Departure can be made from bar contained u/s 37 of NDPS Act, if Court prima facie believes that accused is not guilty: P&H HC grants bail to accused who was in custody for 2 years

Am Read Order: Sukhchain Singh @ Sonu v. State of Punjab 

Monika Rahar

Chandigarh, March 23, 2022: While dealing with NDPS case relating to the NDPS Act, the Punjab and High Court has made a departure from the bar contained under Section 37 on the ground that out of 1000 loose tablets of Tramadol which were allegedly recovered from the accused-petitioner, only 10 were sent for Forensic analysis and also the fact that in the second FIR, the petitioner’s name was inducted on the disclosure statement of his co-accused. 

On the aspect of forensic inspection of only a couple of tables out of 1000 loose tables allegedly recovered from the accused, without containing any trade name or trademark or batch number, Justice Jasgurpreet Singh Puri referred to the observations made by this Court in State of Punjab vs. Dharam Singh, 2010 (3) R.C.R. (Criminal) 94. 

In this case, the Police arrested two accused namely Buta Singh and Harjiwan Singh along with 919 loose tablets in an FIR registered under Sections 22 and 29 of the NDPS Act. The petitioner’s name was nominated in the present FIR on the basis of a disclosure statement made by one of the co-accused namely, Harjiwan Singh. Thus, the petitioner filed the present petition under Section 439 of the Cr.P.C. for grant of regular bail to him. 

It was the case of the petitioner’s counsel that the disclosure statement of co-accused would not be admissible in evidence in view of the law laid down by the Supreme Court in Tofan Singh vs. State of Tamil Nadu, 2021 (1) R.C.R. (Criminal) 1. He further submitted that the police after arresting the petitioner planted 1000 loose tablets of Tramadol against the petitioner on the basis of the alleged disclosure statement made by the petitioner in the police custody. He referred to the statement of the petitioner under Section 27 of the Indian Evidence Act, 1872 and a perusal of the same would show that a stolen motorcycle was recovered and there was no reference to any tablets and therefore, the entire case was planted against the petitioner. 

Apart from this, he contended that only a sample of loose 10 tablets was sent to the forensic laboratory out of the total loose tablets, which had no trade name or trademark etc. or batch number and therefore, he argued that his case would also be covered by the law laid down by Division Bench of the Punjab and Haryana High Court in Dharam Singh’s Case (Supra). Lastly, he submitted that in view of the aforesaid submissions, the prayer of the petitioner for grant of bail would not be hit by the bar contained under Section 37 of the NDPS Act. 

The State counsel, on the other hand, submitted that it was correct that the petitioner was in custody for the last 2 years 11 months and 14 days and he also filed a custody certificate, which was taken on record. He submitted that since the petitioner was also involved in one other case, he was not entitled to the grant of regular bail. 

After considering the rival submissions, the Court opined that the prayer of the petitioner for grant of bail was to be considered by taking into consideration the bar contained under Section 37 of the NDPS Act since the alleged quantity was commercial in nature. Further, the Court noted that the petitioner’s name was nominated on the basis of the disclosure statement of the co-accused and the State was unable to bring out any other sufficient material to connect the petitioner with the present case, apart from the disclosure statement. 

After perusing Section 27 Evidence Act statement, the Court opined that the petitioner after being taken into custody made a statement under Section 27 of the Indian Evidence Act, 1872 pertaining to one motor-cycle and there was no mention with regard to 1000 tablets, which were allegedly recovered from the petitioner. Furthermore, the Court noted that only 10 tablets were drawn out from the loose tablets having no batch number, no trademark etc. and it was mentioned in the forensic report that only 10 loose tablets were sent and therefore, the case of the petitioner would also be covered by the judgment of Division Bench of Court passed in Dharam Singh’s Case (Supra). 

As regards the second ingredient for making a departure from Section 37 of the NDPS Act, the Court opined that although the petitioner was involved in another NDPS case after the registration of the present FIR, he was however granted bail in that case and the Court also noted that in therein also, the name of the petitioner was nominated on the basis of disclosure statement. Therefore, the Court was of the opinion that at this stage, a departure can be made from the bar contained under Section 37 of the NDPS Act, since the Court had prima facie reasons to believe that the petitioner was not guilty of an offence at least at this stage. 

Apart from the same, the fact that the petitioner faced incarceration of about three years and only two witnesses were examined, was taken into consideration. Furthermore, the Court opined that the State did not raise any objection that in case the petitioner was released on bail then he might flee from justice or may influence any witness or may tamper with evidence. 

Therefore, considering the totality of facts and circumstances of the present case, the Court deemed it fit and proper to grant bail to the petitioner. Consequently, the present petition was allowed and the petitioner was released on bail on his furnishing adequate bail/ surety bonds to the satisfaction of the learned trial Court/ Chief Judicial Magistrate/ Duty Magistrate, concerned.