Kiran v. State of U.T. Chandigarh
Case Details
CRM-M-34196-2025 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH 1 CRM-M-34196-2025 Reserved on: 14.07.2025 Pronounced on: 31.07.2025 Kiran ...Petitioner Versus State of U.T. Chandigarh …Respondent CORAM: HON'BLE MR. JUSTICE ANOOP CHITKARA Present: Mr. Jasbir Singh Dadwal, Advocate for the petitioner. Mr. Alankrit Bhardwaj, Addl. PP, UT Chandigarh. ANOOP CHITKARA, J. **** FIR No. Dated Police Station Sections 1 02.01.2025 ANTF, Sector 11, 21 of NDPS Act (Sections 20, UT Chandigarh 22 & 29 of NDPS Act and 111 BNS added later on) 1.
Facts
The petitioner apprehending arrest in the FIR captioned above has come up before this Court under Section 482 of Bharatiya Nagarik Suraksha Sanhita, 2023, [BNSS], seeking anticipatory bail. 2. Per paragraph 15 of the bail petition as well as the reply filed by the State, the accused has the following criminal antecedents: Sr. No. FIR No. 1 2 3 4 5 554 41 420 219 302 Date Offenses 2012 61-1-14 of Excise Act 2014 61-1-14 of Excise Act 2012 61-1-14 of Excise Act 2013 61-1-14 of Excise Act 2012 61-1-14 of Excise Act Police Station Sector 39, Chandigarh Sector 39, Chandigarh Sector 39, Chandigarh Sector 39, Chandigarh Sector 39, Chandigarh 3. The facts and allegations are taken from the reply filed by the State. 4. On 2nd January 2025, based on secret information, the police recovered 30 grams of heroin from a lady named Aarti. Subsequently, the investigation found involvement of other accused and police had recovered 24.82 grams of heroin and 77.80g of charas, dummy pistol and a sharp edge knife from Gagan. After that, they also recovered 50.61 grams of heroin from one Gagandeep S/o Satnam and 20.40 grams of heroin from another Gagandeep Singh S/o Surjit Singh. In all, from these accused total 125.83 grams of heroin was recovered and 77.80 gram of charas was recovered. The Investigator claims ANJU RANI 2025.08.02 11:30 I attest to the accuracy and integrity of this document Punjab and Haryana High Court Chandigarh 1 CRM-M-34196-2025 to have complied with all the statutory requirements of the NDPS Act, 1985, and BNSS 2 2023. 5. During the custodial interrogation, the co-accused named the petitioner as the seller of the drugs, and based on this confession, the investigator arraigned him as an accused. The petitioner approached the Sessions Court for anticipatory bail, which was surprisingly denied. 6. The petitioner's counsel prays for bail by imposing any stringent conditions and contends that pre-trial incarceration would cause an irreversible injustice to the petitioner and their family. Counsel further submits that the petitioner would have no objection whatsoever to any stringent conditions that this Court may impose, including that if the petitioner repeats the offense or commits any non-bailable offense which provides for a sentence of imprisonment for more than seven years, or commits any offence under the NDPS Act, where the quantity involved is more than half of the intermediate, or commercial quantity, or violates S. 19, or 24, or 27-A of the NDPS Act, the State may file an application to revoke this bail before the concerned Court having jurisdiction over this FIR, which shall have the authority to cancel this bail, and may do so at their discretion, to which the petitioner shall have no objection. 7. 8. The State’s counsel opposes bail and refers to the reply. It would be appropriate to refer to the following portions of the reply, which read as follows: “ Role of the petitioner 9. The accused Aarti & Gagan @ Goggi had stated in their disclosure statement that the drugs recovered from Aarti were brought by their sister-in- law Kiran. The petitioner/accused is drug paddler and she is actively involved in the sale and purchase of the drugs and is spoiling the career/lives of the young generation by pushing them into the vicious cycle of drug abuse and addiction.” REASONING: 9. Allegations against the petitioner are based on the disclosure statements. However, petitioner has criminal antecedents which point towards some involvement, but even if all the entire heroine recovered from all the four accused is counted and weighed together and is attributed to the petitioner, still it is just a little half that the intermediate quantity. Thus, in the entirety of facts and circumstances, this Court wants that petitioner be given a final chance to course correct, reform and live like a decent female and not to indulge in crimes. 10. The quantity allegedly involved in this case is commercial. Given this, the rigors of ANJU RANI 2025.08.02 11:30 I attest to the accuracy and integrity of this document Punjab and Haryana High Court Chandigarh 2 3 CRM-M-34196-2025 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. 11. Thus, the evidence collected so far consists of disclosure statements and the petitioner’s confession without discovering any facts. 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. 12. 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. 13. The status report filed by the police reveals that the investigator arraigned the petitioner as an accused based on the disclosure statement of the main accused, from whose possession the investigator had recovered the contraband. 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. 