CRM-M No. 25182 of 2024 · Punjab And Haryana High Court · 2023

Mr. Dheeraj Kumar Narula, Advocate, for the pe(cid:10)(cid:10)oner. Mr. Rajat Gutam, Addl. A.G., Haryana. ANOOP CHITKARA, J. **** FIR No. Dated Police Sta0on Sec0on 163

20.03.2023 Hisar City, Dis,. Hisar 18 (b) of NDPS Act

1. The pe(cid:10)(cid:10)oner incarcerated in the FIR cap(cid:10)oned above had come up before this Court under Sec(cid:10)on 439 CrPC, 1973, seeking regular bail.

2. In the bail pe(cid:10)(cid:10)on, the pe(cid:10)(cid:10)oner is silent about criminal antecedents. However, as per paragraph 11 of status report dated 12.07.2024, the accused has the following criminal antecedents: Sr. No. 1. 2. FIR No. 60 36 Offenses Dated 06.04.2012 341, 323 and 34 IPC 29.04.2019 8/15/29 of NDPS Act

3. 678

23.12.2022 8/15/29 of NDPS Act Police Sta0on Lohawat, Dis,. Falaudi Bhojasar, Dis,. Falaudi (Raj.) Suratgarh Dis,. Falaudi Sri Ganganagar (Raj.)

3. The facts and allega(cid:10)ons are that on 20th March 2023, based on prior secret informa(cid:10)on, the police had recovered 8 kg and 230 grams of opium from the pe(cid:10)(cid:10)oner’s possession.

4. The pe(cid:10)(cid:10)oner's counsel prays for bail by imposing any stringent condi(cid:10)ons and contends that further pre-trial incarcera(cid:10)on would cause an irreversible injus(cid:10)ce to the pe(cid:10)(cid:10)oner and their family.

5. The State’s counsel opposes bail and refers to the status report. It would be JYOTI 2024.08.31 09:31 I attest to the accuracy and integrity of this order/judgment. 1 CRM-M-25182-2024 appropriate to refer to para 6 of the status report dated 12.07.2024 filed by the concerned Deputy Superintendent of Police, which reads as follows: “6. That the brief facts of the case are that on 20.3.2023, ASI Shak(cid:26) Singh No. 389/JJR alongwith other police officials of An(cid:26) Narco(cid:26)c Staff Hisar was present at Barwala Chungi Hisar regarding preven(cid:26)on of intoxicant substance, he met a secret informer and informed that one Punna Ram son of Arjun Ram r/o Lohawat, District Jodhpur, (Raj.) who come from Rajasthan to Hisar for supplying opium, who is also standing near Sirsa Chungi Hisar wai(cid:26)ng for some customer in order to supply of the opium. He can be apprehended. A6er considering the informa(cid:26)on true and reliable, he informed to the colleagues about this and wrote a no(cid:26)ce under sec(cid:26)on 42 of NDPS Act and same sent to PS City Hisar through HC Vikrant No. 218/HSR. A6er recording the report in roznamcha, the halqua officer of PS City Hisar, he along with staff having laptop, printer and computerized scale and inves(cid:26)ga(cid:26)on kit reached near Sirsa Chungi Hisar where he saw a person standing there with black colour bag. On seeing police party tried to go towards bus stand Hisar swi6ly but he was nabbed with the help of staff. On asking, he iden(cid:26)fied himself as Punna Ram son of Arjun Ram r/o Lohawat, District Jodhpur. A6er comple(cid:26)on of codal/legal formali(cid:26)es, his search was conducted in the presence of Dr. Devender Singh, Veterinary Surgeon, Chaudhariwas. During search opium was recovered 8.230 gram opium from his possession in plas(cid:26)c transparent paper. Samples were taken and opium was taken in to police possession. Upon which a case under sec(cid:26)on NDPS Act was registered at PS City Hisar.”

6. The quan(cid:10)ty allegedly involved in this case is commercial. Given this, the rigors of S. 37 of the NDPS Act apply in the present case. The pe(cid:10)(cid:10)oner must sa(cid:10)sfy the twin condi(cid:10)ons put in place by the Legislature under Sec(cid:10)on 37 of the NDPS Act.

