While allowing the bail plea filed in connection with a drug case, the Punjab and Haryana High Court in a learned, laudable, landmark and latest judgment titled Sandeep Kumar v. State of Punjab and connected matters in 2022 LiveLaw (P&H) 14 : CRM-M No.22598 of 2021 delivered recently on January 27, 2022 has rapped the Punjab Police on their knuckles for their “callously casual approach” towards their official duty even when the drug menace has become a deep-rooted in the state of Punjab. The Court expressed its deep concern on drug menace touching new heights in Punjab which is actually most worrying. What further compounds the problem is that the police approach in dealing with it is casual!
To start with, the single Judge Bench of Justice Meenakshi I Mehta of Punjab and Haryana High Court first and foremost mentions in para 1 that, “All the three afore-mentioned petitions are being taken up together for discussion and adjudication as these have arisen out of the same FIR bearing No.21 dated 13.04.2021 registered at Police Station Rureke Kalan, District Barnala, under Sections 22, 25 and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short ‘the Act’).”
To put things in perspective, the Bench then envisages in para 2 that, “Shorn and short of unnecessary details, the allegations, as levelled in the present case, are that on 13.04.2021, on receipt of a secret information regarding three persons namely Yogesh Kumar @ Sonu, Gurdeep Singh and Puneet Kumar, having been indulging in the sale of intoxicant tablets in the village after procuring the same from outside, the police party, headed by SI/SHO Paramjit Singh, held ‘Naka’ (put up the barricades) at bus stand on Mehta Road. After some time, the above-named three persons were seen coming on a motor-cycle and were apprehended. On being served the notices under Section 50 of the Act, they opted to get the search conducted by the Gazetted Officer. Thereafter, Deputy Superintendent of Police, Sub Division Tapa, reached at the spot. The search of the polythene envelope carried by accused-Gurdeep Singh in his right hand, resulted in the recovery of 100 strips, each containing 10 Clovidol-100 SR tablets, i.e total 1000 tablets whereas the search of the cloth-bag hung by accused-Yogesh Kumar @ Sonu on his right shoulder, led to the recovery of 250 strips, each containing 10 Clovidol 100-SR tablets, i.e 2500 tablets and 95 strips, each containing 10 Celcidal 100-SR tablets, i.e 950 tablets and accused Puneet was found to be carrying 1000 strips, each containing 10 Clovidol-100 SR tablets, i.e 10000 tablets and 100 strips, each containing 10 Celcidal-100 SR tablets, i.e 1000 tablets, in the bag hung by him on his shoulder. During their interrogation, the aforenamed accused suffered the disclosure statements regarding the said contraband having been supplied to them by petitioner-Sandeep Kumar and in pursuance thereof, he (Sandeep Kumar) was apprehended and 1500 Clovidol 100-SR tablets, packed in 150 strips (each containing 10 tablets) and 600 white colour loose intoxicant tablets were recovered at his instance. He suffered a disclosure statement and on the basis of the same, petitioner Amit Sharma @ Makhan was also nabbed and he also made a disclosure statement and got 300 white colour loose intoxicant tablets recovered/discovered in pursuance of the same.”
As it turned out, the Bench then enunciates in para 3 that, “Petitioner-Sandeep Kumar moved an application before the Court below for claiming the statutory bail under Section 167(2) Cr.P.C. while pleading that as per the FSL report, the afore-said 1500 tablets, as allegedly recovered from him, contained ‘Pregabalin’ which did not fall within the purview of the Act and the total weight of 600 loose tablets, reportedly containing ‘Tramadol Hydrochloride’ Salt, came out to be 242.088 gms which was ‘non-commercial/intermediate’ quantity and the Challan had not been presented in the Court within the stipulated period. However, the Special Court dismissed the above-said application vide the order dated 12.07.2021 and CRR No.746 of 2021 has been preferred by the afore-named petitioner to assail the above-said order and he has also sought the relief of regular bail vide CRM-M No.22598 of 2021 whereas petitioner Amit Sharma @ Makhan has also prayed for the same relief in CRM-M No.29457 of 2021.”
