Satpal Singh v. the State of Punjab
KURIAN, J. 1. Leave granted.
2. The appellant – Satpal Singh (in Crl. Appeal. No. 462 of 2018)
is before this Court, challenging the order dated 04.10.2017 passed by
the High Court of Punjab and Haryana at Chandigarh in CRM-M-37140
of 2017 rejecting his application for anticipatory bail. The High Court
took note of the fact that the appellant was an accused in FIR No. 0053,
dated 11.06.2017 under Sections 22 and 29 of the Narcotic Drugs and
Psychotropic Substances Act, 1985 (in short, “the NDPS Act”), registered
at Police Station Bhadson, District Patiala. Though it was argued that a
coordinate Bench of the High Court had granted anticipatory bail to the
co-accused, namely, Beant Singh and Gurwinder Singh, who are brothers
of the appellant, as per order dated 21.09.2017, the learned Judge was
not inclined to accept the contention since there was no quest ion of
parity as far as the bail is concerned and in view of the fac t that the
Coordinate Bench had not taken note of the limitations under Section 37
of the NDPS Act. In our view, the learned Judge is perfectly right in his
approach and in declining the protection under Section 438 of the Code
of Criminal Procedure, 1973 (in short “Cr.P.C.”)
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3. Section 37 of the NDPS Act reads as follows :-
“Offences to be cognizable and non-bailable – (1)
Notwithstanding anything contained in the Code of Criminal
Procedure, 1973 (2 of 1974) -
(a) every offence punishable under this Act shall b e
cognizable;
(b) no person accused of an offence punishable for [offences
under section 19 or section 24 or section 27A and also for
offences involving commercial quantity] shall be releas ed on
bail or on his own bond unless -
(i) the Public Prosecutor has been given an opportu nity to
oppose the application for such release, and
(ii) where the Public Prosecutor opposes the application, t he
court is satisfied that there are reasonable ground s for
believing that he is not guilty of such offence and tha t he is
not likely to commit any offence while on bail.
(2) The limitations on granting of bail specified in clau se (b)
of sub-section (1) are in addition to the limitations under the
Code of Criminal Procedure, 1973 (2 of 1974) or any ot her
law for the time being in force, on granting of
bail.]” (Emphasis supplied)
4. Under Section 37 of the NDPS Act, when a person is accused
of an offence punishable under Section 19 or 24 or 27A and also f or
offences involving commercial quantity, he shall not be released on bail
unless the Public Prosecutor has been given an opportunity to oppose
the application for such release, and in case a Public Prosecutor opposes
the application, the court must be satisfied that there are r easonable
grounds for believing that the person is not guilty of the alleged offence
and that he is not likely to commit any offence while on bail. Materials
on record are to be seen and the antecedents of the accused is to be
examined to enter such a satisfaction. These limitations are in addition
to those prescribed under the Cr.P.C or any other law in for ce on the
grant of bail. In view of the seriousness of the offence, the law makers
have consciously put such stringent restrictions on the discretion available
to the court while considering application for release of a person on bail.
It is unfortunate that the provision has not been noticed by t he High
Court. And it is more unfortunate that the same has not been brought to
the notice of the Court.
SATPAL SINGH v. THE STATE OF PUNJAB
[KURIAN, J.]
5. Having thus noticed that apparently a wrong order has been
passed by the coordinate Bench of the High Court, this Court, by order
dated 22.11.2017, directed the State to verify whether any ste ps have
been taken for challenging the orders granting anticipatory bail to the
co-accused.
6. The matter was adjourned to 15.12.2017 and thereafter t o
17.01.2018, and noticing that still no steps had been taken by the State of
Punjab for challenging the apparently wrong order passed by the High
Court in respect of Beant Singh and Gurwinder Singh, this Court passed
the following order on 18.01.2018 :-
“Seeking, among other things, parity the petitioner has soug ht
for anticipatory bail. Noticing the anticipatory bail gr anted
in an NDPS case to the co-accused, this Court by order dated
22.11.2017, while issuing notice passed the following order:-
“Issue notice, returnable in three weeks.
In the meantime, the respondent-State is directed to clarify
as to whether any steps have been taken for challengi ng
the orders granting anticipatory bail to the co-accused i n
the same case.”
It is also relevant to note that in the impugned ord er dated
4.10.2017 the learned Judge has noted that the coor dinate
Bench which granted anticipatory bail to the co-accused has
omitted to take note of Section 37 of NDPS Act, 1985.
Thereafter, the matter was posted on 15.12.2017 and the
counsel sought three weeks’ time to file counter af fidavit,
which was granted.
Today, learned counsel for the respondent/State submit s that
the counter affidavit is ready and the same may be permitt ed
to be filed during the course of the week.
