Research › Search › Judgment

Punjab High Court · body

2000 DIGILAW 11 (PNJ)

Amrik Singh v. Narcotic Central Bureau

2000-01-10

K.S.KUMARAN

body2000
JUDGMENT K.S. Kumaran, J. - A criminal complaint under Sections 21, 22, 23 of the N.D.P.S. Act has been lodged against the petitioner Amrik Singh before the Special Court wherein the following allegations are found :- 2. On 12.6.98, information was received from the Narcotic Control Bureau, New Delhi in the office of the Narcotic Control Bureau, Chandigarh based on the report of the information of the Intelligence Bureau regarding the activities of a gang of narcotic drug traffickers operating in village Majari, Bilaspur (H.P.). The matter was further investigated, and thereafter upon specific information from reliable sources that on 19.7.98 between 7 p.m. and 11 p.m., the petitioner-accused has fixed a delivery on the main road from Dhar to Anandpur Saheb. On this information, on 19.7.98, Sarabjit Singh, Director of Narcotic Control Bureau, Chandigarh and other officers of the Narcotic Control Bureau, Chandigarh and certain police officials put up a barricade outside village Surewal at about 8.45 p.m. Two scooters, upon which there were four riders, came. The petitioner-accused and another were there, and a small sack was in between them, which they were carrying while coming from Dhar to Anandpur Saheb. The Investigating Officer-O.P. Bhat and Sepoy- Paramjit Singh identified the petitioner-accused and asked him to stop, but they diverted their scooter towards Surewal village. Raiding party followed these persons. On seeing the raiding party, they threw the sack on the Surewal Link Road and the Investigating Officer-R.P. Singh took possession of the sack while the rest followed the petitioner-accused and his accomplices. Since it was dark, they left the scooter in the village and disappeared. Despite best efforts, they could not be apprehended at the spot. 3. The investigation showed that the scooter bearing No. PB-16-2611, which was used by the petitioner-accused, belongs to Amar Singh son of Arjan Singh of village Majari, Surewal. The said Amar Singh is also a member of the gang as per the information. From the sack, 18.400 kgs. of opium was recovered. The petitioner-accused was identified by the informant also on the spot. Sumons under Section 67 of the NDPS Act was issued to Amar Singh son of Arjun Singh and Swaran Singh son of Amar Singh who appeared in response to the summons and gave their statements showing the involvement of the petitioner-accused, and also the use of the scooter of Amar Singh by the petitioner-accused. Sumons under Section 67 of the NDPS Act was issued to Amar Singh son of Arjun Singh and Swaran Singh son of Amar Singh who appeared in response to the summons and gave their statements showing the involvement of the petitioner-accused, and also the use of the scooter of Amar Singh by the petitioner-accused. The petitioner-accused did not appear in response to the summons issued to him on 9.8.98 and 26.8.98. Chemical examination showed that the samples were contraband. 4. The petitioner moved Crl. Misc. 28057-M of 1998 on the file of this Court under Section 438 Criminal Procedure Code for bail in anticipation of arrest. State of Punjab, S.H.O. Anandpur Saheb and Narcotic Control Bureau were the respondents therein. Since the Narcotic Control Bureau stated that no case has been registered against the petitioner, the said petition was disposed of 26.11.98 directing that as and when a criminal case is registered against the petitioner and arrest is sought to be made, the Officer of the Police Station and the concerned officer intending to arrest him, shall issue at least 10 days notice to enable the petitioner to approach the Court for seeking appropriate relief. Thereafter, the Narcotic Control Bureau filed an application for recalling the above said order dated 26.11.98, and this Court by order dated 18.1.99 dismissed the said application. Then the petitioner filed another application under Section 438 Criminal Procedure Code for bail in anticipation of arrest, and the Special Court dismissed the said application on 26.4.99. The petitioner moved this Court for the very same relief in Crl. M. 13831-M of 1998 and this Court by its order dated 12.5.99 directed the petitioner to appear before the Special Judge for seeking regular bail on or before 26.5.99 and till then the service of non-bailable warrants issued by the Special Judge was stayed. The petitioner moved the Special Court. Ropar for bail under Section 439 Criminal Procedure Code on 15.5.999, and the said Court by its order dated 17.5.99 dismissed the said application. That is why the petitioner has approached this Court under Section 439 Criminal Procedure Code for bail. 5. I have heard the counsel for both the sides and perused the records on file. 6. The learned counsel for the petitioner contends that the mandatory provisions of the NDPS Act have not been complied with. That is why the petitioner has approached this Court under Section 439 Criminal Procedure Code for bail. 5. I have heard the counsel for both the sides and perused the records on file. 6. The learned counsel for the petitioner contends that the mandatory provisions of the NDPS Act have not been complied with. He also contends that the name of the other person, who was riding with the petitioner on the scooter is not mentioned till the complaint was filed on 13.2.1999 and similarly, names of other persons riding on the other scooter are also not mentioned. The further contention of the learned counsel for the petitioner is that the scooter of Amar Singh was recovered at the spot. The learned counsel for the petitioner further contends that though the contraband was allegedly recovered on 19.7.98, police did not register a case immediately, but had registered the