'Drug Suppliers Enjoying Political Patronage Escape Punishment, Only Small Time Carriers Get Caught': Punjab & Haryana HC Denies Pre-Arrest Bail

The Punjab and Haryana High Court has reiterated that possession of contraband by a person is not necessary to attract the rigors of the Narcotic Drugs and Psychotropic Substances Act, 1985. The reason for this, the Court said is that often organizers of drug cartels keep themselves at a distance from the contraband and hence, making possession a necessary ingredient would provide them an escape route from law enforcement.

The Court observed,

"Most of the times, the persons running the drug cartels do not retain possession of the contraband, rather they keep themselves at a safe distance getting the drug peddling done through small time criminals, drug addicts, poor persons etc."

It thus rejected an application for anticipatory bail filed by a person accused of illicit drag trade, but not found to be in possession of the alleged contraband. The Court also noted that the Applicant-accused was specifically named in the FIR.

Justice HS Madan stated,

"It has been noticed that only small time carriers get caught by the police. Several factors are responsible for the flourishing of the drug racket. In some cases political patronage is provided to the drug peddlers, with the result the police turn blind eye to their activities. On occasions when such peddlers get involved in cases under the Act, they manage to escape arrest and punishment by exercising their influence with the investigation and law enforcement agencies making use of lacunae in enforcement of law. Such type of drug peddlers are careful enough not to carry contraband themselves, rather use poor persons most of them, are drug addicts, for the purpose of transportation of the drugs and delivery to the consumers."

He added,

"When some carrier is caught and takes name of the supplier before the police, such supplier by getting best legal assistance by taking advantage of loopholes in the system manage to escape putting up a straight-face denying his involvement in drug peddling coming up with a plea that statement of co-accused is inadmissible in evidence against him. Such type of pleas are accepted many a times resultantly it becomes next to impossible to trace the hierarchy in the drug racket and except for small time carriers, the persons actively involved in the drug racket, the suppliers and the controller at the top do not even get identified or detected."

The Judge proceeded to observe,

"When on a few occasions investigating agency tries to make little progress in the investigation by going a step further towards the culprits after interrogation of the carrier, proceedings in most of the cases come to halt there since such persons do not join custodial interrogation and manage to evade arrest. Although when they join investigation couched in comparative safety of pre-arrest bail, they simply deny their involvement in the racket. The investigating agency cannot do much in the matter."

It thus held that custodial interrogation of supplier and other persons connected with drug trafficking is necessary, to enable the Police to reach the "big fish" running the drug racket.  

Background

The prosecution's story is that based on secret information, a car boarded by the accused was intercepted and found to be possession heroin. The recovered contraband was seized, and the accused was arrested, taking the said car into police possession. The co-accused was arrested and interrogated, on which he disclosed that the present applicant had handed over the contraband to him, directing him to deliver the consignment.

After being nominated in the case, apprehending his arrest, the present Applicant approached the Court of Sessions seeking a grant of pre-arrest bail, which the Special Court dismissed.

Advocate Vipul Jindal, for the Applicant, argued that the disclosure statement of the arrested co-accused, where the present applicant has been named, is hit by Section 25 of the Indian Evidence Act and cannot be considered. Apart from the said disclosure statement, it was his case that no other proof is available on record to show that the applicant is involved in the said offence.

Jindal also argued that the FIR was registered based on secret information, which must be reduced in writing as per Section 42(2) of the NDPS Act. Then a copy therein has to be forwarded to the superior officer. However, the said process was not followed in the instant case, casting aspersions on the prosecution's story.

Deputy Advocate General J.S. Ghuman controverted the said argument by stating that the present applicant is named in the FIR. Thus, it is erroneous to say that his name cropped up only in the disclosure statement of the co-accused.

The DAG argued that when the secret information was received by the Assistant Sub Inspector of Police, he was at the Railway Crossing. As he was not at the railway station, he could not reduce the information into writing as it would have caused delay resulting in the escape of the accused. Therefore, the police immediately proceeded to the spot where the co-accused's car was supposed to come.

Findings

The Court sided with the DAG's contention and noted that this is not a case where the applicant was named only based on the disclosure statement by his co-accused. Drawing attention to Section 30 of the Indian Evidence Act, the Court noted that when more person that one are being tried jointly for the same offense, and a confession made by one of such persons affecting himself and the other person is proved, the Court may take into consideration such confession as against such other person as well the person confessing. The Court further remarked,

"Though this provision relates to value to be attached to such statement of co-accused implicating himself as well as another person during the trial but then at the stage of pre-trial say the investigation, and while deciding the question as to whether petitioner/accused is entitled to grant of pre-arrest bail or not, such statement can certainly be taken into consideration for providing lead in the investigation"

In reference to Sajan Abraham v. State of Kerala (2001), the Court was convinced by the second argument put forth by the DAG to conclude that under NDPS Act, relating to recovery of the contraband on receipt of information by the Investigating Officer, which is neither reduced into writing nor conveyed to senior officer since the delay would result in the escape of accused, the prosecution case cannot be thrown out due to non-compliance of mandatory provision of Section 42 in such a situation.

In the said case, the Supreme Court has held that the provisions should not be interpreted so literally to render its compliance impossible and further in case if the following of mandate strictly results in delay in trapping an accused, which may lead the accused to escape, then prosecution case should not be thrown out.

The Court noted that usually anticipatory bail pleas are accepted, thus making it impossible to trace the hierarchy in the drug racket except for small-time carriers, the persons actively involved in the drug racket, the suppliers, and the controllers at the top do not get identified.

Remarking on the barriers to efficient investigation, the Court noted,

"When on a few occasions investigating agency tries to make little progress in the investigation by going a step further towards the culprits after interrogation of the carrier, proceedings in most of the cases come to a halt there since such persons do not join custodial interrogation and manage to evade arrest. Although when they join investigation couched in comparative safety of pre-arrest bail, they simply deny their involvement in the racket. The investigating agency cannot do much in the matter."

The Court further remarked that it is normal human nature not to say anything, which may harm that person. Not even of a person of average intelligence, involved in drug trafficking would admit his involvement what to talk of providing further lead about the person(s) from whom he had been procuring the contraband and the persons to whom he had been supplying, the money earned from such activities and the investment thereof, etc.

Despite the custodial interrogation being elicitation-oriented, with little opportunity to have custodial interrogation of the supplier and other persons connected with drug trafficking, it cannot reach the big fish running the drug racket, the Court added while dismissing pre-arrest bail.

Case Title: Lovepreet Singh @ Luvi v. State of Punjab

Click Here To Download The Order

Read The Order