Permission is granted.
At paragraph 6 of the counter affidavit it is state d “... no
decision for challenging the order dated 21.09.2017, whereby
anticipatory bail was granted to co-accused, namely, Beant
Singh and Gurwinder Singh has been taken by the
Government”.
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Learned counsel for the respondent/State submits tha t the
process takes some time, since the file has to pass through
many hands.
We direct the Secretary (Law) or the Secretary concerne d in
the Government dealing with the matters regarding sanct ion
to be present before this Court with the records pertaining to
the sanction for cancellation of the bail granted t o the co-
accused by order dated 21.09.2017, on the next date of
hearing.
Post on 07.02.2018.”
7. Thereafter, the matter was adjourned to 07.02.2 018.
Incorporating the order dated 18.01.2018, this Court passed a further
order, which reads as follows :-
“Today, Mr. N.S. Kalsi, Additional Chief Secretary, Home
Affairs and Justice, along with Superintendent of P olice,
Patiala and the other police officers concerned are present
in Court.
It is reported that the matter came to the notice o f the
Additional Chief Secretary, Home Affairs and Justic e, only
on 25.01.2018 and within a week steps have been tak en to
file a special leave petition and the same has been file d.
We direct the Additional Chief Secretary, Home Affairs and
Justice, to conduct an appropriate inquiry as to who are th e
officials/officers involved in taking such a lackad aisical
attitude despite the High Court in the impugned order pointin g
out that the order granting bail to the co-accused was not
proper.
Needless to say that the Report shall contain names of the
officers who, despite three postings before this Cou rt, were
not vigilant in not bringing up the matter before the
Government. The Report, as above, shall be filed within four
weeks from today.
Post after four weeks.
The presence of the officers is dispensed with unti l further
orders.”
SATPAL SINGH v. THE STATE OF PUNJAB
[KURIAN, J.]
8. Thereafter, it appears the State became alert and step s have
been taken to challenge the anticipatory bail granted to Beant Singh and
Gurwinder Singh and that is the subject matter of Crl. Appeal No. 463 of
2018.
9. The State has referred to in detail, the decision of the Pun jab
and Haryana High Court in Vinod Kumar vs. State of Punjab , reported
in (2013) 1 RCR (Criminal) 428 regarding drug addiction and its ill effects
in society. Thus, it is not as if the State was not aware of the grave
situation in the State of Punjab. Yet, it is disturbing to note that the
prosecution has been lackadaisical in their approach in not taking vigilant
measures.
10. The learned counsel appearing for the accused submits that
pursuant to the order passed by the High Court, they had surrendered
before the Sessions Court and they were released on regular bail. The
order dated 31.10.2017 passed by the Sessions Court has been made
available for the perusal of the Court. The order reads as follows :-
“Challan presented today. It be checked and regist ered.
Copies of documents supplied to accused Gurwinder S ingh
and Beant Singh who have come present free of costs. They
also moved application for accepting and attesting the surety
bonds as per orders of the Hon’ble High Court dated
14.7.2017. The copy of the order passed by Hon’ble High
Court is also enclosed herewith. The said order has been
verified from the site of the Hon’ble High Court th rough
Internet. In view of the orders passed by Hon’ble High C ourt,
both the accused are directed to furnish the bail bonds in the
sum of Rs. One Lac with one surety in the like amount each.
Bonds furnished which have been accepted and attest ed.
Amrik Singh is lodged in Central Jail, Patiala in this case.
Let his production warrants be issued for 7.11.2017.”
11. It may be seen that what is noted by the learned Sessions
Judge is the interim order passed by the High Court dated 14.07.2017,
which reads as follows :-
“Learned counsel for the petitioners submits that as per the
police version, recovery of contraband was effected from t he
bag carried by Amrik Singh father of petitioners an d
petitioner-Gurwinder Singh was alleged to be driver of the
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motor cycle. The question as to whether the petitioners were
in conscious possession of contraband, in possession of t heir
father, is to be seen by the Investigating Agency b efore
presenting the challan.
Notice of motion for 21.09.2017.
In the meanwhile, the petitioners are directed to surr ender
before the police and join investigation within a week. In the
event of their arrest being required, they shall be rele ased on
interim bail till the next date, subject to their furnis hing bonds
to the satisfaction of Arresting Officer. However, t hey shall
abide by the terms and conditions as envisaged under Section
438(2)(i) to (iv) Cr.P.C. failing which they shall loose the
benefit of interim bail allowed to them.”
12. As a matter of fact, the main petition itself had been disposed
of by order dated 21.09.2017. The order reads as follows :-
“The present petition has been filed under Section 438 Code
of Criminal Procedure for grant of anticipatory bail to the
petitioners in case FIR No. 0053 dated 11.06.2017 registered
for the offences punishable under Sections 22, 29 of Narcotic
Drugs and Psychotropic Substances Act, 1985 at Police Station
Bhadson, District Patiala.
