CRM-M-22127-2011 (O&M) [ 1 ] :::::::: IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CRM-M-22127-2011 (O&M) Date of decision:26.11.2011 Balwinder Singh alias Binder ...Petitioner Versus State of Punjab ...Respondent CORAM: HON’BLE MR. JUSTICE RAKESH KUMAR JAIN Present: Mr. Vipul Jindal, Advocate, for the petitioner. Mr. K.D.Sachdeva, Addl. A.G., Punjab. ***** RAKESH KUMAR JAIN, J. The petitioner has prayed for regular bail in a pending trial case registered vide FIR No.22 dated 09.06.2010, under Sections 21/25/29/61/85 of the Narcotic Drugs Psychotropic Substances Act, 1985 [for short “NDPS Act”], Sections 3, 4, 5 of the Explosive Substances Act, 1908, Sections 17/18/19/20 of the Unlawful Activities (Prevention) Act, 1967 and Section 120-B of the Indian Penal Code, 1860 at Police Station Special Operation Cell, Amritsar. As per the FIR, the complainant was informed by a special informer that Nirmal Singh alias Nimma and Balwinder Singh alias Binder (petitioner herein), with the help of Paramjit Singh alias Pamma, are doing anti-national activities near the Indo-Pakistan border and are smuggling heavy quantity of RDX and Heroin. He also informed that the aforesaid two persons had earlier smuggled heavy quantity of Heroin and RDX at the instance of Paramjit Singh alias Pamma and his relation, namely, Sher Singh alias Shera and are being sent to the other accomplices at Delhi after receiving the said articles near Gurudwara Singh Darshan Singh Rulliwale in a white coloured CRM-M-22127-2011 (O&M) [ 2 ] :::::::: Accent car bearing registration No.DL-3CAB-2216 and if a raid is conducted, heavy quantity of RDX and Heroin can be recovered. On this information, AIG/CI Ranwinder Singh was informed and after his permission, the complainant constituted a team of other officers and reached near Gurudwara Singh Darshan Singh Rulliwale where they saw the said car parked near T-point at G.T. Road bye-pass and five persons standing near it. On seeing the police party, one person sat in the car, two persons ran towards Ghanupur Kahlon and remaining two persons ran towards Gurudwara Sahib. However, all the persons were overpowered and the person who was sitting in the car, disclosed his name as Sher Singh alias Shera, the persons who tried to run towards Ghanupur Kahlon disclosed their names as Malkiat Singh alias Bittu and Paramjit Singh alias Pamma and other two persons who ran towards Gurudwara Sahib disclosed their names as Nirmal Singh alias Nimma and Balwinder Singh alias Binder (petitioner herein). Thereafter, the complainant disclosed his identity and asked them for their search and also made them aware of their right for getting searched in the presence of a Gazetted Officer. After recording their consent memos separately, the complainant informed Rajpal Singh, DSP, SSOC, Amritsar on his mobile and asked him to come at the spot and, thereafter, with a great difficulty, one Parminder Singh son of Swaran Singh, resident of 116, Kabir Park, P.S.Chhehratta, District Amritsar was joined as a public witness. In the meantime, DSP Rajpal Singh reached at the spot. In his presence, the search operation was conducted in which two packets, one containing Heroin and other containing RDX, were recovered from Sher Singh alias Shera. The Heroin was found to be 1 Kg., whereas the RDX was found to be 1500 grams. Separate Pullandas were prepared and samples were taken. On the search of accused Nirmal Singh alias Nimma, again 2 packets, one containing Heroin and other containing RDX, were recovered from him in the same quantity as above. From the search of Balwinder Singh alias Binder (petitioner herein), two packets containing RDX were recovered. Both were weighing 1500 grams. From the search of Malkiat Singh, one black coloured polythene bag containing 30 meters orange coloured fuse wire, 20 live detonators was recovered. From the search of Paramjit Singh alias Pamma, CRM-M-22127-2011 (O&M) [ 3 ] :::::::: 30 meters orange coloured fuse wire and 10 timer devices were recovered. In nutshell, from all the five accused, the recovery of Heroin, RDX, fuse wire, detonators and fire/timer devices was effected which were carried without license or permit and hence, the case was registered under the various provisions of law and thereafter a written ruqa for registration of a case was sent to the Police Station through HC