Hoshiar Singh Alias Soni v. State Of Punjab
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Reserved on: 11.11.2024
Pronounced on: 29.11.2024 Hoshiar Singh alias Soni
...Petitioner
Versus
State of Punjab
...Respondent
CORAM:
HON'BLE MR. JUSTICE ANOOP CHITKARA
Present:
Mr. Edward Augustine George, Advocate for the petitioner.
Mr. Akshay Kumar, A.A.G., Punjab.
**** ANOOP CHITKARA, J.
FIR No.
Dated Police Station Sections 27.01.2024 Dehlon, District Ludhiana 15, 29 of NDPS Act (report u/s 173 CrPC has been presented under Sections 15/25/29 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.
Per paragraph 16 of the bail application and the status report/custody certificate, the accused has the following criminal antecedents: Sr.
No.
FIR No.
Dated Offences Police Station 03.02.2023 323/324/148/149 IPC Jodhan, Ludhiana (Rural) 420 IPC Mloudh, Ludhiana (Rural) 01.01.2019 15 of NDPS Act Sudhar, Ludhiana (Rural) 3.
The facts and allegations are taken from the status report filed by the State. On Jan 27, 2024, based on prior information, the Police seized ten quintals of poppy husk from a truck in which the petitioner, along with two other persons, was traveling; however, on noticing the police, the petitioner and another accused had fled, and the third was arrested. The Investigator claims to have complied with all the statutory requirements of the NDPS Act, 1985, and CrPC, 1973. 4.
During the custodial interrogation, the third accused, Jammu Singh, revealed the petitioner's identity. Based on the information, the police arrested the petitioner and
subjected him to custodial interrogation. During the police custody, the petitioner made a disclosure statement under S. 27 of the Indian Evidence Act, 1872, and revealed about concealing poppy husk, which led to the discovery of 1 quintal of poppy husk. 5.
The petitioner's counsel refers to the bail petition. It would be relevant to refer to paras 11 to 13 of the petition, which reads as follows: "11.
That a perusal of the challan reveals that as per the investigating agency. the petitioner and Mukesh Kumar had thrown their mobile phones in the canal. It is significant to state here that if they could have thrown their mobiles, they could have also thrown poppy husk into the canal. This story of throwing mobile phones has been projected by the investigating agency only with a view to escaping from showing recovery of mobile phones and then collecting their call detail records, which would have proven innocence of the petitioner.
12.
That even as per the investigating agency, the Swift Car belongs to one Habib. The petitioner's connection with the truck from which poppy husk from which poppy husk was allegedly recovered i.c., PB11-AQ-9185 has also not been proved. The said truck is in the name of Mukesh Kumar. The container, which had allegedly over-turned also does not have any connection with the petitioner. The said container i.e., HR61-C-8017 belongs to Harnek Singh, as per report u/s 173 CrPC. 13.
That without there being even an iota of evidence against the petitioner, he has been arrested and incarcerated by the investigating agency. The petitioner was named in the disclosure statement of Jammu Singh. It was on the basis of the alleged disclosure statement that he was arrested on 30.01.2024." 6.
The contradictions pointed out in these grounds are the subject matter of trial, and primafacie, there cannot be any legal presumption to accept these grounds without affording the witnesses any opportunity to explain their stand. 7.
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.
8.
The State's counsel opposes bail and refers to para 8 of the status report, which reads as follows:
"8.
Total 11 quintals of Poppy Husk has been recovered in this case from the petitioner and his co-accused out of which one quintal has been got recovered by the petitioner u/s 27 of Evidence Act as mentioned above. Therefore in view of the gravity of the offence and rigorous of section 37 of NDPS Act and the petitioner being a habitual offender, he is not entitled for the concession of bail."
9.
Dealing in 1100 kgs of poppy husk is a punishable offense under the NDPS Act in the following terms:
Substance Name Poppy straw Quantity detained 1100 Kg Quantity type Commercial Drug Quantity in % to upper limit of Intermediate 2200.00% Specified as small & Commercial in S.2(viia) & 2(xxiiia) NDPS Act, 1985 Notification No S.O.1055(E) Dated 10/19/2001 Sr. No.
