The High Court
Case Details
CRM-M-48341-2024 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CRM-M-48341-2024 Reserved on: 03.02.2025 Pronounced on: 07.02.2025 Ishwar @ Billa ...Pe(cid:15)(cid:15)oner Versus State of Haryana …Respondent CORAM: HON'BLE MR. JUSTICE ANOOP CHITKARA Present: Mr. Harjinder Singh, Advocate for the pe(cid:15)(cid:15)oner. Mr. Aashish Bishnoi, D.A.G., Haryana. ANOOP CHITKARA, J. ****
Facts
FIR No. Dated Police Sta1on Sec1ons 649 14.07.2023 Samalkha, District Panipat 22-C & 29 of NDPS Act 1. The pe(cid:15)(cid:15)oner incarcerated in the FIR cap(cid:15)oned above had come up before this Court under Sec(cid:15)on 483 of Bhara(cid:15)ya Nagarik Suraksha Sanhita, 2023, [BNSS], seeking regular bail. 2. In paragraph 14 of the bail applica(cid:15)on, the accused declares that he has no criminal antecedents. 3. The facts and allega(cid:15)ons are taken from the status report filed by the State. On 14.07.2023, based on prior informa(cid:15)on, the Police seized 350 injec(cid:15)ons, i.e. 200 vials of injec(cid:15)ons branded Buprenorphine IP and 150 vials of injec(cid:15)ons branded Pheniramine Maleate Avil from the pe(cid:15)(cid:15)oner’s possession. In his disclosure statement pe(cid:15)(cid:15)oner stated that he had purchased the recovered injec(cid:15)ons from Shahnu @ Anup @ Shahanavaj in exchange of Rs. 25,000/-. The Inves(cid:15)gator claims to have complied with all the statutory requirements of the NDPS Act, 1985, and BNSS, 2023. 4. The pe(cid:15)(cid:15)oner's counsel submits that as per the provisions of NDPS Act, no offer was made to the pe(cid:15)(cid:15)oner to get the search conducted through GazeFed Officer or from any Magistrate and no independent witness was joined during the search of the pe(cid:15)(cid:15)oner. He further submits that the alleged contraband was not recovered from the conscious possession of the pe(cid:15)(cid:15)oner. As per the FIR, the alleged recovery was effected from the ground. Moreover, the pe(cid:15)(cid:15)oner is not involved in any other case under the JYOTI 2025.02.07 15:14 I attest to the accuracy and integrity of this order/judgment. 1 CRM-M-48341-2024 NDPS Act. 5. The pe(cid:15)(cid:15)oner's counsel prays for bail by imposing any stringent condi(cid:15)ons and contends that further pre-trial incarcera(cid:15)on would cause an irreversible injus(cid:15)ce to the pe(cid:15)(cid:15)oner and his family. 6. 7. The State’s counsel opposes bail and refers to the status report. It would be appropriate to refer to paras 5 and 6 of the status report, which reads as follows: “5. That the role of the pe(cid:15)(cid:15)oner Ishwar @ Billa is that he was found to be in conscious possession of total of 350 injec(cid:15)ons, i.e. two hundreds vials of injec(cid:15)ons branded Buprenorphine IP (2 ml each) and one hundred fi&y vials of injec(cid:15)ons branded Pheniramine Maleate Avil (10 ml each). He brought it from co-accused Shahnawaj @ Sahnu @ Anup for Rs.25,000/-. The pe(cid:15)(cid:15)oner has also confessed to his role in crime in his disclosure statement Annexure R-1. 6. That the recovered substance 400 ml of buprenorphine falls under the category of commercial quan(cid:15)ty as per item No.169 of schedule a7ached with NDPS Act. It is per(cid:15)nent to men(cid:15)on here that as per item No.169 commercial quan(cid:15)ty of Buprenorphine is 20 g i.e. 20 ml. Hence, Sec(cid:15)on 37 of NDPS Act is also a7racted in this case.” 8. As per FSL report, the average weight of Buprenorphine is 420 ml and it contained Buprenorphine and Pheniramine. REASONING: 9. The quan(cid:15)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:15)(cid:15)oner must sa(cid:15)sfy the twin condi(cid:15)ons put in place by the Legislature under Sec(cid:15)on 37 of the NDPS Act. 10. Given this, the criminal antecedents are also not legal grounds for denying the rigors of S. 37 of the NDPS Act at this stage. 