case on 13.2.99 only. According to the petitioner, he was not there at the time of the occurrence and no recovery was also made from him. He also contends that since the petitioner appeared before the Special Court on 15.5.99 when he filed the application for bail under Section 39 Criminal Procedure Code as per the direction of this Court, he is deemed to have been taken into custody, and that there is no need to take actual custody, and therefore, he is entitled to file this application under Section 439 Criminal Procedure Code for regular bail. He further contends that when the petitioner moved Crl. M. 28057-M/98 which was disposed of on 26.11.98, the learned counsel for Narcotic Control Bureau represented by its Advocate had informed that no case has been registered against the petitioner, and therefore, the court gave direction to the concerned officer to give the petitioner 10 days notice if a case is subsequently registered against the petitioner and if he is sought to be arrested. According to the learned counsel for the petitioner, the recovery was at night from a public place, and none was arrested at the spot, the scooter belonged to Amar Singh and did not belong to the petitioner, and though Amar Singh was interrogated, no action was taken against him. According to the learned counsel for the petitioner, the recovery was at night from a public place, and none was arrested at the spot, the scooter belonged to Amar Singh and did not belong to the petitioner, and though Amar Singh was interrogated, no action was taken against him. The learned counsel for Narcotic Control Bureau contended that the petitioner was directed to approach the Special Court and to move the regular bail on or before 26.5.99, and the petitioner accordingly filed an application for bail before the said court, and the same was dismissed, the thereafter, the petitioner has moved this Court. He contended that, therefore, and petitioner did not have the protection given by the Court after 26.5.99, and therefore, this petition is not maintainable at all after 26.5.99. On merits, it was contended by him that the petitioner was identified at the spot, but he fled away from the spot taking advantage of the darkness after throwing the contraband which was recovered from the spot. The learned counsel for the Narcotic Control Bureau, therefore, contended that the petitioner could not be arrested at the spot, and that the complaint has been lodged after investigation. 7. The learned counsel for the petitioner, of course, relied upon a Division Bench decision of this Court in Pritam Singh v. Daljit Singh etc., 1997(3) RCR 1 in support of his contention that if the accused was physically present and submitted (to) the jurisdiction of the court, he would be deemed to be in the custody for the purpose of Section 439 Criminal Procedure Code, and that it is not necessary that he should be actually arrested for the purpose of moving the application for bail under Section 439 Criminal Procedure Code He also relied upon another decision of this Court in Gurdev Singh v. State of Punjab, 1998(4) RCR 130. These two decisions do support the petitioner, but the order of the Special Court dated 17.5.99, does not say that the accused was also present before the court. The order which has taken notice of the presence of the counsel for the petitioner does not say that the petitioner was also present. But, we find that this Court in its order dated 12.5.999 had directed the petitioner to appear before the Special Judge on or before 26.5.99, and until then stayed the execution of the non-bailable warrants, as pointed out already. But, we find that this Court in its order dated 12.5.999 had directed the petitioner to appear before the Special Judge on or before 26.5.99, and until then stayed the execution of the non-bailable warrants, as pointed out already. The petitioner had moved the special court on 15.5.99 and his application was dismissed on 17.5.99. Thereafter, the petitioner moved this application before this Court. This application came up for hearing for the first time before this Court on 25.5.99, and at request of counsel for the petitioner, it was adjourned to 1.6.99. On 1.6.99 after hearing the learned counsel for the petitioner, notice was ordered to the respondents. Though the petitioner had prayed in the petition for the extension of the stay already granted upto 26.5.99, the petitioner was not granted stay. Therefore, on 1.6.99, when this court ordered notice, the petitioner was not in custody nor was the order in his favour extended. Further, we find that this is a case where the petitioner was identified when he came on the scooter alongwith the co-accused. The contraband was thrown by them on the road, and they had escaped. The contraband was seized from the public place. Since the petitioner-accused had escaped, no offer could be made to him as contemplated under Section 50 of the Act. It may be that the complaint has been filed after delay, but it is clear from the order Annexure P-1 which was passed on 26.11.1998 that Narcotic Control Bureau had stated that no case has been registered against the petitioner at that time, and therefore, the court had directed that as and when a criminal case is registered against the petitioner, and if the petitioner is sought to be arrested, he should be given notice so that he can move the court. Therefore, it is not as if there was no case absolutely against the petitioner. In these circumstances, I am of the view that there is no material to hold that the petitioner is not guilty or that he will not commit and offence under the N.D.P.S. Act. 8. Therefore, without meaning to express any opinion on the merits of the case, I am of the view that the petitioner is not entitled to be released on bail. Ultimately, this petition is dismissed. Petition dismissed.