Common Name (Name of Narcotic Drug and Psychotropic Substance (International non-proprietary name (INN) Poppy straw Other non-proprietary name ****** Chemical Name ****** Small Quantity 1000 Gram (i.e. equivalent to 1 Kg) Commercial Quantity 50000 Gram (i.e. equivalent to 50 Kg) Declared as punishable under NDPS Act and as per schedule defined in S.2(xi) & 2(xxiii) NDPS Act, 1985 Notification No S.15 & S.2(xviii) NDPS Act, S.O.821(E) Dated 11/14/1985 Sr. No.
S.2(xviii) Common Name (Name of Narcotic Drug and Psychotropic Substance (International non-proprietary name (INN) ****** Other non-proprietary name ****** S.2(xviii) "poppy straw" means all parts (except the seeds) of the opium poppy after harvesting whether in their original form or cut, crushed or powdered and whether or not juice has been extracted therefrom; S. 2(viiib)] "illicit traffic", in relation to narcotic drugs and psychotropic substances, means- (i) cultivating any coca plant or gathering any portion of coca plant;
(ii) cultivating the opium poppy or any cannabis plant; (iii) engaging in the production, manufacture, possession, sale, purchase, transportation, warehousing, concealment, use or consumption, import inter-State, export inter-State, import into India, export from India or transhipment, of narcotic drugs or psychotropic substances; S.2 (xvii) "opium poppy" meansChemical Name (a) the plant of the species Papaver somniferum L; and (b) the plant of any other species of Papaver from which opium or any phenanthrene alkaloid can be extracted and which the Central Government may, by notification in the Official Gazette, declare to be opium poppy for the purposes of this Act;
S2. (xviii) "poppy straw" means all parts (except the seeds) of the opium poppy after harvesting whether in their original form or cut, crushed or powdered and whether or not juice has been extracted therefrom; 10.
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. 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.
12.
The State's Counsel argues that 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 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.
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 petitioner's arguments did not point toward any material contradictions. Recovery was not from the person, as such, S. 50 would also not attract. Nonexamination of independent witnesses is not illegal, and its outcome depends upon the nature of evidence tendered in the examination in chief and its cross-examination. 15.
The submissions made above and 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. 16.
Per the custody certificate dated 07.11.2024, the petitioner's custody is 09 months and 02 days, which cannot be considered prolonged. 17.
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. 18.
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.
19.
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. 20.
Another reason that dis-entitles for bail is the criminal antecedents. Considering the bail petition of an accused with a criminal history throws an onerous responsibility upon the courts to act judiciously and reasonably because arbitrariness is the antithesis of law. The criminal history must be of cases where the accused was convicted, including the suspended sentences and all pending First Information Reports, wherein the bail petitioner stands arraigned as an accused. In reckoning the number of cases as criminal history, the prosecution resulting in acquittal or discharge, or when Courts quashed the FIR, the prosecution stands withdrawn, or the prosecution filed a closure report, cannot be included. Although crime is to be despised and not criminal, for a recidivist, the contours of a playing field are marshy, and the graver the criminal history, the slushier the puddles. If the petitioner is granted bail, he is likely to re-indulge in the crime. 21.
The impact of crime would also not justify bail. Any further discussions will likely prejudice the petitioner; this court refrains from doing so. 22.
The petitioner's custody of around nine months cannot be termed prolonged, given the minimum sentence prescribed for the offense, which is imprisonment for life. 23.
Any observation made hereinabove is neither an expression of opinion on the case's merits nor shall the trial Court advert to these comments. 24.
Petition dismissed. All pending applications, if any, stand disposed of. (ANOOP CHITKARA) JUDGE 29.11.2024 Jyoti Sharma/anju rani Whether speaking/reasoned: Yes Whether reportable:
No.