GURPREET SINGH v. STATE OF PUNJAB

1880-2025

police station Khamano and I am suspected that you are having some intoxicant substance with you due to which I want to search you and your scooty but you have the legal right to have your and your scooty's search conducted by a Gazetted officer or a Magistrat

spot or you can be taken before them, upon which said Rajwinder Singh was served with notice u/s 50 NDPS Act and was read and pronounced, who after reading and hearing the notice u/s 50 NDPS Act and admitted it to be correct put his signatures and signatures of witnesses were also obtained. Then said Rajwinder Singh above mentioned thought for some time and said that I want to get myself

Gazetted officer, upon which said Rajwinder Singh's statement o disagreement was written on which said Rajwinder Singh signed, the witness also signed the same. Then I ASI contacted Sh. Raminder Singh PPS Deputy Superintendent of Police Khamano and told him about the circumstances and requested through my mobile numb upon which after some time Sh. Raminder Singh PPS Deputy Superintendent of Police Khamano along with fellow employees come present on the spot on an official vehicle, who told said Rajwinder Singh about his identity and designation that I

Deputy Superintendent of Police Khamano and I am a Gazetted officer of the Punjab Government. I am having suspicion of having some intoxicant substance in your possession, for which it is necessary to search you and your scooty, but you have the legal right to get search yourself and your scooty searched from some other Gazetted officer of Magistrate who can be called on the spot or you can be taken before them, who after thought said that I am having full faith on you, you can

search ofmy scooty, upon which memo of consent of said Rajwinder Singh above mentioned recorded, on which said Rajwinder Singh above mentioned put his signature and witnesses also signed the same. Tehn I ASI as per the instructions of Sh. Raminder Singh PPS Deputy Superintendent of Police Khamano searched the scooty of said Rajwinder Singh and from the trunk of scooty, one plastic envelope color white was recovered which was opened and checked from which opium was recovered, recovered opium was weighted on computer scale which was 05 kilogram opium along with envelope plastic, which was put in the same envelope and was put in a plastic box and a parcel was prepared. I ASI sealed the same with my seal as TS and Sh. Raminder Singh PP Superintendent of Police Khamano also put his seal as RS, sample seal separately prepared. After use seal handed over to ASI Ram Singh

2

e, who can be called on the and my scooty searched by the er 98786- 96153,

am Raminder Singh PPS. I am a conduct my search and the S Deputy

f

2 of 10

3.

arrest/anticipatory bail before this Court which was dismissed on

07.09.2022

of anticipatory/pre

13.01.2025

4.

has been implicated solely on the basis of the disclosure statement made by the co-accused namely Rajwinder Singh

NDPS Act

1880-2025

344/FGS. Recovered parcel of plastic box containing opium weighing 05 kilogram sealed along with sample seal vid

police possession as evidence and scooty without number make Honda Activa color white was also taken into police possession vide separate memo of possession, on the memos signatures of witnesses were obtained. Rajwinder Singh alias Raji above mentioned by keeping 05 kilogram opium in his possession has committed offence u/s 18C/61/85 NDPS Act. Hence, ruqa for registration of case as per above mentioned offence against above said Rajwinder Singh alias Raji sent by hand S/C Gurpr Singh 1000/FGS to police station. Case be registered and file number be informed. Special reports be prepared and be sent to Officers and Hon'ble Illaqa Magistrate. I ASI along with fellow employees am busy in investigation on the spot. sd/-

13.07.2022, in the limits of Pul Sua Khamano at 11

The petitioner had earlier applied for grant of pre

. The relevant part of said order

"Recovery effected from the co-accused is heavy 'commercial' quantity, which strongly points out that the contraband was intended for commercial/business purpose and not for personal consumption. In view of the ratio of the abovementione

considered view that for proper investigation; to find any nexus between the petitioner and his co-accused and for knowing the source of contraband, the custodial interrogation of the petitioner is necessary. In view of above, petition is dismissed.

Thereafter, the present petition

-arrest bail) has been preferred by the petitioner on

.

