Balwinder Singh vs State of Punjab

R.L. Anand, J.—By this order I dispose of the bail application filed by Balwinder Singh son of Chanan Singh resident of village Saidpur,

Police Station Noorpur Bedi, District Ropar (However residing at the time of alleged offence in Indira Colony, Jhabal Road, Amritsar), filed u/s

439 of the Code of Criminal Procedure read with Section 37 of the Narcotic Drugs & Psychotropic Substances Act, 1985, in case FIR No. 140

dated 29-10-1996 u/s 22 of the said Act registered in Police Station ''C'' Division, Amritsar

The allegations against the petitioner are that on 29-10-1996 at about 7-15 p.m. he was allegedly found in possession of 7 packets containing

10 injections each of Nourphin, three packets containing 10 injections each of Nourphin; two packets containing 50 injections each of Diazchem

(2 ml each): two packets containing 24 injections and 23 injections of Diazchem (10 ml) in the presence of Amrik Singh prosecution witness. Om

Parkash S.I. and otherpolice officials when the police party was being headed by Shri Sandeep Goyal SHO, Police Station ''C'' Division, Amritsar.

Before effecting the recovery from the person of the petitioner, a message was sent to Swinder Singh DSP who also arrived at the spot and

thereafter above incriminating articles were recovered which became the subject-matter of FIR No. 140 referred to above.

The petitioner Balwinder Singh filed an application for bail in the Court of Addl. Sessions Judge, Amritsar who vide order dated 17-12-1996

dismissed the same holding as follows :--

I have heard the learned counsel for the applicant and have perused the police file. From the heavy quantity of contraband recovered from the

accused it appears that he is indulging in the sale of Narcotic drugs and Psychotropic Substances at a large scale. The recovery has been effected

in the presence of independent witness namely Amrik Singh Sandhu, in the presence of SHO and the D.S.P. who are gazetted officers. There is

every likelihood that he would abscond if released on bail. As such I do not find it a fit case to release the accused on bail and the application is

dismissed.

Aggrieved by the said order dated 17-12-1996 passed by learned Addl. Sessions Judge, Amritsar, Balwinder Singh petitioner has moved the

present bail application for his regular bail, which is being disposed of with the assistance rendered by Shri R. L. Batta, Sr. Advocate assisted by

Shri J. S. Saggi, Advocate.

The first submission which was raised by the learned Sr. Counsel for the petitioner was that in this case the entire investigation conducted by the

head of the police party was illegal and as such it justifies a case of bail. Elaborating his first submission Shri Batta submitted that the recovery was

allegedly effected by Shri Sandeep Goyal, SHO ''C'' Division Amritsar and in these circumstances he ought to have shed his hands for further

investigation. In support of his contention, the learned counsel for the petitioner has drawn my attention to an order passed by this Court in Crl.

Misc. No. 14798-M of 1996 ''Berbara Singh v. State of Haryana. I am not in agreement with the first submission of the learned Sr. counsel. A

perusal of the ruqa would show that on receipt of secret information the SHO concerned associated Amrik Singh son of Joginder, Jat, resident of

Gali Mulewali as an independent witness. The recovery in this case was chance recovery when the accused was found coming from the opposite

direction. A perusal of the ruqa further reveals that the SHO concerned gave option to the petitioner Balwinder Singh whether the latter was

interested for his search in the presence of some gazetted officer or magistrate. The accused exercised his option and he wanted that search of his

person may be conducted in the presence of some gazetted officer. Accordingly S. Swinder Singh Dy. S. P. was informed on wireless to reach at

the spot. Till the Dy. S. P. reached there. Again Dy S. P. enquired from Balwinder Singh petitioner whether he wanted to be searched in the

presence of a magistrate or that he may take the search. Accused gave consent and reposed confidence in favour of Dy. S. P. and thereafter

search of the person of the accused was conducted and the incriminating articles were recovered. The above chain of facts would show that the

recovery of the incriminating articles was effected by the SHO in the presence of a gazetted officer. In such like cases where the recovery of

narcotic drugs itself constitutes an offence if the accused is not in a position to produce any licence or permit. In these circumstances it would be a

futile attempt on the part of the investigating officer to stay back and further to hand over the investigation to some other officer who has only to

complete the other formalities such as, recording statements of the witnesses or to deposit the case property with seals in tact in the malkhana of

the police so that the case property might be analysed by the Chemical Examiner. In the cited case, there is no indication whether the investigating

officer also took the assistance of a gazetted officer before effecting the recovery of the narcotic drugs from the accused. Assuming for the sake of

arguments, if it is taken that the recovery has not been effected as desired by the learned counsel for the petitioner, hardly a case of bail is ""made

out in view of stringent provisions of Section 37 of the Narcotic Drugs and Psychotropic Substances Act.

