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2003 DIGILAW 1527 (PNJ)

Harjit Singh v. State of Punjab

2003-11-07

VIRENDER SINGH

body2003
JUDGMENT Virender Singh, J. - Harjit Singh, the petitioner-herein has been booked in a case bearing FIR No. 105 dated July 4, 2003 under Sections 18/61/85 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the Act) registered at police station Mandi Gobindgarh. He prays for regular bail. 2. The allegation against the petitioner is that on July 4, 2003 he was spotted by Inspector Amarjit Singh and other police officials carrying a plastic bag in his hand. On seeing the police party, he tried to run away but was apprehended. Upon search of the said bag, opium weighing 7 kilograms and 120 grams was allegedly recovered. 3. I have heard Mr. R.S. Cheema, learned Senior Advocate for the petitioner. The petition and the other documents attached thereto have also been perused by me minutely. 4. Learned counsel for the petitioner has made the following three submissions. 5. i) Ashok Kumar, who has been allegedly shown as a witness to the recovery is the most convenient stock witness of the prosecution, who is always at the beck and call of the police as he is a witness in as many as 11 cases of police station Mandi Gobindgarh itself, including the present case (viz. FIR No. 73 of 2001, under Section 380 Indian Penal Code, FIR No. 83 of 2001, under Section 379 Indian Penal Code, FIR No. 97 of 2001, under Sections 379/411 Indian Penal Code, FIR No. 15 of 2002, under Section 457/411 Indian Penal Code, FIR No. 60 of 2002, under Sections 379/411 Indian Penal Code, FIR No. 115 of 2002, under Sections 379/411 Indian Penal Code, FIR No. 43 of 2002, under Sections 379/411 Indian Penal Code, FIR No. 105 of 2003, under the NDPS Act, FIR No. 117 of 2003, under Sections 21/61/85 NDPS and FIR No. 59 of 2002, under Sections 279/304-A Indian Penal Code). According to the learned counsel, this fact alone dents the prosecution case in its entirety. ii) The petitioner has been implicated at the instance of SI Dalip Singh, posted at police station Mandi Gobindgarh as the later was not obliged by him. SI Dalip Singh is the witness of recovery in this case and a case of corruption has already been registered against SI Dalip Singh as he was caught red handed while accepting bribe of Rs. 5,000/- from one Jasvir Singh. Mr. SI Dalip Singh is the witness of recovery in this case and a case of corruption has already been registered against SI Dalip Singh as he was caught red handed while accepting bribe of Rs. 5,000/- from one Jasvir Singh. Mr. Cheema places reliance upon Annexure P3 in this context. iii) There is non-compliance of Sections 50 and 57 of the Act. So far as non- compliance of Section 50 of the Act is concerned, the learned counsel has drawn my attention to Annexure P2. Regarding non-compliance of Section 57, learned counsel contends that in this case no report regarding the particulars of arrest of the petitioner and seizure memo were sent to the immediate officer by the Investigating Officer. 6. Relying heavily on the aforesaid submissions, the learned counsel contends that the case of the prosecution is doubtful from its inception and as such the petitioner deserves the concession of bail. 7. I do not agree with any of the contentions raised by the learned counsel. I, however, refrain myself from commenting on merits at this stage, lest it may prejudice the case of either side at the time of trial. 8. All that is submitted by learned counsel for the petitioner in support of his arguments, may be considered as good defences at the appropriate stage, but cannot be taken into account at the time of granting bail. 9. The conditions as laid down under Section 37 of the Act are mandatory. In the absence of satisfaction of the said conditions, the bail to an accused cannot be granted. While dealing with the bail application in a case of recovery of 5 Kgs of opium, their Lordships of the Apex Court in Union of India v. Ram Samukh and another, 1999 Supreme Court Cases (Cri) 1522 have held as under :- "The Legislative mandate contained in the Statement of Objects and Reasons for introducing Bill No. 125 of 1988 which culminated in the incorporation of the amended Section 37 has to be adhered to and followed. In a murder case, the accused commits murder of one or two persons, while those persons who are dealing in narcotic drugs are instruments in causing death or in inflicting death-blow to a number of innocent young victims, who are vulnerable; it causes deleterious effects and a deadly impact on the society; they are a hazard to the society; even if they are released temporarily, in all probability, they would continue their nefarious activities of trafficking and/or dealing in intoxicants clandestinely. To check the menace of dangerous drugs flooding the market, Parliament has provided that the person accused of offences under the NDPS Act should not be released on bail during trial unless the mandatory conditions provided in Section 37(1)(b) are satisfied.