Punjab-Haryana High Court
Balwinder Singh @ Binda vs State Of Punjab on 1 April, 2025
Author: Anoop Chitkara
Bench: Anoop Chitkara
Neutral Citation No:=2025:PHHC:043707
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CRM-M-55665-2024
209 IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CRM-M-55665-2024
Decided on: 01.04.2025
Balwinder Singh @ Binda ...Petitioner
Versus
State of Punjab ...Respondent
CORAM: HON'BLE MR. JUSTICE ANOOP CHITKARA
Present: Mr. Hitesh Chopra, Advocate (Through VC)
for the petitioner.
Mr. Sukhdev Singh, AAG, Punjab.
****
ANOOP CHITKARA, J.
FIR No. Dated Police Station Sections 0051 18.09.2024 Narot Jaimal 3, 4 of Official Secrets Act Singh, District 1923 and 10,11,12 of Aircraft Pathankot Act 1934 and 21 of NDPS Act
1. The petitioner apprehending arrest in the FIR captioned above had come up
before this Court under Section 438 CrPC, seeking anticipatory bail.
2. In paragraph 17 of the bail petition, the accused declares that he has no criminal
antecedents.
3. The facts and allegations are taken from the reply dated 20.11.2024, which reads
as under:-
“That initially the co-accused Akhil Sharma @ Babla was arrested in FIR
No. 50 dated 15.09.2024 under section 303(2), 317(2), 345(3), 238 of BNS
2023. During his custodial interrogation on 18.09.2024, he had made a
disclosure statement that Sukhdeep Singh @Ghudda R/o Village Radiana,
Police Station Kalanaur, District Gurdaspur (Punjab) is his friend and
about 5-6 months back, Sukhdeep Singh @Ghudda had through internet
calling contacted him and asked him to send a letter (over here letter
means ‘Location’). Then Sukhdeep Singh @Ghudda further said him
(Akhil Sharma @ Babla) that he will send heroin packets from Pakistan to1
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the place/location which he will send him through mobile and his boys will
collect Heroin from him. About Three months back, he had smuggled
Heroin on three locations sent by Sukhdeep Singh @Ghudda and 4th time
due to high electric towers, the signal of Drones failed because of which
delivery remained unsuccessful. The Heroin Packets were collected by
Harjeet Singh @Jeeta S/o Gurmej Singh along with one unidentified
person and who used to tears the packets from one side in which there was
Heroin and he had no information/knowledge about the contents of second
packet. They used to send the amount/ drug money in the account of
Gaurav Sharma @Gopi R/o Pansar, Police Station Rajbagh, District
Kathua (J&K) and he used to collect the amount as per his needs. About
14-15 days back, Balwinder Singh @Bhinda (petitioner) R/o
Magarmudian, District Gurdaspur and Cheena R/o Taran Tarn, who were
friends of Sukhdeep Singh @Ghudda came to him and took him to Village
Bhagwal and they sent location to Sukhdeep Singh @Ghudda. Then about
11:00 pm (in night) on the said day, all three of them i.e. Petitioner & two
others went to place of location where Drone arrived from Pakistan siae,
but due to dense cover of trees, the signal of Drone break down and the
Drone returned back without dropping Heroin. That 6 time when
Sukhdeep Singh @Ghudda sent the location of cremation ground of his
village and asked him to provide some amount of Heroin to him. Firstly
Sukhdeep Singh @Ghudda refused but lateron agreed to provide him
some heroin out of the said consignment. Then 9-10 days prior, Sukhdeep
Singh @Ghudda sent location of Cremation Ground adjoining to his
village, then about 02:00 am (in night) the consignment of Heroin dropped
by a Drone arrived from the Pakistan side, which were collected by two
boys sent by Sukhdeep Singh @Ghudda, who came there on Splendor
Motorcycle. The said 2 persons gave some Heroin to him and they went
back on their motor cycle with the said Heroin. That Akhil Sharma @
Babla further disclosed that he had kept the Heroin in his fields. That on
18.09.2024, the said Heroin was recovered from the fields of Akhil
Sharma @ Babla. Thereafter the present FIR No. 51 dated 18.09.2024
under section 3,4 of official secrets Act 1923, 10, 11,12 of Aircraft Act
1934, 21, 27-A of NDPS Act & 303(2), 317(2) of BNS was registered by
the Police Station Narot Jaimal Singh against the present petitioner
(Balwinder Singh @Bhinda), Akhil Sharma @ Babla, Sukl.deep Singh
@Ghudda, Harjeet Singh @Jeeta, Gaurav Sharma @Gopi & Cheena.
