PIARA SINGH Vs. STATE OF PUNJAB

JUDGEMENT

(1.) The present petition has been filed by the petitioner under Sec. 438 Cr.P.C. for grant of anticipatory bail in case FIR No.292 dtd. 5/11/2018 registered under Sec. 18, 25, 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short 'the NDPS Act ') at Police Station City Tarn Taran.

(2.) Learned counsel for the petitioner submits that the petitioner is not having any criminal antecedents and has falsely been implicated in the case. The alleged recovery has falsely been fastened upon him as the truck in dispute does not belong to him. Learned counsel further submits that question of conscious possession is a debatable issue, which is to be decided during trial. Learned counsel also submits that the petitioner was not arrested from the spot and his bail application has been dismissed on the ground of presumption whereas provisions of Sec. 54 of the NDPS Act are not attracted . Learned counsel also submits that bar under Sec. 37 of the NDPS Act can only be there in case, there is conscious possession of the petitioner whereas the alleged recovery was not effected from the conscious possession of the petitioner. It is also the argument of learned counsel for the petitioner that learned Special Court has overlooked the observations recorded by Hon 'ble the Apex Court in State of Karnataka and others v. Uma Devi, 2006(2) SCT 462. It is also the argument of learned counsel for the petitioner that in case of not arresting the petitioner from the place of occurrence, the involvement of petitioner would be a debatable issue and he becomes entitled for anticipatory bail. The petitioner has been implicated on the basis of statement made by co-accused. The report of Forensic Science Laboratory has not been received so far and in absence of any such report, it cannot be said that the alleged recovery made from the co-accused was of any narcotic substance and no offence is made out under the NDPS Act. It has further been argued that as per prosecution, the secret information was received and on the basis of said secret information, recovery was effected. Even that secret information was not recorded in writing as required under Sec. 42 of the NDPS Act. Learned counsel for the petitioner has also relied upon judgments rendered by Hon 'ble the Apex Court in Sarija Banu (a) Janarthani alias Janani and another v. State through Inspector of Police, 2004 (12) SCC 266, Darshan Singh v. State of Haryana, 2016(14) SCC 358, State of Rajasthan v. Jag Raj Singh @ Hansa, 2017(1) SCC (Cri) 348, Kishan Chand v. State of Haryana, 2013(2) SCC 502, Siddharam Satlingappa Mhetre v. State of Maharashtra and others, 2011(1) SCC 694, Ranjitsing Brahmajeetsing Sharma v. State of Maharashtra and another, 2005(5) SCC 294 as well as judgments rendered by this Court in Deep Singh v. State of Punjab and others (CRM-M No.7057 of 2015 decided on 27/7/2015), Surjit Singh v. State of Punjab (CRM-M No.45320 of 2016 decided on 28/2/2017), Karamjit Singh alias Pammi v. State of Punjab (CRM-M No.38006 of 2018 decided on 1/10/2018), Harinder Singh @ Happy v. Central Bureau of Narcotics (CRM-M No.22034 of 2017 decided on 29/5/2018), Gurdev Singh v. State of Punjab (CRM-M No.36526 of 2016 decided on 2/12/2016), Tarsem Chand @ Dhipai v. State of Punjab (CRM-M No.44866 of 2017 decided on 15/3/2018), Raj Kaur v. State of Punjab (CRM-M No.34400 of 2018 decided on 16/8/2018), Anmol Kaur v. State of Punjab (CRM-M No.5793 of 2018 decided on 24/5/2018), Davinder Singh @ Bitta v. State of Punjab (CRM-M No.30714 of 2015 decided on 5/10/2015), Naresh Kumar v. State of Haryana (CRM-M No.14625 of 2015 decided on 28/7/2015), Tilak Singh v. State of Punjab (CRM-M No.43732 of 2016 decided on 14/12/2016), Harprit Singh Bahad v. State of Punjab (CRM-M No.4161 of 2017 decided on 10/5/2017), Gurwinder Singh v. State of Punjab (CRM-M No.21093 of 2016 decided on 28/7/2016), Dilbagh Singh v. State of Punjab (CRM-M No.1903 of 2018 decided on 29/5/2018), Gagan @ Harman v. State of Haryana (CRM-M No.1548 of 2017 decided on 21/3/2017), Shakeel Ahmed v. State of Punjab (CRM-M No.19239 of 2017 decided on 18/9/2017), Jai Bhagwan v. State of Haryana (CRM-M No.29890 of 2017 decided on 12/9/2017), Krishan Singh v. State of Punjab (CRM-M No.28796 of 2014 decided on 23/2/2015), Kulwinder Singh @ Kinda v. State of Haryana (CRM-M No.42258 of 2018 decided on 11/12/2018), Daro v. State of Punjab (CRM-M No.38088 of 2018 decided on 13/11/2018), Baldev Singh v. State of Haryana (CRM-M No.7191 of 2018 decided on 27/3/2018), Ombir v. State of Haryana (CRM-M No.36997 of 2017 decided on 1/11/2017) and Randhir Singh v. State of Punjab (CRM-M No.32900 of 2014 decided on 28/10/2014) in support of his contentions.

(3.) Learned State counsel has vehemently opposed the submissions made by learned counsel for the petitioner on the ground that the petitioner was found in conscious possession of 8 kgs opium, which falls under the ambit of commercial quantity and as per schedule enshrined under Sec. 37 of the NDPS Act, the petitioner is not entitled for anticipatory bail. On the basis of secret information, the recovery was effected and the petitioner was nominated on the basis of disclosure statement made by co-accused Rashpal Singh. At the time of anticipatory bail, evidence is not available and only the allegations are to be taken into consideration. Learned State counsel while relying upon judgment rendered by Hon 'ble the Apex Court in Satpal Singh v. State of Punjab, 2018(5) Scale 519 also submits that in case, huge recovery is effected and the same falls in the category of commercial quantity, the provisions of Sec. 37 of the NDPS Act are attracted. Learned State counsel also submits that the petitioner cannot take benefit of anticipatory bail on the ground that FIR was registered on the basis of secret information and the petitioner is not entitled to presumption of innocence in view of provisions of Sec. 54 of the NDPS Act.