The High Court
Case Details
CRM-M-57238-2024 237 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CRM-M-57238-2024 Date of Decision: 14.01.2025 Rajwinder Singh @ Gandhi ...Pe(cid:21)(cid:21)oner Versus State of Punjab …Respondent CORAM: HON'BLE MR. JUSTICE ANOOP CHITKARA Present: Mr. Vivek Salathia, Advocate, for the pe(cid:21)(cid:21)oner. Mr. Jasjit Singh, DAG, Punjab. ANOOP CHITKARA, J. **** FIR No. Dated Police Sta/on Sec/ons 0032 29.04.2024 Raja Sansi, Amritsar Rural District 21/29-A/61/85 of NDPS Act 1.
Legal Reasoning
The pe(cid:21)(cid:21)oner apprehending arrest in the FIR cap(cid:21)oned above has come up before this Court under Sec(cid:21)on 482 of Bhara(cid:21)ya Nagarik Suraksha Sanhita, 2023, [BNSS], seeking an(cid:21)cipatory bail. 2. As per paragraph 14 of the bail pe(cid:21)(cid:21)on, the accused has the following criminal antecedents: Sr. No. 1. 2. FIR No. 180 70 Year 2019 2018 Offenses 21/61/85 of NDPS Act 22/61/85 of NDPS Act Police Sta/on Sadar Amritsar Jhander Amritsar (R) 3. The facts and allega(cid:21)ons are taken from the reply filed by the State. On 29.04.2024, based on chance recovery, the Police seized 265 grams of heroin from the possession of main accused Mandeep Singh @ Love. The Inves(cid:21)gator claims to have complied with all the statutory requirements of the NDPS Act, 1985, and BNSS, 2023. 4. During the custodial interroga(cid:21)on, the co-accused named the pe(cid:21)(cid:21)oner as the seller of the drugs and based on this confession, the inves(cid:21)gator arraigned him as an accused. The pe(cid:21)(cid:21)oner approached the Sessions Court for an(cid:21)cipatory bail, which was surprisingly denied. 5. The pe(cid:21)(cid:21)oner's counsel prays for bail by imposing any stringent condi(cid:21)ons and contends that further pre-trial incarcera(cid:21)on would cause an irreversible injus(cid:21)ce to the JYOTI 2025.01.20 14:14 I attest to the accuracy and integrity of this order/judgment. 1 CRM-M-57238-2024 pe(cid:21)(cid:21)oner and his family. 6. 7. The State’s counsel opposes bail and refers to the reply. The quan(cid:21)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:21)(cid:21)oner must sa(cid:21)sfy the twin condi(cid:21)ons put in place by the Legislature under Sec(cid:21)on 37 of the NDPS Act. 8. It would be appropriate to refer to the following por(cid:21)ons of the reply, which read as follows: “3. That during his custodial interroga(cid:20)on, co-accused Mandeep Singh alias Love disclosed that he had purchased the aforesaid recovered 265 grams heroin from Rajwinder Singh alias Gandhi (pe(cid:20)(cid:20)oner) at the rate of Rs.1700/- per gram and he used to purchase heroin from the pe(cid:20)(cid:20)oner in the past. He further disclosed that he used to sell heroin at the rate of Rs.3000/- per gram. On the basis of the aforesaid statement, the pe(cid:20)(cid:20)oner was nominated in the present case and sec(cid:20)on 29-A NDPS Act was added vide G.D No.19 dated 02.05.2024. The true transla(cid:20)on of the disclosure statement of the co- accused Mandeep Singh is a4ached herewith for the kind perusal of this Hon'ble Court as ANNEXURE R-1/T. Role of the pe(cid:20)(cid:20)oner 4. That as per the prosecu(cid:20)on version, the pe(cid:20)(cid:20)oner is ac(cid:20)vely involve in selling heroin and the heroin which was recovered from the c accused Mandeep Singh alias Love falls within the ambit commercial category. Evidence against the pe(cid:20)(cid:20)oner 5. That it is humbly submi4ed that at present except the disclosure statement of the co-accused Mandeep Singh alias Love, there is no other evidence against the pe(cid:20)(cid:20)oner but the evidence rela(cid:20)ng to the involvement of the pe(cid:20)(cid:20)oner in selling heroin will be collected a=er the arrest of the pe(cid:20)(cid:20)oner.” 9. There is no other evidence against the pe(cid:21)(cid:21)oner except the disclosure statements, which are hit by Ss 25 and 26 of the Indian Evidence Act [Analogous to Ss. 23(1) and (2) of BSA, 202]. 