CRM-M-9939-2011 (O&M) [ 1 ] ::::::: IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CRM-M-9939-2011 (O&M) Date of decision:26.11.2011 Ashok Kumar and another ...Petitioners Versus State of Punjab ...Respondent CORAM: HON’BLE MR. JUSTICE RAKESH KUMAR JAIN Present: Mr. G.S.Kaura, Advocate, for the petitioners. Mr. Vijay K. Jindal, Addl. A.G., Punjab with Mr. A.S.Rai, DAG, Punjab. ***** RAKESH KUMAR JAIN, J. The petitioners have prayed for regular bail in a pending trial case registered vide FIR No.117 dated 21.10.2010, under Sections 15/61/85 of the Narcotic Drugs Psychotropic Substances Act, 1985 [for short “NDPS Act”] at Police Station Ghagga, District Patiala. One ruqa was sent by SI Kanwal Nain Singh by hand through Constable Rupinder 1579 for registration of a case against Surinder Singh alias Chinda, Ashok Kumar (petitioners herein) and Kuldeep Ram alias Leela for the offences under the NDPS Act in which he had mentioned that he had received a secret information that the accused were involved in the business of narcotics which they are going to supply through tempo Tata-407 bearing registration No.HR-39-8860 in the village of the State of Punjab. On receipt of the information, the barricade was erected. At about 9.15 a.m., the alleged vehicle was seen coming towards the barricade which was signaled to stop for checking. The driver, after slowing down the tempo, opened its door and jumped, but two persons sitting on the rear side were apprehended. The driver, CRM-M-9939-2011 (O&M) [ 2 ] ::::::: who had jumped, was chased by PHG Naresh Kumar and Constable Rupinder Singh but in vain. The petitioners were apprehended at the spot and from their possession, 5 bags containing 35 Kgs. of poppy husk each, total 175 Kgs., was recovered. The samples were taken and recovery memos were prepared at the spot and then the ruqa was sent for the purpose of registration of the FIR. The petitioners had applied for bail before the learned Trial Court which was dismissed vide order dated 16.03.2011, inter alia, on the ground that the petitioners were apprehended at the spot with 5 bags each containing 35 Kgs. of poppy husk, which falls within the category of commercial quantity and invites the rigour of Section 37 of the NDPS Act. Learned counsel for the petitioners has submitted that the recovery has been implanted because after receiving the secret information, no case was registered but at the time of alleged recovery, the recovery memo contained the FIR number. In this regard he has relied upon two decisions of this Court in the case of Didar Singh @ Dara v. The State of Punjab, 2010(3) R.C.R. (Criminal) 337 and in the case of Ajay Malik and others v. State of U.T., Chandigarh, 2009(3) R.C.R. (Criminal) 649. In reply, the State has filed three affidavits; two of SI Kanwal Nain Singh dated 23.05.2011 and 30.09.2011 respectively and one of Gurmail Singh, DSP, Patran (Gazetted Officer). The only grievance raised by learned counsel for the petitioners is that as the recovery was effected at the spot and by that time the FIR was not registered, therefore, there is no explanation as to how the recovery memo bears the FIR number. In this regard, it has been categorically stated by the Investigating Officer that the recovery memo was prepared before the registration of the FIR and FIR number was inserted in the recovery memo after registration of the FIR in the space kept blank at that time. It is also alleged that it is neither possible nor there is any provision to write the FIR number on the recovery memo before registration of the FIR as the FIR number is written on the recovery memo only after its registration and if the FIR number is not mentioned on the recovery memo, then it is not possible to connect the said recovery memo with the particular case. It is denied that the recovery memo already carried the FIR number before its registration. It is also CRM-M-9939-2011 (O&M) [ 3 ] ::::::: averred that the case diary was prepared in duplicate. The original copy thereof after making entry in the Police record was sent to the Senior Superintendent of Police through Halqa G.O. and, therefore, there is no chance of any tampering. In his affidavit, DSP Gurmail Singh has averred that the Investigating officer handed over the case diary to MHC, Police Station Ghagga for completion of the record who, after making necessary entries, handed over the same to Constable Jagtar Singh No.766. It was then submitted by him to the office of DSP, who further forwarded it to the office of SSP, Patiala on 16.12.2010 through HC Satnam Singh 2962/Patiala, where it is permanently maintained and there is no chance of tempering. In the zimni recorded on 21.10.2010, it is categorically mentioned that “therefore ruqa is being sent for registration of case through Constable Rupinder Singh 1579. After registration of case, the FIR number be intimated. I am busy with investigation”. It is also recorded that “at this time, Constable Rupinder Singh No.1579, who has gone to Police Station Ghagga vide zimni (clause-I0 for the registration of the case, returned back at the spot who handed over the Missal of case FIR No.117 dated 21.10.2010, under Sections 15/61/85 NDPS Act, P.S. Ghagga along with original ruqa to me so the identification blank of zimni is filled”. In Didar Singh @ Dara's case (supra), it has been observed that when the prosecution had prepared the documents, the FIR was not registered as it was registered lateron and it has not been explained as to how these memos were prepared containing the FIR number which was not existing at that time. Similar is the decision in Ajay Malik and others' case (supra), but in the case of Mohd. Asif v. State (Delhi Admn.), 1991(3) Recent Criminal Reports 508, 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”. In the case of Jauni Ram v. State of H.P., 2004(3) CLJ (H.P.) 484, it was observed by the Division Bench of the Himachal Pradesh High Court that mere mentioning of FIR number in the documents cannot be held to be fatal until and unless the Investigating Officer is examined by the defence on the said point. CRM-M-9939-2011 (O&M) [ 4 ] ::::::: Be that as it may, there is an explanation by the State by producing various affidavits and the zimnis prepared from which it transpires that the space meant for mentioning the FIR number was kept blank, a ruqa was sent for registration of the FIR and as soon as the FIR was registered, the Constable who had taken the ruqa, returned to the spot where the Investigating Officer was present and the FIR number was handed over to him which was duly entered in the space meant for it in the recovery memos as without the number of the FIR mentioned in the recovery memo, it could be a very difficult task for the prosecution to maintain the recovery memo as it would not be connected with a particular case. It is altogether different situation where there is no explanation but where the circumstances are explained by the prosecution with the help of documents, then it is a matter of appreciation by the learned Trial Court and cannot be called in question at the stage of consideration of bail application. Keeping in view the facts and circumstances of the case, the fact that the petitioners were apprehended at the spot with the huge quantity of poppy husk which falls within the definition of commercial quantity, I do not find it to be a fit case for grant of bail. Hence, the present petition is hereby dismissed. November 26, 2011 (RAKESH KUMAR JAIN) vinod* JUDGE