Vide Rapat No. 30 dated 20.09.2024, Lovepreet Singh @ Lovely & Sahil2
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Saini were also nominated as co-accused in the present FIR.”
4. The petitioner’s counsel prays for bail by imposing any stringent conditions and
contends that pre-trial incarceration would cause an irreversible injustice to the petitioner
and their family.
5. State counsel opposes the bail.
6. On 27.01.2025, petitioner was directed to join investigation and State was asked
to file fresh status report. In compliance to that order, state has filed fresh status report
dated 17.03.2025.
7. It would be appropriate to refer to the following portions of the status report dated
17.03.2025, which read as follows:
“D. Call details:-
That during the investigation the petitioner/accused was asked to provide
all his mobile numbers, which was/is being operated by him. The
petitioner replied that he has operated only two mobiles numbers l.e.
73475-34413 & 73407-67302 till date. As per the Call details of the
mobile no. 73475-34413 of petitioner, it is found that about 14-15 days
prior to the arrest of main accused Akhil Sharma @Babla, the petitioner
Balwinder Singh @Bhinda contacted with the co-accused Cheena,
Sukhdeep Singh @ Ghudda & Akhil Sharma @ Babla through WhatsApp
Calls and exchanged Locations between them where Drone arrived from
Pakistan side for dropping the consignment of Heroin. Lateron the said
Heroin was recovered from the fields of Akhil Sharma @ Babla on
18.09.2024. It is worth mentioning here that WhatsApp calls are end-to-
end encrypted, which means that only the caller and recipient can read or
hear them. This includes voice messages, photos, videos, and status
updates. Therefore the Call details of WhatsApp calls can only be
retrieved from the mobile devices from where WhatsApp Call is dialed or
received.
E Mobile location :-
The petitioner was asked about the whereabouts of the mobile phones in
which the said Mobile SIM were used by him. The petitioner replied that
he had used the said SIM in “Apple iPhone 11” & “Oppo F9 Pro”, but now
he had throw the “Apple iPhone 11” and he has further given the “Oppo
F9 Pro” mobile to some other person about whom he does not know3
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anything. The Petitioner further replied that at present he has no mobile
number and he is not using any Mobile SIM. However about 14-15 days
prior to the arrest of main accused Akhil Sharma @ Babla, the Location of
mobile number 73475-34413 of petitioner was found to be at Village
Bhagwal and surrounding Border areas.
F. Additional connections with co-accused :-
The petitioner was asked “how and when he came in contact with co-
accused Akhil Sharma @Babla?” The petitioner replied that he was
working at “Lovely Financiers, Adda Fatehpur, District Pathankot and he
was residing near the Adda Fatehpur”. The Co-accused Akhil Sharma
@Babla used to visit Adda Fatehpur and in this way he came into the
contact with co-accused Akhil Sharma @Babla in the month of April 2024.
