Varinder Singh @ Bagga Singh vs State of Punjab.

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2022 Supreme(P&H) 1884

IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
Jasjit Singh Bedi, J.
Varinder Singh @ Bagga Singh – Appellant
Versus
The State Of Punjab. – Respondent
CRM-M-3193-2022 (O&M)
Decided On : 20-05-2022

Advocates appeared:
Mr. B.S. Kathuria, Advocate, for the Appellant; Mr. Kirat Singh Sidhu, Deputy Advocate General, Punjab, for the Respondent

Headnote:
BAIL - REGULAR BAIL - SECTION 37 OF NDPS ACT - VIOLATION OF SECTION 42 OF NDPS ACT - NON COMPLIANCE OF SECTION 42 OF NDPS ACT - EFFECT OF NON COMPLIANCE - SATISFACTION OF COURT THAT THERE ARE REASONABLE GROUNDS FOR BELIEVING THAT THE ACCUSED IS NOT GUILTY - SATISFACTION OF COURT THAT THE ACCUSED IS NOT LIKELY TO COMMIT ANY OFFENCE WHILE ON BAIL - CONDITIONS FOR GRANT OF BAIL - POWER OF COURT TO GRANT BAIL - GUIDELINES FOR GRANT OF BAIL - DELAY IN CONCLUSION OF TRIAL OR FINAL ADJUDICATION OF APPEAL AGAINST CONVICTION - RIGHT TO SPEEDY TRIAL UNDER ARTICLE 21 OF THE CONSTITUTION OF INDIA.
Fact of the Case:

The petitioner was arrested in a case registered under Sections 18, 29, 61, 85 of NDPS Act, 1985 for allegedly being in possession of 3 kgs of opium. The petitioner contended that there was a violation of Section 42 of the NDPS Act as the secret information was not reduced into writing and sent to superior officials within 72 hours. He also contended that ASI Balkar Singh acted as the informant of the case and thereafter himself got conducted the search and seizure which was in violation of the law laid down by Hon'ble Supreme Court in Mohan Lal Vs. State of Punjab (2018) 17 SCC 627. The petitioner further contended that the recovery was of 3Kgs of Opium including the weight of the polythene bag and could be said to be marginally more than the non commercial quantity and the petitioner, therefore, deserves the concession of bail. It was lastly contended that the petitioner could not be said to be in conscious possession of the contraband as the recovery was from beneath the driver seat and the petitioner was neither the owner nor the driver of the i20 car and this fact also entitles the petitioner to the grant of bail.
Finding of the Court:

The Court held that the Counsel for the petitioner has vehemently argued that the provisions of Section 42 of the NDPS Act have been violated and this fact alone entitles the petitioner to the grant of bail. During the hearing of the bail application of the co-accused of the petitioner, Harshdeep (since granted bail) this Court had asked the State Counsel to verify as to whether Section 42 of the NDPS Act has been complied with or not. As per the reply there was no specific response to the contention raised by the counsel for the petitioner therein regarding the violation of Section 42 of the NDPS Act. Infact the learned State Counsel and the IO of the case ASI Raj Singh were asked to examine the report under Section 173 Cr.PC along with accompanying documents in Court and they factually conceded that there was no document in the entire challan showing that the provisions of Section 42 NDPS Act had been complied with. The same is the position today. A reading of the reply filed by the State dated 18.04.2022 would show that there is no specific response to the contention of the petitioner that Section 42 of the NDPS Act had not been complied with. Thus it is apparent that prima facie appears to be non compliance of Section 42 of the NDPS Act.
Issues: 1. Whether there has been a violation of Section 42 of the NDPS Act? 2. Whether the petitioner is entitled to the concession of bail?
Ratio Decidendi: The Court held that the provisions of Section 42 of the NDPS Act have been violated and this fact alone entitles the petitioner to the grant of bail. The Court further held that where there is a total non compliance of Section 42 as appears to be the case herein, the accused ought to be granted the concession of regular bail as the possibility of his conviction is extremely unlikely.
Final Decision: The petition is allowed and the petitioner is ordered to be released on bail subject to the satisfaction of learned CJM/Duty Magistrate, concerned.

Judgement Key Points

Grant of Regular Bail under NDPS Act

In NDPS cases involving commercial quantities, bail is restricted under Section 37, requiring the court to be satisfied on two cumulative conditions: (i) reasonable grounds exist to believe the accused is not guilty of the offence, and (ii) the accused is not likely to commit any offence while on bail. (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!)

Key Factor: Non-Compliance with Section 42 NDPS Act

Section 42 mandates that secret information triggering entry, search, seizure, or arrest must be reduced to writing by the empowered officer (superior to peon/sepoy/constable) and a copy sent forthwith (or within 72 hours post-2001 amendment) to the immediate superior. (!) (!) (!) (!) (!) (!) (!) (!) (!) (!)
Total non-compliance (no recording in writing and no forwarding to superior) is impermissible and vitiates proceedings, rendering conviction unlikely and entitling the accused to bail. (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) [23000813200007][23000813200014]
Delayed compliance may be acceptable if explained by urgency (e.g., risk of evidence destruction), but requires factual proof; station diary entries, FIR registration, or post-recovery ruqa alone do not suffice. (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!)
Where challan/documents show no such record (despite court queries to IO/state), prima facie violation is established, satisfying Section 37's "not guilty" belief. (!) [23000813200007] (!) [23000813200031]

