Crl. Misc. No.M-559 of 2011 ::1:: IN THE PUNJAB AND HARYANA HIGH COURT AT CHANDIGARH Crl. Misc. No.M-559 of 2011 Date of decision: 03.03.2011 Gurinderpal Sharma .. Petitioner Versus State of Punjab .. Respondent Present:- Mr. Akshay Bhan, Advocate, for the petitioner. Mr.M.C. Berry, Addl. A.G., Punjab. * * * * S.S. SARON, J. Heard counsel for the parties. The petitioner seeks regular bail in a case registered against him on 04.08.2010 for the offence under Section 18 of the NDPS Act at Police Station Fatehgarh Sahib, District Fatehgarh Sahib. The FIR, in the case, has been registered on the basis of memo sent by Jaswinder Singh, CIA Staff, Sirhind to the SHO, Police Station Fatehgarh Sahib. Jaswinder Singh, Inspector, CIA Staff, Sirhind along with other police officials were in a Government gypsy which was being driven by Head Constable Satnam Singh. They were checking vehicles at 'T' point at the road from Chandigarh to Fatehgarh Sahib at village Bhairopur in the area of Police Station Fatehgarh Sahib. During checking, Jaswinder Singh, Inspector was talking to Major Singh who had come from Chandigarh side on his motorcycle. At about 11.50 a.m., one silver colour Indigo car came from Fatehgarh Sahib side, which was being driven by a young person and one person was sitting on the other front seat. The car was signalled to stop and the name of the occupants were asked. The person driving the car disclosed his name as Gurinderpal Crl. Misc. No.M-559 of 2011 ::2:: Sharma alias Rinku (petitioner) and the other person sitting on the adjoining seat of the said car, disclosed his name as Karnail Singh alias Chicha (non-petitioner). A black colour bag was seen lying between both the front seats, which raised a suspicion in the mind of Inspector Jaswinder Singh. He stated that he wanted to search the bag and that the occupants can seek their search in the presence of a Gazetted Officer or a Magistrate, who can be called at the spot. The occupants of the car said that they want their search to be conducted in the presence of a Gazetted officer. Major Singh with whom Inspector-Jaswinder Singh was conversing was apprised of the incident and he was joined with the police party for further proceedings. The statements of the occupants of the car were recorded and Daljit Singh DSP (D) was apprised of the circumstances and was asked to come at the spot. Daljit Singh DSP (D) along with his staff came at the spot in Government Tata Sumo vehicle. He introduced himself to Gurinderpal Sharma (petitioner) and Karnail Singh. Thereafter search of the bag was carried out and one polythene was found in which there was some black colour dark substance wrapped in a paper. The black colour dark substance was found to be opium. Two samples of 10 grams opium were taken and the remaining opium weighed 4 Kgs 980 Grams. In this manner, 5 Kgs of opium was recovered. The opium was then put in the same polythene and then in the same black bag. The containers of samples as well as remaining opium was attested by the stamp of “JS” and sealed. The seal was handed over to the witness Major Singh. The father of the petitioner namely Shiv Chand submitted an application on 05.01.2010 regarding innocence of the petitioner. The same was enquired into by Gursharan Singh, Superintendent of Police (Headquarter), Khanna. In his report dated 01.11.2010 (Annexure P-3) it was found that the petitioner had an office at Patran Car Bazar by the name of Speed Motors and he was doing the Crl. Misc. No.M-559 of 2011 ::3:: business of sale and purchase of old cars for the last two years. Karnail Singh (non-petitioner) was known to the petitioner because earlier also Karnail Singh had purchased a car from Bobby Sales Car which was used as a taxi. On 04.08.2010, Gurinderpal Sharma (petitioner) and his father- Shiv Chand Sharma were present in their office at Speed Motors, where Vijay Kumar Singla came to buy a High Model Zen car and Bharat Bhushan had come to buy a Santro car. While discussions were going on, Karnail Singh reached their office who was carrying a black colour bag. He (Karnail Singh) sat in their office. He asked Gurinderpal Sharma (petitioner) about an old Indigo car and Gurinderpal Sharma (petitioner) showed his old Indigo car for which a the deal was finalized for Rs.1,90,000/-. After finalization of the deal, Karnail Singh stated in front of them that he was to take away the car to Chandigarh and he would make the payment at Sector 43, Chandigarh. He (Karnail Singh) also stated that Gurinderpal Sharma (petitioner) may accompany him to Chandgiarh. A letter was written, on which Karnail Singh (purchaser of the car) signed and Shiv Chand and Gurinderpal Sharma (petitioner) also signed. Gurinderpal Sharma (petitioner) started driving the car and Karnail Singh along with the bag sat on the adjoining seat. Gurinderpal Sharma (petitioner) was going along with Karnail Singh to get the payment of Rs.1,90,000/- of the car. The Superintendent of Police (Headquarters) recorded the statements of Vijay Kumar Singla and Bharat