Furthermore, the Bench then states in para 4 that, “The respondent-State has already filed separate status-reports in CRR No.746 of 2021 and CRM-M No.22598 of 2021 and written Reply in CRM-M No.29457 of 2021. However, it is pertinent to mention here that while mentioning the details of the FSL report in the said status-reports/Reply, the tablets, mentioned in the earlier paras therein as ‘Clovidol-100 SR’ tablets, have been described as ‘CLAVIDOL-100 SR’ tablets.”
It is worth noting that the Bench discloses in para 9 that, “Initially, petitioner-Sandeep is stated to have been arrested in pursuance of the disclosure statements as allegedly suffered by his aforenamed three co-accused and his own disclosure statement is alleged to have led to the arrest of petitioner Amit Sharma @ Makhan, in this case and accordingly, Section 29 of the Act was added in the above-said FIR. Keeping in view the afore-referred fact that in some paragraphs in the Status-reports/Reply filed in these petitions, the labelled tablets, as alleged to have been recovered from petitioner-Sandeep Kumar and his above-said three co-accused, were mentioned as ‘CLOVIDOL-100 SR’ tablets whereas in certain other paras, the same were described as ‘CLAVIDOL100 SR’ tablets, the second sample, as drawn/separated out of the labelled/packed tablets, as allegedly recovered from petitioner-Sandeep Kumar, was sent to the FSL, Madhuban, for its testing/chemical analysis, of course with the consent of his learned counsel, vide the order dated 07.10.2021 passed in CRR No.746 of 2021 and as per the report (in CRR No.746 of 2021) received from the said Laboratory, the same was found to be containing the salt ‘Pregabalin’. Concededly, ‘Pregabalin’ salt does not fall within the ambit of the Act.”
Going ahead, the Bench then states in para 10 that, “Further, Anneuxre P-9 (in CRR No.746 of 2021) is the copy of the charge-sheet pertaining to the criminal case arising out of the subject FIR and a perusal of the same reveals that the trial Court has framed the charge against petitioners Sandeep and Amit Sharma @ Makhan under Section 22 of the Act only for their having been found in possession of 600 and 300 loose tablets, containing ‘Tramadol Hydrochloride’, respectively, while specifically mentioning therein that 1500 tablets containing Pregabalin, as recovered from accused-petitioner Sandeep, do not fall within the purview of the Act and the petitioners have not been charge sheeted under Section 29 of the Act meaning thereby that the Investigating Agency, in its own wisdom and also for the reasons best known to it, has not presented the Challan against both the petitioners under the said provision, i.e Section 29 of the Act.”
Be it noted, the Bench then notes in para 11 that, “Though, the issue as to whether the offence under Section 29 of the Act is attracted against both the petitioners in this case or not, would still be a subject matter for consideration and adjudication before/by the trial Court at the appropriate stage, on appreciation and evaluation of the evidence that may be led on the record during the course of trial but at the moment, the fact remains that while deciding the instant petitions qua the prayer of the petitioners for the grant of relief of bail, this Court is supposed to look into and consider the prevalent facts and circumstances of the case. Accordingly, keeping in view the factum of the petitioners having been charge-sheeted under separate heads for the recovery of the said contraband, i.e loose intoxicant tablets, falling within the category of ‘non-commercial/intermediate quantity’ and the period of their incarceration in connection with this case, the petitions bearing CRM-M No.22598 of 2021 and CRM-M No.29457 of 2021, as preferred by them (petitioners) for seeking the relief of regular bail are allowed and petitioners Sandeep and Amit Sharma @ Makhan are ordered to be released on regular bail subject to their furnishing the requisite personal and surety bonds to the satisfaction of the trial Court/Chief Judicial Magistrate/Duty Magistrate, Barnala. Resultantly, CRR No.746 of 2021 stands disposed of as having become infructuous.”
