Dismissed

Varinder Singh v. State of Punjab

Punjab & Haryana HC14 Feb 2025CRM-M/17496/2024

Case brief

AI extract

What is this about?

The High Court dismissed a bail petition under Section 439 CrPC for possession of 270g heroin under the NDPS Act. Applying Section 37's strict provisions for commercial quantities, the court found the petitioner failed to establish reasonable grounds of innocence, rejecting arguments regarding procedural irregularities or trial delays.

What did the court decide?

Bail prayer dismissed; petitioner to remain in custody; trial urged to be concluded within two years.

Varinder Singh Vs State of Punjab — Narcotics (NDPS) | Punjab & Haryana HC (2025)

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CRM-M-17496-2024

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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

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CRM-M-17496-2024 Reserved on: 06.02.2025 Pronounced on: 14.02.2025

Varinder Singh

...Pe��oner

Versus

State of Punjab …Respondent

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CORAM: HON'BLE MR. JUSTICE ANOOP CHITKARA

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Present: Mr. Amardeep Singh, Advocate for the pe��oner.

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Mr. Jasjit Singh, DAG, Punjab.

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ANOOP CHITKARA, J.

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FIR No.	Dated	Police Sta/on	Sec/ons
36	10.05.2023	Chohla Sahib, District	21 C of NDPS Act (Sec�on 29 of
		Tarn Taran, Punjab	NDPS Act added later on)

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The pe��oner incarcerated in the FIR cap�oned above had come up before this Court under Sec�on 439 CrPC seeking regular bail.

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Per paragraph 11 of the bail applica�on and status report dated 30.09.2024, the accused has the following criminal antecedents:

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Sr. No.	FIR No.	Dated	Offenses	Police Sta�on
1.	99	20.06.2020	302, 506, 148, 149 IPC	Chohla Sahib, District Tarn Taran
2.	25 (convicted)	29.03.2021	174-A IPC	Chohla Sahib, District Tarn Taran
3.	33	03.05.2023	21-A, 29, 61, 85 of NDPS Act	Chohla Sahib, District Tarn Taran

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The facts and allega�ons are taken from the reply filed by the State. On 10.05.2023, based on prior informa�on, the Police seized 270 gram heroin from the right pocket of capri worn by the pe��oner. The Inves�gator claims to have complied with all the statutory requirements of the NDPS Act, 1985, and CrPC, 1973.

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The pe��oner's counsel refers to the bail pe��on. It would be relevant to refer to para 3 of the pe��on, which reads as follows:

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“3. That upon the registra�on of the above-said case FIR, the raid was

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JYOTI

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2025.02.15 12:31 I attest to the accuracy and integrity of this order/judgment.

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CRM-M-17496-2024

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conducted by the inves�ga�ng officer on the tube well installed in the agriculture land of the pe��oner. It is per�nent to men�on here that the said informa�on was not shared with any superior officer in wri�ng. This clearly amount to viola�on of sec�on 42 of NDPS Act.”

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The pe��oner's counsel prays for bail by imposing any stringent condi�ons and contends that further pre-trial incarcera�on would cause an irreversible injus�ce to the pe��oner and their family.

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The State’s counsel opposes bail and refers to the reply. It would be appropriate to refer to following por�on of the status report, which reads as follows:

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“6. That it is submi+ed that during the search and seizure of the pe��oner, the proper legal process was adopted by the IO and all the mandatory provisions complied with. The recovery of contraband/270 grams heroin was effected from the pe��oner in the presence of Gazza+ed officer i.e. Sh. Arun Sharma, PPS, the then DSP Sub Division Goindwal Sahib.”

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REASONING:

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The quan�ty allegedly involved in this case is commercial. Given this, the rigors of S. 37 of the NDPS Act apply in the present case. The pe��oner must sa�sfy the twin condi�ons put in place by the Legislature under Sec�on 37 of the NDPS Act.

