Paramjit Singh vs State Of Punjab

Anoop Chitkara, J

FIR No.

Dated

Police Station

Section

23

15.04.2021

Bhadaur, District Barnala, Punj

22, 29 of NPDS Act and Secon 25 of NDPS Act added later on.

The petitioner incarcerated for violang the above- menoned provisions of Narcocs Drugs and Psychotropic Substances Act, 198 5 (NDPS Act) per the FIR caponed above, on the allegaons that petitioner alo ng with other co-accused recovered 3170 tablets, out of which 2000 tablets contained Tramadol Hydrochloride, has come up before this Court under Secon 439 CrPC seeking bail.

In paragraph 10 of the bail peon, the accused d eclares that he has no criminal antecedents.

Petitioner's counsel prays for bail by imposing any stringent condions. The petitioner contends that the pre-trial incarceraon w ould cause an irreversible injusce to the petitioner and family.

While opposing the bail, the contenon on behalf of the State is that the quanty of contraband involved in the case falls in the commercial category.

REASONING:

On April 15, 2021, the police party which was on patrolling duty, received a secret informaon about contraband being transported by th e petitioner. The police spoed the petitioner and his accomplice and recovered 3170 tablets, out of which 2000 tablets contained Tramadol Hydrochloride, and the weight of each tablet was 352.69 mg.

The provisions of NDPS Act make possession of 705.38 grams of Tramadol, without licence, an offence in the following terms:

Substance Name

Tramadol

Quantity detained

705.38 Gram

Quantity type

Commercial

Drug Quantity in % to upper limit of Intermediate

282.15%

Specified as small & Commercial in S.2(viia) & 2(xxiiia) NDPS Act, 1985

Notification No

S.O.1762(E)

dated

4-26-2018

Sr. No.

238 ZH

Common Name

(Name of Narcotic Drug and Psychotropic Substance (International non-proprietary name (INN)

Tramadol

Other non-proprietary name

******

Chemical Name

******

Small Quantity

5 Gram

Commercial Quantity

250 Gram

Declared as punishable under NDPS Act and as per schedule defined in S.2(xi) & 2(xxiii) NDPS Act, 1985

Notification No

S.O.1761(E) & S.O. 3448(E)

dated

26-Apr-2018 & 26-Jul-2018

Sr. No.

110Y

Common Name

(Name of Narcotic Drug and Psychotropic Substance (International non-proprietary name (INN)

Tramadol

Other non-proprietary name

******

Chemical Name

******

The quanty allegedly involved in this case is co mmercial. Given this, the rigours of S. 37 of the NDPS Act apply in the present case. The burden is on the petitioner to sasfy the twin condions put in place by the Legis lature under Secon 37 of the NDPS Act.

On March 11, 2022, co-ordinate bench of this court had passed the following order:

“Learned counsel for the petitioner submits that in f act in the 'challan' submied to the competent court, neither the number or ownership of any private vehicle that the police party was travelling in has been given, and in fact the enre story is cooked up, with the petitioner actually having been arrested from his home but with a completely false story given in the FIR.

Adjourned to 29.03.2022.

The Senior Superintendent of Police, Barnala, is directed to file an affidavit himself aer immediately obtaining the c all details records of the police party as is stated to have arrested the petitioner in terms of what has given in the FIR, as also the call details record of the mobile phone of the petitioner, failing which he shall remain persona lly present in court on the next date of hearing itself.

Naturally, aer obtaining the said call detail reco rds, he would state in his affidavit as to whether what has been alleged by the petitioner is found to be correct in terms thereof or not.

A copy of this order be given to learned State counsel under the signatures of the Bench Secretary of this court, because 11 month having gone by aer the FIR was registered, the SSP would be required to obtain the call details records immediately.

In fact for that purpose, he will file an affidavit within 10 days from today, as to whether he has obtained the call details records or not, with a detailed affidavit to be filed thereaer.”

In response to the direcons issued by a co-ordin ate bench of this court in the present case, the concerned SP had filed an affidavit, about accused's call locaons, and the para 6 of the response reads as follows:

“6. That from the facts as detailed in the foregoing Para’s of reply in hand, report of the enquiry officers, it was found that none of the accused person including the petitioner was carrying any mobile phon e at the me of their arrest in the present case FIR and the call locaon of the police party was found idencal to that of the locaon of places as menoned in the FIR and the police documents/DDRs. It is also stated that only one Government vehicle i.e. bearing registraon No.PB-19F-1215, wa s alloed to the police station Bhadaur and the same was found to be used du ring invesgaon by Sub-Inspector Gurjant Singh on 15.04.2021 and the private car used by the first invesgang officer namely Inspector Gurpreet Si ngh on 15.04.2021, was found to be I-20 car registered in the name of Inspector Gurpreet Singh bearing registraon No.PB-29N-1968.”

