Sahil v. State of Punjab
Case Details
CRM-M-42140-2024 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CRM-M-42140-2024 Reserved on: 17.01.2025 Pronounced on: 27.01. 2025 Rashid Hussain Thoker @ Sahil ...Petitioner Versus State of Punjab …Respondent CORAM: HON'BLE MR. JUSTICE ANOOP CHITKARA Argued by: Mr. Kashav Chadha, Advocate with Mr. Ruhani Chadha, Advocate (through V.C.) for the petitioner. Mr. Jasjit Singh, DAG, Punjab. ANOOP CHITKARA, J. **** FIR No. Dated Police Station Sections 09 17.01.2022 Goraya, Jalandhar District 15 of the NDPS Act and Sections 27, 29 of the NDPS Act added later on 1.
Facts
The petitioner incarcerated in the FIR captioned above had come up before this Court under Section 439 Cr.P.C., seeking regular bail. 2. Per paragraph 12 of the reply dated 26.11.2024, the accused has the following criminal antecedents: Sr. No. 1. 2. FIR No. 81 261 Dated Sections 14.06.2022 15 of the NDPS Act 2019 8,15,25,29 of the NDPS Act Police Station Maqsudan, Jalandhar Samba, J&K. 3. The facts and allegations are taken from the reply dated 26-11-2024, filed by the concerned SSP, which reads as follows: “FIR AGAINST ASHRAF HUSSAIN AND SADDAM HUSSAIN: 5. That FIR No. 9 dated 17.01.2022 was initially registered U/s 15 of NDPS Act, 1985 (to which offences punishable U/s 27 and 29 of NDPS Act, 1985 were added later on) at Police Station: Goraya, District Jalandhar (Rural) on the basis of a secret information SMRITI 2025.01.28 16:11 I attest to the accuracy and authenticity of this order/judgment 1 CRM-M-42140-2024 -2- received by ASI Harpreet Singh against two persons namely Ashraf Hussain (son of Abdul Rehman) and Saddam Hussain (son of Fateh Mohammad). The secret informer had disclosed that one truck bearing registration no. JK-13-G-1096, in which the abovesaid two persons are present, is coming from the Jalandhar side and going towards Ludhiana. The said persons are carrying poppy husk in their truck by hiding the same under the boxes containing apple for the purpose of selling it. The secret informer lastly stated that if barricading (nakabandi) is done, the said two persons along with the truck and poppy husk can be apprehended. Finding the information received reliable, ASI Harpreet Singh sent a ruqa through CT Rakesh Kumar and instant case FIR was registered U/s 15 of NDPS Act against Ashraf Hussain and Saddam Hussain. RECOVERY OF 400 KG OF POPPY HUSK: 6. That after laying down the barricading (nakabandi), as disclosed by the secret informer, one truck bearing registration no. JK-13-G- 1096 was seen coming which was stopped. On enquiry, the driver of the truck disclosed his name as Ashraf Hussain and the co- passenger disclosed his name as Saddam Hussain. ASI Harpreet Singh informed the apprehended persons about his name, rank and place of posting and said that he has suspicion that they are carrying intoxicant substance in their truck and as such, their search as well as search of the truck is to be conducted. Further, the apprehended persons were informed about their legal right to get the search conducted from a Magistrate or a Gazetted Officer upon which the apprehended persons stated that they want to get searched in the presence of a Gazetted Officer. Thereafter, a separate non-consent memo of accused Ashraf Hussain and Saddam Hussain was prepared and ASI Harpreet Singh informed the accused persons that he has already called Harneel Singh, PPS, DSP/Phillaur at the spot. After sometime, Harneel Singh, PPS, DSP/Phillaur reached the spot and informed accused persons about his name, rank and place of posting and said that he has suspicion that they are carrying intoxicant substance and as such, their search as well as search of the truck is to be conducted. Further, accused persons was informed about their legal right to get the search conducted from a Magistrate or some other Gazetted Officer upon which accused persons reposed faith upon Harneel Singh, PPS, DSP/Phillaur. Thereafter, on searching the truck, 16 bags each 2 SMRITI 2025.01.28 16:11 I attest to the accuracy and authenticity of this order/judgment CRM-M-42140-2024 -3- containing 25 kilograms of poppy husk (totalling to 400 kilograms) were recovered. A parcel of the recovered contraband was prepared and taken into police possession.” 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. 5. 6. The State’s counsel opposes bail and refers to the reply. Dealing in 400 kgs of poppy husk is a punishable offense under the NDPS Act in the following terms: Substance Name Quan(cid:22)ty detained Quan(cid:22)ty type Drug Quan(cid:9)ty in % to upper limit of Intermediate Poppy straw 400 Kg Commercial 800.00% Specified as small & Commercial in S.2(viia) & 2(xxiiia) NDPS Act, 1985 S.O.1055(E) 10/19/2001 110 Poppy straw No(cid:22)fica(cid:22)on No dated Sr. No. Common Name (Name of Narco(cid:22)c Drug and Psychotropic Substance (Interna(cid:22)onal non-proprietary name (INN) Other non-proprietary name Chemical Name Small Quan(cid:22)ty Commercial Quan(cid:22)ty ****** ****** 1000 Gram (i.e. equivalent to 1 Kg) 50000 Gram (i.e. equivalent to 50 Kg) 0 Declared as punishable under NDPS Act and as per schedule defined in S.2(xi) & 2(xxiii) NDPS Act, 1985 No(cid:22)fica(cid:22)on No dated Sr. No. Common Name (Name of Narco(cid:22)c Drug and Psychotropic Substance (Interna(cid:22)onal non-proprietary name (INN) Other non-proprietary name Chemical Name S.15 & S.2(xviii) NDPS Act, S.O.821(E) 11/14/1985 S.2(xviii) ****** ****** S.2(xviii) “poppy straw” means all parts (except the seeds) of the opium poppy a9er harves(cid:22)ng whether in their original form or cut, crushed or powdered and whether or not juice has been extracted therefrom; S. 2(viiib)] “illicit traffic”, in