-----------" 10. In the aforesaid case, the order granting bail to the accused was set- aside. 11. In Superintendent, Narcotics Control Bureau, Chennai v. R. Paulsamy, 2001 Supreme Court Cases (Crl.) 648, their Lordships observed that having regard to the provision of Section 37 of the Act, it would be too early to take into account and judge the matter regarding non-compliance with the provisions during the bail stage. In the said case, the Honble High Court had granted the relief to the accused on the ground that there was non-compliance of Sections 52 and 57 of the Act. The bail order was consequently set-side by the Honble Apex Court. The relevant extract of the observations made by the Honble Supreme Court is as under :- "In the light of Section 37 of the Act no accused can be released on bail when the application is opposed by the Public Prosecutor unless the Court is satisfied that there are reasonable grounds for believing that he is not guilty of such offences and that he is not likely to commit any offence while on bail. It is unfortunate that matters which could be established only in offence regarding compliance with Sections 52 and 57 have been prejudged by the learned Single judge at the stage of consideration for bail. The minimum which the learned Single Judge should have taken into account was the factual presumption in law position that official acts have been regularly performed. It is unfortunate that matters which could be established only in offence regarding compliance with Sections 52 and 57 have been prejudged by the learned Single judge at the stage of consideration for bail. The minimum which the learned Single Judge should have taken into account was the factual presumption in law position that official acts have been regularly performed. Such presumption can be rebutted only during evidence and not merely saying that no document has been produced before the learned Single Judge during bail stage regarding the compliance with the formalities mentioned in Sections 52 and 57." 12. In State of Madhya Pradesh v. Kajad, 2001(4) Recent Criminal Reports 219, the Honble Apex Court, while quashing the order of bail granted to the accused by the High Court, has observed that the limitations on granting bail specified in clause (b) of Sub-section (1) of Section 37 of the Act are in addition to the limitations under the Code of Criminal Procedure, 1973 or any other law for the time being in force for granting of bail. The purpose for which the Act was enacted, has been discussed by their Lordships as under :- "The purpose for which the Act was enacted and the menace of drug trafficking which intends to curtail is evident from its scheme. A perusal of Section 37 of the Act leaves no doubt in the mind of the Court that a person accused of an offence punishable for a term of imprisonment of five years or more, shall generally be not released on bail. Negation of bail is the rule and its grant an exception under sub-clause (ii) of clause (b) of Section 37(1). For granting the bail the Court must, on the basis of the record produced before it, be satisfied that there are reasonable grounds for believing that the accused is not guilty of the offences with which he is charged and further that he is not likely to commit any offence on bail. It has further to be noticed that the conditions for granting the bail, specified in clause (b) of sub-section (1) of Section 37 are in addition to the limitations provided under the Code of Criminal Procedure or any other law for the time being in force regulating the grant of bail. Liberal approach in the matter of bail under the Act is uncalled for." 13. Liberal approach in the matter of bail under the Act is uncalled for." 13. The Honble Apex Court in Babua alias Tazmul Hossain v. State of Orissa, 2001(1) RCR(Cri) 720 observed that the other aspect to be borne in mind by the Courts is that the liberty of a citizen has to be balanced with the interest of the society and the persons who indulge in the activities of trafficking of the narcotic drugs, are lethal to the society. Such type of persons should be kept behind the bars during pendency of proceedings before the Court, in the interest of society. 14. No doubt in the instant case there is a reference in para 10 of the petition that the petitioner is not a habitual offender and no previous case has been registered against him under the Act or any other penal provision, but this fact by itself would not be enough to overcome the mandatory bar of Section 37(1)(b) of the Act. The recovery alleged to have been effected from the possession of the petitioner is 7 Kgs 120 Gms (commercial quantity). In view of the embargo imposed by Section 37(1)(b) of the Act, I am not inclined to grant the relief of bail to the petitioner. Consequently the present petition is dismissed being devoid of any merit. Petition dismissed.