Mohd. Kashif v. State of Haryana
Case Details
CRM-M-305-2025 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CRM-M-305-2025 Reserved on: 05.05.2025 Pronounced on: 19.05.2025 Mohd. Kashif ...Petitioner Versus State of Haryana …Respondent CORAM: HON'BLE MR. JUSTICE ANOOP CHITKARA Present: Mr. Satnam Singh, Advocate for the petitioner. Mr. Aashish Bishnoi, D.A.G., Haryana. ANOOP CHITKARA, J. ****
Facts
FIR No. Dated Police Station Sections 208 02.10.2024 Kalka, District 22-C/29 of NDPS Act Panchkula, Haryana 1. The petitioner incarcerated in the FIR captioned above had come up before this Court under Section 483 of Bharatiya Nagarik Suraksha Sanhita, 2023, [BNSS], seeking regular bail. 2. In paragraph 15 of the bail petition, the accused declares that he has no criminal antecedents. 3. The facts and allegations are taken from the status report filed by the State. On 02.10.2024, co-accused was apprehended who was found in massive possession of Tramadol capsules (1.468 gm), Lomotil tablets (303.6 gm) and Alprazolam tablets (418.80 gm). After his arrest, Surinder Kumar disclosed that he had purchased the tablets from Sumit Kumar. Subsequently, police arrested Sumit Kumar who in his disclosure statement named the petitioner; based on the disclosure statement, the police arraigned the petitioner as an accused by incorporating S. 29 of the NDPS Act. 4. The petitioner's counsel prays for bail by imposing any stringent conditions and contends that further pre-trial incarceration would cause an irreversible injustice to the petitioner and their family. He further seeks bail on the grounds of parity with co-accused Sumit Kumar to whom a Co-ordinate Bench of this Court had granted bail. Jyoti Sharma 2025.05.23 13:49 I attest to the accuracy and authenticity of this order/judgment High Court, Sector 1, Chandigarh 1 CRM-M-305-2025 5. 6. State opposed the bail including on parity and referred to the status report. Although a reference has been made to call details but no such call details have been supplied to the Court. Even otherwise once the petitioner was named as an accused by Sumit Kumar to whom a Co-ordinate Bench of this Court had already granted bail, as such in the entirety of facts and circumstances of the case mainly considering the fact that petitioner was arrested based on disclosure statement of co-accused and petitioner is a first offender, there is no reason for this Court to take a contrary view to that of Co- ordinate Bench. 7. The quantity allegedly involved in this case is commercial. Given this, the rigors of S. 37 of the NDPS Act apply in the present case. The petitioner must satisfy the twin conditions put in place by the Legislature under Section 37 of the NDPS Act. 8. In Abida v. State of Haryana, 2022:PHHC:058722, [Para 10], CRM-M-5077- 2022, decided on 13-05-2022, this court observed as follows: [10]. Thus, both the twin conditions need to be satisfied before a person accused of possessing a commercial quantity of drugs or psychotropic substance is to be released on bail. The first condition is to provide an opportunity to the Public Prosecutor, enabling to take a stand on the bail application. The second stipulation is that the Court must be satisfied that reasonable grounds exist for believing that the accused is not guilty of such offence, and is not likely to commit any offence while on bail. If either of these two conditions is not met, the ban on granting bail operates. The expression “reasonable grounds” means something more than prima facie grounds. It contemplates substantial probable causes for believing that the accused is not guilty of the alleged offence. Even on fulfilling one of the conditions, the reasonable grounds for believing that the accused is not guilty of such an offence, the Court still cannot give a finding on assurance that the accused is not likely to commit any such crime again. Thus, the grant of bail or denial of bail for possessing commercial quantity would vary from case to case, depending upon its facts. [31]. Satisfying the fetters of S. 37 of the NDPS Act is candling the infertile eggs. The stringent conditions of section 37 placed in the statute by the legislature do not create a bar for bail for specified