Richard Masih. The petitioner had applied for bail before the learned Court below wherein it was alleged that he is in custody since 09.06.2010 and the recovery has been planted but his bail application was dismissed on 19.04.2011 by the learned Additional Sessions Judge, Amritsar looking at the recovery and the seriousness of the offence. Learned counsel for the petitioner has argued that two recovery memos were prepared on the same day. He further submits that the recovery memos bear the FIR number and date as well as the offence under which the FIR has been registered even before the registration of the FIR as it is not the case of the prosecution that after receipt of secret information, the FIR was first recorded and then the raid was conducted and recovery was made. He further submits that the petitioner is in custody since June, 2010. In support of his submission, he has placed on record a decision of the Supreme Court in the case of Ram Chander Sharma alias Pandit v. State (NCT of Delhi) as Annexure P-4. During the course of hearing, the petitioner had also filed CRM-45128- 2011 in order to place on record the documents Annexure P-5 and P-6, which are the copies of Ration Card and Voter Identity Card of the petitioner. In reply, the State has filed affidavit of DSP Sukhdev Singh, State Special Operation Cell, Punjab, Amritsar and two affidavits of Inspector Harwinder Pal Singh, State Special Operation Cell, Punjab, Amritsar. In the affidavit of DSP Sukhdev Singh, he has alleged that in the raid and recovery, 6 Kgs. of RDX, 2 Kgs. of Heroin, 20 detonators, 10 Timer Devices and 60 meters of Fuse Wire were recovered from the possession of the petitioner and his co-accused in the presence of DSP Rajpal Singh (Gazetted Officer) and public witness Parminder Singh son of Swaran Singh. It was also explained that initially the sample was taken and first memo was prepared and thereafter, on the direction of the DSP Rajpal Singh, again two samples of 30 grams each CRM-M-22127-2011 (O&M) [ 4 ] :::::::: from the parcel of RDX were taken. In the affidavit filed by Inspector Harwinder Singh, he has averred that immediately after the search and seizure , a written ruqa was sent to the Police Station State Special Operation Cell for registration of the FIR and on the basis thereof, special reports were sent to the different authorities inasmuch copies were sent to the Illaqa Magistrate Smt. Harjit Kaur, JMIC, Amritsar by hand through Constable Iqbal Singh 5/331, Superintendent of Police, Anti-Smuggling, Amritsar and DIG, Counter Intelligence, Punjab, Chandigarh for information. After completion, the case diary was immediately handed over by the Investigation Officer to MHC Raman Kumar 3069/BTL who made an endorsement regarding the same in the FIR register in the relevant columns specially meant for registration of the case diaries. Then the case diary was forwarded and handed over to HC Sarabjit Singh 3-C/52 working as Reader to DSP, State Special Operation Cell on 10.06.2010 itself and after the endorsement thereon, it was forwarded to the S.P., Anti-Smuggling without any delay on the same day through ASI Ashok Kumar 2801/ASR who was working as Reader with the aforesaid officer. ASI Ashok Kumar further made an endorsement regarding receipt of the case diary and presented it before Shri Manminder Singh, the then S.P., Anti-Smuggling and handed over the same to HC Bakhtawar Singh No.2222/LDH who was working as VRK (Vernacular Record Keeper) at the State Special Operation Cell, Amritsar who had filed it in the official record maintained in the office of Superintendent of Police, Anti-Smuggling, Amritsar. It is also submitted that the petitioner has actively participated in the nefarious activities for destabilizing the unity and integrity of the country by using explosive devices through detonators at Delhi and raising funds through the sale of Heroin. He also submitted that the trial of this case is going on and if the petitioner is released on bail, then he is likely to influence the witnesses much-less the independent witness of the recovery. I have heard both the learned counsel for the parties. Learned counsel for the petitioner has relied upon a decision of the Supreme Court in Ram Chander Sharma alias Pandit's case (supra) which pertains to an appeal against the order of conviction and sentence under