Most alarmingly, the Bench then laments in para 12 that, “However, before parting with the order, this Court is constrained to express its deep concern and anguish over the manner in which the authorities concerned have dealt with the present case at different relevant stages. As discussed earlier, in some paras in the Statusreports/Reply filed in the present petitions, the concerned police officers have mentioned the tablets, allegedly recovered in this case, as ‘CLAVIDOL-100 SR’ tablets whereas in certain other paras therein, the same have been described as ‘CLOVIDOL-100 SR’ tablets, without realising the repercussions and consequent legal implications of doing so, despite the fact that they are supposed to be well-versed with the same and are required to deal with such like matters with utmost sincerity and caution. The said discrepancy reflects nothing else but their callously casual approach towards their official duty which is least expected from them because they are duty bound to check the crime graph in the State specially in the circumstances when the drug menace has become deep rooted and is taking its toll like a slow poison for the young generation upon which every nation pins hopes for a bright and secure future.”
What’s more, the Bench then adds in para 13 that, “Further, the subject FIR was registered on 13.04.2021 and petitioner Sandeep was arrested on 15.04.2021 and the RTFSL, Bathinda, submitted its report Annexure P-7 on 27.05.2021 and similarly, petitioner Amit Sharma @ Makhan had been arrested on 18.04.2021 and the said Laboratory submitted its report Annexure R-1 on 03.06.2021. It would have been worth appreciation by this Court, had the reports in all such like cases would have been expedited in the similar manner so that the trial proceedings could have commenced therein without any inordinate delay.”
In addition, the Bench then observes in para 14 that, “Then, it is unpleasantly surprising to note that the Assistant Commissioner Drugs, Food & Drug Administration, (for short ‘FDA’) Punjab, issued letter Annexure R-17 dated 16.03.2017 to M/s Yorks Pharma, Amritsar, for cancelling the permission, as granted to it to manufacture the formulations containing ‘Tramadol Hydrochloride’ salt including ‘CLAVIDOL 100-SR’ tablets, on account of the alleged contravention of the Drugs and Cosmetics Act, 1940 and Rules 1945 by the said manufacturer, while further directing it to stop the manufacturing of all the drug formulations containing the said salt. However, as per the FSL reports, the ‘CLAVIDOL-100 SR’ tablets, i.e the tablets with the same brand name, as allegedly recovered in this case, contain ‘Pregabalin’.”
As if this was not enough, the Bench then also pointed out in para 15 that, “Even if the use of the brand names is taken to be not within the domain of the FDA as deposed by the Joint Commissioner (Drugs)/Drug Controller, Punjab in his short affidavit dated 13.12.2021, even then the fact remains that this Department is supposed to check and supervise the manufacturing of the drugs in the State so as to ensure the strict compliance of the relevant law/Rules. The subsequent use of the same brand name, i.e ‘CLAVIDOL-100 SR’ by the above-said manufacturer for manufacturing the tablets containing a different salt is likely to lead to grave consequences as the same can result in serious health hazards for the patients as well as the public at large. It is only after this Court took notice of the said fact during the pendency of the instant petitions and required the said Department to explain the matter that the concerned authorities woke up from their deep slumber and issued the letter dated 29.11.2021 (Annexure R-19) to the afore-named manufacturer qua the cancellation of the permission granted to it for manufacturing the drug formulations containing ‘Pregabalin’.”
To top it all, the Bench then concludes by holding in para 16 that, “The afore-discussed conduct, on the part of the Authorities mentioned above, is highly deplorable and it speaks volumes of their questionable acts and omissions which pose a serious challenge for the State in tackling with the drug menace which seems to be touching new heights with every passing day.”
In conclusion, the concerned authorities and the police to whom the Punjab and Haryana High Court has taken potshots at in this notable judgment must pull up their socks and do their job properly so that the drug menace in the state can be contained effectively! The casual approach of police must be discarded promptly. This is what is the essence of this leading judgment by Justice Meenakshi I Mehta of the Punjab and Haryana High Court.
Sanjeev Sirohi