The petitioner further disclosed that he has no family relations with Akhil
Sharma @Babla and he is just familiar with him.
x x x x
K. Any other evidence :-
That on the disclosure statement dated 18.09.2024 made by Akhil Sharma
@ Babla, the name of present petitioner Balwinder Singh @Bhinda is
arrayed in the present FIR. That 260 gram of Heroin and Drug Money of
Rs. 2,18,000/- (Rs. 15,000/- + Rs. 2,03,000/-) has also been recovered
from Akhil Sharma @ Babla. That the mobile phones of Akhil Sharma @
Babla & Harjeet Singh @Jeeta have sent to Forensic Lab for further
Examination. That the raids are being conducted to arrest the petitioner in
the present FIR in order to enquire about his Role. Further as per the
investigation till date, the petitioner is found to be the member of Drug
Nexus who smuggled the Heroin from the Pakistan by using Drones and
their links are connected with District Gurdaspur, Batala, Amritsar, Taran
Tarn, Jammu & Kashmir etc. Therefore custodial interrogation of the
petitioner is required to enquire about his Role in the Drug Nexus and also
in order to recover the Drones, mobile devices, SIMs, bank accounts etc so
that the links between this Drug Nexus may be broken. It is pertinent to
mention here that the offence committed by the petitioner in the present
FIR are very serious in nature, therefore, the petitioner should not be
released on bail.”
REASONING:
8. Given the above, the petitioner has, prima facie, failed to satisfy the conditions of
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section 37 of the NDPS Act to make a case for bail.
9. In Abida v. State of Haryana, 2022:PHHC:058722, [Para 10], CRM-M-5077-
2022, decided on 13-05-2022, this court observed as follows:
[10]. Thus, both the twin conditions need to be satisfied before a
person accused of possessing a commercial quantity of drugs or
psychotropic substance is to be released on bail. The first condition is
to provide an opportunity to the Public Prosecutor, enabling to take a
stand on the bail application. The second stipulation is that the Court
must be satisfied that reasonable grounds exist for believing that the
accused is not guilty of such offence, and is not likely to commit any
offence while on bail. If either of these two conditions is not met, the
ban on granting bail operates. The expression “reasonable grounds”
means something more than prima facie grounds. It contemplates
substantial probable causes for believing that the accused is not guilty
of the alleged offence. Even on fulfilling one of the conditions, the
reasonable grounds for believing that the accused is not guilty of such
an offence, the Court still cannot give a finding on assurance that the
accused is not likely to commit any such crime again. Thus, the grant
of bail or denial of bail for possessing commercial quantity would vary
from case to case, depending upon its facts.
[30]. From the summary of the law relating to rigors of S.37 of NDPS
Act, while granting bail involving commercial quantities, the following
fundamental principles emerge:
(a). In case of inconsistency, S. 37 of the NDPS Act prevails
over S. 439 CrPC. [Narcotics Control Bureau v Kishan Lal, 1991
(1) SCC 705, Para 6].
(b). The limitations on granting of bail come in only when the
question of granting bail arises on merits. [Customs, New Delhi
v. AhmadalievaNodira, (2004) 3 SCC 549, Para 7].
(c). The provisions of Section 37 of the NDPS Act provide the
legal norms which have to be applied in determining whether a
case for grant of bail has been made out. [UOI v. Prateek Shukla,
2021:INSC:165 [Para 11], (2021) 5 SCC 430, Para 12].
(d). In case the Court proposes to grant bail, two conditions are
to be mandatorily satisfied in addition to the standard
requirements under the provisions of the CrPC or any other
enactment. [Union of India v. Niyazuddin SK &Anr,
2017:INSC:686 [Para 7], (2018) 13 SCC 738, Para 7].
(e). Apart from granting opportunity to the Public Prosecutor,
the other twin conditions which really have relevance are the
Court’s satisfaction that there are reasonable grounds for
believing that the accused is not guilty of the alleged offence.
[N.R. Mon v. Md. Nasimuddin, (2008) 6 SCC 721, Para 9].
(f). The satisfaction contemplated regarding the accused being
not guilty has to be more than prima facie grounds, considering
substantial probable causes for believing and justifying that the
accused is not guilty of the alleged offence. [Customs, New
Delhi v. Ahmadalieva Nodira, (2004) 3 SCC 549, Para 7].