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Sec�on 37¹ of the NDPS Act mandates under sub-sec�on (1) (b) of sec�on 37 that no person accused of an offense punishable for offenses involving commercial quan�ty shall be released on bail unless- (i) the Public Prosecutor has been given an opportunity to oppose the applica�on of release, and (ii) where the Public Prosecutor opposes the applica�on, the Court is sa�sfied that there are reasonable grounds for believing that accused is not guilty of such offense and is not likely to commit any offense while on bail. Thus, the rigors of S. 37 of the NDPS Act apply in the present case, and the burden is on the pe��oner to sa�sfy the twin condi�ons put in place by the Legislature under Sec�on 37 of the NDPS Act. Given the legisla�ve mandate of S. 37 of

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1 37 . Offences to be cognizable and non-bailable .—( 1 ) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974),—

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( a ) every offence punishable under this Act shall be cognizable;

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( b ) no person accused of an offence punishable for offences under section 19 or section 24 or section 27A and also for offences involving commercial quantity shall be released on bail or on his own bond unless—

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( i ) the Public Prosecutor has been given an opportunity to oppose the application for such release, and ( ii ) where the Public Prosecutor opposes the application, the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail.

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( 2 ) The limitations on granting of bail specified in clause ( b ) of sub-section ( 1 ) are in addition to the limitations under the Code of Criminal Procedure, 1973 (2 of 1974) or any other law for the time being in force on granting of bail.

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JYOTI 2025.02.15 12:31 I attest to the accuracy and integrity of this order/judgment.

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CRM-M-17496-2024

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the NDPS Act, the Court can release a person accused of an offense punishable under the NDPS Act for possessing a commercial quan�ty of contraband only aGer recording reasonable sa�sfac�on of its rigors.

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The State’s Counsel argues that a plain reading of Sec�on 37 reveals that the legislature intends to make the law stringent to curb the drug menace. It is further to be no�ced that the provisions are couched in nega�ve language, meaning that to grant bail, the Court needs to record a finding that there are reasonable grounds for believing that the pe��oner is not guilty of the offense. The burden of proof is also on the pe��oner to sa�sfy the Court about his non-involvement in the case. While interpre�ng the provisions of Sec�on 37 of the NDPS Act, the Court must be guided by the objec�ve sought to be achieved by puIng these stringent condi�ons.

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Sa�sfying the feJers of S. 37 of the NDPS Act is candling the infer�le eggs. The stringent condi�ons of sec�on 37 placed in the statute by the legislature do not create a bar for bail for specified categories, including the commercial quan�ty; however, it creates hurdles by placing a reverse burden on the accused, and once crossed, the rigors no more exist, and the factors for bail become similar to the bail pe��ons under general penal statutes like IPC. Thus, both the twin condi�ons need to be sa�sfied before a person accused of possessing a commercial quan�ty of drugs or psychotropic substance is to be released on bail. The first condi�on is to provide an opportunity to the Public Prosecutor, enabling them to take a stand on the bail applica�on. The second s�pula�on is that the Court must be sa�sfied that reasonable grounds exist for believing that the accused is not guilty of such an offense and is not likely to commit any offense while on bail. If either of these condi�ons is not met, the ban on gran�ng bail operates. The expression “reasonable grounds” means something more than prima facie grounds. It contemplates substan�al probable causes for believing the accused is not guilty of the alleged offense. Even on fulfilling one of the condi�ons, the reasonable grounds for believing that the accused is not guilty of such an offense, the Court s�ll cannot give a finding on the assurance that the accused is not likely to commit any such crime again.

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The pe��oner’s arguments did not point toward any material contradic�ons. As concerned for the no�ces which are typed, that is a ques�on of trial and could be ascertained by cross-examina�on only.

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The submissions made above and the grounds in the bail pe��on do not shiG the burden the legislature places on the accused under S. 37 of the NDPS Act. The pe��oner has not stated anything in the bail pe��on to discharge the burden put by the stringent condi�ons placed in the statute by the legislature under sec�on 37 of the NDPS Act. The

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JYOTI 2025.02.15 12:31 I attest to the accuracy and integrity of this order/judgment.

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CRM-M-17496-2024

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inves�ga�on reveals sufficient prima facie evidence to connect the pe��oner with the crime; thus, the pe��oner fails to make out a case for bail. Any detailed discussions about the evidence may prejudice the case of the pe��oner, the State, or the other accused.

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As per para 4 of the bail pe��on, the pe��oner is in custody since 10.05.2023,which cannot be considered prolonged.

