IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CRM No.8273 of 2011 and CRM No. M-1932 of 2011 Date of decision: 11.2.2011 Balwinder Singh …. Petitioner Versus State of Punjab …. Respondents Present: Mr. B.S. Guliani, Advocate for the petitioner. Mr. VPS Sidhu, AAG, Punjab. *** S.S. SARON, J. CRM No.8273 of 2011 The copy of the FIR (Annexure P8) attached with the Crl. Misc. application is taken on record subject to just exceptions. Crl. Misc. stands disposed of. CRM No. M-1932 of 2011 Heard counsel for the parties. The petitioner Balwinder Singh seeks regular bail in the case registered against him for the offences under Sections 21, 25 and 29 of the NDPS Act; besides, Section 25 of the Arms Act. The FIR in the case has been registered on the complaint of Balbir Singh, Inspector. Inspector Balbir Singh then SHO, Special Narcotic Cell, Punjab on 21.1.2009 CRM No.8273 of 2011 and [2] CRM No. M-1932 of 2011 accompanied by other police officials was in a Government mini bus driven by HC Harbhej Singh. They were patrolling in the area and were present at Amritsar Bye-pass, Batala. A secret information was received there that notorious smuggler of Indo-Pak border who had been smuggling heroin and Indian counterfeit notes, arms and ammunitions by the name of Baj Singh @ Baja (non-petitioner) and Balwinder Singh (petitioner) were actively involved in the smuggling of heroin those days. Both of them were in a black colour Indica car bearing number PB-18-L-8301 which belongs to Balwinder Singh (petitioner). They were waiting for some party to deliver a big consignment of heroin at the entry track of the car parking situated in Sabzi Mandi, Jalandhar Road opposite the Bus Stand, Batala. In case a raid was immediately conducted, then they could be apprehended with heavy quantity of heroin. The information was found credible and Sh. P.K. Sinha, IPS/SSP/SNC Punjab, Amritsar was apprised about it on his mobile phone. After obtaining permission and directions from Sh. P.K. Sinha, IPS/SSP/SNC Punjab, Amritsar, Inspector Balbir Singh along with his officials reached the parking of Sabzi Mandi in front of the Bus Stand, Batala. They saw the Indica car as was disclosed by the special informer. On seeing the police party, two persons standing near the car immediately sat in the car. Before the person sitting on the driver seat could start the car, the police officials on instructions from Inspector Balbir Singh took immediate action and apprehended the person sitting on the driver’s CRM No.8273 of 2011 and [3] CRM No. M-1932 of 2011 seat. The other person tried to run away by opening the window of the car and by breaking the police cordon. The police party apprehended the other person as well with a handbag in his hand. On inquiry, the apprehended persons disclosed their names as Baj Singh @ Baja (non-petitioner) and Balwinder Singh (petitioner). The apprehended persons were informed about the identity of Inspector Balbir Singh and that he was posted at the State Special Narcotic Cell, Punjab Amritsar. The apprehended persons were asked whether they wanted to be searched in the presence of a Gazetted Officer or not. The persons stated that they had no faith in Inspector Balbir Singh and they wanted their search to be conducted in front of some Gazetted Officer. Accordingly, Sh. Raj Pal Singh, PPS/DSP/SNC Punjab, Amritsar was informed on his mobile phone and he was requested to reach at the spot. The inquiry officer asked number of passersby so as to include them as public witnesses. After several efforts, Shamsher Singh on moral ground agreed to join the police party. Thereafter, Raj Pal Singh, PPS/DSP/SNC, Punjab Amritsar along with his security staff reached at the spot and disclosed his identity to the persons who had been apprehended. The persons who were apprehended were informed that they had a legal right to get their search conducted from some other Gazetted Officer or Magistrate on whom they had faith. On which they said that they had faith in DSP, Raj Pal Singh. Their statement of consent was recorded and attested. On search of the person of Baj Singh @ Baja (non-petitioner), a loaded . CRM No.8273 of 2011 and [4] CRM No. M-1932 of 2011 32 bore revolver was recovered. The revolver was unloaded and six live cartridges of .32 bore were recovered. The recovered revolver was of England and on its right side, the number was engraved as 6688. On the search of Balwinder Singh (petitioner), a black colour bag held in his hand containing one packet of heroin was recovered. The recovered contraband was wrapped in a white cloth and on which blue coloured egg shaped stamp was fixed. On the stamp in addition to syringe marks “Afgan Medical Laboratory” and 999 was engraved. On weighing the heroin packet, it was found to be 1 kg in weight. Samples of 5-5 gms each were taken out and put in separate plastic boxes. Two parcels of heroin sample of 5-5 gms each were marked as S-II-A and S-II-B. The remaining recovered heroin weighing 990 gms was put in the same packing and packed in a separate cloth and assigned as mark-II. The inquiry officer put his seal ‘BS’ on the packed sample of heroin and the DSP also put his seal ‘RS’. Separate recovery memo of heroin was prepared by the inquiry officer which was attested by the DSP. Search of Balwinder Singh (petitioner) was carried out and a mobile phone make ‘Nokia’; besides, `550/- of Indian currency was recovered which were taken in possession in pursuance of recovery memo. The Indica car was