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(g). The reasonable belief contemplated in the provision
requires existence of such facts and circumstances as are
sufficient in themselves to justify satisfaction that the accused is
not guilty of the alleged offence. [State of Kerala v. Rajesh,
2020:INSC:88 [Para 21], AIR 2020 SC 721, Para 21].
(h). Twin conditions of S. 37 are cumulative and not
alternative. [Customs, New Delhi v. Ahmadalieva Nodira, (2004)
3 SCC 549, Para 7].
(i). At the bail stage, it is neither necessary nor desirable to
weigh the evidence meticulously to arrive at a positive finding as
to whether or not the accused has committed an offence under the
NDPS Act and further that he is not likely to commit an offence
under the said Act while on bail. [Union of India v. Rattan Mallik
@ Habul, (2009) 2 SCC 624, Para 14].
(j). If the statements of the prosecution witnesses are believed,
then they would not result in a conviction. [Babua v. State of
Orissa, (2001) 2 SCC 566, Para 3].
(k). Merely recording the submissions of the parties does not
amount to an indication of a judicial mind or a judicious
application of mind. [UOI v. Prateek Shukla, 2021:INSC:165
[Para 11], (2021) 5 SCC 430, Para 12].
(l). Section 37 departs from the long-established principle of
presumption of innocence in favour of an accused person until
proved otherwise. [Union of India v. Sanjeev v. Deshpande,
(2014) 13 SCC 1, Para 5].
(m). While considering the application for bail concerning
Section 37, the Court is not called upon to record a finding of not
guilty. [Union of India v. Shiv Shanker Kesari, (2007) 7 SCC
798, Para 11].
(n). The confessional statement recorded under Section 67 of
the NDPS Act is inadmissible in the trial of an offence under the
NDPS Act. [Tofan Singh v. State of Tamil Nadu,
2020:INSC:620, (2021) 4 SCC 1]
(o). In the absence of clarity on the quantitative analysis of the
samples from the laboratory, the prosecution cannot be heard to
state at this preliminary stage that the accused possessed a
commercial quantity of psychotropic substances as contemplated
under the NDPS Act. [Bharat Chaudhary v. Union of India
2021:INSC:877 [Para 11], 2021 SCC OnLine SC 1235, Para
10].
(p). When there is evidence of conscious possession of
commercial quantity of psychotropic substances, such accused is
not entitled to bail given Section 37 of the Act as contemplated
under the NDPS Act. [State by (NCB) Bengaluru v. Pallulabid
Ahmad Arimutta, 2022:INSC:26 [Para 11], 2022 SCC OnLine
SC 47, Para 12].
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(p). Bail must be subject to stringent conditions. [Sujit Tiwari
v. State of Gujarat, 2020:INSC:101 [Para 12], 2020 SCC Online
SC 84, Para 12].
[31]. Satisfying the fetters of S. 37 of the NDPS Act is candling the
infertile eggs. The stringent conditions of section 37 placed in the
statute by the legislature do not create a bar for bail for specified
categories, including the commercial quantity; however, it creates
hurdles by placing a reverse burden on the accused, and once crossed,
the rigors no more subsist, and the factors for bail become similar to
the bail petitions under general penal statutes like IPC.
10. A perusal of the bail petition and the documents attached primafacie points
towards the petitioner’s involvement and does not make out a case for bail. The impact of
crime would also not justify bail. Any further discussions will likely prejudice the
petitioner; this court refrains from doing so.
11. Any observation made hereinabove is neither an expression of opinion on the
case’s merits nor shall the trial Court advert to these comments.
12. Petition dismissed. Interim orders are recalled with immediate effect. All pending
applications, if any, are disposed of.
(ANOOP CHITKARA)
JUDGE
01.04.2025
anju rani
Whether speaking/reasoned: Yes
Whether reportable: No.
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