Sega Halwai v. State of Punjab
Case Details
CRM-M-53734-2024 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CRM-M-53734-2024 Reserved on: 09.01.2025 Pronounced on: 27.01.2025 Subeg Singh @ Sega Halwai ...Petitioner Versus State of Punjab …Respondent CORAM: HON'BLE MR. JUSTICE ANOOP CHITKARA Present: Mr. Kanwaljeet Singh Brar, Advocate for the petitioner. Mr. Jasjit Singh, D.A.G., Punjab. ANOOP CHITKARA, J. ****
Facts
FIR No. Dated Police Station Sections 73 10.05.2024 Sadar Kotkapura, 22(C)/61/85 of NDPS Act District Faridkot (Section 29 of NDPS Act added later on) 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. In paragraph 22 of the bail petition, the accused declares that he has no criminal antecedents. 3. The facts and allegations are taken from the status report filed by the State. On May 10, 2024, based on chance recovery, the Police seized 4500 tablets of Tramadol from the possession of co-accused Chamkaur Singh alias Kauri. The Investigator claims to have complied with all the statutory requirements of the NDPS Act, 1985, and CrPC, 1973. 4. During the custodial interrogation of the accused Chamkaur Singh alias Kauri, he disclosed that the petitioner was the supplier of the drugs; based on this statement, the police arraigned the petitioner as an accused by incorporating S. 29 of the NDPS Act. 5. 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. Jyoti Sharma 2025.01.28 17:09 I attest to the accuracy and authenticity of this order/judgment High Court, Sector 1, Chandigarh 1 CRM-M-53734-2024 6. 7. The State’s counsel opposes bail and refers to the status report. The quantity allegedly involved in this case is primafacie 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. 8. In Abida v. State of Haryana, 2022:PHHC:058722, [Para 10], CRM-M-5077- 2022, decided on 13-05-2022, this court observed as follows: [10]. 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 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 offence, and is not likely to commit any offence while on bail. If either of these two 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 that the accused is not guilty of the alleged offence. Even on fulfilling one of the conditions, the reasonable grounds for believing that the accused is not guilty of such an offence, the Court still cannot give a finding on assurance that the accused is not likely to commit any such crime again. Thus, the grant of bail or denial of bail for possessing commercial quantity would vary from case to case, depending upon its facts. [31]. 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 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 subsist, and the factors for bail become similar to the bail petitions under general penal statutes like IPC. 9. It would be appropriate to refer to the evidence collected against the petition, which is taken from the status report, which reads as follows:- “8. That it is respectfully submitted that SI/SHO Gursewak Singh on the instructions from the deponent opened the light green transparent polythene and from which 10 boxes of intoxicating tablets from which 30 strips were recovered, each strip containing 10/10 intoxicating tablets. Total number came to 3000 intoxicating tablets of TROHMA-100 SR tablets NRx 10 TAB I.A.T. Another 03 more boxes each box containing 50 strips each strip containing 10/10 tablets in total 1500 intoxicating tablets of CLOVEDOLL-100 SR, NXX TRAMADOL HYDROCHLORIDE tablet 100mg B. NO JRT-24020 MFG. FEB.2024 EXP. JAN 2026 M.R.P 192.50 PER 10 TABS. INCL OF ALL TAXES were also recovered. A total of 4500 intoxicating tablets were recovered from the car belonging to Chamkaur Singh @ Kauri. 