Ginder Kumar vs State Of Punjab on 22 February, 2024

Punjab-Haryana High Court

Ginder Kumar vs State Of Punjab on 22 February, 2024

Author: Manjari Nehru Kaul

Bench: Manjari Nehru Kaul

                               IN THE HIGH COURT OF PUNJAB & HARYANA
                                           AT CHANDIGARH
                    224
                                                     2024:PHHC:024877
                                                     CRM-M-25490-2023
                                                     Date of decision: February 22nd, 2024
                    Ginder Kumar

                                                                                  .....Petitioner

                                                       Versus

                    State of Punjab
                                                                                .....Respondent

                    CORAM: HON'BLE MRS. JUSTICE MANJARI NEHRU KAUL

                    Present:     Mr. Gurpal Singh Sandhu, Advocate
                                 for the petitioner.

                                 Mr. Amit Rana, Senior Deputy Advocate General, Punjab.

                    MANJARI NEHRU KAUL, J. (ORAL)

Petitioner is seeking the concession of bail under Section

439 of the Code of Criminal Procedure, 1973 in case FIR No.287 dated

09.11.2022 under Section 15 (c) of the Narcotic Drugs and Psychotropic

Substances Act, 1985, registered at Police Station STF,

District STF Wing.

2. Before proceeding further, the relevant part of the FIR is

reproduced as under:-

“Copy Ruqa, “SHO P.S. S.T.F. Phase-4, S.A.S. Nagar,
Fateh” today myself SI alongwith C-2 Nandeep Singh
941/SMS, S/C Mandeep Singh 1465, C Charanjit Singh
2C/504 in the government vehicle Bollero No.PB-
11AF-9850 which was driven by C Charanjit Singh
2C/504, in regard to conducting barricading as per the
direction of the senior officers, for checking of
suspicion persons, were present at on the link road
leads from village Abul Khurana to village Tapa
Khera, ASI Narinderpal Singh 2287/ Bathinda has
gave information by making whatsapp call from his
PUNEET SACHDEVA
2024.02.22 18:36
mobile number 80545-00996 to myself SI mobile
I attest to the accuracy and
integrity of this document.
Chandigarh
CRM-M-25490-2023 -2-

no.80549- 40842 today I alongwith S/C Paramjit Singh
1050/SMS, S/C Inderpreet Singh 1382/SMS, S/C
Lakhwinder Singh and Lady S/C Sukhpal Kaur
1080/Bathinda in the private car was driven by S/C
Paramjit Singh 1050/SMS, in regard to barricading on
the link leads from village Abul Khurana to village
Dabwali Rahuria Wali (Malko Ki) at a distance about
2 kilometers from village Abul Khurana, then during
barricading from village Dabwali Rahurian Wali
(Malko Ki) a car seen coming in very high speed, I
signaled them to stop with my torch, suddenly the car
driver stopped the car just 2 kilometers behind from
the barricade and car was switched off, on which
alongwith companion employees keep abducting two
youngsters sitting in the car and on the back seat of the
car 3 plastic bags are lying, in which myself ASI has
suspicion that some intoxicant material seems to be
available in the plastic bags. You come at the spot for
further action. On which myself SI alongwith
companion employees alongwith laptop, printer which
is already available with myself SI in my vehicle
reached at the spot. Where ASI Narinder Pal Singh
2287/Bathinda alongwith companion employees and
abducted youngsters met and three plastic bags black
colour were lying on the back seat of the car bearing
no.PB 53C 7341 Honda City Silver colour, the mouth
of which was tied. In which some intoxicant material is
seems to be available. Myself SI has asked the name
and address of the abducted youngsters, then the driver
of car disclosed his name as Gurmeet Ram son of
Angrej Ram son of Malla Ram resident of Dabwali
Rahurian Wali (Malko Ki) and the youngster sitting on
the conductor seat disclosed his name as Ginder
Kumar son of Mahinder Pal son of Ashok Kumar
resident of Dabwali Rahurian Wali (Malko Ki). On
which myself SI tried to join public witness at the spot,
but due to dark no one met. Then myself SI separately
PUNEET SACHDEVA
2024.02.22 18:36
I attest to the accuracy and
integrity of this document.
Chandigarh
CRM-M-25490-2023 -3-