11. However, the pe(cid:15)(cid:15)oner is en(cid:15)tled to bail because Hon’ble Supreme Court had granted bail on prolonged custody in the following judicial precedents: 1) In Junaid Alam v. State of UFarakhand, decided on 12 Aug 2024, SLP(Crl.) 7708-2024, Hon’ble Supreme Court holds, [2]. It is pointed out that the pe(cid:15)(cid:15)oner has been in custody for last more than 18 months since he was arrested on 25.01.2023. It 2 JYOTI 2025.02.07 15:14 I attest to the accuracy and integrity of this order/judgment. CRM-M-48341-2024 is then submiFed that only 3 out of the 10 cited prosecu(cid:15)on witnesses have been examined and they have not said anything to connect the pe(cid:15)(cid:15)oner with the crime. [3]. The learned counsel for the State would submit that the concerned Contraband are medicinal drugs but they are sold for profit. Moreover, it is of commercial quan(cid:15)ty. [4]. We have perused the nature of the Contraband i.e., the prohibited medicines (SYP Codectus 100 BoFles (100 Ml each), Cap Pyeevon Spas Plus 720 Cap Parvion Spas 800 Capsules, Spasonof NF 960 capsules, Capsules Spasmoproxyvon Plus 144, Proxywell Spas 2568 Capsules, Alprasafe Table 600 Tablets, Pyeevon Spas Plus 32 Capsules).
Legal Reasoning
[5]. Having considered the above and the fact that the trial is unlikely to conclude on a near date, we are of the view that the pe(cid:15)(cid:15)oner – Junaid Alam deserves to be granted bail. It is ordered accordingly. Appropriate bail condi(cid:15)ons be imposed by the trial court. 12. The prolonged incarcera(cid:15)on, generally militates against the most precious fundamental right guaranteed under Ar(cid:15)cle 21 of the Cons(cid:15)tu(cid:15)on and in such a situa(cid:15)on, the condi(cid:15)onal liberty must override the statutory embargo created under Sec(cid:15)on 37(1)(b)(ii) of the NDPS Act1. 13. In Tajmul SK v. The State of West Bengal, decided on 23 Jul 2024, CrA 3047-2024, Hon’ble Supreme Court holds, [5]. We are inclined to set aside the impugned order only on the premise that right to speedy trial is a fundamental right. Despite the fact that the appellant has been under incarcera(cid:15)on for more than one and a half years, the trial is yet to start, though, it is submiFed by learned counsel appearing for the State that charges have been framed. Suffice it is to state that trial would take considerable length of (cid:15)me. There is no antecedent involving the appellant. [6]. Accordingly, the impugned order is set aside and the appellant is granted bail, subject to the condi(cid:15)ons that may be imposed by the Trial Court. 14. Given the above, the pe(cid:15)(cid:15)oner’s pretrial custody is more than some of the judicial precedents men(cid:15)oned above; the pe(cid:15)(cid:15)oner is en(cid:15)tled to bail under Ar(cid:15)cle 14 of the Cons(cid:15)tu(cid:15)on of India. 15. As per the custody cer(cid:15)ficate dated 31.01.2025, the pe(cid:15)(cid:15)oner's custody in this FIR is of one year, four months and seventeen days. Given the drugs were medicines that aFracted viola(cid:15)on of S. 22 of NDPS Act, viz-a-viz pre-trial custody, coupled with the 1 Supreme Court of India, in Rabi Prakash v. The State of Odisha, SLP (Crl) 4169-2023, Para 4, decided on 13 July 2023 JYOTI 2025.02.07 15:14 I attest to the accuracy and integrity of this order/judgment. 3 CRM-M-48341-2024 primafacie analysis of the nature of allega(cid:15)ons and the other factors peculiar to this case, there would be no jus(cid:15)fiability of further pre-trial incarcera(cid:15)on at this stage. 16. Without commen(cid:15)ng on the case's merits, in the facts and circumstances peculiar to this case, and for the reasons men(cid:15)oned above, the pe(cid:15)(cid:15)oner makes a case for bail. This order shall come into force from the (cid:15)me it is uploaded on this Court's official webpage. CONDITIONS: 17. Given above, provided the pe(cid:15)(cid:15)oner is not required in any other case, the pe(cid:15)(cid:15)oner shall be released on bail in the FIR cap(cid:15)oned above subject to furnishing bonds to the sa(cid:15)sfac(cid:15)on of the concerned Court and due to unavailability before any nearest Ilaqa Magistrate/duty Magistrate. Before accep(cid:15)ng the surety, the concerned Court must be sa(cid:15)sfied that if the accused fails to appear, such surety can produce the accused. 