Bindu v. State Of Punjab

IN THE HIGH COURT OF PUNJAB AND HARYANA

AT CHANDIGARH

Reserved on: 24.07.2023

Pronounced on: 27.07.2023 Bindu ...PeƟƟoner

Versus

State of Punjab

...Respondent

CORAM:

HON'BLE MR. JUSTICE ANOOP CHITKARA

Present:

Mr. Manvinder, Advocate for the peƟƟoner.

Mr. Shiva Khurmi, AAG, Punjab.

**** ANOOP CHITKARA, J.

FIR No.

Dated Police StaƟon SecƟons 26.06.2021 City Jagraon, District Ludhiana 22 of NDPS Act 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 possession of 500 tablets of ETIZOLAM, has come up before this Court under SecƟon 439 CrPC seeking bail. 2.

In paragraph 10 of the bail applicaƟon, the accused declares the following criminal antecedents:

Sr. No.

FIR No.

Dated Offences Police StaƟon 1.

10.07.2020 379-B, 411 IPC Nihal Singh Wala, District Moga 2.

16.12.2021 420, 120-B IPC City South Moga, District Moga 3.

29.06.2020 420, 379, 411 IPC City Jagraon, District Ludhiana 3.

The peƟƟoner contends that the pre-trial incarceraƟon would cause an irreversible injusƟce to the peƟƟoner and family. 4.

While opposing the 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history, the prosecuƟons resulƟng in acquiƩal or discharge, or when Courts quashed the FIR; the prosecuƟon stands withdrawn, or prosecuƟon filed a closure report; cannot be included.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.

7.

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.

8.

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.

9.

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.

10.

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.

11.

Counsel for the peƟƟoner submits that the invesƟgator conducted search and seizure violaƟng secƟons 42 and 50 of the NDPS. 12.

Whether the InvesƟgator complied with the mandatory provisions of secƟons 42 and 50 of the NDPS Act is a quesƟon of fact to be adjudicated in the trial. However, before this court treats the compliance as illegal, the prosecuƟon needs an opportunity to prove that they had complied with the mandatory provisions per law. Such stage would come only during the trial and certainly not at the bail stage, where it would be hit by the maxim Audi alteram partem. The excepƟon to this would be applicable only when the non-compliance of the mandatory provisions of secƟons 42 and 50 of the NDPS Act is apparent on the face of the special report under secƟon 57 of the NDPS Act and other documents of search and seizure, and in the opinion of the court, the lapse is non-recƟfiable, aŌer recording a finding that it is an incurable defect, the court might consider granƟng bail on such violaƟons.

13.

In State of H.P. v. Prithi Chand, (1996) 2 SCC 37, Hon'ble Supreme Court holds, [3]. The quesƟon is whether the learned Sessions Judge was jusƟfied, at the stage of taking cognizance of the offence, in discharging the accused, even before the trial was conducted on merits, on the ground that the provisions of SecƟon 50 of the Act had not been complied with. This Court in State of Punjab v. Balbir Singh [(1994)3 SCC 299] : (AIR 1994 SCW 1802) has considered the provisions of the Act. SecƟon 50 has been held to be mandatory. In paragraph 16, this Court has held that it is obligatory on the part of the empowered or the authorised officer to inform the suspect that, if so required, he would be produced before a GazeƩed Officer or a Magistrate and

search would be conducted in his presence. It was imperaƟve on the part of the Officer to inform the person of the above right and if he failed to do the same, it amounted to violaƟon of the requirement of SecƟon 50 of the Act. It was held that when the person was searched he must have been aware of his right and that it could be done only if the authorised or empowered Officer informed him of the same. Accordingly, this Court by implicaƟon read the obligaƟon on the part of authorised Officer to inform the person to be searched of his right to informaƟon that he could be searched in the presence of the GazeƩed Officer or the Magistrate. In Saiyad Mohd. Saiyaad Umar Saiyed v.

State of Gujarat [1995(3) JT SC 489] a three-Judge Bench of this Court had reiterated the above view and held that having regard to the grave consequences that might entail the possession of illicit arƟcles under the Act, viz., the shiŌing of the onus to the accused and the severe punishment to which he became liable, the Legislature had enacted safeguards contained in SecƟon 50. Compliance of the safeguards in SecƟon 50 is mandatory obliging the Officer concerned to inform the person to be searched of his right to demand that search could be conducted in the presence of a GazeƩed Officer or a Magistrate. The possession of illicit arƟcle has to be saƟsfactorily established before the Court.

The Officer who conducts search must state in his evidence that he had informed the accused of his right to demand, while he is searched, in the presence of a GazeƩed Officer or a Magistrate and that the accused had not chosen to so demand. If no evidence to that effect is given, the Court must presume that the person searched was not informed of the protecƟon the law gives him and must find that possession of illicit arƟcles was not established. The presumpƟon under ArƟcle 114, illustraƟon (e) of the Evidence Act, that the official duty was properly performed, therefore, does not apply.

It is the duty of the Court to carefully scruƟnise the evidence and saƟsfy that the accused had been informed by the concerned Officer that he had a right to be searched before a GazeƩed Officer or a Magistrate and that the person had not chosen to so demand. [4]. It is to be seen whether the accused has been afforded such a right and whether the authorised Officer has violated the mandatory requirement, as a quesƟon of fact, has to be proved at the trial. In Pooran Mal v.

348) a ConsƟtuƟon Bench of this Court had held that power of search and seizure, is, in any system of jurisprudence, an overriding power of the State for the protecƟon of social security and that power is necessarily regulated by law. A search by itself is not a restricƟon on the right to hold and enjoy property, though seizure is a temporary restricƟon to the right of possession and enjoyment of the property seized. However, the seizure will be only temporary and limited for the purpose of the invesƟgaƟon. The power of search and seizure is an accepted norm is our criminal law envisaged in SecƟons 96 to 103 and 165 of the Criminal Procedure Code, 1973 [for short, "the Code"]. The Evidence Act permits relevancy as the only test of admissibility of evidence.

The evidence obtained under an illegal search and seizure does not exclude relevant evidence on that ground. It is wrong to invoke the spirit of ConsƟtuƟon to exclude such evidence. The decisions of the American Supreme Court spelling out certain ConsƟtuƟonal protecƟons in regard to search and seizure are not applicable to exclude the evidence obtained on an illegal search.

ground that it is obtained by illegal search and seizure. When the test of admissibility of evidence lies in relevancy, unless there is an express or necessarily implied prohibiƟon in the ConsƟtuƟon or other law, evidence obtained as a result of illegal search and seizure, is not liable to be shut out. Search and seizure are not a new weapon in the armoury of those whose duty it is to maintain social security in its broadest sense. If the safeguards are generally on the lines adopted by the Code, they would be regarded as adequate and render the restricƟons imposed as reasonable measures.

[7]. It would thus be seƩled law that every deviaƟon from the details of the procedure prescribed for search, does not necessarily lead to the conclusion that search by the police renders the recovery of the arƟcles pursuant to the illegal search, irrelevant evidence nor the discovery of the fact inadmissible at the trial. Weight to be aƩached to such evidence depends on facts and circumstances in each case. The Court is required to scan the evidence with care and to act upon it when it is proved and the Court would hold that the evidence would be relied upon.

14.

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. 15.

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.

16.

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. 17 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.

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. If any of the accused is on bail and fail(s) to aƩend the trial without any sufficient cause, then they be dealt with strictly but in accordance with law.

(ANOOP CHITKARA) JUDGE 27.07.2023 JyoƟ-II Whether speaking/reasoned:

Yes Whether reportable:

No.