Bhushan who were present at the time when the deal for purchase of Indigo car was finalized between Karnail Singh and the petitioner. On the way, the incident occurred and 5 Kgs. of opium was recovered from the black bag, in respect of which the petitioner, it was observed, was not liable. The Superintendent of Police (Headquarters) observed that 5 Kgs. opium which was found from the car lying in the black colour bag was already with Karnail Singh and the same had been brought by Karnail Singh from Rajasthan. Gurinderpal Sharma Crl. Misc. No.M-559 of 2011 ::4:: (petitioner) was not aware about any opium. It was also mentioned that Karnail Singh was earlier also involved in one case with regard to possession of 10 bags of choora posta. He (Karnail Singh) was convicted and sentenced for 10 years in the said car and he was on bail granted by this Court in 2005. He had committed the fraud with Gurinderpal Sharma (petitioner) by smuggling 5 Kgs. opium to Chandigarh through his (Gurinderpal Sharma's) car. It was observed that there was no role of Gurinderpal Sharma (petitioner). Therefore, the petitioner was found innocent in the enquiry report dated 01.11.2010. Though the said report had since been prepared on 01.11.2010 but the charge report (Challan) was filed on 04.11.2010. The report of Superintendent of Police (Headquarters) has been endorsed by the D.I.G., Ludhiana Range, Ludhiana on 15.11.2010 and he has directed to take further action as per the report. An application (Annexure P-4) for discharge of Gurinderpal Sharma (petitioner) is stated to have been filed but the said application is not through the prosecution agency and the same had been directly filed by the SHO, Police Station Fatehgarh Sahib and Deputy Superintendent of Police, Sub Division, Fatehgarh Sahib. At the time of consideration of the said application, the learned Special Judge, Fatehgarh Sahib vide her order dated 22.12.2010 (Annexure P-5) noticed that the Additional Public Prosecutor has submitted that the supplementary challan had not been forwarded by the prosecution agency; besides, defence counsel did not address any argument in defence on the same. Accordingly, it was held that the application for discharge of the petitioner-Gurinderpal Sharma was not maintainable and the accused was in custody pending trial in the case, in which the Investigating Agency has no role except to bring evidence. In the trial of the case, no witness has been examined. The petitioner is in custody since 04.08.2010. The petitioner has also submitted a certificate dated 18.10.2010 (Annexure P-1) Crl. Misc. No.M-559 of 2011 ::5:: from the Patran Car Dealer Association, in which it is certified that M/s Speed Motors Narwana Road, Patran is a member of Patran Car Dealer Association and petitioner is one of the partners. The firm-Speed Motors has been running its business successfully for the last two years. Besides, a reference is also made to the delivery receipt dated 04.08.2010 (Annexure P-2), whereby the Indigo car was delivered to Karnail Singh. Learned counsel for the State has submitted that there is no other case registered against the petitioner although a case is registered against the co-accused Karnail Singh. In the facts and circumstances, it may be noticed that it cannot be said that the petitioner had conscious possession of the contraband that has been recovered or that there was some direct relationship with the article or otherwise he dealt with it. The trial in the case is likely to take time. The recovery is of 5 Kgs. of opium but in the facts and circumstances, it cannot be said that the petitioner was conscious of the contraband. This is more so for the reason that the Superintendent of Police (Headquarters) in his enquiry report dated 01.11.2010 (Annexure P-3) has reached a conclusion that the petitioner-Gurinderpal Sharma was not aware of the contents of black bag that Karnail Singh was carrying with him when he had come at the shop of M/s Speed Motors for purchasing a second-hand car. It is also established that Karnail Singh had purchased an Indigo car for Rs.1,90,000/- and the payment for the same was to be made at Chandigarh. Five Kgs. of opium, which has been recovered from the black bag, it is observed, Karnail Singh had got along with him when he had come at the office of Speed Motors at Patran. In the facts and circumstances, there are reasonable grounds for believing that the petitioner is not guilty of the offence and in view of the fact that there is no other case against him, he is not likely to commit any offence while on bail. Therefore, it would be just and expedient Crl. Misc. No.M-559 of 2011 ::6:: that during the trial of the case, the petitioner is admitted to bail. Accordingly, the petitioner on his furnishing personal bond and surety to the satisfaction of the learned Chief Judicial Magistrate, Fatehgarh Sahib, shall be admitted to bail. However, nothing observed or 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 hereinabove. (S.S. SARON) March 03, 2011 JUDGE sukhpreet