In CRM-M-21391-2022-PUNJ HC- P&H HC grants regular bail to senior Akali Dal member Bikram Singh Majithia citing lack of material to prove allegation of commission of offences under NDPS Act Justices M.S. Ramachandra Rao & Sureshwar Thakur [10-08-2022]

Read Order: Bikram Singh Majithia v. State of Punjab

Monika Rahar 

Chandigarh, August 10, 2022:  While dealing with an application under Section 439 of the Cr.P.C., the High Court of Punjab and Haryana has granted regular bail to Bikram Singh Majithia, a politician and a senior member of the Akali Dal political party, in respect of an FIR registered against him under Sections 25, 27A and 29 of the Narcotics and Psychotropic Substances Act,1985 (NDPS Act). 

The Division Bench of Justices M.S. Ramachandra Rao and Sureshwar Thakur granted the concession of regular bail to Majithia, who was in judicial remand from February 24, 2022, on the ground that there was either no material on the record to prove the allegation of ‘financing’ drug trafficking and ‘harbouring’ offenders or the evidence was frail and not credible. Also, the Bench opined that the petitioner showed more than prima facie grounds that the prosecution, to date, had not made out a case that he committed the offence under Section 27A of the NDPS Act and consequently, it was held that the stringent conditions for grant of bail under Section 37 of the NDPS Act did not apply.

Also, the Court opined that there was no material placed on record showing possession, transportation, storing by or recovery of any contraband from the petitioner. 

Essentially, in 2013, four FIRs were registered under the NDPS Act, on the basis of which the Enforcement Directorate (ED) registered a case against Jagdish Singh @ Bhola, Anup Singh Kahlon and others and during the course of the investigation, their statements were recorded. 

In the same year, the High Court took cognizance of a PIL to check the drug menace in the State of Punjab (Own motion vs. State of Punjab and others). In the meanwhile, a Special Investigation Team (SIT) under the supervision of the Senior Superintendent of Police, Patiala was conducting an investigation in the FIRs registered against Jagjit Singh Chahal, Maninder Singh @ Bittu Aulakh, Jagdish Singh@ Bhola and others and related FIRs. 

These accused sought transfer of the cases to the Central Bureau of Investigation (CBI), but the same was rejected by the High Court which constituted a Supervisory Investigation Team to reinvestigate the matter. Thereafter 10 more supplementary chargesheets were filed under Section 173(8) Cr.P.C. But the petitioner was not arrayed as an accused in any of the above cases by the investigative agencies. 

The petitioner’s role came to light when an intervenor application was filed in the above-stated PIL to investigate the matter on the basis of the statements of Jagjit Singh Chahal, Jagdish Singh@ Bhola and Maninder Singh@ Bittu Aulakh in relation to the complicity of the petitioner with the drug mafia. In response, the Court directed the Special Task Force (‘STF’) (appointed in 2017 to deal with the drug menace in Punjab) to enquire into the allegations mentioned in the application and to file a status report. 

The report was handed over in a sealed cover to the Deputy Director, Enforcement Directorate and also to the then Advocate General, Punjab for consideration at the hands of the State Government. This report was resealed and ordered to be kept in the custody of the Registrar (Judicial) of the High Court. The State of Punjab constituted a High Powered Committee and State filed an opinion-cum-status report of the High Powered committee in a sealed cover along with the affidavit of the Additional Secretary, Department of Home Affairs and Justice, Punjab. 

In 2021, the then Advocate General, State of Punjab gave a legal opinion to the State that there was no embargo for law enforcement agencies to act on the prima facie findings of the ‘Status Report’ filed by the STF. Acting on this, the then DGP, State of Punjab wrote to the Director of Bureau of Investigation, Punjab, Chandigarh to register a case on the basis of the above status report submitted by Sri Harpreet Singh Sidhu, IPS (STF) in 2018. 

As per the DGP, a cognizable offence was made out and in cases mentioned in the report and associated cases of drug trafficking, it was essential that the offences of Sections 25, 27A and 29 of the NDPS Act, apart from additional offences needed to be investigated in compliance of his directions through a Special Investigation Team. On his direction, the FIR was registered. The FIR referred to the above findings in the report of the STF and stated that as per the above findings, prima facie there was sufficient evidence on record to further investigate the role of the petitioner as regards the allegations and the information reveals commission of offences under Section 25, 27A and 29 of the NDPS Act. 

