Judgment:
CRM No.M-1469 of 2014 -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH CRM No.M-1469 of 2014 Date of decision:25.02.2014 Dharminder Singh ..Petitioner versus State of Punjab ..Respondent CORAM: HON'BLE Mr.JUSTICE TEJINDER SINGH DHINDSA.
Present: Mr.P.K.Gupta, Advocate for the petitioner.
Mr.Vaibhav Sharma, DAG Punjab...TEJINDER SINGH DHINDSA, J.
This order shall dispose of the present petition filed under Section 439 Cr.P.C.for grant of regular bail to the petitioner in case FIR No.97 dated 28.07.2012 under Section 18 of the NDPS Act, registered at Police Station Valtoha, District Tarn Taran.
As per prosecution version, the petitioner and two others were standing at Dana Mandi near a shed and upon a raid having been conducted in pursuance to secret information having been received, one person ran away by throwing away a bag whereas the petitioner was stated to be apprehended on the spot and upon search having been conducted on his person, recovery of 2 kilograms of opium was made.
Likewise, from the other co-accused apprehended on the spot i.e.Ballu Lohar, 2 kilograms of opium was recovered and the bag that was thrown away by Prabhjit Singh @ Lalli, 1 kilogram of opium was recovered.
Learned State counsel would vehemently oppose the present Kaur Harjeet 2014.02.26 10:51 I attest to the accuracy and integrity of this document CRM No.M-1469 of 2014 -2- petition for grant of regular bail to the petitioner by placing reliance upon a Full Bench decision of this Court in Bhupinder Singh versus State of Punjab, 2004 (1) CCC396by contending that commercial quantity of contraband i.e.5 kilograms of opium in all had been recovered.
Perusal of the facts in Bhupinder Singh's case (supra) would reveal that recovery of narcotic substance had been jointly effected from the petitioners therein as also co-accused and as such, the contention that the same should be divided equally amongst them for determination of the quantity recovered whether small, less than commercial or commercial was negated.
Undisputedly, in the present case, the recovery that has been effected is not joint rather separate for the petitioner as also co-accused.
Even separate search and recovery memos were prepared.
In Amar Singh Ramjibhai Barot versus State of Gujrat, 2005 (AIR) SC4248 the Hon'ble Supreme Court had observed that if two accused are found together but carried contraband and there was no definite evidence as regards conspiracy, the quantity of contraband carried by both the accused could not be added to make it within the meaning of commercial quantity.
Learned State counsel upon instructions from HC Sukhwinder Singh would apprise the Court that out of 13 prosecution witnesses cited, only 3 have been examined till date.
The trial as such would take some time to conclude.
The petitioner has been in custody since 28.07.2012.
It is also not disputed that the petitioner is not involved in any other case under the NDPS Act.
Without expressing any opinion on merit, I am of the Kaur Harjeet 2014.02.26 10:51 I attest to the accuracy and integrity of this document CRM No.M-1469 of 2014 -3- considered view that the present petition deserves to be accepted.
Petition is allowed.
The petitioner is ordered to be released on bail subject to the satisfaction of the trial Court/Duty Magistrate.
Disposed of.
February 25, 2014 (TEJINDER SINGH DHINDSA) harjeet JUDGE Kaur Harjeet 2014.02.26 10:51 I attest to the accuracy and integrity of this document