The learned counsel then also referred to 1996 (2) RCR 707, Risala v. State of Haryana. This authority of learned single Judge is also

distinguishable on facts, Handing over of the investigation to some other officer than-the one who seized the articles is a rule of caution. What

possibly can be the effect on the alleged recovery, at the most can be seen by the trial Court. In the present case the recovery of the narcotic drugs

has been effected by the investigating officer in the presence of gazetted officer and thus the provisions of Section 50 of the Narcotic Drugs and

Psychotropic Substances Act have been prima facie complied with. It was next submitted by the learned counsel for the petitioner that the

provisions of Section 55 of the said Act have not been complied with. Moreover, the joining of the so-called independent witness Amrik Singh is

only a force. It is difficult to accept the contention of the learned counsel for the petitioner at this stage. While deciding the bail application this

Court is to be guided by the allegations and in such like cases the petitioner can only get a bail if he makes out a case that there are reasonable

grounds for believing that he is not guilty of the offence of which he has been charged and that he was not likely to commit an offence while on bail.

Learned counsel for the petitioner has also drawn my attention to the citations State of H.P. v. Bhikho Ran 1996 (1) CLR 115; Prem Singh v.

The Slate of Haryana 1996 (1) CLR 389; Roop Singh v. State of Punjab 1993 (1) CLR 527; Kartar Singh v. State of Punjab 1993 (1) CLR 529

and Megha Singh Vs. State of Haryana, . All the rulings are beyond the scope of the controversy involved in the presentapplication. In the present

case the recovery of the narcotic drugs has been effected in the presence of a gazetted officer himself who also gave achance to the petitioner to

get his search conducted in the presence of a magistrate. It is too early to say whether any prejudice has been caused to the petitioner if the

investigation has not been conducted in the manner as desired by him.

In Narcotics Control Bureau Vs. Kishan Lal and others, it has been held as follows (at p. 656 (of Cri LJ):

Section 37 as amended starts with a non obstante clause stating that notwithstanding anything contained in the Code of Criminal Procedure, 1973

no person accused of an offence prescribed therein shall be released on bail unless the conditions contained therein were satisfied. The NDPS Act

is a special enactment and it was enacted with a view to make stringent provisions for the control and regulation of operations relating to narcotic

drugs and psychotropic substances. That being the underlying object and particularly when the provisions of Section 37 of NDPS Act are in

negative terms limiting the scope of the applicability of the provisions of Cr. P.C. regarding bail, it cannot be said that the High Court''s powers to

grant bail u/s 439, Cr. P.C. are not subject to the limitation mentioned u/s 37 of NDPS Act. The non obstante clause with which the section starts

should be given its due meaning and clearly it is intended to restrict the powers to grant bail. In case of inconsistency between Section 439, Cr.

P.C. and Section 37 of the NDPS Act, Section 37 prevails. The provisions of Section 4, Cr. P.C. also make it clear that when there is a special

enactment in force relating to the manner of investigation, enquiry or otherwise dealing with such offences, the other powers under Cr. P.C. should

be subject to such special enactment. Interpreting the scope of such a statute the dominant purpose underlying the statute has to be borne in mind.

Consequently the power to grant bail under any of the provisions of Cr. P.C. should necessarily be subject to the conditions mentioned in Section

37 of the NDPS Act.

Keeping in view the above provisions of law, no case for bail is made out. The bail application is therefore, declined. However, it is clarified that

the present order will have no bearing so far as the merits of the case are concerned.

Before I part with this order, I am of the opinion that the copies of this order may be circulated to all the District & Sessions Judges in the

State of Punjab and Haryana and Union Territory of Chandigarh because the point involved in the present bail application confronts the lower

court daily. Before sending the copies of this order, to the courts concerned, prior permission of the Hon''ble Chief Justice may be obtained by the

Registry.