Learned counsel for the petitioner has , who has already been extended the concession of regular bail by

3

e memo of recovery taken into Taranjit Singh ASI PS Khamano Date -50 PM."

reads as under:-

d judgment, this Court is of the

" (i.e. the second petition for grant iterated that the petitioner @ Rajji, under Section 67 of the eet

-

3 of 10

this Court vide ord disclosure, there is no other evidence to substantiate the involvement of the petitioner in the alleged offence. Learned counsel has further iterated that the disclosure statement recorded under Section

police officer is inadmissible as evidence. To buttress his argument, learned counsel has placed reliance on the judgment of the Hon'ble Supreme Court titled as Tofan Singh vs. State of Tamil Nadu (Criminal Appeal No.152 of 2013, decided on 29.10.2020)

confession made to a police officer cannot be used as evidence against an accused person. Learned counsel further asserts that the petitioner was granted interim bail by the learned Special Ju

However, when the petitioner joined the investigation as directed, the investigating officer forcibly obtained his signature on a statement under Section 27 of the Indian Evidence Act, which is wholly illegal. Learned counsel furthe

baseless and frivolous case.

for custodial interrogation of the petitioner, as nothing incriminating remains to be recovered from him. Moreover

absconding from the process of justice in case he is enlarged on pre bail.

5.

Punjab has entered appearance on behalf of the respondent vehemently opposed the grant of anticipatory bail to the petitioner on account of the present petition, being non maintainable, as it is the second petition for grant of anticipatory bail. Learned State counsel has further

1880-2025

er dated 22.08.2024 (Annexure P wherein

r asserts that the petitioner has been falsely implicated in a It has been further argued that there is no need , there is no likelihood of the petitioner

On the strength of advance notice,

4

-7). Apart from this 67 of the NDPS Act by a it was unequivocally held that a dge, Fatehgarh Sahib.

-arrest

Mr. Yuvraj Singh, AAG

-State. He

has

4 of 10

submitted that the first pe neither any prayer was made nor any liberty was granted therein to the petitioner to file afresh. Accordingly, the learned State counsel has argued that the instant petition deserves dismissal on this score plea on merits, learned State counsel has submitted that pertains to recovery of 05 kilograms of opium which falls under the category of "commercial quantity" and, therefore, the bar under Section 37 of the NDPS, 1985 is attracted.

6.

gone through the available records of the case.

7.

Court in relevant whereof reads as under:

1880-2025

tition was dismissed on merits on 07.09.2022 and I have heard the learned counsel for the It would be apposite to refer herein to a judgment passed by this

Bhisham Singh vs. State of Haryana, 2024:P

-

10. The pivotal issue, in any plea for grant of bail whether anticipatory bail or regular bail, is the liberty of an individual. Liberty occupies a place of pride in our society and jurisprudence. The framers of the Constitution hence provided inter alia in Article 21 of our Constitution that no person shall be deprived of his personal liberty except according to procedure established by law. The Cr.P.C. is one such procedural law which permits curtailment of liberty of antisocial and antinational elements. interpreting any aspect pertaining to bail, a Court ought to keep the above concept in cardinal focus.

10.1 An analytical perusal of Cr.P.C. would elucidate that this statute does not contain any provision relatable to maintainability or oth second/successive bail petitions, including one(s) seeking anticipatory bail. Once there is no statutory prohibition provided for in law, a Court is not logically empowered to import into it such prohibitions especially in case of codified and legislated law. It is trite law that Courts ought not to read a provision in codified law which has not been specifically provided for by the legislature especially when such reading results into deprivation of rights.

