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2019 Supreme(P&H) 2176
IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH
Daya Chaudhary, J.
Piara Singh - Appellant
Versus
State Of Punjab - Respondent
Criminal Misc. No. M-55799 of 2018
Decided On : 08-02-2019
Mr. Vipul Jindal, Advocate for the Appellant; Ms. Samina Dhir, DAG, Punjab for the Respondent-State.
The court emphasized the importance of debatable issues, lack of recovery from the petitioner, and the requirement for evidence during trial in granting anticipatory bail.
Headnote:
Anticipatory Bail - Narcotic Drugs and Psychotropic Substances Act - Section 18, 25, 29 - Section 54, 37, 42 - The court discussed the provisions of the NDPS Act, including conscious possession, presumption of innocence, and the bar under Section 29. It also considered the requirement of secret information under Section 42 and the impact of commercial quantity under Section 37. The court referred to various judgments to support its analysis.
Fact of the Case:
The petitioner filed for anticipatory bail under Section 438 Cr.P.C. in a case registered under Section 18, 25, 29 of the NDPS Act. The petitioner claimed innocence and argued that conscious possession was debatable, and the recovery was not from him. The prosecution opposed, citing the commercial quantity and the lack of presumption of innocence under Section 54.
Finding of the Court:
The court found that the petitioner's involvement and conscious possession were debatable issues to be considered during trial. It noted that no recovery was made from the petitioner, and the presumption of Section 54 could not be against the petitioner. The court allowed the petition and made the interim order in favor of the petitioner absolute, directing the petitioner to join the investigation when called upon.
Issues: Debatable conscious possession, presumption of innocence, impact of commercial quantity, requirement of secret information, and the petitioner's involvement.
Ratio Decidendi: The court considered the debatable issues, lack of recovery from the petitioner, and the requirement for evidence during trial. It also emphasized the lack of influence on witnesses and the petitioner's cooperation with the investigation.
Final Decision: The petition for anticipatory bail was allowed, and the interim order in favor of the petitioner was made absolute, with the petitioner directed to join the investigation when called upon.
JUDGMENT
Daya Chaudhary, J. - The present petition has been filed by the petitioner under Section 438 Cr.P.C. for grant of anticipatory bail in case FIR No.292 dated 05.11.2018 registered under Section 18,25,29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short 'the NDPS Act ) at Police Station City Tarn Taran.
2. Learned counsel for the petitioner submits that the petitioner is not having any criminal antecedents and has falsely been implicated in the case. The alleged recovery has falsely been fastened upon him as the truck in dispute does not belong to him. Learned counsel further submits that question of conscious possession is a debatable issue, which is to be decided during trial. Learned counsel also submits that the petitioner was not arrested from the spot and his bail application has been dismissed on the ground of presumption whereas provisions of Section 54 of the NDPS Act are not attracted . Learned counsel also submits that bar under Section 37 of the NDPS Act can only be there in case, there is conscious possession of the petitioner whereas the alleged recovery was not effected from the conscious possession of the petitioner. It is also the argument of learned counsel for the petitioner that learned Special Court has overlooked the observations recorded by Hon'ble the Apex Court in State of Karnataka and others vs. Uma Devi, 2006(2) SCT 462. It is also the argument of learned counsel for the petitioner that in case of not arresting the petitioner from the place of occurrence, the involvement of petitioner would be a debatable issue and he becomes entitled for anticipatory bail. The petitioner has been implicated on the basis of statement made by co-accused. The report of Forensic Science Laboratory has not been received so far and in absence of any such report, it cannot be said that the alleged recovery made from the co-accused was of any narcotic substance and no offence is made out under the NDPS Act. It has further been argued that as per prosecution, the secret information was received and on the basis of said secret information, recovery was effected. Even that secret information was not recorded in writing as required under Section 42 of the NDPS Act. Learned counsel for the petitioner has also relied upon judgments rendered by Hon'ble the Apex Court in Sarija Banu (a) Janarthani alias Janani and another vs. State through Inspector of Police, 2004 (12) SCC266, Darshan Singh vs. State of Haryana, 2016(14) SCC 358, State of Rajasthan vs. Jag Raj Singh @ Hansa, 2017(1) SCC (Cri) 348, Kishan Chand vs. State of Haryana, 2013(2) SCC 502, Siddharam Satlingappa Mhetre vs. State of Maharashtra and others, 2011(1) SCC 694, Ranjitsing Brahmqjeetsing Sharma vs. State of Maharashtra and another, 2005(5) SCC 294 as well as judgments rendered by this Court in Deep Singh vs. State of Punjab and others (CRM-M No.7057 of 2015 decided on 27.07.2015), Surjit Singh vs. State of Punjab (CRM-MNo.45320 of 2016 decided on 28.02.2017), Karamjit Singh alias Pammi vs. State of Punjab (CRM-M No.38006 of 2018 decided on 01.10.2018), Harinder Singh @ Happy vs. Central Bureau of Narcotics (CRM-M No.22034 of 2017 decided on 29.05.2018), Gurdev Singh vs. State of Punjab (CRM-M No.36526 of 2016 decided on 02.12.2016), Tarsem Chand @ Dhipai vs. State of Punjab (CRM-M No.44866 of 2017 decided on 15.03.2018), Raj Kaur vs. State of Punjab (CRM-MNo.34400 of 2018 decided on 16.08.2018), Anmol Kaur vs. State of Punjab (CRM-M No.5793 of 2018 decided on 24.05.2018), Davinder Singh @ Bitta vs. State of Punjab (CRM-M No.307 14 of 2015 decided on 05.10.2015), Naresh Kumar vs. State of Haryana (CRM-M No.14625 of 2015 decided on 28.07.2015), Tilak Singh vs. State of Punjab (CRM-M No.43732 of 2016 decided on 14.12.2016), Harprit Singh Bahad vs. State of Punjab (CRM-M No.4161 of 2017 decided on 10.05.2017), Gurwinder Singh vs. State of Punjab (CRM-M No.21093 of 2016 decided on 28.07.2016), Dilbagh Singh vs. State of Punjab (CRM-M No. 19
