Crl. Misc No. M-7829 of 2009 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl. Misc No. M-7829 of 2009 Date of decision : 29.07.2009 Vijay Kumar ....Petitioner V/s State of Punjab ....Respondent BEFORE : HON'BLE MR. JUSTICE RAJAN GUPTA Present: Mr. P.S. Mattewal, Advocate for the petitioner. Mr. Shailesh Gupta, DAG Punjab. RAJAN GUPTA J. (ORAL) This is a petition for grant of regular bail in a case registered against the petitioner under Sections 21/61/85 of the NDPS Act at police station, Sadar Phagwara District Kapurthala vide FIR No. 79 dated 07.04.2008 (Annexure P-1). The alleged recovery in the case is of 10 kgs of heroin. It has been alleged in the FIR that a patrolling team of the Police received secret information that one Paramjit Singh @ Pamma, Kashmir Singh @ Kashmira Singh and Vijay Kumar (Petitioner) were carrying Heroin in huge quantity and were going to Jalandhar in Tata Indica car to deliver the same. A barricade was thus installed and a white Indica car without number was seen coming from the side of Phagwara. It was stopped by S.I. Inderjit Singh. The vehicle was being driven by Vijay Kumar (petitioner). He was taken out of the car and other accused Kashmira Singh was carrying a bag in his Crl. Misc No. M-7829 of 2009 2 hand from which 5 kgs of Heroin was recovered. Another bag was recovered from other accused i.e. Paramjit Singh @ Pamma, which contained 5 kgs of Heroine. Thus, recovery of 10 kgs of heroin was effected. Learned counsel for the petitioner has argued that the petitioner has nothing to do with the entire issue as during the investigation it was found that the petitioner Vijay Kumar was doing the business of Hawala and had no link or dealing in contraband. Learned counsel has also submitted that the matter was enquired into by the Deputy Superintendent of Police, Kapurthala who exonerated the petitioner. He has referred to enquiry report dated 10.06.2008 Annexure P-4 in this regard. Relying upon the judgment of the Apex Court reported as UOI Vs. Shiv Shankar Kesari (2007)7 SCC 798, learned counsel has contended that an accused under the NDPS Act can be released on bail in case the court is satisfied that there are reasonable grounds for believing that the accused is not guilty and that he is not likely to commit any offence while on bail. Learned counsel for the State has, however, vehemently opposed the prayer for bail on the ground that allegations against the petitioner are serious in nature and recovery made is of heavy quantity of Heroin and Section 37 of the NDPS Act would be attracted to the facts of the present case. I have heard learned counsel for the parties and given careful thoughts to the facts of the case. It is evident that the recovery of 10 kgs of Heroin was effected from a Tata Indica car on 07.04.2008. The said car was being driven by the Crl. Misc No. M-7829 of 2009 3 petitioner. It is thus, very difficult for this court to prima facie come to a conclusion that the petitioner was not guilty and was not aware of the heavy quantity of the contraband in the same car, nor it is possible to say that the petitioner is not likely to commit any crime while on bail. Thus, ratio of the judgment in Shiv Shankar Kesari (supra) is not applicable to the facts of the present case. The argument that the the petitioner was given a clean chit by Deputy Superintendent of Police, Kaputhrala who enquired into the matter is also of no avail. The matter being before the trial court, the guilt or innocence of the accused can be established only after the evidence is lead. On the basis of enquiry report by a police official, it is not possible for this Court to arrive at a conclusion that the petitioner was not guilty of the crime he is alleged to have committed. Under the circumstances, I do not find it a fit case for grant of bail to the petitioner. The same is hereby dismissed. 29.07.2009 (RAJAN GUPTA) Ajay JUDGE