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In Union of India (NCB) v. Khalil Uddin, decided on 21 Oct 2022, 2022 SCC OnLine SC 2109, Hon’ble Supreme Court holds,

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[4]. According to the prosecu�on, contraband material weighing about 13 kgs. of morphine was found in a motor vehicle which was driven by co-accused named Md. Jakir Hussain. During the course of inves�ga�on, it was found that the motor vehicle was recorded in the name of Md. Nizam Uddin who had executed a sale leJer and handed over the custody of the vehicle to accused Md. Abdul Hai and that accused Md. Jakir Hussain was the driver employed by accused Md. Abdul Hai and that contraband material in ques�on was to be handed over to accused-Khalil Uddin, an owner of a tea shop.

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[5]. The High Court by its order which is presently under challenge, directed release of both the accused as stated above on bail aGer they had undergone custody to the tune of about a year. Ques�oning grant of relief to said accused, the instant appeals have been preferred.

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[7]. What emerges from the record is that large quan�ty of contraband weighing about 13 kgs of morphine was found in a car which was driven by Md. Jakir Hussain. Whether the role played by said Md. Jakir Hussain could get connected with both the accused is a ques�on.

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[8]. The answer to said ques�on could be the statement recorded of Md. Nizam Uddin. The statement of Md. Jakir Hussain recorded under Sec�on 67 of the Act has also named his owner accused Abdul Hai. We are conscious of the fact that the validity and scope of such statements under Sec�on 67 has been pronounced upon by this Court in Tofan Singh v. State of Tamil Nadu . In State by (NCB) Bengaluru v. Pallulabid Ahmad Arimu+a , the rigour of law lay down by this Court in Tofan Singh was held to be applicable even at the stage of grant of bail.

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[9]. However, going by the circumstances on record, at this stage, on the strength of the statement of Md. Nizam Uddin, though allegedly retracted later, the maJer stands on a different foo�ng. In our considered view, in the face of the mandate of Sec�on 37 of the Act, the High Court could not and ought not to have released the accused on bail. We, therefore, allow these appeals, set aside the view taken by the High Court and direct that both the appellants be taken in custody forthwith.

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JYOTI 2025.02.15 12:31 I attest to the accuracy and integrity of this order/judgment.

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CRM-M-17496-2024

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[10]. We have been given to understand that the charge-sheet has been filed. In the circumstances, we direct the Trial Court to take up the maJer and conclude the proceedings as early as possible and preferably within six months from the receipt of this order.

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In Narayan Takri v. State of Odisha, decided on 10 Sep 2024, SLP (Crl.) 81982024, Hon’ble Supreme Court holds,

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The pe��oners are in custody since 28th May, 2022 for alleged commission of alleged offence under Sec�on 20(b)(ii)(c) of the Narco�c Drugs and Psychotropic Substances Act, 1985. As per the FIR allega�on, 125.3 kg. of “Ganja” was recovered from the pe��oners.

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[3]. It is not in dispute that the trial has commenced and that three prosecu�on witnesses have been examined �ll date.

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[4]. Learned counsel for the pe��oners submits that the third prosecu�on witness was examined as far back as on 28th January, 2024 and since then, no other prosecu�on witness has been examined. There is, however, no such averment in the pe��on.

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[5]. Learned counsel appearing for the respondent submits that every endeavor shall be made on behalf of the prosecu�on to have all the witnesses examined by the end of this year.

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[6]. The trial court is encouraged to expedite the trial and give its decision as early as possible, in accordance with law.

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[7]. We, however, do not see any reason to interfere the impugned judgment and order at this stage; however, it is clarified that in the event the trial is not completed by the end of this year, the pe��oners shall be at liberty to renew their prayer for bail before the trial court.

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A perusal of the bail pe��on and the documents aJached primafacie points towards the pe��oner’s involvement and does not make out a case for bail. The impact of crime would also not jus�fy bail. Any further discussions will likely prejudice the pe��oner; this court refrains from doing so.

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The pe��oner’s custody of around 01 year and 07 months cannot be termed prolonged, given the minimum sentence prescribed for the offense.

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Regarding the delay in the trial, if the trial does not conclude within two years of the pe��oner's custody, and the delay is not aJributable to the pe��oner, the pe��oner may apply for bail before the trial Court. The Court shall not be influenced by the dismissal of bail on merits or by the criminal history and shall decide it on changed circumstances and the prolonged trial.

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