18. While furnishing a personal bond, the pe(cid:15)(cid:15)oner shall men(cid:15)on the following personal iden(cid:15)fica(cid:15)on details: 1. AADHAR number 2. Passport number (If available) and when the aFes(cid:15)ng officer/court considers it appropriate or considers the accused a flight risk. 3. Mobile number (If available) E-Mail id (If available) 4. 19. This order is subject to the pe(cid:15)(cid:15)oner’s complying with the following terms. 20. The pe(cid:15)(cid:15)oner shall abide by all statutory bond condi(cid:15)ons and appear before the concerned Court(s) on all dates. The pe(cid:15)(cid:15)oner 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 allega(cid:15)ons against the pe(cid:15)(cid:15)oner, it becomes paramount to protect the members of society, and incapacita(cid:15)ng the accused would be one of the primary op(cid:15)ons un(cid:15)l the filing of the closure report or discharge, or acquiFal. Consequently, it would be appropriate to restrict the possession of firearms. [This restric(cid:15)on 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 sanc(cid:15)on]. Given the nature of the allega(cid:15)ons and the JYOTI 2025.02.07 15:14 I attest to the accuracy and integrity of this order/judgment. 4 CRM-M-48341-2024 other circumstances peculiar to this case, the pe(cid:15)(cid:15)oner shall surrender all weapons, firearms, and ammuni(cid:15)on, if any, along with the arms license to the concerned authority within fiTeen days of release from prison and inform the Inves(cid:15)gator of the compliance. However, subject to the Indian Arms Act, 1959, the pe(cid:15)(cid:15)oner shall be en(cid:15)tled to renew and reclaim them in case of acquiFal in this case, provided otherwise permissible under the concerned rules. Restric(cid:15)ng firearms would ins(cid:15)ll confidence in the vic(cid:15)m(s), their families, and society; it would also restrain the accused from influencing the witnesses and repea(cid:15)ng the offense. 22. The condi(cid:15)ons men(cid:15)oned 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 Pe(cid:15)(cid:15)on (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 condi(cid:15)ons imposed by the Court must not only have a nexus to the purpose that they seek to serve but must also be propor(cid:15)onal to the purpose of imposing them. The courts, while imposing bail condi(cid:15)ons must balance the liberty of the accused and the necessity of a fair trial. While doing so, condi(cid:15)ons that would result in the depriva(cid:15)on of rights and liber(cid:15)es 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 pe(cid:15)(cid:15)oner is found involved in such like offence in future, the concession of bail granted to him today will liable to be withdrawn and the pe(cid:15)(cid:15)oner is bound to face the necessary consequences.” 24. This bail is condi(cid:13)onal, and the founda(cid:13)onal condi(cid:13)on is that if the pe(cid:13)(cid:13)oner indulges in any non-bailable offense, the State shall file an applica(cid:13)on for cancella(cid:13)on of this bail before the Trial Court, which shall be at liberty to cancel this bail. 25. The concerned trial court is authorized to delete, modify, or relax any of the above condi(cid:15)ons and shall be competent to do so in accordance with the law. 26. Any observa(cid:15)on made hereinabove is neither an expression of opinion on the case's merits nor shall the trial Court advert to these comments. 27. A cer(cid:15)fied copy of this order would not be needed for furnishing bonds, and any Advocate for the Pe(cid:15)(cid:15)oner can download this order along with case status from the official web page of this Court and aFest it to be a true copy. If the aFes(cid:15)ng officer wants to verify its authen(cid:15)city, such an officer can also verify its authen(cid:15)city and may JYOTI 2025.02.07 15:14 I attest to the accuracy and integrity of this order/judgment. 5 CRM-M-48341-2024 download and use the downloaded copy for aFes(cid:15)ng bonds. 28. Pe11on allowed in terms men(cid:15)oned above. All pending applica(cid:15)ons, if any,
Decision
stand disposed of. 07.02.2025 Jyo(cid:15)-II Whether speaking/reasoned: Whether reportable: Yes No. (ANOOP CHITKARA) JUDGE JYOTI 2025.02.07 15:14 I attest to the accuracy and integrity of this order/judgment. 6