14. For now, the petitioner has prima facie satisfied the first condition of section 37 of the NDPS Act to make a case for bail. 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. 15. 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 3 ANJU RANI 2025.08.02 11:30 I attest to the accuracy and integrity of this document Punjab and Haryana High Court Chandigarh CRM-M-34196-2025 4 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. [30]. From the summary of the law relating to rigors of S.37 of NDPS Act, while granting bail involving commercial quantities, the following fundamental principles emerge: (a). In case of inconsistency, S. 37 of the NDPS Act prevails over S. 439 CrPC. [Narcotics Control Bureau v Kishan Lal, 1991 (1) SCC 705, Para 6]. (b). The limitations on granting of bail come in only when the question of granting bail arises on merits. [Customs, New Delhi v. AhmadalievaNodira, (2004) 3 SCC 549, Para 7]. (c). The provisions of Section 37 of the NDPS Act provide the legal norms which have to be applied in determining whether a case for grant of bail has been made out. [UOI v. Prateek Shukla, 2021:INSC:165 [Para 11], (2021) 5 SCC 430, Para 12]. In case the Court proposes to grant bail, two conditions (d). are to be mandatorily satisfied in addition to the standard requirements under the provisions of the CrPC or any other India v. Niyazuddin SK &Anr, enactment. 2017:INSC:686 [Para 7], (2018) 13 SCC 738, Para 7]. [Union of Apart (e). the Public from granting opportunity Prosecutor, the other twin conditions which really have relevance are the Court's satisfaction that there are reasonable grounds for believing that the accused is not guilty of the alleged offence. [N.R. Mon v. Md. Nasimuddin, (2008) 6 SCC 721, Para 9]. to (f). The satisfaction contemplated regarding the accused being not guilty has to be more than prima facie grounds, considering substantial probable causes for believing and justifying that the accused is not guilty of the alleged offence. [Customs, New Delhi v. Ahmadalieva Nodira, (2004) 3 SCC 549, Para 7]. The reasonable belief contemplated in the provision (g). requires existence of such facts and circumstances as are sufficient in themselves to justify satisfaction that the accused is not guilty of the alleged offence. [State of Kerala v. Rajesh, 2020:INSC:88 [Para 21], AIR 2020 SC 721, Para 21]. (h). Twin conditions of S. 37 are cumulative and not alternative. [Customs, New Delhi v. Ahmadalieva Nodira, (2004) 3 SCC 549, Para 7]. (i). At the bail stage, it is neither necessary nor desirable to weigh the evidence meticulously to arrive at a positive finding as to whether or not the accused has committed an offence under the NDPS Act and further that he is not likely to commit an offence 4 ANJU RANI 2025.08.02 11:30 I attest to the accuracy and integrity of this document Punjab and Haryana High Court Chandigarh CRM-M-34196-2025 5 under the said Act while on bail. [Union of India v. Rattan Mallik @ Habul, (2009) 2 SCC 624, Para 14]. (j). If the statements of the prosecution witnesses are believed, then they would not result in a conviction. [Babua v. State of Orissa, (2001) 2 SCC 566, Para 3]. (k). Merely recording the submissions of the parties does not amount to an indication of a judicial mind or a judicious application of mind. [UOI v. Prateek Shukla, 2021:INSC:165 [Para 11], (2021) 5 SCC 430, Para 12]. (l). Section 37 departs from the long-established principle of presumption of innocence in favour of an accused person until proved otherwise. [Union of India v. Sanjeev v. Deshpande, (2014) 13 SCC 1, Para 5]. (m). While considering the application for bail concerning Section 37, the Court is not called upon to record a finding of not guilty. [Union of India v. Shiv Shanker Kesari, (2007) 7 SCC 798, Para 11]. (n). The confessional statement recorded under Section 67 of the NDPS Act is inadmissible in the trial of an offence under the [Tofan Singh v. State of Tamil Nadu, NDPS Act. 2020:INSC:620, (2021) 4 SCC 1] (o). In the absence of clarity on the quantitative analysis of the samples from the laboratory, the prosecution cannot be heard to state at this preliminary stage that the accused possessed a commercial quantity of psychotropic substances as contemplated under the NDPS Act. [Bharat Chaudhary v. Union of India 2021:INSC:877 [Para 11], 2021 SCC OnLine SC 1235, Para 10]. (p). When there is evidence of conscious possession of commercial quantity of psychotropic substances, such accused is not entitled to bail given Section 37 of the Act as contemplated under the NDPS Act. [State by (NCB) Bengaluru v. Pallulabid Ahmad Arimutta, 2022:INSC:26 [Para 11], 2022 SCC OnLine SC 47, Para 12]. (p). Bail must be subject to stringent conditions. [Sujit Tiwari v. State of Gujarat, 2020:INSC:101 [Para 12], 2020 SCC Online SC 84, Para 12]. [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. 16. The petitioner claims to have joined the investigation. 17. In Roji alias Dimpi v. State of Punjab, SLP (Crl.) 8976-2023, decided on 13-09- 2023, Hon’ble Supreme Court holds, ANJU RANI 2025.08.02 11:30 I attest to the accuracy and integrity of this document Punjab and Haryana High Court Chandigarh 5 CRM-M-34196-2025 6
Legal Reasoning
