Punjab-Haryana High Court
Abhay Gautam vs State Of Punjab on 21 February, 2025
Author: Sandeep Moudgil
Bench: Sandeep Moudgil
Neutral Citation No:=2025:PHHC:031385
CRM-M-8906-2025 -1-
220
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CRM-M-8906-2025
DECIDED ON: 21.02.2025
ABHAY GAUTAM
.....PETITIONER
VERSUS
STATE OF PUNJAB
.....RESPONDENT
CORAM: HON'BLE MR. JUSTICE SANDEEP MOUDGIL
Present: Mr. Arjun Sood, Advocate
for the petitioner.
Mr. Jasjit Singh Rattu, DAG Punjab.
SANDEEP MOUDGIL, J (ORAL)
CRM-6591-2025
Application is allowed, as prayed for.
1. Relief Sought
The jurisdiction of this Court under Section 483 BNSS, has been
invoked for grant of regular bail to the petitioner in case FIR No. 249, dated
27.09.2023, under Sections 18, 25, 29 of NDPS Act, 1985, registered at Police
Station Sahnewal, Ludhiana.
2. Facts
The Prosecution story set up in the present case as per the version
narrated in the instant FIR reads as under :-
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“Statement of JagdishRai 1003/LDH, Crime Branch-3, Ludhiana
aged around 53 years, M.No.97792-90003. Stated that I am
posted as Investigating Officer at Crime Branch-3, Ludhiana.
Today I alongwith you and ASI Bhupinder Singh 1233/LDH, ASI
Surinder Pal 727/Ldh and Senior Constablenderjit Singh
1743/LDK alongwith government vehicle Bolero No.PB-10-FV-
0520, whose driver is ASI Binder Singh 1473/Ldh, was present at
Near Gurdwara Sahib Area P.S. Sahnewal, iudhiana, on the side
coming from Delhi to Ludhiana regarding patrolling and
checking of bad elements that at around 09.45 pm, secret
informer informed me on whatsapp at my Mobile No.97792-
90003 that AbhayGautam s/o Ram Avtar r/o Village Sultanpur
P.S. Jalalabad, Distt. Shahjahanpur, UP presently tenant at
H.No.18, GaliNo.01; Near Natha da Khuh, MohallaMahinder
Nagar, Giyaspura, P.S.Daba, Ludhiana, having cut hair from
head, who would be around 26 years of age, against whom there
are other FIRs registered in different police stations of Punjab
regarding the smuggling of opium and Ram Murti s/o Lakhan
Kumar r/o Village NawaGaon, P.S. Jalalabad, Distt,
Shahjahanpur, UP presently R/o H. No.18, Gali No.01, Near
Natha Da Khuh,MohallaMahinder Nagar, Gyaspura, P.S.Daba,
Ludhiana having cut hair from head, who would be around 53
years of age, who are doing the illegal business of selling opium
since a long time in connivance with each other, who has kept a
car no.PB-91-L-8651, S PressoMaruti Suzuki white coloured for
the supply of opium to their customers and AbhayGautam and
Ram Murti who bring the opium from Rai Barely U.P. and supply
the same to their customers in Punjab. That today also
AbhayGautam and Ram Murti above are coming from Khanna
side towards Ludhiana side to Ludhiana city, in order to supply
the opium to their customers after hiding the opium in their above
car no.PB-91-L-8651, S Presso, Maruti Suzuki white coloured.
The information given by my secret informer is accurate and
reliable. If barricading/nakais laid here and checking is
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conducted then Abhay Gautam and Ram Murti above can be
apprehended with huge quantity of opium alongwith abovesaid
car. In this regard, I prepared the report u/s 42 NDPS Act at the
spot which will be sent to the officers. Regarding the information
given by the secret informer about selling opium by
AbhayGautam and Ram Murti above, I have informed you
verbally. As per the information received from my secret informer,
I have got recorded my above statement to you. Statement has
been read, is correct. Legal action be taken against the abovesaid
Accused. Statement of ASI JagdishRai No.1003/LDH attested AS!
