Gurmej Singh vs State of Punjab

M.L. Singhal, J.

Prosecution case in brief is that on 29.12.1997 Major Singh SHO Police Station, Mallanwala along with ASI Kundal Singh, ASI Jaswant Singh and others was going on routine checking in a Government Canter No. PB 05 A 9377 being driven by constable Gurdev Singh towards Police Picket Behora. It was about 4.00 PM. When the police party reached near the bridge in the area of Sudhushah Wala, they saw a person who was carrying a bag on his shoulder. On seeing the police Canter, he turned towards the western side of the Canal. SHO stopped the Canter and asked him to stop. He nabbed him with the help of other police officials. He disclosed his name "Gurmej Singh" At the outset SHO told him that he had suspicion that he was carrying some intoxicant in the bag and that he would search it and if he wanted, search could be effected in the presence of a Magistrate or any higher Officer. Gurmej SinghPetitioner opted in favour of some higher Officer and to this effect, his statement was recorded. Wireless message was flashed informing DSP Joginder Singh about that nabbing of the petitioner. He accordingly reached the spot. He told the accused that he was DSP and that he was suspecting that there was some intoxicant in his bag. He further asked him whether he wanted his search before him or some Magistrate. Gurmej Singh told that he had no objection to the search being carried out by him and to this effect, statement of Gurmej Singh was recorded and the search was effected in the presence of DSP. According to the prosecution search of the accused yielded recovery of two kgs. of opium lying contained in a packet in the bag.

Learned counsel for the petitioner submitted that the recovery is not witnessed by any independent witness. Recovery or some other proceedings should have been witnessed by some independent witness as they remained there for quite some time. He further submitted that if seal after use is retained by a police official who is member of the police party, there can be no assurance to the accused that something was analysed by the Chemical Examiner which had allegedly been recovered from the accused. It was also submitted by the learned counsel for the petitioner that on 3.1.1998 Sardar Narinder Singh Sidhu, Superintendent of Police (Headquarters), Ferozepur briefed the press regarding recovery of smack and opium and a news appeared on 4.1.1998. regarding that briefing. According to that briefing two kgs. of opium had been recovered from the possession of one Kala resident of village Tareshahwala, a stolen car from Viru and 20 kgs. of Lahan from Sewa son of Hazara. Learned counsel submitted that recovery of two kgs. of opium from the possession of Gurmej Singh would have found mentioned in that briefing by Sardar Narinder Singh Sidhu, Superintendent of Police (Headquarters) Ferozepur, if recovery had been really effected on 29.12.1997. He submitted that news report has to be presumed to be correct in view of Section 81 of the Evidence Act.

In my opinion submissions made by the learned counsel for the petitioner cannot be gone into now as if these submissions are gone into now that will prejudice the merits of the case at the trial. Section 37 of the Narcotic Drugs & Psychotropic Substances Act, 1985 stands like a rock against the accused so far as grant of bail is concerned. Section 37 ibid reads as follows :

"Offences to be cognizable and nonbailable (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974)

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

(b) no person accused of an offence punishable for a term of imprisonment of five years or more under this Act shall be released on bail or on his own bond unless

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.

(2) The limitation on granting of bail specified in clause (b) of subsection (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."

In view of what has been said above, it is difficult to say that the accused has not committed the offence. It is further difficult to say that if he is allowed bail, he will not commit any offence under the Narcotic Drugs & Psychotropic Substances Act, 1985.

So, the prayer of the petitioner for bail is declined. However, learned trial Court is directed to expedite the trial and conclude it as early as possible, at any rate prior to 24.12.1998, failing which the petitioner shall be deemed to be on bail.

JUDGMENT accordingly.