In CRM-M-23202 of 2022 (O&M)-PUNJ HC- Receiving secret information and passing same to Gazetted Officer, is not enough in itself to conclude that story of prosecution is improbable:P&H HC Justice Avneesh Jhingan [02-06-2022]

Read Order: Jaswinder Singh @ Jass v. State of Punjab

Monika Rahar

Chandigarh, June 4,2022: While dealing with a bail plea in an NDPS Act matter which involved recovery of more than 20 kg tablets containing Tramadol salt, the High Court of Punjab and Haryana has held that Section 37 of the  Narcotic Drugs and Psychotropic Substances Act, 1985, provides stringent conditions for grant of bail in cases where recovery is of commercial quantity and the custody of the accused in itself will not be the only consideration for grant of regular bail, moreso considering the quantity of recovery.

Also, the Bench of Justice Avneesh Jhingan added that on receiving secret information, passing of the same to a Gazetted Officer, in itself will not be enough to even prima-facie conclude that the story of the prosecution is improbable. 

In this case, the petitioner was seeking regular bail in respect of an FIR registered against him under Section 22 of the Act at Police Station Jhabal, District Tarn Taran.

Upon receipt of secret information to the effect that the petitioner was bringing narcotics from Amritsar on a motorcycle for selling it in a village,  nakabandi was set up, and eventually the petitioner was caught on a motorcycle carrying a plastic bag between the petrol tank of the motorcycle and his thigh. 

He disclosed his identity and someone joined as a public witness. From the bag in possession of the petitioner, some 50,000 tablets containing Tramadol salt were recovered. 

The case of the petitioner’s counsel was such that the petitioner was in custody since 8th November, 2019 and no prosecution witness was examined as of then. He further argued that the story put forth by the police official was improbable as prior to apprehending the petitioner, a Gazetted Officer was called at the spot. 

The Counsel further contended that the father of the petitioner held a Wholesale Drug Licence, which was valid from 2013 to 2018. Also, it was the Counsel’s case that on an application made by the petitioner, the tower location of the police officials who apprehended him were preserved. 

Lastly, it was argued that the prosecution witnesses were intentionally not appearing for deposition.

Per contra, the State counsel, while opposing the prayer, submitted that heavy recovery weighing 20 kg 350 grams of Tramadol was made from the petitioner. He further submitted that the recovery was from the motorcycle driven by the petitioner, hence, Section 50 of the Act was not applicable.

It was also the Counsel’s contention that the licence was in the name of M/s Arvinder Medical Store and the competent person to deal with the drug was Kulwant Singh (father of the petitioner) who expired in 2016.

Lastly, refuting the petitioner’s contention,  the Counsel added that there was no reason for prosecution to delay the trial.

At the very outset the Court observed that the petitioner withheld material facts from the Court by falsely declaring (in the present petition) that this was the very first petition filed by the petitioner under Section 439 Cr.P.C. Rather, the Court noted the Registry put up a note stating that this was in fact the second petition under Section 439 Cr.P.C. by the petitioner as he was denied bail in his petition, by the High Court in September 2020. 

On the recovery made, the Court noted that the recovery from the petitioner was of more than 20 kg tablets containing Tramadol salt.  Also, on the question of passing information to a Gazetted Officer, the Court was of the view that on receiving a secret tip, passing of the information to a Gazetted Officer, in itself will not be enough to even prima-facie conclude that the story of the prosecution is improbable. 

Also, from a perusal of the drug licence, the Court stated that the licence was only for godown purpose and the competent person was father of the petitioner who died in the year 2016. 

On the allegation surrounding intentional delay in examining prosecution witnesses, the Court added, 

“The State counsel has contended that there is no intention of the prosecution to delay the trial, the said contention is expected to be backed with the effort of the prosecution to examine the prosecution witnesses as early as possible.”

Lastly, the Court expounded that Section 37 of the Act provides stringent conditions for grant of bail in cases where recovery is of commercial quantity and that the custody in itself will not be the only consideration for grant of regular bail, moreso considering the quantity of recovery.

Thus, the petition was dismissed.