula for retrieving whatsapp call record and CFL report has also been received in this case which is annexed herewith as Annexure R-5 for the kind perusal of the Hon'ble High Court. As per CFL Report, data has been retrieved.

10. That it is pertinent to mention here that on the date of occurrence i.e. on 25.01.2025, two calls have been made from mobile number 9992725822 (used by the wife of co-accused Jaila Singh) to the mobile number 9416167510 of petitioner-accused Harvinder Singh. True copy of relevant Call details record is enclosed herewith as Annexure R-6.

11. That during investigation, it has been found that there are several bank transactions (Annexure R-7) of petitioner with petitioner-accused Harvinder Singh and Rajender Singh through bank and UPI also.

12. That there are several calls have been made between petitioneraccused Harvinder Singh and co-accused Davinder Singh (Annexure R-8), which is as under:- Sr.No.

Mob.

No.

of Mob.

No.

of coDate Remarks petitioner-accused accused Davinder Harvinder Singh Singh 94161xxxxx 89305xxxxx 02.01.2025 2times 64161xxxxx 89305xxxxx 05.01.2025 5 times 94161xxxxx 89305xxxxx 06.01.2025 1 time 16.

The petitioner's next argument is that he is entitled to bail on custody. However, perusal of the custody certificate points out that the petitioner's custody in the present case is around six months, which by no stretch of imagination can be considered to be excessive considering the fact that the poppy straw involved was commercial that is more than 50 kilograms. Petitioner's counsel has also referred to various pronouncements, in which the bail was granted on disclosure statements. Without going into the details of

such pronouncements, the law is well settled that if disclosure statements have corroborative evidence in whatever form, then such corroborative evidence would be the lead evidence and not the disclosure statement. In the present case, there is sufficient corroborative evidence in the shape of digital evidence that is call details. As such, petitioner is not entitled to bail on the ground of custody also. 17.

A perusal of the bail petition and the documents attached primafacie points towards the petitioner's involvement and does not make out a case for bail. The impact of crime would not justify bail. Any further discussions will likely prejudice the petitioner; this court refrains from doing so.

18.

In Union of India (NCB) v. Khalil Uddin, decided on 21 Oct 2022, 2022 SCC OnLine SC 2109, Hon'ble Supreme Court holds, [4]. According to the prosecution, contraband material weighing about 13 kgs. of morphine was found in a motor vehicle which was driven by co-accused named Md. Jakir Hussain. During the course of investigation, it was found that the motor vehicle was recorded in the name of Md. Nizam Uddin who had executed a sale letter and handed over the custody of the vehicle to accused Md. Abdul Hai and that accused Md. Jakir Hussain was the driver employed by accused Md. Abdul Hai and that contraband material in question was to be handed over to accused-Khalil Uddin, an owner of a tea shop.

[5]. The High Court by its order which is presently under challenge, directed release of both the accused as stated above on bail after they had undergone custody to the tune of about a year. Questioning grant of relief to said accused, the instant appeals have been preferred.

[7]. What emerges from the record is that large quantity of contraband weighing about 13 kgs of morphine was found in a car which was driven by Md. Jakir Hussain. Whether the role played by said Md. Jakir Hussain could get connected with both the accused is a question.

[8]. The answer to said question could be the statement recorded of Md. Nizam Uddin. The statement of Md. Jakir Hussain recorded under Section 67 of the Act has also named his owner accused Abdul Hai. We are conscious of the fact that the validity and scope of such statements under Section 67 has been pronounced upon by this Court in Tofan Singh v. State of Tamil Nadu . In State by (NCB) Bengaluru v. Pallulabid Ahmad Arimutta , the rigour of law lay down by this Court in Tofan Singh was held to be applicable even at the stage of grant of bail.

[9]. However, going by the circumstances on record, at this stage, on the strength of the statement of Md. Nizam Uddin, though allegedly retracted later, the matter stands on a different footing. In our considered view, in the face of the mandate of Section 37 of the Act, the High Court could not and ought not to have released the accused on bail. We, therefore, allow these appeals, set aside the view taken by the High Court and direct that both the appellants be taken in custody forthwith.

[10]. We have been given to understand that the charge-sheet has been filed. In the circumstances, we direct the Trial Court to take up the matter and conclude the proceedings as early as possible and preferably within six months from the receipt of this order. 19.

In Narayan Takri v. State of Odisha, decided on 10 Sep 2024, SLP (Crl.) 81982024, Hon'ble Supreme Court holds, The petitioners are in custody since 28th May, 2022 for alleged commission of alleged offence under Section 20(b)(ii)(c) of the Narcotic Drugs and Psychotropic Substances Act, 1985. As per the FIR allegation, 125.3 kg. of "Ganja" was recovered from the petitioners.

[3]. It is not in dispute that the trial has commenced and that three prosecution witnesses have been examined till date. [4]. Learned counsel for the petitioners submits that the third prosecution witness was examined as far back as on 28th January, 2024 and since then, no other prosecution witness has been examined. There is, however, no such averment in the petition. [5]. Learned counsel appearing for the respondent submits that every endeavor shall be made on behalf of the prosecution to have all the witnesses examined by the end of this year. [6]. The trial court is encouraged to expedite the trial and give its decision as early as possible, in accordance with law. [7]. We, however, do not see any reason to interfere the impugned judgment and order at this stage; however, it is clarified that in the event the trial is not completed by the end of this year, the petitioners shall be at liberty to renew their prayer for bail before the trial court.

20.

Per the custody certificate dated 04.07.2025, the petitioner's custody is 05 months & 07 days, which cannot be considered prolonged. 21.

Further liberty is also reserved to file an application by referring to the Judicial precedent of Hon'ble Supreme Court in which bail was granted in a case where the drug and weight are closer to the case of petitioner. 22.

Any observation made hereinabove is neither an expression of opinion on the case's merits nor shall the trial Court advert to these comments. 23.

Petition dismissed. All pending applications, if any, stand disposed of. (ANOOP CHITKARA) JUDGE 31.07.2025 anju rani Whether speaking/reasoned: Yes Whether reportable:

NO.