Isabella Mariam

The High Court of Punjab and Haryana Single Bench of Justice Manisha Batra dismissed a regular bail petition under Section 439 of the Code of Criminal Procedure in a case registered under Section 22(c) of the Narcotic Drugs and Psychotropic Substances Act, 1985. The Court declined to accept the petitioner’s contention that the recovery of contraband from a transparent bag indicated false implication, and stated that such reasoning could not form the basis for granting bail where commercial quantity was involved. Holding that the statutory rigors of Section 37 of the NDPS Act applied, the Court refused to draw any inference of police malice merely based on the nature of the packaging.

The present matter arose from a second petition seeking regular bail under Section 439 of the Cr.P.C. by the accused in FIR No. 120 dated 08.07.2023, registered under Section 22(c) of the NDPS Act at Police Station Nehianwala, District Bathinda. The petitioner had previously moved a regular bail application before the trial court, which was dismissed on 01.02.2024.

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As per the prosecution, on 07.07.2023, the petitioner was found sitting under a streetlight with a transparent plastic polythene bag. Upon suspicion, the police apprehended him and conducted a personal search as well as a search of the bag. The search led to the recovery of 480 tablets of Alprazolam and 1800 tablets of Lomotil containing diphenoxylate/atropine. The petitioner allegedly failed to produce any valid license or permit for possessing the said substances and was formally arrested at the spot.

Subsequently, after completing the investigation and necessary formalities, the police submitted the final report before the trial court on 03.01.2024, and the petitioner is currently facing trial.

The petitioner’s counsel contended that he had been falsely implicated. It was submitted that the recovery appeared staged as the contraband was allegedly found in a transparent polythene bag, which was said to be an implausible method of concealing illicit substances. The counsel argued that no reasonable individual carrying contraband would use a transparent bag, thereby making themselves vulnerable to detection.

Further, it was contended that the investigation had concluded and the trial would likely take time to conclude. The petitioner had been in custody since 08.07.2023 and was not involved in any other similar or related offence. The counsel also relied upon certain precedents including:

• Binder Kaur @ Goga vs. State of Punjab, 2021 (3) RCR (Criminal) 360,

• Jaskaran Singh @ Jassu vs. State of Punjab, 2021 (2) RCR (Criminal) 837,

• Banti Kaur @ Bhanti Kaur vs. State of Punjab, CRM-M-4408-2021, and

• A common order dated 15.02.2022 in Munish Kumar vs. State of Punjab and two connected petitions.

The State, represented by the Assistant Advocate General for Punjab, submitted a status report and opposed the bail plea. The State argued that a commercial quantity of contraband had been recovered and the petitioner was apprehended at the spot. The recovery, it was submitted, could not be dismissed as fabricated, and the claim of false implication was characterized as a concocted narrative.

It was further argued that since the recovery falls within the category of commercial quantity, the statutory restrictions under Section 37 of the NDPS Act would apply. Additionally, the State submitted that the trial was ongoing at a proper pace, and there was no material on record to indicate any delay. The prosecution expressed apprehensions that releasing the petitioner on bail could result in absconding or the commission of similar offences.

The Court began by noting that the accused was apprehended on 07.07.2023 and that the substances recovered included 480 tablets of Alprazolam and 1800 tablets of Lomotil.

The Court recorded the following based on the Forensic Science Laboratory (FSL) report:

"The total weight of Alprazolam tablets would come to 29.280 grams, which of course does not fall under commercial quantity. However, the total weight of Lomotil tablets would come to 113.40 grams, which not only falls within the ambit of commercial quantity but is also double of the threshold quantity of this contraband, it being 50 grams."

Addressing the primary argument by the petitioner’s counsel that the recovery from a transparent bag indicates fabrication, the Court observed: "If an accused sets up a claim of his false implication on the ground that no sensible person would carry contraband in a transparent bag on the logic that such visibility makes detection certain and thus defies common sense, then at the same time, this very logic must also apply to the police."

The Court continued: "If the allegation is that the police falsely implicated the petitioner by planting contraband, it is equally implausible that they would do so using a transparent bag, which would immediately raise doubts about the authenticity of the recovery."

Further reasoning was recorded as follows: "In fact, if the intention were to fabricate evidence and ensure a strong case, it would be far more logical for the police to use a concealed or opaque bag to avoid any suspicion of false implication."

The Court concluded that: "The mere fact that the contraband was found in a transparent bag cannot, by itself, be treated as evidence of innocence or police malice."

The Court also noted: "This Court cannot and neither is it supposed to assess the intelligence, prudence, or strategic thinking of the petitioner/accused to conclude whether he would or would not have carried contraband in a transparent bag."

Describing the situation as a "logical standoff," the Court found that neither side’s behavior aligned perfectly with rational expectations: "It creates a logical standoff where neither side’s behavior aligns perfectly with rational expectations."

As such, the Court stated that: "Not even a prima facie inference can be drawn regarding false implication of the petitioner by planting the recovered contraband upon him."

The Court held that the quantity of contraband recovered qualified as a commercial quantity and that the statutory rigors under Section 37 of the NDPS Act were fully attracted.

"The petitioner has been apprehended with a commercial quantity of the contraband. Hence, the rigors of Section 37 of the NDPS Act would certainly apply to him as there is nothing on record to show that he did not commit the subject offence or would not commit similar offences, if he is released on bail."

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The Court found no sufficient ground to override the statutory embargo: "The trial is going on and there is nothing on record to suggest that there would be any undue delay in conclusion of the same."

Consequently, the petition was rejected:

"Therefore, keeping in view the discussion as made above, the gravity of allegations as levelled against the petitioner, the quantity of alleged contraband recovered from him, the quantum of sentence which the conviction may entail and the attendant facts and circumstances of the case, this Court is of the considered opinion that he does not deserve to be granted concession of regular bail, at this stage."

"Accordingly, the present petition is dismissed."

It was clarified: "Any observation made herein above is only for the purpose of deciding the present petition and the same shall have no bearing on the merits of the case."

Advocates Representing the Parties:

For the Petitioner: Ms. Jaspreet Kaur, Advocate

For the Respondents: Ms. Sakshi Bakshi, Assistant Advocate General, Punjab

Case Title: Dharminder Singh @ Tunda vs. State of Punjab

Neutral Citation: 2025: PHHC:065110

Case Number: CRM-M-59860-2024 (O&M)

Bench: Justice Manisha Batra

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