13. That it is respectfully submitted that during investigation SI/SHO Gursewak Singh on 18.05.2024 recorded the disclosure statement of the petitioner in which the petitioner disclosed that about 3-4 months ago, he Jyoti Sharma 2025.01.28 17:09 I attest to the accuracy and authenticity of this order/judgment High Court, Sector 1, Chandigarh 2 CRM-M-53734-2024 had a talk with co-accused Chamkaur Sigh alias Kori son of Amarjit Singh son of Hansa Singh, resident of village Sangatpura, Police Station Sadiq, District Faridkot, whose mobile number is 87288-77375 and who met him at a program in Sadiq, regarding purchase of narcotic pills/tablets, upon which the petitioner stated to co-accused Chamkaur Singh @ Kori that he can make available the narcotic pills/tablets to co- accused after purchasing the same at the rate of bulk price. 22. That it is respectfully submitted that the role attributed to the present petitioner, evidence against the petitioner and antecedents of the petitioner are given below:- (A) Role of Petitioner: (i) Petitioner is nominated in the present case on the confession of co- accused Chamkaur Singh @ Kauri who disclosed that the intoxicating tablets recovered from him were supplied by the petitioner approximately 10/15 days ago, contained in 15/20 boxes. (B). The evidence against the petitioner: (i) Disclosure statement of co-accused Chamkaur Singh @ Kauri who disclosed that the intoxicating tablets recovered from him were supplied by the petitioner approximately 10/15 days ago, contained in 15/20 boxes. (ii) Disclosure statement of the petitioner that he after purchasing the intoxicating tablets from co-accused Harjinder Singh @ Raju at the rate of Rs. 3500 per box, used to supply the same to co-accused Chamkaur Singh @Kauri at the rate of Rs. 3700 per box.” 10. Thus, the evidence collected so far consists of the disclosure statement and confession of the petitioner without any discovery of fact. 11. In Tofan Singh v. State of Tamil Nadu, (2021) 4 SCC 1, the majority view of a three-member bench holds as follows: We answer the reference by stating: (i) That the officers who are invested with powers under section 53 of the NDPS Act are “police officers” within the meaning of section 25 of the Evidence Act, as a result of which any confessional statement made to them would be barred under the provisions of section 25 of the Evidence Act, and cannot be taken into account in order to convict an accused under the NDPS Act. (ii) That a statement recorded under section 67 of the NDPS Act cannot be used as a confessional statement in the trial of an offence under the NDPS Act. 12. The status report filed by the police reveals that the investigator arraigned the petitioner as an accused based on the disclosure statement of the main accused, from whose possession the investigator had recovered the contraband. Further, the petitioner confessed as a seller. This evidence can be proved only subject to the conditions imposed in S. 25 & 26 of the Indian Evidence Act, 1872, and S. 23 of BSA, 2023. No other evidence is collected at this stage to connect the petitioner with the main accused. Thus, there is no justification to deny bail. Consequently, the petitioner has satisfied the first Jyoti Sharma 2025.01.28 17:09 I attest to the accuracy and authenticity of this order/judgment High Court, Sector 1, Chandigarh 3 CRM-M-53734-2024 rider of section 37 of the NDPS Act. Regarding the second rider of S. 37, this court will put very stringent conditions in this order to ensure that the petitioner does not repeat the offense. 13. For now, the petitioner has prima facie satisfied the first condition of section 37 of the NDPS Act to make a case for bail. Regarding the second rider of S. 37, this court will put very stringent conditions in this order to ensure that the petitioner does not repeat the offense. 14. Given the penal provisions invoked the quality of evidence, coupled with the primafacie analysis of the nature of allegations, and the other factors peculiar to this case, there would be no justifiability for further pre-trial incarceration at this stage. 15. The investigation indicates that the petitioner is not the main accused, so the petitioner's bail shall not be treated as a precedent for granting bail to the other co- accused with a higher role. 16.
