Bahadar Khan v. State of Punjab
Case Details
CRM-M-44576-2025 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CRM-M-44576-2025 Reserved on: 10.09.2025 Pronounced on: 25.09.2025 Bahadar Khan ...Petitioner Versus State of Punjab …Respondent CORAM: HON'BLE MR. JUSTICE ANOOP CHITKARA Present: Mr. S.S. Sarwara, Advocate and Ms. Gurpreet Kaur, Advocate for the petitioner. Mr. Jasdev Singh Thind, D.A.G., Punjab. **** ANOOP CHITKARA, J. FIR No. 23 Dated 08.03.2025 Police Station Badali Ala Singh, District Fatehgarh Sahib Sections 21, 29/61/85 of NDPS Act and 111 BNS 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. Per paragraph 9 of the bail application, the petitioner has the following criminal antecedents: Sr. No. 1. 2.
Facts
FIR No. 05 80 Offenses Date 13.01.2018 22 of NDPS Act 26.06.2024 22 of NDPS Act Police Station GRP Patiala Fatehgarh Sahib 3. The facts and allegations are taken from the status report filed by the State. On 08- 03-2025, based chance recovery, the Police had seized 5 grams heroin each from the personal possession of two persons, namely Manmohan Singh and Amrik Singh. The Investigator claims to have complied with all the statutory requirements of the NDPS Act, 1985, and CrPC, 1973. 4. It would be appropriate to refer to the evidence collected against the petitioner, which is taken from the status report, and para 5(ii) (iii), which reads as follows: “5 (ii) During the investigation, on 10-03-2025, the accused Manmohan Singh disclosed that he and Amrik Singh are habitual of consuming Heroin and other Medical drugs and they used to obtain the said intoxicant substances from Bahadar Khan (present petitioner), as he used to sell and consume the intoxicant substances. He further disclosed that the recovered contraband was also obtained 1 Jyoti Sharma 2025.09.25 17:41 I attest to the accuracy and authenticity of this order/judgment High Court, Sector 1, Chandigarh CRM-M-44576-2025 from the Bahadar Khan (present petitioner), to whom they can get arrested. This statement was recorded U/s 23 (2) BSA. Accordingly, the present petitioner Bahadar Khan, was nominated and section 29 NDPS Act was added on 10-03-2025. (iii) That thereafter, on 10-03-2025, the accused Bahadar Khan (present petitioner) was arrested and 110 intoxicant tablets were recovered from him.” 5. The status report filed by the police reveals that initial investigation arraigned the petitioner as an accused based on the disclosure statement of the main accused, from whose possession the investigator recovered the heroin and upon arrest of the petitioner, 110 tablets of Diphenoxylate were recovered from him. 6. 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. 7. The petitioner’s counsel 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. 8. 9. The State’s counsel opposes bail and refers to the status report. As per paragraph 10A of the status report, the first contraband recovered from the main accused was 5 grams each, total 10 grams, which as per their disclosure statements was sold by the petitioner, and as such he was arraigned as an accused under section 29 of the NDPS Act; and later on from the petitioner’s search police had recovered 10.45 grams of Diphenoxylate Hydrochloride. 10. Dealing in 10 grams of heroin in contravention of the NDPS Act, 1985, constitutes an offense under the following provisions and notifications: Substance Name Quantity detained Punishable U/s Quantity type Heroin/ Chitta/ Smack/ Brown Sugar/ Diacetylmorphine 10 Gram S.21(b) of NDPS Act, 1985 Intermediate Jyoti Sharma 2025.09.25 17:41 I attest to the accuracy and authenticity of this order/judgment High Court, Sector 1, Chandigarh 2 CRM-M-44576-2025 Drug Quantity in % to upper limit of Intermediate 4.00% Drug's Small & Commercial Qty. suggested by Committee report Notification No. & date Expert Committee Report dated 24.03.1995 & 23.08.2001 (Small and Commercial) Specified as small & Commercial in S.2(viia) & 2(xxiiia) NDPS Act, 1985 Notification No. & dated S.O.1055(E) 10/19/2001 Sr. No. Common Name (Name of Narcotic Drug and Psychotropic Substance (International non-proprietary name (INN) Other non-proprietary name Chemical Name Small Quantity Commercial Quantity 56 Heroin ****** Diacetylmorphine < 5 Gram > 250 Gram 0 Declared as punishable under NDPS Act and as per schedule defined in S.2(xi) & 2(xxiii) NDPS Act, 1985 Notification No. & dated S.