rela(cid:22)on to narco(cid:22)c drugs and psychotropic substances, means— SMRITI 2025.01.28 16:11 I attest to the accuracy and authenticity of this order/judgment 3 CRM-M-42140-2024 -4- (i) cul(cid:22)va(cid:22)ng any coca plant or gathering any por(cid:22)on of coca plant; (ii) cul(cid:22)va(cid:22)ng the opium poppy or any cannabis plant; (iii) engaging in the produc(cid:22)on, manufacture, possession, sale, purchase, transporta(cid:22)on, warehousing, concealment, use or consump(cid:22)on, import inter-State, export inter-State, import into India, export from India or transhipment, of narco(cid:22)c drugs or psychotropic substances; S.2 (xvii) “opium poppy” means— (a) the plant of the species Papaver somniferum L; and (b) the plant of any other species of Papaver from which opium or any phenanthrene alkaloid can be extracted and which the Central Government may, by no(cid:22)fica(cid:22)on in the Official GazeCe, declare to be opium poppy for the purposes of this Act; S2. (xviii) “poppy straw” means all parts (except the seeds) of the opium poppy a9er harves(cid:22)ng whether in their original form or cut, crushed or powdered and whether or not juice has been extracted therefrom; 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 4 SMRITI 2025.01.28 16:11 I attest to the accuracy and authenticity of this order/judgment CRM-M-42140-2024 -5- 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 petition, which is taken from the reply dated 26-11-2024, filed by SSP Jalandhar, which reads as follows: “PETITIONER NOMINATED AS AN ACCUSED: 8.That during interrogation, on 20.01.2022, accused Ashraf Hussain and Saddam Hussain suffered their respective disclosure statements wherein they stated that the petitioner had given them 400 kilograms of poppy husk and the petitioner had also helped them in loading the 16 bags of poppy husk in the truck bearing registration no. JK-13-G-1096. Further, accused Ashraf Hussain and Saddam Hussain had disclosed that the petitioner had told them to call on mobile no. 89685-XXXXX and deliver the contraband as per the directions of the person who they talk on mobile no. 89685-XXXXX.Thus, offence U/s 29 of NDPS Act was added and petitioner Rashid Hussain Thoker was nominated as an accused in the instant case. On 29.06.2022 was brought on production warrant and arrested in the instant case. 9. That during investigation, it came to light that mobile no. 89685- XXXXX stands registered in the name of Rukmadeen (son of Deen Mohammad). The said Rukmadeen was joined in investigation and he stated that though the said mobile number is registered in his name, however it is used by his brother Ayub. Thus, vide G.D No. 25 dated 27.03.2022, Ayub was nominated as an accused in the instant case. ROLE OF THE PETITIONER AND EVIDENCE AGAINST HIM: 10. That the petitioner was nominated as an accused in the instant case on the basis of a disclosure statement suffered by accused Ashraf Hussain and Saddam Hussain wherein they stated that the petitioner had given them 400 kilograms of poppy husk and the petitioner had also helped them in loading the 16 bags of poppy husk in the truck bearing registration no. JK-13-G-1096. Further, accused Ashraf Hussain and Saddam Hussain had disclosed that the petitioner had told them to call on mobile no. 89685-XXXXX and deliver the contraband as per the directions of the person who they talk on mobile no.89685-XXXXX (later on, identified as SMRITI 2025.01.28 16:11 I attest to the accuracy and authenticity of this order/judgment Ayub Mohammad)” 5 CRM-M-42140-2024 -6- 10. The evidence collected against the petitioner is that the co-accused Ashraf Hussain and Saddam Hussain confessed to the investigator that the petitioner had told them to call on mobile no. 89685-XXXXX and deliver the contraband as per the directions of the person who takes the call on this mobile number. The mobile number was found to be registered in the name of one Rukamdeen, who admitted that the mobile number was registered in his name, but his brother Ayub used it. After that, Ayub was also arraigned as an accused. Thus, the evidence collected so far against the petitioner consists of disclosure statements without any discovery of fact, and its admissibility is subject to the rigors of Ss. 25 and 26 of the Indian Evidence Act, 1872. 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 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. 13. 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. 14.
Legal Reasoning
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. Given the penal provisions invoked, the quality of evidence, coupled with the prima facie analysis of the nature of allegations and the other factors peculiar to this case, further pre- trial incarceration at this stage would be unjustifiable. 15. 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- SMRITI 2025.01.28 16:11 I attest to the accuracy and authenticity of this order/judgment 6 CRM-M-42140-2024 -7- accused with a higher role. 16. 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 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. 21. Given the background of allegations against the petitioner, it becomes paramount to protect the 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 SMRITI 2025.01.28 16:11 I attest to the accuracy and authenticity of this order/judgment 7 CRM-M-42140-2024 -8- 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 shall 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 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. (ANOOP CHITKARA) JUDGE 27.01, 2025 smriti Whether speaking/reasoned: Yes No. Whether reportable: SMRITI 2025.01.28 16:11 I attest to the accuracy and authenticity of this order/judgment 8