aware Gurmit Ram and Ginder Kumar about my name,
rank and place of posting and served them notice
under Section 50 NDPS Act and said that I have
suspicion that some intoxicant material is available in
the 3 black colour plastic bags lying on the back seat
of your car, due to which you and your car has to be
searched. But under NDPS Act you have legal right
that you can search you and your car from any
Magistrate or gazetted officer, they can be call at the
spot as per your desire. On which Gurmit Ram and
Ginder Kumar above have separately told myself SI
that we want to search us and our car in the presence
of any gazetted officer, call him at the spot. On which
memo of search of Gurmit Ram and Ginder Kumar
prepared separately. On which myself SI has made
whatsapp call from my mobile number 80549-40842 to
Sh. Paramjit Singh P.P.S., D.S.P., STF Bathinda Range
Bathinda mobile no.84278-48000 and requested him to
come at the spot. At time about 11PM Sh. Paramjit
Singh P.P.S., DSP, STF Bathinda Range Bathinda
alongwith government vehicle and gunmen reached at
the spot. Where SI informed him about the situation
and produced abducted youngsters alongwith car
before DSP, on which DSP Sahib has asked the name
and address of Gurmit Ram and Ginder Kumar, they
correctly disclosed their name as stated above. On
which DSP has made the efforts to join public witness
in the police party but due to night hours no one met.
The DSP separately informed Gurmit Ram and Ginder
Kumar about his name, rank and place of posting and
served them notice under Section 50 NDPS Act and
said that I have suspicion that some intoxicant material
is available in the 3 black colour plastic bags lying on
the back seat of your Honda City Car No.PB 53 C
7341 on which you and your car has to be searched,
but under NDPS Act, you have legal right that you can
search you and your car from any Magistrate or
PUNEET SACHDEVA
2024.02.22 18:36
I attest to the accuracy and
integrity of this document.
Chandigarh
CRM-M-25490-2023 -4-

gazetted officer. They can be call at the spot. On which
Gurmit Ram and Ginder Kumar have said that they do
not want to conduct their search in the presence of any
Magistrate Sahib or any gazetted officer, we have full
faith upon you, you can conduct our and our car
search yourself only. On which DSP has prepared the
separate memo of consent of both of them. Then on the
instructions of DSP myself SI has conducted the search
of above car, then after checked the black colour
plastic bag lying on the back seat of car poppy husk
was recovered and from the 2 black colour plastic bags
raw material of poppy husk was recovered, which was
weighed by myself SI through computer scale available
with me, then the weight of 3 plastic bags lying on the
back seat of the car found 30/30kgm poppy husk and
the weight of 2 plastic bags of raw material of poppy
husk was found 15/15 kgm, the serial number from 1 to
5 was marked thereon and separate parcels was
prepared. Then myself SI has stamped the same with
my stamp GS, sample of stamp was prepared on form
M-29 separately. After used the stamp the same was
handed over to ASI Narinderpal Singh 2287/Bathinda.
Then the above parcels of plastic bags has been
stamped by DSP Sahib with his stamp PS and also put
his stamp on Form M-29 and after used the stamp he
has kept the same with him. After checked the
dashboard of the car from which the duplicate RC and
a delivery receipt which is recovered with regard to
purchase the car from Sukhchain Singh son of Gurdas
Singh resident of Baba Karnail Singh Wali Gali, Ward
No.21, Harjinder Nagar, Malout on dated 17.05.2022.
Then myself SI has taken the above 3 parcels of plastic
bag of poppy husk serial no.1 to 3 and 2 parcels of
plastic bag of raw material of poppy husk from serial
no.4 and 5 duly stamped with stamp GS+PS alongwith
form M-29 sample of stamp and car alongwith
duplicate RC and Delivery receipt has been taken into
PUNEET SACHDEVA
2024.02.22 18:36
I attest to the accuracy and
integrity of this document.
Chandigarh
CRM-M-25490-2023 -5-

police possession through memo of recovery. Then
personal search of above accused Gurmit Ram was
conducted then from the front pocket of his T-shirt
currency note of Rs.100/- and a mobile phone key pad
mark HERO black colour recovered and after
conducted the personal search of accused Ginder
Kumar from his front side pocket of shirt currency note
of Rs.100/- and a mobile phone touch screen make
OPPO black colour recovered, which has been taken
into police possession through separate memo of
personal search. Witnesses have appended their
signatures. Accused Gurmit Ram and Ginder Kumar
above have committed an offence under Section 15(c)-
61-85 N.D.P.S. Act by keeping 120kgm poppy husk in
their possession, on which after got typed ruqa against
Gurmit Ram and Ginder Kumar above under above
Sections, the ruqa is being sent through E-mail ps-
[email protected] to you.”