(xvi)(d) NDPS Act, 1985 (61 of 1985), S.O. 821 (E) 11/14/1985 Sr. No. Common Name (Name of Narcotic Drug and Psychotropic Substance (International non-proprietary name (INN) Other non-proprietary name Chemical Name Jyoti Sharma 2025.09.25 17:41 I attest to the accuracy and authenticity of this order/judgment High Court, Sector 1, Chandigarh 2(xvi)(d) ****** ****** 2(xvi)(d) diacetylmorphine, that is, the alkaloid also known as dia-morphine or heroin and its salts; Explanation.-- For the purposes of clauses (v) (vi), (xv) and (xvi) the percentages in the case of liquid preparations shall be calculated on the basis that a preparation containing one per cent. of a substance means a preparation in 3 CRM-M-44576-2025 which one gram of substance, if solid, or one mililitre of substance, if liquid, is contained in every one hundred mililitre of the preparation and so on in proportion for any greater or less percentage: Provided that the Central Government may, having regard to the developments in the field of methods of calculating percentages in liquid preparations prescribed, by rules, any other basis which it may deem appropriate for such calculation. 11. Dealing in 10.45 Grams diphenoxylate in contravention of the NDPS Act, 1985, constitutes an offense under the following provisions and notifications: Substance Name Quantity detained Punishable U/s Quantity type Drug Quantity in % to upper limit of Intermediate Diphenoxylate 10.45 Gram S.21(b) of NDPS Act, 1985 Intermediate 20.90% Drug's Small & Commercial Qty. suggested by Committee report Notification No. & date Expert Committee Report dated 24.03.1995 & 23.08.2001 (Small and Commercial) Specified as small & Commercial in S.2(viia) & 2(xxiiia) NDPS Act, 1985 Notification No. & dated S.O.1055(E) 10/19/2001 Sr. No. 44 Common Name (Name of Narcotic Drug and Psychotropic Substance (International non-proprietary name (INN) Diphenoxylate Other non-proprietary name Chemical Name Small Quantity Commercial Quantity ****** 1-(3-cyano-3,3-diphenyIpropyI)-4- phenylpiperidine-4-carboxylic acid ethyl ester < 2 Gram > 50 Gram Jyoti Sharma 2025.09.25 17:41 I attest to the accuracy and authenticity of this order/judgment High Court, Sector 1, Chandigarh 0 4 CRM-M-44576-2025 Declared as punishable under NDPS Act and as per schedule defined in S.2(xi) & 2(xxiii) NDPS Act, 1985 Notification No. & dated S.O.826(E) 11/14/1985 Sr. No. 58 Common Name (Name of Narcotic Drug and Psychotropic Substance (International non-proprietary name (INN) Other non-proprietary name Chemical Name DIPHENOXYLATE ****** Ethyl 1-(3-Cyano-3, 3-diphenyIpropyl)-4- phenylpiperidine-4-carboxylic acid ethyl ester (the international non-proprietary name of which is Diphenoxylate), and its salts, preparations, admixtures, extracts and other substances containing any of these drugs, except preparations of diphnoxylate containing, per dosage unit, not more than 2.5 mg. of diphenoxylate calculated as base, and a quantity of atrophine sulphate equivalent to at least one per cent of the dose of diphenoxylate. 12. Given this, the rigors of Section 37 of NDPS Act would not apply in the present case. 13. Section 2 (vii-a) of the NDPS Act defines commercial quantity as the quantity greater than the quantity specified in the schedule. Section 2 (xxiii-a) defines a small quantity as a quantity less than the quantity specified in the table of the NDPS Act. The remaining quantity falls in an undefined category, generally called an intermediate quantity. All sections in the NDPS Act specify an offence and mention the minimum and maximum sentence, depending upon the quantity of the substance. The commercial quantity mandates a minimum sentence of ten years of imprisonment and a minimum fine of Rupees One hundred thousand, and bail is subject to the riders mandated in S. 37 of the NDPS Act. When the quantity is less than commercial, the restrictions of Section 37 of the NDPS Act will not attract, and the factors for bail become similar to the offence regular statutes. 