Application in Facts

Recovery of 3 kg opium (commercial quantity) from beneath driver’s seat in non-owned vehicle; accused as passenger.[23000813200003][23000813200005]
Information received during patrol; FIR via ruqa, but no writing/forwarding of secret info per Section 42; state reply evasive.[23000813200001][23000813200002][23000813200006][23000813200007]
Co-accused granted bail earlier on similar grounds.[23000813200004]
Trial delay (custody since 11.07.2021; challan 23.09.2021; no PW examined by 20.05.2022) invokes Article 21 speedy trial right.[23000813200006] (!) [23000813200018][23000813200030]

Overcoming Section 37 Bar

Prima facie Section 42 violation provides "reasonable grounds" for non-guilt belief (not full acquittal finding). (!) [23000813200007][23000813200031] (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!)
No antecedents/other cases: satisfies "not likely to reoffend" condition.[23000813200031]
Extended custody/trial delay further justifies bail.[23000813200006][23000813200017][23000813200018][23000813200019][23000813200020][23000813200021][23000813200022][23000813200030]

Outcome and Conditions

Bail granted despite commercial quantity, as Section 42 violation makes conviction improbable. (!) (!) [23000813200014][23000813200032]
Standard terms: bail bonds to CJM satisfaction; monthly reporting; no reoffending (risking cancellation).[23000813200033][23000813200034][23000813200035] (!) (!) (!) (!)

Strategy Recommendation: Argue total Section 42 non-compliance from record gaps; highlight custody/trial stage for Section 37 satisfaction. No prejudice needed; violation alone suffices for prima facie relief.[23000813200014] (!) (!)

JUDGMENT

Jasjit Singh Bedi, J. (Oral) - The Prayer in this petition under Section 439 Cr.PC is for the grant of regular bail in case FIR No.60 dated 11.07.2021 under Sections 18, 29, 61, 85 of NDPS Act, 1985 registered at Police Station City-2 Abohar, District Fazilka.

2. The brief facts of the case are that on 11.07.2021 when the police party headed by ASI Balkaran Singh while going for patrolling purposes and checking suspicious persons in a private vehicle, was present at Kandhwala road bye-pass, then an information was received that the accused persons are indulging in illegal activities of bringing opium from Rajasthan at cheaper rate and are selling the same at higher rates and that today, all the accused persons after taking opium from Rajasthan, were coming to Abohar from Hanumangarh side in Car I-20 PB-46Q-4929 and if a picket is established at a suitable place, then all the accused persons could be nabbed along with a huge quantity of opium. The information being reliable and fulfilling the ingredients of Sections 18, 61, 85 NDPS Act, 1985, ASI Balkaran Singh got the FIR in question registered against the accused persons by sending a ruqa to the police station.

3. ASI Sajjan Singh in coordination with ASI Balkaran Singh, established a naka on Hanumangarh road, near the Petrol Pump and reached there in Govt. vehicle no.PB-05N-6933. After sometime a car I-20 No.PB-46Q-4929 white colour was seen coming from Hanumangarh side. ASI Sajjan Singh with the help of fellow officials, got stopped the said car and after introducing himself to the said persons, ASI Sajjan Singh asked the said persons their names and addresses. The person who was driving the car told his name as Gurjant Singh @ Janta, the person who was sitting on the conductor seat, told his name as Varinder Singh @ Bagga (present petitioner) and the persons who were sitting in the back seat told their names as Harshdeep Singh (since granted bail) and Prem Singh. ASI Sajjan Singh sent a message for calling some gazetted officer to the spot.

4. Sh. Rahul Bhardwaj, PPS, DSP Abohar reached the spot, after which a search was conducted and during the search, 3 Kgs of Opium was recovered from beneath the driver's seat of the car.

5. During the investigation based on an inquiry at the instance of the grandfather of a co-accused Harshdeep Singh, he was exonerated and an application to discharge him was moved before the trial Court which was dismissed. However, this Court granted him bail vide order dated 21.04.2022.

6. The Counsel for the petitioner has firstly contended that there has been a violation of Section 42 of the NDPS Act. The secret information was not reduced into writing and sent to superior officials within 72 hours. He further contends that ASI Balkar Singh acted as the informant of the case and thereafter himself got conducted the search and seizure which was in violation of the law laid down by Hon'ble Supreme Court in Mohan Lal Vs. State of Punjab (2018) 17 SCC 627. He also contended that the recovery was of 3Kgs of Opium including the weight of the polythene bag and could be said to be marginally more than the non commercial quantity and the petitioner, therefore, deserves the concession of bail. It was lastly contended that the petitioner could not be said to be in conscious possession of the contraband as the recovery was from beneath the driver seat and the petitioner was neither the owner nor the driver of the i20 car and this fact also entitles the petitioner to the grant of bail.

7. The learned State Counsel on the other hand has filed a reply of the DSP, Sub Division Abohar, District Fazilka dated 18.04.2022. While referring to the reply the counsel for the State has submitted that the petitioner was in conscious possession of the contraband. It was further contended that there was substantial compliance of Section 42 of the NDPS Act as the ruqa was sent to the superior officials as is apparent from the bare reading of the FIR. On facts it was contended