Kulwant Singh v. State of Punjab

CORAM: HON'BLE MR. JUSTICE MEHINDER SINGH SULLAR Present: Mr. D.N. Ganeriwala, Advocate, for the petitioners. Mr. Sartaj Singh Gill, D.A.G., Punjab for the respondent. **** M ehinder S ingh S ullar, J. (Oral) Having exercised his right of bail and lost before Additional Sessions Judge, Muktsar, the petitioner-Kulwant Singh has preferred the instant petition for regular bail, in a case registered against him, vide F.I.R No. 52 dated 17.04.2010, on accusation of having committed the offence, punishable under Sections 15/61/85 of Narcotic Drugs & Psychotropic Substances Act, 1985 (hereinafter referred to as `the Act'), by the police of Police Station Lambi, District Muktsar, invoking the provisions of Section 439 Cr.P.C.

Concisely, the prosecution claimed that on 17.04.2010, in the wake of secret information that petitioner-Kulwant Singh is dealing in illegal trade of sale/purchase of poppy husk, the police raided the premises of the petitioner where he was found sitting near the bags of poppy husk. After following the procedure, the Investigating Officer was stated to have separated 250 gm of poppy husk from each bag as sample from the recovered poppy husk. The remaining poppy husk was separately weighed at the spot.

Levelling a variety of allegations, in all, according to the prosecution CRM No. M-3415 of 2011 -2- that 160 kgs of poppy husk (commercial quantity) was recovered from the possession of the petitioner. On the basis of aforesaid recovery, the instant case was registered against the accused, in the manner indicated herein above.

After hearing the learned counsel for the parties, having gone through the record and after considering the entire matter deeply, to my mind, there is no merit in the instant petition.

Ex facie, argument of learned counsel that since there is a clear violation of the mandatory provisions of Section 42 and 50 of the Act, so, the petitioner is entitled to bail, in view of the observation of Hon'ble Apex Court in case Sarija Banu alias Janarthani alias Janaji and another vs. State through Inspector of Police, (2004) 12, SCC 266, is not only devoid of merit but misplaced as well.

Possibly, no one can dispute with regard to the observation of Hon'ble Supreme Court in the aforesaid judgment that compliance under Section 42 of the Act is mandatory and is a relevant fact to be taken in to account, while considering the bail application. The same would not come to the rescue of the petitioner at this stage, as it is yet to be ascertained on the basis of entire evidence produced during the course of trial by the trial Court whether the Investigating Agency has not complied with the provisions of the Act and what would be its effect, in this context.

Be that as it may, but the fact remains is that 160 kg of poppy husk, which admittedly is a commercial quantity, was recovered from the possession of the petitioner and the provisions of Section 37 of the Act are applicable, in this respect.

After taking into consideration the totality of facts and circumstances and the fact of recovery of commercial quantity of poppy husk, to my mind, the petitioner is not entitled to bail, in the obtaining circumstances of the case.

In the light of aforesaid reasons and without commenting further anything on merits, lest it may prejudice the case of either side during the course of CRM No. M-3415 of 2011 -3- trial, the present petition for regular bail, filed by the petitioner, is hereby dismissed.

Needless to mention, that the trial Court will take effective steps for expeditious disposal of the case. (Mehinder Singh Sullar) Judge February 22, 2011 G.Arora