10.2 The Hon'ble Supreme Court in case has held that rejection of a bail petition does not, by itself, forbid a Court

5

alone. Opposing the the FIR in question rival parties and have

HHC:048105

Hence while erwise of of Babu Singh case (supra) ;

5 of 10

1880-2025

from considering another one later in point of time. It can be safely inferred that the decision of a Court qua bail petition (whether regular bail p anticipatory bail petition) is essentially an interlocutory order and hence the concept of res judicata does not apply. Almost all the Hon'ble High Courts have enunciated the view that second/successive plea(s) for grant of anticipatory bail is maintainable

material change of circumstance(s) being a prime requirement. The full bench of Hon'ble Rajasthan High Court in case of the full bench of Hon'ble Calcutta High Court in case of (supra), the division bench of Hon'ble Andhra Pradesh High Court in case of

K.Gajendra Naidu case (supra), the division bench of Hon'ble Madhya Pradesh High Court in case of Imratlal

division bench of Hon'ble Gauhati High Court in case of (supra) have, inexorably, echoed this exposition.

10.3 Judicial experience indicates that, more often than not, an attempt is made by the non-applicant i.e. the State/complainant/victim to differentiate between the situations wherein first/earlier anticipatory bail petition has been dismissed as withdrawn/dismissed as not pressed

petition has been dismissed on merits thereof. In other words, it is canvassed that where the first/earlier petition has been dismissed as withdrawn, that the petitioner/applicant-accused has given up on his right(s) and hence subsequent anticipatory bail petition is not maintainable. The Hon'ble Supreme Court in case of Rani Dudeja

anticipatory bail would be maintainable even in case wherein earlier one was dismissed as withdrawn. A division bench of this Court, while answering a reference in this regard, has held in case of

that the second anticipatory bail petition would be maintainable wherein the first one has been dismissed as withdrawn. To the similar effect is the ratio decidendi of a division bench of Madhya Pradesh High Court in the case of

Imratlal case (supra). Hence, this seeming conu Accordingly, it is ineluctable that the second/successive petition(s) for grant of anticipatory bail is maintainable even when the first/earlier one was dismissed as withdrawn.

10.4 The issue that next craves attention is as to factors/parameters for consideration of second/successive anticipatory bail petition(s). The concordant view of all the Hon'ble High Courts is that the essential prerequisite for consideration of second/successive anticipatory bail petition(s) is material/substantial change in circumstances, unearthing of substantial new material and other factors of akin nature. The Hon'ble

6

etition or albeit with some circumspection and

Ganesh Raj case (supra),

Sri Sudip Sen case Vishwakarma case (supra) and the

Runu Roy case vis-à-vis where the earlier case (supra) has held that the second

Manjinder Kaur case (supra) ndrum stands set at naught. what are the

6 of 10

1880-2025

Supreme Court in case of G.R. Ananda Babu

that specious reason of change in circumstances ca invoking successive anticipatory bail petition(s). Accordingly, the new grounds pleaded/change in circumstances ought to be substantial in nature.

10.5 No rigid or universal criteria can possibly be delineated to conclusively govern the exercise of judicial discretion, in determining, as to what would constitute as the above stated substantial change in circumstances. Factual flexibility, one additional or different fact, may make a sea of difference between two cases. There is no ga

has its own distinct and unique facts and, hence, exercise of such judicial power is best left to the judicial discretion of a Court in accordance with the settled norms of our jurisprudence.

11. As an epilogue to the above rumina emerge:

I Second/successive anticipatory bail petition(s) filed under Section 438 of Cr.P.C., 1973 is maintainable in law & hence such petition ought not to be rejected solely on the ground of maintainability thereof. II Such second/successive anticipatory bail petition(s) is maintainable whether earlier petition was dismissed as withdrawn/dismissed as not pressed/dismissed for non earlier petition was dismissed on merits.

III For the second/successive anticip

the petitioner/applicant shall be essentially/pertinently required to show substantial change in circumstances and showing of a mere superficial or ostensible change would not suffice.

IV No exhaustive guidelines can pos

would constitute substantial change in circumstances as every case has its own unique facts/circumstance. Accordingly, this issue is best left to the judicial wisdom and discretion of the Court dealing with such second/successive anticipatory bail petition(s).

V In case a Court chooses to grant second/successive anticipatory bail petition(s), cogent and lucid reasons are pertinently required to be recorded for granting such plea despite such a plea being second/successive petition(s). In other words, the cause for a Court having successfully countenanced/entertained such second/successive petition(s) ought to be readily and clearly decipherable from the said order passed.

