Allowed

Kala Singh @ Kala v. State of Punjab

Punjab & Haryana HC14 Nov 2024CRM-M/38832/2024

Case brief

AI extract

What is this about?

Regular bail under Section 439 CrPC in an NDPS case involving commercial quantity of Tramadol Hydrochloride and Etizolam tablets. Accused was implicated solely on the disclosure statement of the main accused with no other evidence connecting him. Court found the first condition of Section 37 satisfied and granted bail with stringent conditions including firearm surrender.

What did the court decide?

Petitioner released on bail in FIR No. 121/2023 subject to furnishing bonds, statutory bond conditions, and surrender of weapons/firearms within fifteen days.

Kala Singh @ Kala Vs State of Punjab — Narcotics (NDPS) | Punjab & Haryana HC (2024)

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CRM-M-38832-2024

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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

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CRM-M-38832-2024 Reserved on: 08.11.2024 Pronounced on: 14.11.2024

Kala Singh @ Kala

...Petitioner

Versus

State of Punjab

…Respondent

CORAM: HON'BLE MR. JUSTICE ANOOP CHITKARA

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Present: Ms. Roja Agnihotri, Advocate for the petitioner.

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Ms. Swati Batra, DAG, Punjab.

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ANOOP CHITKARA, J.

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FIR No.	Dated	Police Station	Sections
121	29.08.2023	Kot Ise Khan,	22 & 29 of NDPS Act
		District Moga

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The petitioner incarcerated in the FIR captioned above had come up before this Court under Section 439 CrPC, seeking regular bail.

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As per paragraph 12 of the bail petition and para 12 of reply, the accused has the following criminal antecedents:

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Sr. No.	FIR No.	Date	Offenses	Police Station
1	10	23.01.2015	21 of NDPS Act	Fatehgarh Panjtoor
2	157	19.11.2018	174-A IPC	Kot Ise Khan
3	133	29.07.1993	61 of Excise Act	Zira
4	74	09.07.2018	22 of NDPS Act	Kot Ise Khan
5	128	24.06.2016	21 of NDPS Act	City-2, Moga
6	109	26.06.1993	61 of Excise Act	Zira

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The facts and allegations are taken from the reply filed by the State. On Aug 29, 2023, based on chance recovery, the Police seized 100 + 25 tablets from the possession of the main accused Kulwant Singh. The Investigator claims to have complied with all the statutory requirements of the NDPS Act, 1985, and CrPC, 1973. During the custodial interrogation of the accused Kulwant Singh, he disclosed the petitioner as the supplier of the drugs; based on the disclosure statement, the police arraigned the petitioner as an accused by incorporating S. 29 of the NDPS Act.

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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

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ANJU RANI 2024.11.14 16:11 I attest to the accuracy and integrity of this document Punjab and Haryana High Court Chandigarh

CRM-M-38832-2024

petitioner and their family.

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The State’s counsel opposes bail and refers to the reply.

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Para 6 of the reply reads as follows:

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“6. That as per FSL report following salt were found from the recovered intoxicant tablets:-

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Sr.	Salt	Average	Total	Total weight
No.		weight	recovery
1	Tramadol	397 mg/tablet	100 tablets	39.700 grams
	Hydrochloride
2	Etizolam	126 mg/tab.	25 tablets	3.15 grams

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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.

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In Abida v. State of Haryana, 2022:PHHC:058722, [Para 10], CRM-M-50772022, decided on 13-05-2022, this court observed as follows:

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[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.

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[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.

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It would be appropriate to refer to the evidence collected against the petition, which is taken from the reply, which reads as follows:

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“9. Role of the petitioner : Petitioner has been nominated as accused in the present case on 31.08.2023 on the basis of disclosure statement of accused Kulwant Singh, as during investigation said Kulwant Singh got recorded his disclosure statement, that the tablets which were recovered

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ANJU RANI 2024.11.14 16:11 I attest to the accuracy and integrity of this document Punjab and Haryana High Court Chandigarh

CRM-M-38832-2024

from his possession were brought by him from Kala Singh (Petitioner). Moreover, recovery effected in this case falls within ambit of commercial quantity and provisions of section 37 of NDPS Act are applicable in the present case.

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10. Evidence against the petitioner : Petitioner has been nominated as accused on the basis of disclosure statement of Kulwant Singh @ Wadda (Main accused), who was apprehended red handed and 125 loose tables were recovered from his possession.”

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Thus, the evidence collected so far consists of disclosure statements without any discovery of fact.

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In Tofan Singh v. State of Tamil Nadu, (2021) 4 SCC 1, the majority view of a three-member bench holds as follows:

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We answer the reference by stating:

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(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.

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(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.

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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. 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 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.

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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.

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As per paragraph 4 of the bail petition, the petitioner has been in custody since 20.03.2024. As per the custody certificate dated 07.11.2024, the petitioner’s total custody in this FIR is 07 months & 16 days. Given the penal provisions invoked viz-a-viz pre-trial custody, coupled with the primafacie analysis of the nature of allegations, and the other factors peculiar to this case, there would be no justifiability further pre-trial incarceration at this stage.

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ANJU RANI 2024.11.14 16:11 I attest to the accuracy and integrity of this document Punjab and Haryana High Court Chandigarh

CRM-M-38832-2024

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 coaccused with a higher role.

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Without commenting on the case's merits, in the facts and circumstances peculiar to this case, and for the reasons mentioned above, the petitioner makes a case for bail.

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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.

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18. While furnishing a personal bond, the petitioner shall mention the following personal identification details:

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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)

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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.

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Given the background of allegations against the petitioner, it becomes paramount to protect the drug detection squad, their family members, as well as 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 firearm(s). [This restriction is being imposed based on the preponderance of evidence of probability and not of evidence of certainty, i.e., beyond 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 from release from prison and inform the Investigator about the compliance. However, subject to the Indian Arms Act, 1959, the petitioner shall be entitled to renew and take it back in case of acquittal in this case, provided otherwise permissible in 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.

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ANJU RANI 2024.11.14 16:11 I attest to the accuracy and integrity of this document Punjab and Haryana High Court Chandigarh

CRM-M-38832-2024

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.”

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This bail is conditional, and the foundational condition is that if the petitioner indulges in any non-bailable offense, the State may file an application for cancellation of this bail before the Sessions Court, which shall be at liberty to cancel this bail.

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Any observation made hereinabove is neither an expression of opinion on the case's merits nor shall the trial Court advert to these comments.

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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.

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Petition allowed in terms mentioned above. All pending applications, if any, stand disposed of.

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(ANOOP CHITKARA) JUDGE 14.11.2024 anju rani Whether speaking/reasoned: Yes Whether reportable: No.

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ANJU RANI 2024.11.14 16:11 I attest to the accuracy and integrity of this document Punjab and Haryana High Court Chandigarh

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Kala Singh @ Kala v. State of Punjab

Case brief

What is this about?

What did the court decide?

Kala Singh @ Kala v. State of Punjab

Case brief

What is this about?

What did the court decide?

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