7. Sec(cid:10)on 371 of the NDPS Act mandates under sub-sec(cid:10)on (1) (b) of sec(cid:10)on 37 1 37. Offences to be cognizable and non-bailable.—(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974),— (a) every offence punishable under this Act shall be cognizable; (b) no person accused of an offence punishable for offences under section 19 or section 24 or section 27A and also for offences involving commercial quantity shall be released on bail or on his own bond unless— (i) the Public Prosecutor has been given an opportunity to oppose the application for such release, and (ii) where the Public Prosecutor opposes the application, the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail. (2) The limitations on granting of bail specified in clause (b) of sub-section (1) are in addition to the limitations under the Code of Criminal Procedure, 1973 (2 of 1974) or any other law for the time being in force on granting of bail. JYOTI 2024.08.31 09:31 I attest to the accuracy and integrity of this order/judgment. 2 CRM-M-25182-2024 that no person accused of an offense punishable for offenses involving commercial quan(cid:10)ty shall be released on bail unless- (i) the Public Prosecutor has been given an opportunity to oppose the applica(cid:10)on of release, and (ii) where the Public Prosecutor opposes the applica(cid:10)on, the Court is sa(cid:10)sfied that there are reasonable grounds for believing that accused is not guilty of such offense and is not likely to commit any offense while on bail. Thus, the rigors of S. 37 of the NDPS Act apply in the present case, and the burden is on the pe(cid:10)(cid:10)oner to sa(cid:10)sfy the twin condi(cid:10)ons put in place by the Legislature under Sec(cid:10)on 37 of the NDPS Act. Given the legisla(cid:10)ve mandate of S. 37 of the NDPS Act, the Court can release a person accused of an offense punishable under the NDPS Act for possessing a commercial quan(cid:10)ty of contraband only aDer recording reasonable sa(cid:10)sfac(cid:10)on of its rigors.

8. The State’s Counsel argues that a plain reading of Sec(cid:10)on 37 reveals that the legislature intends to make the law stringent to curb the drug menace. It is further to be no(cid:10)ced that the provisions are couched in nega(cid:10)ve language, meaning that to grant bail, the Court needs to record a finding that there are reasonable grounds for believing that the pe(cid:10)(cid:10)oner is not guilty of the offense. The burden of proof is also on the pe(cid:10)(cid:10)oner to sa(cid:10)sfy the Court about his non-involvement in the case. While interpre(cid:10)ng the provisions of Sec(cid:10)on 37 of the NDPS Act, the Court must be guided by the objec(cid:10)ve sought to be achieved by puFng these stringent condi(cid:10)ons.

9. Sa(cid:10)sfying the fe,ers of S. 37 of the NDPS Act is candling the infer(cid:10)le eggs. The stringent condi(cid:10)ons of sec(cid:10)on 37 placed in the statute by the legislature do not create a bar for bail for specified categories, including the commercial quan(cid:10)ty; however, it creates hurdles by placing a reverse burden on the accused, and once crossed, the rigors no more exist, and the factors for bail become similar to the bail pe(cid:10)(cid:10)ons under general penal statutes like IPC. Thus, both the twin condi(cid:10)ons need to be sa(cid:10)sfied before a person accused of possessing a commercial quan(cid:10)ty of drugs or psychotropic substance is to be released on bail. The first condi(cid:10)on is to provide an opportunity to the Public Prosecutor, enabling them to take a stand on the bail applica(cid:10)on. The second s(cid:10)pula(cid:10)on is that the Court must be sa(cid:10)sfied that reasonable grounds exist for believing that the accused is not guilty of such an offense and is not likely to commit any offense while on bail. If either of these condi(cid:10)ons is not met, the ban on gran(cid:10)ng bail operates. The expression “reasonable grounds” means something more than prima facie grounds. It contemplates substan(cid:10)al probable causes for believing the accused is not guilty of the alleged offense. Even on fulfilling one of the condi(cid:10)ons, the reasonable grounds for believing that the accused is not guilty of such an offense, the Court s(cid:10)ll cannot give a finding on the assurance that the accused is not likely to commit any such crime again. JYOTI 2024.08.31 09:31 I attest to the accuracy and integrity of this order/judgment. 3 CRM-M-25182-2024 Thus, the grant or denial of bail for possessing commercial quan(cid:10)ty would vary from case to case, depending upon its facts, and the parameters for an(cid:10)cipatory bail are stringent compared to the regular bail when the accused is in judicial custody.

10. The grounds in the bail pe(cid:10)(cid:10)on do not shiD the burden the legislature places on the accused under S. 37 of the NDPS Act. The pe(cid:10)(cid:10)oner has not stated anything in the bail pe(cid:10)(cid:10)on to discharge the burden put by the stringent condi(cid:10)ons placed in the statute by the legislature under sec(cid:10)on 37 of the NDPS Act. The inves(cid:10)ga(cid:10)on reveals sufficient prima facie evidence to connect the pe(cid:10)(cid:10)oner with the crime; thus, the pe(cid:10)(cid:10)oner fails to make out a case for an(cid:10)cipatory bail. Any detailed discussions about the evidence may prejudice the case of the pe(cid:10)(cid:10)oner, the State, or the other accused.

11. A perusal of the bail pe(cid:10)(cid:10)on and the documents a,ached primafacie points towards the pe(cid:10)(cid:10)oner’s involvement and does not make out a case for bail. Any further discussions will likely prejudice the pe(cid:10)(cid:10)oner; this court refrains from doing so.

12. Any observa(cid:10)on made hereinabove is neither an expression of opinion on the case's merits nor shall the trial Court advert to these comments.

13. Pe00on dismissed. Interim orders, if any, are recalled with immediate effect. All pending applica(cid:10)ons, if any, stand disposed of. (ANOOP CHITKARA) JUDGE

30.08.2024 Jyo(cid:10)-II Whether speaking/reasoned: Whether reportable: Yes No JYOTI 2024.08.31 09:31 I attest to the accuracy and integrity of this order/judgment. 4