14. Per para 5(iii) of the reply the petitioner was arrested on 10-03-2025. 15. The petitioner is entitled to bail because when the quantity involved was either more or closer to the quantity seized in the present FIR, the Hon’ble Supreme Court has granted bail on prolonged custody in the following judicial precedent: Jyoti Sharma 2025.09.25 17:41 I attest to the accuracy and authenticity of this order/judgment High Court, Sector 1, Chandigarh 5 CRM-M-44576-2025 16. In Rajesh v. The State of Haryana, decided on 20-11-2024, SLP (Crl) 14037-2024, Hon’ble Supreme Court holds, The petitioner is an accused in a case bearing FIR No.67 dated 25.01.2024 registered with Police Station Majesar, District Faridabad, Haryana for the offences punishable under Section 20 of the Narcotic Drugs and Psychotropic Substances Act (hereinafter called “NDPS”) . The allegation against the petitioner is that there is a alleged recovery of 1.200 kgs of ganja (contraband article) from him. The bail application of the petitioner was dismissed by the High Court. He has already undergone about 10 months in jail. Being aggrieved, he approached this Court.
Legal Reasoning
Under these circumstances, considering the quantity of the contraband article and the period of incarceration of the petitioner, we are of the opinion that a case of bail is made out for the petitioner. 17. The law of bail, like any other branch of law, has its own philosophy, and occupies an important place in the administration of justice and the concept of bail emerges from the conflict between the police power to restrict liberty of a man who is alleged to have committed a crime, and presumption of innocence in favour of the alleged criminal.1In deciding bail applications an important factor which should certainly be taken into consideration by the Court is the delay in concluding the trial.—Often this takes several years, and if the accused is denied bail but is ultimately acquitted, who will restore so many years of his life spent in custody? —Is Article 21 of the Constitution, which is the most basic of all the fundamental rights in our Constitution, not violated in such a case? —Of course this is not the only factor, but it is certainly one of the important factors in deciding whether to grant bail.2 Personal liberty is a very precious fundamental right and it should be curtailed only when it becomes imperative according to the peculiar facts and circumstances of the case.3 Personal liberty deprived when bail is refused, is too precious a value of our constitutional system recognised under Art. 21 that the curial power to negate it is a great trust exercisable, not casually, but judicially with lively concern for the cost to the individual and the community.4 When the undertrial prisoners are detained in jail custody to an indefinite period, Article 21 of the Constitution is violated.5 1 Supreme Court of India in Vaman Narain Ghiya v. state of Rajasthan, [E-SCR] ; [2008] 17 SCR 369, Para 16, decided on 12.12.2008. 2Supreme Court of India in State of Kerala v. Raneef, SC 2J [E-SCR]; [2011] 1 SCR 590, Para 4, decided on 03.01.2011. 3 Supreme Court of India in Siddharam Satlingappa Mhetre v. State of Maharashtra, SC 2J [E-SCR], Paragraph 127, decided on 02.12.2010. 4 Supreme Court of India in Babu Singh & ors v. State of UP, [E-SCR] P. 777, decided on 31.01.1978. 5 Supreme Court of India in Sanjay Chandra v. CBI , [2011] 13 (ADDL.) S.C.R. 309, Para 26, [E-SCR], decided on 23.11.2011. Jyoti Sharma 2025.09.25 17:41 I attest to the accuracy and authenticity of this order/judgment High Court, Sector 1, Chandigarh 6 CRM-M-44576-2025 18. Given the 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 or duty Magistrate, with or without sureties, with a maximum bond amount not to exceed INR 10,000. 