thoroughly searched by the DSP. However, no objectionable narcotic substance was found. The car and its registration certificate were taken in possession vide recovery memos. The apprehended persons namely Baj Singh @ Baja (non-petitioner) and Balwinder Singh CRM No.8273 of 2011 and [5] CRM No. M-1932 of 2011 (petitioner) could not produce any license, permit or any other document regarding possession of one kilogram heroin and .32 bore revolver as also 6 live cartridges of .32 bore revolver. The apprehended persons by keeping in their possession 1 kg heroin, one revolver .32 bore and 6 live cartridges of .32 bore revolver had committed offences under Sections 21, 25 and 29 of the NDPS Act; besides, Section 25 of the Arms Act. A memo was sent through Constable Sukhwinder Singh to the Police Station for registration of FIR. The petitioner Balwinder Singh is not an accused in any other case and this is the first case in which he is said to be involved. Besides, the car of the petitioner is said to have been used in carrying heroin. Baj Singh @ Baja, the co-accused of the petitioner is involved in 11 other cases out of which three are under the NDPS Act, two under the Explosives Act, five under the Arms Act and one is under Section 489-A, 489-B, 489-C and 489-D IPC. According to the learned counsel appearing for the petitioner, the petitioner is a respectable person. He is a permanent resident of village Ghanie-ke-bet, Police Station Dera Baba Nanak, District Gurdaspur. He belongs to a very respectable family of the area. His father was Lambardar of the village and after his death, the petitioner is also a Lambardar. The brother of the petitioner namely Hari Singh had been Sarpanch of the village for the last 30 years. He was also a member of the Block Samiti, Dera Baba Nanak. After the death of Hari Singh, his wife Chhinder Kaur has CRM No.8273 of 2011 and [6] CRM No. M-1932 of 2011 been the Sarpanch of the village. At present Sukhdev Singh, brother of the petitioner is Sarpanch. It is submitted that the family of the petitioner has its association with the Congress party which is not to the liking of the local MLA of the ruling Akali Dal Party. The family of the petitioner owns about 250 acres of land which is being jointly cultivated. The Jamabandis for the year 2004-2005 have also been submitted. Therefore, it is submitted that it is on account of the affluence of the petitioner’s family that the petitioner is being implicated due to political rivalry. It is submitted that it is only to make the offence serious that the name of the petitioner has been linked with that of Baj Singh @ Baja (non-petitioner) against whom as many as 11 cases are pending. This, it is submitted, has been done surreptitiously so as to make out a strong case so that the petitioner does not get bail. The petitioner is in custody since 21.1.2009. In response, learned State counsel has submitted that the petitioner was involved in the present occurrence and the car that was used at the time of the incident and has been recovered is owned by the petitioner. Besides, it is submitted that the recovery is of commercial quantity which is 1 kg of heroin. Besides, the recovery was effected from the petitioner along with Baj Singh @ Baja Singh. I have given my thoughtful consideration to the matter. The prosecution is to establish its case against the petitioner. The family of the petitioner, it is stated, has about 250 acres of land which is being jointly cultivated by CRM No.8273 of 2011 and [7] CRM No. M-1932 of 2011 the family members. Besides, it has considerable influence and standing in the area. The petitioner has not earlier been involved in any other case. Therefore, it is quite unlikely that he would indulge in the dealing of narcotic drugs with Baj Singh @ Baja against whom 11 cases are registered. The question whether there is political rivalry or not is not to be gone into in the present proceedings for grant of bail and these are to be determined by the learned trial Court, if raised. The police has cited one Shamsher Singh as an independent witness in whose presence the heroin is stated to have been recovered from the petitioner. The said Shamsher Singh has been examined in the Court of learned Additional Sessions Judge, Gurdaspur on 12.1.2010 and he did not support the prosecution case and was declared hostile. He was cross-examined at length by the prosecution. He denied the recovery in the presence of the petitioner. Rather he stated that DSP Raj Pal Singh had told him that the police had apprehended Baj Singh @ Baja and they have recovered some packets in polythene cover. The prosecution has cited 11 witnesses and out of them only Shamsher Singh has been examined and one more PW has been examined-in- chief. In the facts and circumstances, the petitioner prima facie can not be said to be guilty of the offence attributed to him. Besides, while on bail he is unlikely to indulge in activities under the NDPS Act. Accordingly, the Crl. Misc. petition is allowed and the petitioner on his furnishing personal bond and surety to CRM No.8273 of 2011 and [8] CRM No. M-1932 of 2011 the satisfaction of the learned Chief Judicial Magistrate, Gurdaspur shall be admitted to bail. Nothing stated herein shall be construed as an expression of opinion on the merits of the case and the learned trial Court shall consider the evidence and material as adduced before it uninfluenced by any observation made therein. (S.S. SARON) JUDGE February 11, 2011 amit