Harjinder Singh @ Bhola vs State of Punjab

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2023 Supreme(P&H) 1775

IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
Sudhir Mittal, J.
Harjinder Singh @ Bhola – Appellant
Versus
State of Punjab – Respondent
CRM-M No. 36721 of 2022
Decided On : 30-05-2023

Advocates appeared:
For the Parties : Mr. Ankur Jain, Mr. Gurlal Singh Dhillon AAG, Punjab

Headnote:(A) Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 22 and Section 37 - Grant of Regular Bail - Petitioner detained for over one year without trial; recovery not from conscious possession as it was from a bag thrown by petitioner. Court finds that Section 54 cannot be invoked as actual possession not proved - Trial unlikely to conclude soon - Appropriate to grant bail. (Paras 2, 5)

(B) Presumption of Conscious Possession - The court ruled that in absence of conscious possession, the presumption under Section 54 of the NDPS Act does not apply, supporting earlier jurisprudence regarding the recovery of narcotics. (Paras 2, 5)

Facts of the case:
The petitioner sought bail in FIR No. 189 under NDPS Act. He has been in custody for over a year, with only charges framed so far. Recovery was made from a polythene bag he allegedly discarded upon seeing police.

Findings of Court:
The trial is not progressing, and the petitioner’s lack of previous criminal cases implies no risk of re-offending on bail.

Issues: Whether the petitioner should be granted bail given the nature of recovery and the delay in the trial.

Ratio Decidendi: The court found that because the recovery was not from conscious possession, the presumption under Section 54 cannot apply, thereby ruling that bail should be granted.

Result: Petition allowed; bail granted.

Table of Content
1. application for bail under ndps act. (Para 1)
2. conditions favoring bail due to custody duration. (Para 2)
3. details of custody and prosecution's stance. (Para 3 , 4)
4. court's reasoning for granting bail. (Para 5)

Judgment

Mr. Sudhir Mittal, J.

The petitioner seeks grant of regular bail in case FIR No. 189 dated 20.10.2021, registered at Police Station Tarn Taran under Section 22 of NDPS Act, 1985.

2. Learned counsel for the petitioner submits that the petitioner has been in custody for over one year. The trial is not likely to be concluded at an early date as only charges have been framed as yet. Recovery was effected from a polythene bag which the petitioner allegedly threw on seeing the police party and, thus, it cannot be said that the recovery was effected from the conscious possession of the petitioner. Section 37 of the NDPS Act, 1985 is, thus, not attracted. The petitioner may consequently be granted regular bail.

3. Custody certificate dated 28.05.2023 checked by Sh. Harjot Singh, Additional Superintendent of Central Jail, Goindwal has been submitted in the Court. The same is taken on record. A perusal thereof shows that the petitioner has undergone actual custody of 01 year and 02 days upto 28.03.2023. As on date the petitioner has undergone actual custody of 01 year, 02 months and 02 days.

4. Learned State counsel concedes that examination of PWs has not yet commenced and that recovery was effected from a polythene bag which was thrown by the petitioner on the ground.

5. It is, thus, evident the trial is not likely to be concluded at an early date and that the petitioner has been in custody for more than one year. Presumption under Section 54 of the NDPS Act, 1985 can not be drawn as no recovery has been effected from the conscious possession of the petitioner. From the fact that the petitioner does not have any criminal case pending/decided against him it can safely be inferred that petitioner will not commit any offence while on bail. Thus, I deem it appropriate to grant regular bail to the petitioner. The petition is allowed and the petitioner is directed to be released on bail on his furnishing bail and surety bonds to the satisfaction of the trial Court/Duty Magistrate, concerned.

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