VI Once a plea for anticipatory bail has been dismissed withdrawn/dismissed as not pressed/dismissed for non

7

case (supra) has enunciated nnot be relied upon for insaying that each case tion, the following principles -prosecution

atory bail petition(s) to succeed, sibly be laid down as to what -prosecution or

or

as

7 of 10

8.

preferred by the petitioner was dismissed by this Court on contention(s) raised on behalf of the petitioner that he has been falsely implicated into the FIR in question

co-accused

time and thereafter the said petition was dismissed. Thereafter, in the instant petition i.e.

reiterated the grounds previously taken (at the time of rejection of the first petition on

Rajwinder Singh

Court vide order dated 22.08.2024 (Annexure P

the co-accused of the petitioner has voluntarily subjected himself to the legal process and suffered incarceration for a period exceeding 02 years. In contrast, the petitioner has willfu

the process of law till now. Such conduct demonstrates a clear disregard for the judicial process and constitutes a compelling ground to deny the grant of anticipatory bail to the petitioner. The prolonged ev

weighs heavily against the exercise of discretion in his favour under the provisions governing anticipatory bail. Furthermore, the dismissed on

gap of more than

process of law for over

arrest for such a prolonged period without any reasonable cause must be

1880-2025

dismissed on merits by the High Court, no second/successive anticipatory bail petition(s) shall be entertained by a Sessions Court." Indubitably, the first petition (for grant of anticipatory bail) on the basis of disclosure statement of

and the nature/seriousness of allegations

second petition (for grant of anticipatory b

07.09.2022) except for the ground that the co

has been granted the concession of regular bail by this lly evaded

07.09.2022 and the instant petition has been preferred after a 2½ years. It is evident that the petitioner has evaded the 2½ years. The conduct of the petitioner in avoiding

8

07.09.2022. The , were considered at that ail), the petitioner has -accused namely

-7). It is not in dispute that his arrest and failed to submit to asion of the petitioner

first petition was

8 of 10

considered while adjudicating this meant to treat every individual in a manner which is equitable and fair. However; if the petitioner

convoluted tactics, including undue delay, strategically aimed at frustratin the lawful proceedings/investigation, it tantamount

process of justice. While liberty and dignity of an individual must be held high, however, no one can be permitted to subvert and cause devolution in the process of justice. Protrac

abrupt repetition of pleas for pre

reason(s) is certainly not an act/behaviour which calls for sympathy/indulgence of the Court. The hiatus of more than part of the petitioner (herein) is inexplicable

the conduct of the petitioner when examined in the backdrop of the nature/severity of allegations made against the petitioner, dis grant of anticipatory bail.

9.

been brought forward which would indicate that the petitioner is entitled to maintain his second petition for grant of anticipatory bail. urged by the petitioner in the present peti

& decided and view thereupon has been taken vide judgment dated

07.09.2022.

present petition, no fresh ground or circumstance is made out so as to enable the petitio

Accordingly, the present petition deserves to be dismissed on merits thereof as well.

1880-2025

second -accused chooses to employ irregular and ted absence, eluding the process of law and -arrest bail, in absence of convincing Furthermore, no fresh substantial change in circumstance From the entire factual conspectus brought forward in the ner to file and maintain the second anticipatory bail petition.

9

petition. Process of justice is s to an abuse of the

2½ years on

nay contumacious. Therefore, -entitles him for

s

All the grounds

tion have already been considered g

has

9 of 10

10.

shall not have any effect on merits of as also the

being influenced with this order.

11.

January 16 Ajay

1880-2025

Any observations made and/or submissions noted hereinabove the case and

trial Court shall proceed further, in accordance with law, Pending application(s), if any, shall also stand disposed of.

, 2025

Whether speaking/reasoned:

Whether reportable:

10

the investigating agency without

(SUMEET GOEL)

JUDGE

Yes/No Yes/No

10 of 10