3. Learned counsel for the petitioner, inter alia, contends that

while he was accompanying co-accused Gurmeet Singh in the latter’s

car on 09.11.2022, they were stopped by the police and then an alleged

recovery of 120 kilograms of poppy husk from three bags, which were

lying loaded in the car, was allegedly effected. Learned counsel submits

that it is a false recovery, which has been planted upon the petitioner

and furthermore, the petitioner was just accompanying the co-accused,

who was in fact the registered owner of the vehicle in question;

assuming for the sake of arguments, though not conceded, that the

alleged recovery was indeed effected from the vehicle registered in the

name of the co-accused, the petitioner had no knowledge of the contents

of the bags.

PUNEET SACHDEVA
2024.02.22 18:36
I attest to the accuracy and
integrity of this document.
Chandigarh
CRM-M-25490-2023 -6-

4. On a pointed query put to the learned counsel for the

petitioner as to whether the petitioner has any criminal antecedents,

he has categorically replied in the negative.

5. It has been further submitted that after the challan was

presented on 17.03.2023, charges were framed on 15.07.2023, however,

till date the prosecution evidence had not concluded as only one witness

out of the 28 cited by the prosecution had been examined and the next

date fixed before the trial Court is 18.03.2024. Learned counsel submits

that in the circumstances, the likelihood of the trial concluding in the

near future looks bleak. In support of his submissions that he cannot be

made to languish in custody on account of the delay in trial, learned

counsel has placed reliance upon judgment of Hon’ble Supreme Court

passed in Dheeraj Kumar Shukla Vs. State of Uttar Pradesh

(SLP(Crl.) No.6690/2022) decided on 25.01.2023.

6. Per contra, learned State counsel while opposing the prayer

and submissions made by the counsel opposite, on instructions from S.I.

Sadhu Singh, has submitted that the petitioner and the co-accused were

nabbed together and a huge recovery of 120 kilograms of poppy husk

was then effected from the car, though concededly not registered in the

name of the petitioner. Learned State counsel, on instructions, has also

not disputed the stage of the trial.

7. On a pointed query, learned State counsel, on instructions,

has not controverted the submissions made by the counsel for the

petitioner qua his clean antecedents and he being not involved in any

other case under the NDPS Act.

8. I have heard learned counsel for the parties and perused the

material placed on record.

PUNEET SACHDEVA

2024.02.22 18:36
I attest to the accuracy and
integrity of this document.
Chandigarh
CRM-M-25490-2023 -7-

9. The petitioner has been in custody since 09.11.2022, the

possibility of the trial concluding in the near future looks unlikely as 27

prosecution witnesses still remain to be examined. The petitioner is not

stated to be involved in any other criminal case much less under the

NDPS Act.

10. Hon’ble Supreme Court in Dheeraj Kumar Shukla Vs.

State of Uttar Pradesh (SLP(Crl.) No.6690/2022) decided on

25.01.2023 has observed as under:-

“…. It is true that the quantity recovered from
the petitioner is commercial in nature and the
provisions of Section 37 of the Act may ordinarily
be attracted. However, in the absence of criminal
antecedents and the fact that the petitioner is in
custody for the last two and a half years, we are
satisfied that the conditions of Section 37 of the Act
can be dispensed with at this stage, more so when
the trial is yet to commence though the charges
have been framed.”

11. In the facts and circumstances as enumerated hereinabove,

this Court deems it appropriate to allow the instant petition by

dispensing with the conditions of Section 37 of the NDPS Act.

12. Accordingly, the instant petition is allowed. Petitioner be

admitted to bail to the satisfaction of the trial Court/Duty Magistrate

concerned. However, it is made clear that anything observed

hereinabove shall not be construed to be an expression of opinion on the

merits of the case.

13. Needless to say, in case the petitioner misuses the

concession of bail granted to him, the State would be at liberty to seek

cancellation of the same.

                    February 22nd, 2024                         (MANJARI NEHRU KAUL)
                    Puneet                                             JUDGE
                                 Whether speaking/reasoned :      Yes
PUNEET SACHDEVA
2024.02.22 18:36
                                 Whether reportable        :      No
I attest to the accuracy and
integrity of this document.
Chandigarh