Jaswinder Singh 1550/LDH Crime Branch-3 Commissionerate
Ludhiana dated 27.9.23. Police action: Today I, ASt alongwith
ASI JagdishRai 1003/LDH, ASI Bhupinder Singh 1233/LDH, ASI
Surinder Pal 727/Ldh and Senior Constable Inderjit Singh
1743/LDH alongwith government vehicle Bolero no.PB-10-FV-
0520, whose driver is ASI Binder Singh 1473/Ldh, present at
Near Gurdwara Sahib Area PS Sahnewal, Ludhiana, on the side
coming from Delhi to Ludhiana regarding patrolling and
checking of bad elements, I am having private laptop and printer
with me then ASI JagdishRai 1003/LDH was called by secret
informer at his mobile no.97792-90003 on whatsappand informed
about the opium by the accused AbhayGautam and Ram Murti
above, who prepared report u/s 42 NDPS Act and ASI JagdishRai
1003/LDH firstly informed me about the same orally and then as
per the information given by his secret informer, he got recorded
his abovesaid statement before me which was read to him who
after hearing and reading his statement, put his signatures in
Punjabi under his statements which was verified by me. From the
above statement, prima facie offence u/s 18, 25, 29-61-85 NDPS
Act is made out. After taking the print out of above statement, the
same is being sent to the police station Sahnewal by hand through
ASI Surinder Pal 727/LDH for registration of FIR against
accused AbhayGautam s/o Ram Avtar r/o Village Sultanpur PS
Jalalabad, Distt.Shahjahanpur, UP presently tenant at H. No.18,
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GaliNo.01, Near Natha da Khuh, MohallaMahinder Nagar,
Giyaspura, PS Daba, Ludhiana and Ram Murti s/o Lakhan
Kumar r/o Village NawaGaon, PS Jalalabad, Distt.
Shahjahanpur, UP presently r/o H. No.18, GaliNo.01, Near Natha
Da Khuh, MohallaMahinder Nagar, Gyaspura, PS Daba. After
registration of FIR, number be intimated. Special reports be
issued and control room be informed. ASI JagdishRai 1003/LDH
relieved from the spot after giving necessary instructions. I ASl
alongwith colleagues busy in investigation at the spot. In the area
of: Near GurdwaraAtarsar Sahib, Area PS Sahnewal Ludhiana at
10.45 pm.”
3. Contentions
On behalf of the petitioner
Learned counsel for the petitioner contends that the contraband
involved in the instant FIR is marginally over and above the commercial
quantity i.e. 2 kg and 600 grams of Opium whereas no alleged recovery was
effected from the conscious possession of the petitioner. He further contends
that he has been falsely implicated in the instant FIR on the concocted story of
the police authorities without complying with Section 52-A(2) of NDPS Act.
On behalf of the respondent/State
Learned State counsel has filed the custody certificate of the
petitioner, which is taken on record. He prays for dismissal of the present
petition stating that huge quantity of contraband i.e., 2 kg 600 grams of opium
has been recovered in the present case, therefore, rigour of Section 37 of
NDPS would be attracted. Additionally he submits that the petitioner is a
habitual offender, as he is involved in other cases of similar nature.
4. Analysis
In everyday terms, the principle of law dictates that bail is the
general rule, while jail is the exception. However, this Court acknowledges
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that the power to grant or deny bail is extraordinary and must be exercised
with caution. It is well-established that when considering a bail application
(whether pre-arrest or regular bail), the Court must form a prima facie opinion
as to whether reasonable grounds exist to support the accusation, or if the
accusation is frivolous and baseless possibly made with the intention of
harming or humiliating the individual, or falsely implicating them in the
crime. This evaluation must be conducted in light of the self-imposed
restrictions and the broader legal parameters outlined.
This court at this juncture would first delve into the provision of
Section 29 of the Narcotic Drugs and Psychotropic Substances (NDPS) Act,
wherein it specifically provides that, individuals can be prosecuted if they are
found to be buyers or sellers of contraband, especially in the context of
conspiracy or abetment related to drug offences. This section specifically
addresses the penalties for those who assist or participate in a criminal
conspiracy to commit an offence under the NDPS Act. It emphasizes that
“whoever abets, or is a party to a criminal conspiracy to commit an offence”
is subject to punishment under this law. Buyers or sellers though may not be
found in conscious possession can be implicated under this section if there is
adequate evidence demonstrating their involvement in a conspiracy related to
drug trafficking.