Given the above response, the petitioner fails to create any prima facie dent, and is not entled to bail on this ground.

The peon states that the accused is entled to bail because of the non- examinaon of independent witnesses. However, this plea would gather force only when the accused establishes aer cross-examinaon that the police deliberately did not associate any independent witness even when they could have been made available, and in the facts and circumstances peculiar to this case, the argument does not sasfy the requirements of secon 37 of NDPS Act.

In State of Punjab v Baldev Singh, (1999) 6 SCC 172, the Constuonal bench of Hon’ble Supreme Court holds,

[14]. The provisions of Sections 100 and 165 Cr.P.C. are not inconsistent with the provisions of the NDPS Act and are applicable for effecng search seizure or arrest under the NDPS Act also. However, when an empowered officer carrying on the invesgaon including search, seizure or arrest under the provisions of the Code of Criminal Procedure comes across a person being in possession of the narcoc drugs or the psychotropic substance, then he must follow from that stage onwards the provisions of the NDPS Act and connue the invesgaon as provide d thereunder. If the invesgang officer is not an empowered officer then it is expected of him that he must inform the empowered officer under the NDPS Act, who should thereaer proceed from the stage in accordan ce with the provisions of the NDPS Act. In Balbir Singh's case aer referr ing to a number of judgments, the Bench opined that failure to comply with the provisions of Cr.P.C. in respect of search and seizure and parcu larly those of Sections 100, 102, 103 and 165 per se does not viate the prosecuon case. If ther is such a violaon, what the courts have to see is whether any prejudice was caused to the accused. While appreciang the ev idence and other relevant factors, the courts should bear in mind that there was such a violaon and evaluate the evidence on record keepin g that in view.

Counsel for the petitioner submits that the inves gator conducted search and seizure violang sections 42 and 50 of the NDPS.

Whether the Invesgator complied with the mandat ory provisions of sections 42 and 50 of the NDPS Act is a queson of fact to b e adjudicated in the trial. However, before this court treats the compliances as illegal, the prosecuon needs an opportunity to prove that they had complied with the mandatory provisions per law. Such stage would come only during the trial and certainly not at the bail stage, where it would be hit by the maxim Audi alteram partem. The excepon to this would be applicable only when the non-compliance of the mandatory provisions of sections 42 and 50 of the NDPS Act is apparent on the face of the special report under secon 57 of the NDPS Act and other documents of search and seizure, and in the opinion of the court, the lapse is non-recfiable, aer recording a finding that it is an incurable defect, the court might consider granng bail on such viola ons.

In State of H.P. v. Prithi Chand, (1996) 2 SCC 37, Hon’ble Supreme Court holds,

[3]. The queson is whether the learned Sessions Ju dge was jusfied, at the stage of taking cognizance of the offence, in discharging the accused, even before the trial was conducted on merits, on the ground that the provisions of Secon 50 of the Act had not been complied with. This Court in State of Punjab v. Balbir Singh [(1994)3 SCC 299] : (AIR 1994 SCW 1802) has considered the provisions of the Act. Secon 50 has been held to be mandatory. In pa ragraph 16, this Court has held that it is obligatory on the part of the empowered or the authorised officer to inform the suspect that, if so required, he would be produced before a Gazeed Officer or a Magis trate and search would be conducted in his presence. It was imperave on the part of the Officer to inform the person of the above right and if he failed to do the same, it amounted to violaon of t he requirement of Secon 50 of the Act. It was held that when the per son was searched he must have been aware of his right and that it could be done only if the authorised or empowered Officer informed him of the same. Accordingly, this Court by implicaon read the obli gaon on the part of authorised Officer to inform the person to be searched of his right to informaon that he could be searched in the pres ence of the Gazeed Officer or the Magistrate. In Saiyad Mohd. Sa iyaad Umar Saiyed v. State of Gujarat [1995(3) JT SC 489] a three-Judge Bench of this Court had reiterated the above view and held that having regard to the grave consequences that might entail the possession of illicit arcles under the Act, viz., the shiing of the onu s to the accused and the severe punishment to which he became liable, the Legislature had enacted safeguards contained in Secon 50. Comp liance of the safeguards in Secon 50 is mandatory obliging the O fficer concerned to inform the person to be searched of his right to demand that search could be conducted in the presence of a Gazeed Officer or a Magistrate. The possession of illicit arcle has to be sasfactorily established before the Court. The Officer who conducts search must state in his evidence that he had informed the accused of his right to demand, while he is searched, in the presence of a Gazeed Officer or a Magistrate and that the accused had not chosen to so demand. If no evidence to that effect is given, the Court must presume that the person searched was not informed of the protecon t he law gives him and must find that possession of illicit arcles was not established. The presumpon under Arcle 114, illus traon (e) of the Evidence Act, that the official duty was properly performed, therefore, does not apply. It is the duty of the Court to carefully scrunise the evidence and sasfy that the accused had been informed by the concerned Officer that he had a right to be searched before a Gazeed Officer or a Magistrate and that the person had not chosen to so demand.

