Jaspreet Singh Alias Jass v. State Of Punjab

IN THE HIGH COURT OF PUNJAB AND HARYANA

AT CHANDIGARH

Reserved on: 31.08.2023

Pronounced on: 11.09.2023 Jaspreet Singh @ Jass ...PeƟƟoner

Versus

State of Punjab

...Respondent

CORAM:

HON'BLE MR. JUSTICE ANOOP CHITKARA

Present:

Mr. Amit Arora, Advocate for the peƟƟoner.

Mr. Karunesh Kaushal, AAG, Punjab.

**** ANOOP CHITKARA, J.

FIR No.

Dated Police StaƟon SecƟons 07.12.2018 Sadar Tarn Taran, District Tarn Taran 22 of NDPS Act, 1985, 25, 27 of Arms Act (offence under SecƟons 379/411 IPC added later on vide rapat no. 25 dated 11.11.2020 and SecƟon 379 IPC deleted vide rapat No. 35 dated 28.07.2021) 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 transporƟng 950 tablets containing Alprazolam, as well as keeping an unlicensed pistol, has come up before this Court under SecƟon 439 CrPC seeking bail.

2.

In paragraph 22 of the bail applicaƟon, the accused declares the following criminal antecedents:

Sr. No.

FIR No.

Dated Offences Police StaƟon 1.

25.04.2015 379 IPC Division No. 6 Industrial Area 2.

11.11.2008 379/411 IPC City Tarn Taran 3.

26.11.2008 379, 411 IPC Makhu, District Ferozepur 4.

03.01.2008 379, 411 IPC City Gurdaspur 5.

11.01.2008 379, 411 IPC Gurdaspur 6.

25.08.2016 420, 468, 471, 120-B IPC and 61 Excise Act Shahbad 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.

7.

On 07.12.2018, the police party noƟced a motor bike and asked its driver to stop. The peƟƟoner was its driver and the police party found a plasƟc bag which had 950 tablets in 95 strips of 10 each. The tablets allegedly had Alprazolam. The peƟƟoner could not produce any bill or license for the said tablets. In addiƟon to the tablets, the police also recovered one pistol from the peƟƟoner. There are other cases against the peƟƟoner and in the present case, peƟƟoner's custody is of around 02 years and 01 month. The lesser custody for the peƟƟoner is for the reason that the peƟƟoner had absconded and was declared a procalimed offender in two cases and as per the State, with great difficulty they were able to nab him. Even the charges stand framed.

The peƟƟoner possessing a pistol points out that he could have used the same in case, he had an opportunity thus, it is a combinaƟon of narcoƟcs and weapons which can be a deadly cocktail. Since from the peƟƟoner, the police had also recovered a pistol, as such, the possession of the pistol would show that in case the peƟƟoner had got an opportunity he could have used the same and the weapon itself is lethal. Given the recovery of pistol along with psychotropic substances, the peƟƟoner is not enƟtled to bail during the trial except on the ground of prolonged custody if that is not aƩributable to him or at his instance.

case from those people to whom the Hon'ble Supreme Court had granted bails because in none of the such cases, a pistol was also found along with the narcoƟc drug or psychotropic Substance.

8.

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.

9.

Ld. counsel for the peƟƟoner submits that the invesƟgator conducted search and seizure violaƟng secƟon 50 of the NDPS.

10.

Whether the InvesƟgator complied with the mandatory provisions of secƟon 50 of the NDPS Act is a quesƟon of fact to be adjudicated in the trial. However, before this court treats the compliances 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 nonrecƟfiable, aŌer recording a finding that it is an incurable defect, the court might consider granƟng bail on such violaƟons.

11.

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.

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. Courts in India refuse to exclude relevant evidence merely on the 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.

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 11.09.2023 JyoƟ-II Whether speaking/reasoned:

Yes Whether reportable:

No.