Amandeep v. State Of Punjab

IN THE HIGH COURT OF PUNJAB AND HARYANA

AT CHANDIGARH

Reserved on: 08.08.2024

Pronounced on: 30.08.2024 Amandeep

...Petitioner

Versus

State of Punjab

...Respondent

CORAM:

HON'BLE MR. JUSTICE ANOOP CHITKARA

Present:

Mr. Rohit Joshi, Advocate for the petitioner.

Mr. Sukhdev Singh, A.A.G., Punjab.

**** ANOOP CHITKARA, J.

FIR No.

Dated Police Station Sections 02.03.2024 Division No.3, Jalandhar 18, 29, 27-A of NDPS Act,
 The petitioner incarcerated in the FIR captioned above had come up before this Court under Section 439 CrPC, 1973, seeking regular bail.  In paragraph 13 of the bail petition, the accused declares that he has no criminal antecedents.

3.

The facts and allegations are being taken from the reply filed by the State, which reads as follows:- ""4. That it is respectfully submitted that brief conspectus of facts culled out from the FIR are that SI Jaswinder Singh along with ASI Nitin Sharma 1780, ASI Gauri Shankar 1905 were on government vehicle No. PB08 DS 4498 and driver C Sukhjinder Singh 2367 were on patrolling and in search of suspected persons and were carrying laptop and printer along with them. When the police reached at Damoria Bridge one hair cut young man was seen walking from the side of railway station. He was having black colour polythene with weight in his right hand. Upon looking at the police party he became nervous and tried to turn back. On having suspicion SI Jaswinder Singh with the assistance of accompanied employees nabbed him and enquired about his name and address who told his name as Sunny Jagga son of Harish Chander R/o C-61 Leather Complex Road New Rajan Nagar Jalandhar.

5. That before conducting the search of Sunny Jagga Sl Jaswinder Singh informed about his name, rank and posting and served a notice

under section 50 of NDPS Act. SI Jaswinder Singh informed the above said Sunny Jagga that he is having doubt of some narcotic substance which is lying in the black colour polythene in your right hand but you are having right to conduct the search of black polythene in your right hand from Magistrate or from Gazetted Officer and they can be called on the spot where the above said Sunny Jagga replied that I have trusts upon you and you can conduct the search of black polythene in my right hand.

6. That the above said Sunny Jagga placed his signatures in English upon the notice and the same has been witnesses by ASI Nitin Sharma 1780, ASI Gauri Shankar 1905. Before conducting the search of black polythene in the right hand of nabbed Sunny Jagga every efforts were made to join public witness but everybody showed their inability then SI Jaswinder Singh in the presence of accompanied employees. conducted the search of black colour polythene.

7. That on opening the black polythene cardboard box meant for courier which was bearing: To Ramandeep Kaur PO Box 20002, RPO AIRDRIEAIRORIE, Alberta, TUA OC 2, Canada and when it is opened 2 polythene packets were recovered which were lying under the laddu sweets. When the said packets were opened then opium was recovered which was packed in polythene. Upon weighing the same, it was found (01/01 Kg) Opium. The recovered packets were placed in the same polythene and then put the same into the separate plastic boxes and thus prepared two separate parcels of the case property. The parcels of case property were marked as Mark A and Mark B. The recovered cardboard box meant for courier were put into the cloth parcel and the sweets box of laddu was put into another plastic box and thus prepared two separate parcels.

8. That SI Jaswinder Singh sealed the above said four parcels containing the case property with seal impression "JS". Sample seal has been prepared separately. The stamp after use was handed over to ASI Nitin Sharma. Then the parcels containing (01/01 Kg) as well as the case property of cardboard box meant for courier which is in the cloth parcel and case property sweets laddu contained in the separate parcel of plastic box which are duly sealed with stamp JS have been taken into police custody as proof of evidence through separate memos.