[4]. It is to be seen whether the accused has been afforded such a right and whether the authorised Officer has violated the mandatory requirement, as a queson of fact, has to be proved at the trial. In Pooran Mal v. Director of Inspecon [(1974) 1 SCC 3 45] : (AIR 1974 SC 348) a Constuon Bench of this Court had held that power of search and seizure, is, in any system of jurisprudence, an overriding power of the State for the protecon of social security a nd that power is necessarily regulated by law. A search by itself is not a restricon on the right to hold and enjoy property, though seizure is a temporary restricon to the right of possession and enjoyment of the property seized. However, the seizure will be only temporary and limited for the purpose of the invesgaon. The power of search and seizure is an accepted norm is our criminal law envisaged in Sections 96 to 103 and 165 of the Criminal Procedure Code, 1973 [for short, "the Code"]. The Evidence Act permits relevancy as the only test of admissibility of evidence. The evidence obtained under an illegal search and seizure does not exclude relevant evidence on that ground. It is wrong to invoke the spirit of Constuon to exclude such evi dence. The decisions of the American Supreme Court spelling out certain Constuonal protecons in regard to search and sei zure are not applicable to exclude the evidence obtained on an illegal search. Courts in India refuse to exclude relevant evidence merely on the ground that it is obtained by illegal search and seizure. When the test of admissibility of evidence lies in relevancy, unless there is an express or necessarily implied prohibion in the Co nstuon or other law, evidence obtained as a result of illegal search and seizure, is not liable to be shut out. Search and seizure are not a new weapon in the armoury of those whose duty it is to maintain social security in its broadest sense. If the safeguards are generally on the lines adopted by the Code, they would be regarded as adequate and render the restricons imposed as reasonable measures.

[7]. It would thus be seled law that every deviao n from the details of the procedure prescribed for search, does not necessarily lead to the conclusion that search by the police renders the recovery of the arcles pursuant to the illegal search, irrelevant evidence nor the discovery of the fact inadmissible at the trial. Weight to be aached to such evidence depends on facts and circumstances in each case. The Court is required to scan the evidence with care and to act upon it when it is proved and the Court would hold that the evidence would be relied upon.

The stand that the accused is in custody for sufficient me is also not a legal ground to overcome the rigors of S. 37 of the NDPS Act at this stage because the petitioner's total custody is less than two years and the commercial quanty prescribes a minimum sentence of ten years.

The grounds taken in the bail peon do not shi the burden placed by the legislature on the accused under S. 37 of the NDPS Act. The petitioner has not stated anything to discharge the burden put by the stringent condions placed in the statute by the legislature under secon 37 of the NDPS Act. Thus, the petitioner has failed to make a case for bail at this stage.

A perusal of the bail peon and the documents a ached, primafacie points towards the petitioner’s involvement and does not mak e out a case for bail. Any further discussions are likely to prejudice the petitioner; t his court refrains from doing so.

Any observaon made hereinabove is neither an expression of opinion on the merits of the case nor shall the trial Court advert to these comments.

Peon dismissed in terms menoned above . However, considering the petitioner's custody, the ends of jusce will meet by expeding the trial. This court requests the concerned trial court to take up this trial on priority and endeavor to conclude it by July 31, 2023. The expeding of the trial is subject to the cond ion that the petitioner shall not seek any adjournment, and if he does so, this order expeding the trial shall stand recalled automacally under secon 362, read with 4 82 CrPC, without any further reference to this court. All pending applicaons, i f any, stand disposed of.