categories, including the commercial quantity; however, it creates hurdles by placing a reverse burden on the accused, and once crossed, the rigors no more subsist, and the factors for bail become similar to the bail petitions under general penal statutes like IPC. 9. It would be appropriate to refer to the evidence collected against the petitioner, which is taken from the status report, which reads as follows: “9. That it is pertinent to mention here that during investigation, CDR related to the mobile phones of co-accused Surinder Kumar, Sumit Kumar and present petitioner were obtained. In this regard, after perusal of the said CDR's it was found that the accused persons used to talk to each other frequently and all the accused persons are known to each other and in constant touch. Jyoti Sharma 2025.05.23 13:49 I attest to the accuracy and authenticity of this order/judgment High Court, Sector 1, Chandigarh 2 CRM-M-305-2025 10. That during the course of investigation, samples of recovered intoxicant substance tablets was sent through RC No.423 dated 07.10.2024 to FSL, Madhuban for examination. That in this regard, No.24/FSLMBN/2410075210,N-897/2024 report dated 22.11.2024 has been received. That in this regard, the examiner has opined "Diphenoxylatewas detected in the sample 1. Alprazolam was detected in the sample 2 & 3.Tramadol, Acetaminophen Dicyclomine were detected in the sample 4, 5 6. The copy of the FSL report has been annexed herewith. as ANNEXURE R-3. 11. That it is pertinent to mention here that the investigation of the present case is still going on qua the co-accused Rajik, who used to supply the huge quantity of LOMOTIL, ALPRAZOLAM AND TRAMADOL tablets (contraband) to the petitioner. That the petitioner has deliberately/intentionally involved in the sale/purchase of the narcotics substance having the commercial quantity. 12. That during investigation, it was found that the petitioner used to sell/purchase the contraband tablets after procuring the same from co-accused Rajik resident of Meerut. Therefore, investigation of the present case is still going on qua the co-accused Rajik to unveil the nexus of drug supplying.” 10. Thus, the evidence collected so far consists of disclosure statements. Such statements can be proven subject to the mandatory restrictions imposed in S. 25 & 26 of the Indian Evidence Act, 1872/ S. 23 of BSA, 2023. 11. In Tofan Singh v. State of Tamil Nadu, (2021) 4 SCC 1, the majority view of a three-member bench holds as follows: We answer the reference by stating: (i) That the officers who are invested with powers under section 53 of the NDPS Act are “police officers” within the meaning of section 25 of the Evidence Act, as a result of which any confessional statement made to them would be barred under the provisions of section 25 of the Evidence Act, and cannot be taken into account in order to convict an accused under the NDPS Act. (ii) That a statement recorded under section 67 of the NDPS Act cannot be used as a confessional statement in the trial of an offence under the NDPS Act. 12. The status report filed by the police reveals that the investigator arraigned the petitioner as an accused based on the disclosure statement of co-accused. No other evidence is collected at this stage to connect the petitioner with the main accused. Thus, there is no justification to deny bail. Consequently, the petitioner has satisfied the first rider of section 37 of the NDPS Act. Regarding the second rider of S. 37, this court will put very stringent conditions in this order to ensure that the petitioner does not repeat the offense. Jyoti Sharma 2025.05.23 13:49 I attest to the accuracy and authenticity of this order/judgment High Court, Sector 1, Chandigarh 3 CRM-M-305-2025 13. As per paragraph 11 of the bail petition, the petitioner has been in custody since 06.10.2024. Per the custody certificate dated 03.05.2025, the petitioner’s total custody in this FIR is 06 months and 25 days. Given the penal provisions invoked viz-a-viz pre-trial custody, coupled with the primafacie analysis of the nature of allegations, and the other factors peculiar to this case, there would be no justifiability for further pre-trial incarceration at this stage. 14.