9. That the above said Sunny Jagga was failed to produce any license or permit for keeping the 2 Kg of opium and the writing was sent to C. Mandeep Singh to the police station for the registration of FIR." 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 following portion of reply which read as follows:- "10. That as consequence thereof, present FIR was initially registered under section 18/61/85 of NDPS Act at Police Station Division No.3

Jalandhar against the above said Sunny Jagga. During investigation, accused Sunny Jagga suffered two disclosure statements to the effect that he alongwith his brother Mani Kumar and cousin Pawan Kumar, used to send Opium abroad under the garb of parcels. The petitioner Amandeep, Sunil Kumar and Harmanpreet used to supply opium to them and where they were to supply the heroin, was told to them by Suraj and Petitioner Amandeep. For clearing the courier Nishat Bhagat used to give money to Parmodh. On the basis of disclosure statement of accused Sunny Jagga, Manni Kumar, Pawan Kumar, Nishat Bhagat, Parmodh Kumar, Amandeep (Petitioner), Sunil and Harmanpreet were nominated in the present case vide DDR No.47 dated 02.03.2024 and offence under Section 29 of NDPS Act was added. Out of eight nominated persons, one Parmod Kumar was arrested on 03.03.2024 and he also made disclosure statement naming Pawan Kumar, Manni Kumar, Sushil Kumar @ Suraj, and Amandeep Singh (Petitioner) who were also nominated in the above said case.

11. During further investigation, Petitioner Amandeep was arrested in this case on 05.03.2024 and during interrogation, petitioner Amandeep suffered disclosure statement and on the basis of his disclosure statement, accused Amarjit Kaur was nominated in this case. The petitioner has disclosed in his disclosure statement that Munish Kumar alias Mani Thakur who currently lives abroad in England and who used to supply opium from Jharkhand. He used to supply opium to Sunil Kumar alias Suraj Kumar r/o Bobby Nagar, Tada. Thereupon, Sunil Kumar alias Suraj, Pawan Kumar, Nishat Bhagat, Sunny Jagga and Sikandar used to supply the same through courier service to Parmod Kumar son of Ishwar Singh r/o B-1/26 Rajveer Colony, Gharoli Extension, East Delhi.

Said Parmod Kumar used to clear said parcel at Airport with the help of Rupesh Sharma, Amit Sharma, Rahul Jain and Pushpinder Jain, who were working in Custom Department and their posting is at Foreign Post Office, near ITO, Mata Sundari Road, Delhi.. In this process, Mani Kumar of Harish Kumar r/o C-61, Leather Complex Road, New Rajan Nagar, Jalandhar, Pawan Kumar son of Jagdish Kumar resident of House No. 3483, Bhargo Camp, Jalandhar, Nishant Bhagat resident of Bhargo Camp, Jalandhar, Sunny Jagga son of Harish Kumar resident of C-61, Leather Complex Road, New Rajan Nagar Jalandhar and Sikandar son of Late Vijay Kumar resident of House No. WS-55, Satra Mohalla, Basti Shiekh, Jalandhar are also involved. After that said parcels were supplied to the addresses disclosed by Manish Kumar alias Manni Thakur.

12. That the petitioner Amandeep Singh further disclosed that Munish Kumar @ Mani Thakur used to make payment for his work through his girlfriend Amarjit Kaur wife of Jorawar Singh daughter of Harjinder Singh resident of village Sangal Sohal, District Jalandhar from the last year i.e. since November 2023. Munish Kumar @Mani Thakur used to send money through various means to Amarjit Kaur and Amarjit Kaur comes in her car THAR vehicle number PB08-EY-5674 and gave it to different places by calling him. Sometimes she gave 02 lakhs, sometimes 03 lakhs on different times. In this way, Amarjit Kaur had made payment of about rupees 16/17 lacs to him. Amarjit Kaur herself drives her THAR vehicle. Most of the times Amarjit Kaur herself used to

make the payment, but sometimes her brother Sunny Sohal used to make said payment to him. Amarjit Kaur and Sunny Sohal had full knowledge about smuggling of Opium. Amarjit Kaur and Sunny Sohal had been managing the drug money as Manish Kumar used to send the entire drug money to Amarjit Kaur. Both accused Sunny Sohal and his sister Amarjeet Kaur used to save profit income from the said business of smuggling of opium. Sometimes Munish Kumar sent money to Amit Kumar son of Mahinderpal Shukla resident of House No. 202, Guru Harkrishna Nagar, Banga Road, Phagwara, District Kapurthala by way of Hawala (money laundering) business and Amarjit Kaur used to give this money to him and sometimes he himself brought money from Amit Kumar. Amarjit Kaur distributes the money sent by Munish Kumar and keeps the rest as per his dictates.