An additional aspect that must be considered by this court is the
frequent practice where individuals are implicated under Section 29 of the
NDPS Act assert that they were neither present at the scene nor had any
contraband in their conscious possession. Taking advantage of this defense,
many such accused persons are granted bail. However, this practice needs to
be addressed, as individuals targeted under Section 29 are often the primary
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masterminds behind the drug trafficking networks, orchestrating operations
from a distance while using others, typically those found in direct possession
of the drugs, as scapegoats. Consequently, the court is of the firm opinion that
in such cases, these individuals should be held equally accountable and should
not be afforded any leniency.
Furthermore, the drug is a social malady, while drug addiction
eats into the vitals of the society whereas drug trafficking not only eats into
the vitals of the economy of a country, but illicit money generated by drug
trafficking is often used for illicit activities including encouragement of
terrorism. The devastating effects of narcotic drugs on any person who comes
to its touch are too well known. Normally, such a person ceases to be a
normal human being, and is more or less reduced to zombie living animal
existences and rushing fast to meet the maker. Divine qualities of an
individual who consumes narcotic drugs disappear and they are the first
sacrifices one normally makes while falling prey to use of drugs. Anxiety of
legislature is to prevent the adverse affect of such drugs and substances on the
society.
In fact, the jurisdiction of the Court to grant bail is circumscribed
by the provision of Section 37 of NDPS Act specifically observing that bail
can be granted only if reasonable grounds are there to believe the innocence of
the accused added with the fact that he is not likely to commit any offence
while on bail. The mandate as envisaged under section 37 of the NDPS Act
needs to be followed which reads as under:
“37. 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
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punishable for 3 [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.
(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.”
Going a step further it is negative burden casted on the petitioner
to disapprove the case of prosecution as per the mandate of Section 37 of the
NDPS Act which discloses that the offences are cognizable and non-bailable.
Adverting to the merits of the present case, wherein 2 kg 600 gms
opium, stands recovered, though not from the conscious possession of the
petitioner, but from the Car, in which the petitioner was travelling. Moreover,
the quantity recovered is commercial in nature, therefore the rigours of
Section 37 of NDPS would attract in this case and therefore, it would not be
just for the Court to let the petitioner out added with the fact that petitioner is a
habitual offender, as he is involved in two other cases of similar nature, which
is sufficient for this Court to infer that the petitioner is indulged in business of
selling Narcotic Substances.
Based on the aforementioned facts, the court can reasonably
conclude that the petitioner is involved in a criminal conspiracy aimed at
facilitating the commission of an offense. Upon perusal of FIR, it is clear that
the petitioner, is engaged in the illegal drug trade, contributing to the addiction
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of young boys. As a result, these young individuals are resorting to theft and
other criminal activities to satisfy their drug cravings. This highlights the state
government’s failure to address the growing drug problem, which is
particularly alarming in Punjab. The widespread drug abuse is severely
undermining the future of the country, as it is gradually eroding the youth
population, much like a termite.
In light of these concerns, the court, as the guardian of its
citizens, deems it essential to take decisive action against such offenders,
especially when the lives and futures of the nation’s youth are at stake. The
drug epidemic must be tackled with the utmost seriousness. The illegal
activities carried out by the individuals involved must be met with resolute
measures. The intent of the legislature and the integrity of the rule of law must
be preserved at all costs, and cannot be allowed to be undermined, irrespective
of the quantity of drugs involved.
5. DECISION:-
Keeping in view the afore-said facts and circumstances and
nature of averments, the petitioner does not deserve the concession of regular
bail.
Hence, the present petition is hereby, dismissed.
However, it is made clear that the observations in this order are
only for the purposes of deciding this bail application and the trial Court is
free to adjudicate upon the matter in accordance with law.
(SANDEEP MOUDGIL)
21.02.2025 JUDGE
Meenu
Whether speaking/reasoned Yes/No
Whether reportable Yes/No
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