Legal Reasoning
The evidence collected might be prima facie sufficient to launch prosecution or even to frame the charges; however, it is insufficient for denying bail. 15. Given the penal provisions invoked, the legal admissibility of evidence collected against the petition, coupled with the prima facie analysis of the nature of allegations, co- accused already granted bail and the other factors peculiar to this case, there would be no justifiability for further pre-trial incarceration at this stage, subject to compliance with the terms and conditions mentioned in this order. 16. Without commenting on the case's merits, in the facts and circumstances unique and peculiar to this case, and for the reasons mentioned above, the petitioner makes a case for bail. This order shall come into force from the time it is uploaded on this Court's official webpage. 17. Given above, provided the petitioner is not required in any other case, the petitioner shall be released on bail in the FIR captioned above subject to furnishing bonds to the satisfaction of the concerned Court and due to unavailability before any nearest Ilaqa Magistrate/duty Magistrate. Before accepting the surety, the concerned Court must be satisfied that if the accused fails to appear, such surety can produce the accused. 18. While furnishing a personal bond, the petitioner shall mention the following personal identification details: 1. AADHAR number 2. Passport number (If available) and when the attesting officer/court considers it appropriate or considers the accused a flight risk. 3. Mobile number (If available) 4. E-Mail id (If available) 19. This order is subject to the petitioner’s complying with the following terms. 20. The petitioner shall abide by all statutory bond conditions and appear before the concerned Court(s) on all dates. The petitioner shall not tamper with the evidence, influence, browbeat, pressurize, induce, threaten, or promise, directly or indirectly, any witnesses, Police officials, or any other person acquainted with the facts and circumstances of the case or dissuade them from disclosing such facts to the Police or the Court. Jyoti Sharma 2025.05.23 13:49 I attest to the accuracy and authenticity of this order/judgment High Court, Sector 1, Chandigarh 4 CRM-M-305-2025 21. Given the background of allegations against the petitioner, it becomes paramount to protect the detection squad, members of society, and incapacitating the accused would be one of the primary options until the filing of the closure report or discharge, or acquittal. Consequently, it would be appropriate to restrict the possession of firearms. [This restriction is being imposed based on the preponderance of the evidence of probability and not of evidence of certainty, i.e., beyond a reasonable doubt; and as such, it is not to be construed as an intermediate sanction]. Given the nature of the allegations and the other circumstances peculiar to this case, the petitioner shall surrender all weapons, firearms, and ammunition, if any, along with the arms license to the concerned authority within fifteen days of release from prison and inform the Investigator of the compliance. However, subject to the Indian Arms Act, 1959, the petitioner shall be entitled to renew and reclaim them in case of acquittal in this case, provided otherwise permissible under the concerned rules. Restricting firearms would instill confidence in the victim(s), their families, and society; it would also restrain the accused from influencing the witnesses and repeating the offense. 22. The conditions mentioned above imposed by this court are to endeavor to reform and ensure the accused does not repeat the offense and also to block the menace of drug abuse. In Mohammed Zubair v. State of NCT of Delhi, 2022:INSC:735 [Para 28], Writ Petition (Criminal) No 279 of 2022, Para 29, decided on July 20, 2022, A Three-Judge bench of Hon’ble Supreme Court holds that “The bail conditions imposed by the Court must not only have a nexus to the purpose that they seek to serve but must also be proportional to the purpose of imposing them. The courts, while imposing bail conditions must balance the liberty of the accused and the necessity of a fair trial. While doing so, conditions that would result in the deprivation of rights and liberties must be eschewed.” 23. In Md. Tajiur Rahaman v. The State of West Bengal, decided on 08-Nov-2024, SLP (Crl) 12225-2024, Hon’ble Supreme Court holds in Para 7, “It goes without saying that if the petitioner is found involved in such like offence in future, the concession of bail granted to him today will liable to be withdrawn and the petitioner is bound to face the necessary consequences.” 24. This bail is conditional, and the foundational condition is that if the petitioner indulges in any non-bailable offense, the State may file an application for cancellation of this bail before the Trial Court, which shall be at liberty to cancel this bail. 25. Any observation made hereinabove is neither an expression of opinion on the case's merits nor shall the trial Court advert to these comments. 26. A certified copy of this order would not be needed for furnishing bonds, and any Advocate for the Petitioner can download this order along with case status from the official web page of this Court and attest it to be a true copy. If the attesting officer wants Jyoti Sharma 2025.05.23 13:49 I attest to the accuracy and authenticity of this order/judgment High Court, Sector 1, Chandigarh 5 CRM-M-305-2025 to verify its authenticity, such an officer can also verify its authenticity and may download and use the downloaded copy for attesting bonds. 27. Petition allowed in terms mentioned above. All pending applications, if any,
Decision
stand disposed of. 19.05.2025 Jyoti Sharma Whether speaking/reasoned: Yes No. Whether reportable: (ANOOP CHITKARA) JUDGE Jyoti Sharma 2025.05.23 13:49 I attest to the accuracy and authenticity of this order/judgment High Court, Sector 1, Chandigarh 6