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REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 462 OF 2018

[@ SPECIAL LEAVE PETITION (CRL.) NO. 8184 OF 2017] SATPAL SINGH                                  Appellant(s)

                               VERSUS THE STATE OF PUNJAB                          Respondent(s)

WITH CRIMINAL APPEAL NO. 463 OF 2018

[@ SPECIAL LEAVE PETITION (CRL.) NO. 1428 OF 2018]

J U D G M E N T 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

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appellant, as per order dated 21.09.2017, the learned Judge was not inclined to accept the contention since there was no question of parity as far as the bail is concerned and in view of the fact 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.”)

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 be 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 released on bail or on his own bond unless -  (i) the Public Prosecutor has been given an opportunity to oppose the application for such release, and (ii)  where the Public Prosecutor opposes the application, the court is satisfied that  there  are  reasonable  grounds  for believing that he is not guilty of such offence  and  that  he  is  not  likely  to commit any offence while on bail.

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(2) The limitations on granting of bail specified  in  clause  (b)  of  sub-section (1) are in addition to the limitations under  the  Code  of  Criminal  Procedure, 1973 (2 of 1974) or any other 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  for  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 reasonable  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 force 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

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by the High Court. And it is more unfortunate that the same has not been brought to the notice of the Court.

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 steps 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 to 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  sought  for  anticipatory bail.   Noticing  the  anticipatory  bail granted  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

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clarify as to whether any steps have been taken for challenging the orders granting anticipatory bail  to  the  co-accused  in  the same case.”

It is also relevant to note that in the impugned  order  dated  4.10.2017  the learned  Judge  has  noted  that  the coordinate  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 affidavit, which was granted. Today,  learned  counsel  for  the respondent/State  submits  that  the counter affidavit is ready and the same may be permitted to be filed during the course of the week. Permission is granted. At paragraph 6 of the counter affidavit it  is  stated  “...  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”. Learned counsel for the respondent/State submits  that  the  process  takes  some time, since the file has to pass through many hands.  We  direct  the  Secretary  (Law)  or  the Secretary  concerned  in  the  Government

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dealing  with  the  matters  regarding sanction to be present before this Court with  the  records  pertaining  to  the sanction  for  cancellation  of  the  bail granted to 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 07.02.2018. 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  Police, Patiala  and  the  other  police  officers concerned are present in Court.   It is reported that the matter came to the  notice  of    the  Additional  Chief Secretary,  Home  Affairs  and  Justice, only  on  25.01.2018  and  within  a  week steps have been taken to file a special leave  petition  and  the  same  has  been filed. We  direct  the   Additional  Chief Secretary, Home Affairs and Justice, to conduct an appropriate inquiry as to who are  the officials/officers  involved in taking such a lackadaisical attitude despite the High Court in the impugned order  pointing  out  that  the  order granting bail to the co-accused was not proper. Needless to say that the Report shall

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contain  names  of  the  officers  who, despite  three  postings  before  this Court,  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 until further orders.”

8. Thereafter, it appears the State became alert and steps 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 Punjab 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

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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  registered.   Copies  of  documents supplied to accused Gurwinder Singh 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 through Internet.  In view  of  the  orders  passed  by  Hon’ble High  Court,  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 attested.   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

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the bag carried by Amrik Singh father of petitioners  and  petitioner-Gurwinder Singh was alleged to be driver of the motor cycle.  The question as to whether the  petitioners  were  in  conscious possession of contraband, in possession of their father, is to be seen by the Investigating  Agency  before  presenting the challan.   

Notice of motion for 21.09.2017.  In the meanwhile, the petitioners are

directed to surrender before the police and  join  investigation  within  a  week. In  the  event  of  their  arrest  being required,  they  shall  be  released  on interim bail till the next date, subject to  their  furnishing  bonds  to  the satisfaction  of  Arresting  Officer. However, they 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

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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 same 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 nothing has been recovered by the police regarding  allegations  contained  in secret information on the basis of which this  FIR  was  registered.  Identity  of Gurwinder  Singh  as  a  person  who allegedly ran away from the spot is a point which call for proof during trial. Keeping  in  view  the  above  fact  but without  expressing  any  opinion  on  the merits  of  the  case,  this  petition  is allowed and the order dated 14.07.2017 is made absolute till the presentation of  challan,  subject  to  the  following terms:- (i)  that  the  petitioners  shall  make themselves  available  for  interrogation by the police as and when required; (ii)  that  the  petitioners  shall  not,

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directly  or  indirectly,  make  any inducement,  threat  or  promise  to  any person acquainted with the facts of the accusation  against  them  so  as  to dissuade 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 Court 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 released 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.

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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  such appearance,  the  accused  has  to  seek  regular  bail under Section 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  protection  of anticipatory bail granted under Section 438 Cr.P.C. that does not mean 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  Section  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 otherwise inclined to grant the bail. Such  a  satisfaction  having  not  being  entered,  the

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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 police 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

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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.  Appeal  No.  463  of  2018  is allowed.  

.......................J.               [ KURIAN JOSEPH ]  

.......................J.               [ MOHAN M. SHANTANAGOUDAR ]  

.......................J.               [ NAVIN SINHA ]  

New Delhi; March 27, 2018.

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ITEM NO.10               COURT NO.5               SECTION II-B                S U P R E M E  C O U R T  O F  I N D I A                        RECORD OF PROCEEDINGS Petition(s) for Special Leave to Appeal (Crl.)  No(s).  8184/2017 (Arising out of impugned final judgment and order dated  04-10-2017 in CRMM No. 37140/2017 passed by the High Court Of Punjab & Haryana At Chandigarh) SATPAL SINGH                                       Petitioner(s)                                 VERSUS THE STATE OF PUNJAB                                Respondent(s) (IA No.118588/2017-PERMISSION TO FILE ADDITIONAL DOCUMENTS) WITH SLP(Crl) No. 1428/2018 (II-B) Date : 27-03-2018 These matters were called on for hearing today. CORAM :  HON'BLE MR. JUSTICE KURIAN JOSEPH          HON'BLE MR. JUSTICE MOHAN M. SHANTANAGOUDAR          HON'BLE MR. JUSTICE NAVIN SINHA For Petitioner(s) Mr. H. P. S. Ghuman, Adv.  

Mr. Devesh Kumar Tripathi, AOR                                        For Respondent(s) Ms. Jaspreet Gogia, AOR     UPON hearing the counsel the Court made the following                              O R D E R

Leave granted.  Crl. Appeal No. 462 of 2018 is dismissed and that of the State

i.e. Crl. Appeal No. 463 of 2018 is allowed in terms of the signed reportable Judgment.  

Pending Interlocutory Applications, if any, stand disposed of.

(JAYANT KUMAR ARORA)                              (RENU DIWAN)    COURT MASTER                                ASSISTANT REGISTRAR

(Signed reportable Judgment is placed on the file)