Heard.
Amrik Singh was arrested by the police with contraband which
included various drugs. The allegations against the petitioner
No. 2 Gurwinder Singh is that he had escaped from the spot
after leaving the motor cycle on which he was travelling with
his father-Amrik Singh.
The allegations against petitioner No.1-Beant Singh is that
he had been procuring contraband and giving the sam e to
his father and brother for sale.
Beant Singh was not even present at the spot when the recovery
was effected. Even after his joining the investigation n othing
has been recovered by the police regarding allegati ons
contained in secret information on the basis of whi ch this
FIR was registered. Identity of Gurwinder Singh as a pers on
who allegedly ran away from the spot is a point which call
for proof during trial.
SATPAL SINGH v. THE STATE OF PUNJAB
[KURIAN, J.]
Keeping in view the above fact but without expressin g any
opinion on the merits of the case, this petition is allow ed and
the order dated 14.07.2017 is made absolute till th e
presentation of challan, subject to the following term s:-
(i) that the petitioners shall make themselves avai lable for
interrogation by the police as and when required;
(ii) that the petitioners shall not, directly or indire ctly, make
any inducement, threat or promise to any person acquai nted
with the facts of the accusation against them so as to diss uade
him from disclosing such facts to the Court or to any police
officer;
(iii) that the petitioners shall not leave India without the prior
permission of the Court.
(iv) that the petitioners will seek regular bail on the
presentation of challan in Court, which the trial Co urt will
decide on the basis of evidence collected during
investigation.”
13. It is unfortunate that the Sessions Court did not take note of
the final order passed by the High Court. The Court should have enquired
as to whether the matter had been finally disposed of, particularly after
noticing the interim order. The casual approach adopted by the learned
Sessions Judge has apparently led to the accused being rele ased on
regular bail, on the basis of the interim order passed by the High Court.
When the application for anticipatory bail was the subject matter before
the High Court, the accused had no business to go and surrender before
the Sessions Court and seek regular bail on the basis of an interim order.
The learned counsel for the accused submits that they had produced the
final order passed by the High Court dated 21.09.2017 along with the
application for regular bail.
14. In any case, the protection under Section 438, Cr.P .C. is
available to the accused only till the court summons the accused based
on the charge sheet (report under Section 173(2), Cr.P.C.). On suc h
appearance, the accused has to seek regular bail under Sect ion 439
Cr.P.C. and that application has to be considered by the court on its own
merits. Merely because an accused was under the pro tection of
anticipatory bail granted under Section 438 Cr.P.C. that does not mean
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that he is automatically entitled to regular bail under Section 439 Cr.P.C.
The satisfaction of the court for granting protection under Section 438
Cr.P.C. is different from the one under Section 439 Cr.P.C. while
considering regular bail.
15. Be that as it may, the order dated 21.09.2017 passed by the
High Court does not show that there is any reference to Sect ion 37 of
the NDPS Act. The quantity is reportedly commercial. In the facts and
circumstances of the case, the High Court could not have and should not
have passed the order under Sections 438 or 439 Cr.P. C. without
reference to Section 37 of the NDPS Act and without entering a finding
on the required level of satisfaction in case the Court was ot herwise
inclined to grant the bail. Such a satisfaction having not being entered,
the order dated 21.09.2017 is only to be set aside and we do so.
16. Consequently, the order dated 31.10.2017 passed by the
Sessions Court is also set aside. All the three accused in both these
appeals are directed to surrender before the trial court. However, we
make it clear that they are free to apply for regular bail, in which case,
the Sessions Court will consider the matter on the merits of the application.
Before parting with the Judgment, we also painfully note that even in the
inquiry conducted pursuant to the orders passed by this Court, there was
no reference to the regular bail granted to Beant Singh and Gurwinder
Singh and that too, on production of an interim order passed by the High
Court. Had the same been noticed, the State would have certainly taken
steps much earlier. This is once again to remind the polic e and the
prosecutor that they need to show due diligence and vigilance while
dealing with the cases under the NDPS Act.
17. We make it clear that none of the observations made in this
judgment shall have any bearing on the trial or consideration of any
application for bail at any stage since our order is only for the purpose of
the appeals in the matter of grant of bail.
18. With the above observations and directions, the Crl. Appeal
No. 462 of 2018 is dismissed and that of the State i.e. Crl. A ppeal
No. 463 of 2018 is allowed.
Kalpana K. Tripathy Appeals disposed of.
SATPAL SINGH v. THE STATE OF PUNJAB
[KURIAN, J.]