Section CRM-M-22127-2011 (O&M) [ 5 ] :::::::: 21 of the NDPS Act. In that case, it was found by the Court that the accused was put on notice as to whether he would like to be searched in the presence of a Magistrate of a Gazetted Officer but he was not informed about his right to be searched only in the presence of a Magistrate or a Gazetted Officer as is required in law. In this background, it was observed that there was a total non-compliance of Section 50 of the NDPS Act. It was also seen that there is a mention of FIR number and date at the time of search and then it was observed that as to how FIR number was issued even before the search of the appellant and recovery of any contraband as it was not the case of the prosecution that any case was registered against the accused based on some prior information even before his search. In this regard, reference has also been made to a decision of this Court in the case of Ajay Malik and others v. State of U.T., Chandigarh, 2009(3) R.C.R. (Criminal) 649 to contend that if the documents prepared at the spot contain number of FIR, then there is a serious doubt to the prosecution story. He has also relied upon a decision of this Court in the case of Didar Singh @ Dara v. The State of Punjab, 2010(3) R.C.R. (Criminal) 337 in which it was observed that when the recovery was effected, FIR number was mentioned, whereas the FIR was not registered when the documents were prepared. In reply, learned State Counsel has submitted that it is categorically mentioned in the FIR that after the petitioner was apprehended, a written ruqa for registration of the case was sent to the Police Station through HC Richard Masih and after the registration of the case, the space kept blank for mentioning the FIR was filled in. He has referred to the replies/affidavits of DSP Sukhdev Singh and Inspector Harwinder Pal Singh in which it is averred that there is no tempering with any record as the investigation has been conducted in the presence of a Gazetted Officer and all the reports were sent not only to the Illaqa Magistrate but also to the Senior Officers of the police as well. It is also submitted by learned State Counsel that the decision in Ram Chander Sharma alias Pandit's case (supra) is not of any assistance to the petitioner because in that case the FIR was issued before the search and recovery, whereas in this case, the FIR number is mentioned after the search and recovery. Insofar Didar CRM-M-22127-2011 (O&M) [ 6 ] :::::::: Singh @ Dara's case (supra) is concerned, it has been mentioned therein that “it has not been explained how all these memos contained the FIR number, which was not existing at the time when these memos were prepared”. Similar view was taken in Ajay Malik's case (supra), whereas learned State Counsel has cited a decision of the Delhi High Court in the case of Mohd. Asif v. State (Delhi Admn.), 1991(3) Recent Criminal Reports 508 in which it has been held that “it is not unusual and rather it is the normal practice that while preparing seizure memos at the spot a police officer leaves the FIR number blank and subsequently after the registration of the case the number of the FIR is written in the space left blank”. He has further relied upon a Division Bench judgment of the Himachal Pradesh High Court in the case of Jauni Ram v. State of H.P., 2004(3) CLJ (H.P.) 484 in which it was held that mere mentioning of FIR number in the documents cannot be held to be fatal specially when the Investigating Officer was not examined by the defence on the said point. This indeed is a matter of evidence during the course of trial as to in what circumstances, the FIR number was mentioned in the recovery memos. Insofar as the preparation of two recovery memos is concerned, that has already been explained in the reply by the State that the samples were taken two times on the direction of DSP Raj Pal (Gazetted Officer). Keeping in view the huge recovery of RDX, Horoin, Fuse Wire, live detonators and fire/timer devices, I do not find it to be a fit case for grant of bail, as the petitioner, who is involved in cross-border smuggling and in the act of destabilizing the unity and integrity of the nation, can certainly influence the witnesses during the course of trial. Hence, the present petition is hereby dismissed. November 26, 2011 (RAKESH KUMAR JAIN) vinod* JUDGE