Legal Reasoning
The evidence collected might be prima facie sufficient to launch prosecution or even to frame the charges; however, for the purpose of bail, the evidence is insufficient. Given the penal provisions invoked, the quality of evidence, coupled with the prima facie analysis of the nature of the allegations and the other factors peculiar to this case, further pre-trial incarceration at this stage would be unjustifiable. 17. Without commenting on the case's merits, in the facts and circumstances unique and peculiar to this case, and for the reasons mentioned above, the petitioner makes a case for bail. This order shall come into force from the time it is uploaded on this Court's official webpage. 18. Given above, provided the petitioner is not required in any other case, the petitioner shall be released on bail in the FIR captioned above subject to furnishing bonds to the satisfaction of the concerned Court and due to unavailability before any nearest Ilaqa Magistrate/duty Magistrate. Before accepting the surety, the concerned Court must be satisfied that if the accused fails to appear, such surety can produce the accused. 19. While furnishing a personal bond, the petitioner shall mention the following personal identification details: 1. AADHAR number 2. Passport number (If available) and when the attesting officer/court considers it appropriate or considers the accused a flight risk. 3. Mobile number (If available) 4. E-Mail id (If available) 20. This order is subject to the petitioner’s complying with the following terms. Jyoti Sharma 2025.01.28 17:09 I attest to the accuracy and authenticity of this order/judgment High Court, Sector 1, Chandigarh 4 CRM-M-53734-2024 21. The petitioner shall abide by all statutory bond conditions and appear before the concerned Court(s) on all dates. The petitioner shall not tamper with the evidence, influence, browbeat, pressurize, induce, threaten, or promise, directly or indirectly, any witnesses, Police officials, or any other person acquainted with the facts and circumstances of the case or dissuade them from disclosing such facts to the Police or the Court. 22. Given the background of allegations against the petitioner, it becomes paramount to protect the members of society, and incapacitating the accused would be one of the primary options until the filing of the closure report or discharge, or acquittal. Consequently, it would be appropriate to restrict the possession of firearms. [This restriction is being imposed based on the preponderance of the evidence of probability and not of evidence of certainty, i.e., beyond a reasonable doubt; and as such, it is not to be construed as an intermediate sanction]. Given the nature of the allegations and the other circumstances peculiar to this case, the petitioner shall surrender all weapons, firearms, and ammunition, if any, along with the arms license to the concerned authority within fifteen days of release from prison and inform the Investigator of the compliance. However, subject to the Indian Arms Act, 1959, the petitioner shall be entitled to renew and reclaim them in case of acquittal in this case, provided otherwise permissible under the concerned rules. Restricting firearms would instill confidence in the victim(s), their families, and society; it would also restrain the accused from influencing the witnesses and repeating the offense. 23. The conditions mentioned above imposed by this court are to endeavor to reform and ensure the accused does not repeat the offense and also to block the menace of drug abuse. In Mohammed Zubair v. State of NCT of Delhi, 2022:INSC:735 [Para 28], Writ Petition (Criminal) No 279 of 2022, Para 29, decided on July 20, 2022, A Three-Judge bench of Hon’ble Supreme Court holds that “The bail conditions imposed by the Court must not only have a nexus to the purpose that they seek to serve but must also be proportional to the purpose of imposing them. The courts, while imposing bail conditions must balance the liberty of the accused and the necessity of a fair trial. While doing so, conditions that would result in the deprivation of rights and liberties must be eschewed.” 24. In Md. Tajiur Rahaman v. The State of West Bengal, decided on 08-Nov-2024, SLP (Crl) 12225-2024, Hon’ble Supreme Court holds in Para 7, “It goes without saying that if the petitioner is found involved in such like offence in future, the concession of bail granted to him today will liable to be withdrawn and the petitioner is bound to face the necessary consequences.” 25. This bail is conditional, and the foundational condition is that if the petitioner indulges in any non-bailable offense, the State shall file an application for cancellation of this bail before the Trial Court, which shall be at liberty to cancel this bail. Jyoti Sharma 2025.01.28 17:09 I attest to the accuracy and authenticity of this order/judgment High Court, Sector 1, Chandigarh 5 CRM-M-53734-2024 26. Any observation made hereinabove is neither an expression of opinion on the case's merits nor shall the trial Court advert to these comments. 27. A certified copy of this order would not be needed for furnishing bonds, and any Advocate for the Petitioner can download this order along with case status from the official web page of this Court and attest it to be a true copy. If the attesting officer wants to verify its authenticity, such an officer can also verify its authenticity and may download and use the downloaded copy for attesting bonds. 28. Petition allowed in terms mentioned above. All pending applications, if any,
Decision
stand disposed of. 27.01.2025 Jyoti Sharma Whether speaking/reasoned: Yes No. Whether reportable: (ANOOP CHITKARA) JUDGE Jyoti Sharma 2025.01.28 17:09 I attest to the accuracy and authenticity of this order/judgment High Court, Sector 1, Chandigarh 6