The petitioner is accused of committing the offence punishable under Sections 21(a) and 21(b) of the Narcotic Drugs and Psychotropic Substances Act; based on the statement of the co-accused from whom a commercial quantity (274 grams) of contraband was seized. Aside from the statement of that co-accused – who implicated the petitioner by alleging that he had sold 126 grams to her, in fact there is no other material on the record. The prosecution, prima facie seems to rely entirely upon the statement of the co- accused and the recovery of the 274 grams from him. It is a matter of record that the petitioner had joined the investigations and has cooperated in that regard. Having regard to all these circumstances, this Court is satisfied that the petitioner should be granted anticipatory bail and is accordingly directed to be enlarged on anticipatory bail subject to such terms as the Trial Court may impose. 18. The evidence collected might be prima facie sufficient to launch prosecution or even to frame the charges; however, for the purpose of bail, the evidence is insufficient. 19. 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, and the other factors peculiar to this case, there would be no justifiability for custodial interrogation or pre-trial incarceration. CONDITIONS: 20. Given the above, without commenting on the case's merits, in the facts and circumstances peculiar to this case, and for the reasons mentioned above, the petitioner makes a case for anticipatory bail. 21. The investigation indicates that the petitioner is not the main accused, so the petitioner's bail shall not be treated as a precedent for granting bail to the other co- accused with a higher role. 22. 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 Arresting Officer, and if the matter is before a Court, then the concerned Court and due to unavailability before any nearest Ilaqa Magistrate/duty Magistrate. Before accepting the surety, the concerned Officer/Court must be satisfied that if the accused fails to appear, such surety can produce the accused. 23. 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) ANJU RANI 2025.08.02 11:30 I attest to the accuracy and integrity of this document Punjab and Haryana High Court Chandigarh 6 CRM-M-34196-2025 24. This order is subject to the petitioner’s complying with the following terms. 7 25. The petitioner is directed to join the investigation as and when called by the Investigator. The petitioner shall be in deemed custody for Section 27 of the Indian Evidence Act. The petitioner shall join the investigation as and when called by the Investigating Officer or any Superior Officer and shall cooperate with the investigation at all further stages as required. In the event of failure to do so, the prosecution will be open to seeking cancellation of the bail. During the investigation, the petitioner shall not be subjected to third-degree, indecent language, inhuman treatment, etc. 26. 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. 27. Given the background of allegations against the petitioner, it becomes paramount to protect the members of society, detection squad 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 from today 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 it is 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. 28. 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.” ANJU RANI 2025.08.02 11:30 I attest to the accuracy and integrity of this document Punjab and Haryana High Court Chandigarh 7 8 CRM-M-34196-2025 29. In case the Investigator/Officer-In-Charge of the concerned Police Station arraigns another section of any penal offense in this FIR, and if the new section prescribes a maximum sentence that is not greater than the sections mentioned above, then this bail order shall be deemed to have also been passed for the newly added section(s). However, suppose the newly inserted sections prescribe a sentence exceeding the maximum sentence prescribed in the sections mentioned above; then, in that case, the Investigator/Officer-In-Charge shall give the petitioner notice of a minimum of seven days, providing an opportunity to avail the remedies available in law. 30. 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.” 31. This bail is conditional, with the foundational condition being that if the petitioner repeats the offense or commits any non-bailable offense which provides for a sentence of imprisonment for more than seven years, or commits any offence under the NDPS Act, where the quantity involved is more than half of the intermediate, or commercial, or violates S. 19, or 24, or 27-A of the NDPS Act, the State shall file an application to revoke this bail before the concerned Court having jurisdiction over this FIR, which shall have the authority to cancel this bail, and as per their discretion, they may cancel this bail. 32. Any observation made hereinabove is neither an expression of opinion on the case's merits nor shall the trial Court advert to these comments. 33. 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 to verify its authenticity, such an officer can also verify its authenticity and may download and use the downloaded copy for attesting bonds. 34. Petition allowed in terms mentioned above. All pending applications, if any, stand
Decision
disposed of. 31.07.2025 anju rani (ANOOP CHITKARA) JUDGE Whether speaking/reasoned: Yes No. Whether reportable: ANJU RANI 2025.08.02 11:30 I attest to the accuracy and integrity of this document Punjab and Haryana High Court Chandigarh 8