After registration of the FIR, the petitioner filed an application for anticipatory bail which was dismissed by the Sessions Court, however, the High Court granted him interim anticipatory bail. but later the same was dismissed. The matter went to the Supreme Court and he eventually surrendered before the Special Court on February 24, 2022. He was granted and the petitioner was sent to judicial custody. 

The Judge, Special Court dismissed regular bail plea of the petitioner who then approached the Supreme Court of India seeking quashing of the FIR and also made an alternative prayer for entrusting the investigation to a Special Investigation Team. The Supreme Court declined to exercise jurisdiction and granted liberty to the petitioner to move to the Division Bench of this Court and for grant of bail. Thereafter the instant Bail application was filed before this Court. 

So essentially, the petitioner was alleged by the State to have committed offences under Section 25, 27A and 29 of the NDPS Act, 1985. 

Given the offences alleged against the petitioner, the Court made certain observations of the bar of Section 37 of the NDPS Act. It was observed in this respect that the Court, in such a case is required to see if there are reasonable grounds for believing that the accused is not guilty and it must record its satisfaction with the existence of such grounds. The expression “reasonable grounds” means something more than prima facie grounds and for arriving at any such conclusion, such facts and circumstances must exist in a case that can persuade the Court to believe that the accused person would not have committed such an offence, opined the Court while adding that if it intends to grant bail, it must record its satisfaction with the existence of such grounds.

Coming to the present case, the Court noted that the FIR stated that the offences were allegedly committed by the petitioner between 2004 and 2014 and the petitioner had been in judicial remand since February 2022. Further, on the statements of the accused in the 2013 FIRs, the Court opined that such statements can be termed ‘information’ for registering the FIR, but cannot be treated as material for believing that the accused is guilty of the offences alleged. 

Further, on the allegation of the offence of Section 27A of the Act, the Court observed that the essence of an offence under Section 27A of the Act is that the accused must be guilty of “financing” activities mentioned in sub-clauses (i) to (v) of clause (viii-a) of Section 2 or has “harboured” any person engaged in such activities. 

In this case, on the basis of the material placed before the Court, the Court was of the view that the evidence against the petitioner was frail and not credible and so it was held that reasonable grounds existed to believe that petitioner was not guilty of ‘financing’ drug trafficking. 

Next, on the allegation of harbouring offenders by the petitioner, the Court opined that the offence of “harbouring an offender” is dealt with by Section 212 IPC and to make out the said offence, the prosecution has to prove that the person accused of harbouring other accused was aware, at the time of such harbouring of the other accused, that the person harboured (the other accused) is an offender with the intention of screening him from legal punishment 

In this case, the Bench was of the view that there was no material on record to suggest that the petitioner had knowledge about Satpreet Singh @ Satta being involved in drug trafficking when he allowed him to stay at his residence or use his vehicles prior to 2011. Thus, the Court concluded that reasonable grounds existed to believe that petitioner was not guilty of the offence of ‘harbouring’ the co-accused. 

“So petitioner has shown more than prima facie grounds that the prosecution, as on date, has not made out a case that he committed the offence under Sec.27A of the NDPS Act”, the Bench held while also opening that consequently, the stringent conditions for grant of bail under Section 37 of the NDPS Act did not apply and the ordinary principles governing grant of bail to an accused were to be applied. 

Lastly, after looking into the law governing the grant of regular bail, the Court observed that there was no material placed on record showing possession, transportation, storing by or recovery of any contraband from the petitioner. 

“All recoveries in the concluded trials have been effected from specific individuals and petitioner was not shown therein to have any role in that regard. The petitioner was not arrayed as an accused in the concluded trials under the NDPS Act by the State by invoking Sec. 120-B IPC nor was he roped in under Sec. 319 Cr.P.C. There is no material to show that petitioner supplied any chemicals much less contraband to Canada based accused such as Satpreet Singh @ Satta or Parminder Singh @ Pindi with reference to time, place and quantity”, the Court held. 

Next, on Section 25 of the NDPS Act, the Court held that there was no allegation that premises owned and under the control of the petitioner or any conveyance owned or controlled by him was ever used for the commission of the crime.   Having regard to the aforesaid reasons, the Court was satisfied that reasonable grounds existed to believe that the petitioner was not guilty of the offences alleged against him and it was held that he was not likely to commit such offences while on bail. 
“It will take time for the trial to start and culminate. So no fruitful purpose is going to be served even if the petitioner is kept in judicial custody for a further indefinite period. We are of the opinion that continued detention of the petitioner, which started on 24.2.2022, is not warranted and he is entitled to be released on bail”, the Bench stated. Accordingly, the bail plea was allowed.