Only Amarjit Kaur can tell about the money which she keeps, where she spends it and how much money she gives to her brother Sunny Sohal. Only Amarjit Kaur knows about it. On the basis of disclosure statement of petitioner Amandeep, accused Amarjit Kaur and her brother Sunny Sohal were nominated in the present case vide DDR No.05 dated 05.03.2024. Thereupon, Amarjit Kaur and Sunny Sohal were arrested on 06.03.2024.

13. That the co-accused Amarjit Kaur is stated to be king pin of the drug racket as she used to make payment to the petitioner Amandeep who used to further distribute the same amongst other members of the gang. However, from source information this fact has came into light that the co-accused Amarjit Kaur has purchased a Mahindra Thar from the said drug money. As the per the disclosure statement of co-accused Amarjit Kaur dated 06.03.2024 she has disclosed that the petitioner Amandeep and his partners used to supply opium on the address specified by Munish Kumar and the income extract from said drug money, Munish Kumar used to pay the same to co-accused Amarjit Kaur through hawala and she used to distribute the said money to Petitioner Amandeep on going on her Mahindra Thar bearing number PB08-EY-5674.

The co-accused Amarjit Kaur has further disclosed in her disclosure statement that she used to pay a sum of Rs. 2 Lacs or some times 3 Lacs at different place and at different time to the petitioner Amandeep and she has paid a total sum of Rs. 16/17 Lacs. Sometimes, co-accused Amarjit Kaur herself drive her Mahindra Thar car while some time his brother Sunny Sohal used to make payment to the petitioner Amandeep. The co-accused Sunny Sohal and his sister Amarjit Kaur are having full knowledge of this illicit trade and drug money."

6.

The quantity recovered from the petitioner was 2 kgs of opium, and the commercial category starts when the quantity exceeds 2.5 kgs of opium. 7.

Given this, the rigors of S. 37 of the NDPS Act do not apply in the present case. 8.

Section 2 (vii-a) of the NDPS Act defines commercial quantity as greater than the quantity specified in the schedule. Section 2 (xxiii-a) defines a small quantity as a quantity less than the quantity specified in the table of the NDPS Act. The remaining quantity falls in an undefined category, generally called an intermediate quantity. All

sections in the NDPS Act specify an offence and mention the minimum and maximum sentence, depending upon the quantity of the substance. The commercial quantity mandates a minimum sentence of ten years of imprisonment and a minimum fine of Rupees One hundred thousand, and bail is subject to the riders mandated in S. 37 of the NDPS Act. When the quantity is less than commercial, the restrictions of Section 37 of the NDPS Act will not attract, and the factors for bail become similar to the offence regular statutes.

9.

In Sami Ullaha v Superintendent Narcotic Control Bureau, (2008) 16 SCC 471, the Hon'ble Supreme Court holds that in intermediate quantity, the rigors of the provisions of Section 37 may not be justified. 10.

As per paragraph 10 of the bail petition, the petitioner has been in custody since 04.03.2024. Per the custody certificate dated 07.08.2024, the petitioner's total custody in this FIR is 05 months. 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, subject to the compliance of terms and conditions mentioned in this order. 11.

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

12.

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. 13.

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

1.

AADHAR number 2.

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) 14.

This order is subject to the petitioner's complying with the following terms. 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. 15.

The possibility of the accused influencing the investigation, tampering with evidence, intimidating witnesses, and the likelihood of fleeing justice can be taken care of by imposing elaborative and stringent conditions. In Sushila Aggarwal v. State (NCT of Delhi), 2020:INSC:106 [Para 92], (2020) 5 SCC 1, Para 92, the Constitutional Bench held that unusually, subject to the evidence produced, the Courts can impose restrictive conditions.

16.

Given the background of allegations against the petitioner, it becomes paramount to protect the drug detection squad, their family members, as well as 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 firearm(s). [This restriction is being imposed based on the preponderance of evidence of probability and not of evidence of certainty, i.e., beyond 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, ammunition, if any, along with the arms license to the concerned authority within fifteen days from release from prison and inform the Investigator about the compliance. However, subject to the Indian Arms Act, 1959, the petitioner shall be entitled to renew and take it back in case of acquittal in this case, provided otherwise permissible in 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 offence. 17.

Any observation made hereinabove is neither an expression of opinion on the case's merits nor shall the trial Court advert to these comments. 18.

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. 19.

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

(ANOOP CHITKARA) JUDGE 30.08.2024 Whether speaking/reasoned: Yes Whether reportable:

No.