19. Before accepting the surety, the concerned Court must be satisfied that if the accused fails to appear, the surety is capable of producing the accused. However, instead of surety, the petitioner may provide a fixed deposit of INR 10,000/-, with a clause that the interest shall not be accumulated in FD, either drawn from a State-owned bank or any bank listed on the National Stock Exchange and/or Bombay Stock Exchange, in favour of the “Chief Judicial Magistrate” of the concerned Sessions Division; or a fixed deposit made in the name of the petitioner, with similar terms and with endorsement from the banker stating that the FD shall not be encumbered or redeemed without the permission of the concerned trial Court, or until the surety bond has been discharged. 20. 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) 21. This order is subject to the petitioner’s complying with the following terms. 22. 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. 23. 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 Jyoti Sharma 2025.09.25 17:41 I attest to the accuracy and authenticity of this order/judgment High Court, Sector 1, Chandigarh 7 CRM-M-44576-2025 and reclaim them in case of acquittal in this case, provided otherwise permissible under the concerned rules. Restricting firearms would instill confidence in society; it would also restrain the accused from influencing the witnesses and repeating the offense. 24. 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 the Hon’ble Supreme Court held 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.” 25. In Md. Tajiur Rahaman v. The State of West Bengal, decided on 08-Nov-2024, SLP (Crl) 12225-2024, the 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.” 26. The significant consideration for granting bail is that the Court aims to give the petitioner another chance to course-correct, reform, and reintegrate into the community as an ideal citizen. To ensure that the petitioner also abides by the assurance made on the petitioner’s behalf by not repeating the offence or indulging in any crime, it shall be desirable to impose the following additional condition. 27. This bail is conditional, with the foundational condition being that if the petitioner repeats the offense where the quantity involved is more than half of the intermediate, or commercial, or violates S. 19, 24, or 27-A of the NDPS Act, or commits any non-bailable offense which provides for a sentence of imprisonment for more than seven years, 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. 28. Any observation made hereinabove is neither an expression of opinion on the case's merits nor shall the trial Court advert to these comments. 29. It is clarified that this bail order shall not be considered as a blanket bail order in any other matter and is only limited to granting bail in the FIR mentioned above. 30. In Amit Rana v. State of Haryana, CRM-18469-2025 [in CRA-D-123-2020, decided on 05.08.2025], a Division Bench of Punjab and Haryana High Court in paragraph 13, holds that “To ensure that every person in judicial custody who has been Jyoti Sharma 2025.09.25 17:41 I attest to the accuracy and authenticity of this order/judgment High Court, Sector 1, Chandigarh 8 CRM-M-44576-2025 granted bail or whose sentence has been suspended gets back their liberty without any delay, it is appropriate that whenever the bail order or the orders of suspension of sentence are not immediately sent by the Registry, computer systems, or Public Prosecutor, then in such a situation, to facilitate the immediate restoration of the liberty granted by any Court, the downloaded copies of all such orders, subject to verification, must be accepted by the Court before whom the bail bonds are furnished.” 31. Petition allowed in terms mentioned above. All pending applications, if any, are
Arguments
Heard learned counsel for the petitioner and the respondent State. The bail has not been granted by the High Court only for the reason that the petitioner is a habitual offender. Although, the contention of the learned counsel for the petitioner is that out of four cases, there is only one case of NDPS against the petitioner and the remaining cases (three in number) relate to Excise Act and not of NDPS.
Decision
disposed of. 25.09.2025 Jyoti Sharma Whether speaking/reasoned: Yes No. Whether reportable: (ANOOP CHITKARA) JUDGE Jyoti Sharma 2025.09.25 17:41 I attest to the accuracy and authenticity of this order/judgment High Court, Sector 1, Chandigarh 9