10. For now, the pe(cid:21)(cid:21)oner has prima facie sa(cid:21)sfied the first condi(cid:21)on of sec(cid:21)on 37 of the NDPS Act to make a case for bail. Regarding the second rider of S. 37, this court will put very stringent condi(cid:21)ons in this order to ensure that the pe(cid:21)(cid:21)oner does not repeat the offense. JYOTI 2025.01.20 14:14 I attest to the accuracy and integrity of this order/judgment. 2 CRM-M-57238-2024 11. 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 condi(cid:21)ons need to be sa(cid:21)sfied before a person accused of possessing a commercial quan(cid:21)ty of drugs or psychotropic substance is to be released on bail. The first condi(cid:21)on is to provide an opportunity to the Public Prosecutor, enabling to take a stand on the bail applica(cid:21)on. The second s(cid:21)pula(cid:21)on is that the Court must be sa(cid:21)sfied 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 condi(cid:21)ons is not met, the ban on gran(cid:21)ng bail operates. The expression “reasonable grounds” means something more than prima facie grounds. It contemplates substan(cid:21)al probable causes for believing that the accused is not guilty of the alleged offence. Even on fulfilling one of the condi(cid:21)ons, the reasonable grounds for believing that the accused is not guilty of such an offence, the Court s(cid:21)ll 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 quan(cid:21)ty would vary from case to case, depending upon its facts. [30]. From the summary of the law rela(cid:21)ng to rigors of S.37 of NDPS Act, while gran(cid:21)ng bail involving commercial quan(cid:21)(cid:21)es, the following fundamental principles emerge: (a). In case of inconsistency, S. 37 of the NDPS Act prevails over S. 439 CrPC. [Narco(cid:21)cs Control Bureau v Kishan Lal, 1991 (1) SCC 705, Para 6]. The limita(cid:21)ons on gran(cid:21)ng of bail come in only when the (b). ques(cid:21)on of gran(cid:21)ng bail arises on merits. [Customs, New Delhi v. AhmadalievaNodira, (2004) 3 SCC 549, Para 7]. The provisions of Sec(cid:21)on 37 of the NDPS Act provide the (c). 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]. (d). In case the Court proposes to grant bail, two condi(cid:21)ons are to be mandatorily sa(cid:21)sfied in addi(cid:21)on to the standard requirements under the provisions of the CrPC or any other enactment. [Union of India v. Niyazuddin SK &Anr, 2017:INSC:686 [Para 7], (2018) 13 SCC 738, Para 7]. (e). Apart from gran(cid:21)ng opportunity to the Public Prosecutor, the other twin condi(cid:21)ons which really have relevance are the Court's sa(cid:21)sfac(cid:21)on 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]. The sa(cid:21)sfac(cid:21)on contemplated regarding the accused (f). being not guilty has to be more than prima facie grounds, considering substan(cid:21)al probable causes for believing and jus(cid:21)fying that the accused is not guilty of the alleged offence. [Customs, New Delhi v. Ahmadalieva Nodira, (2004) 3 SCC 549, Para 7]. JYOTI 2025.01.20 14:14 I attest to the accuracy and integrity of this order/judgment. 3 CRM-M-57238-2024 (g). The reasonable belief contemplated in the provision requires existence of such facts and circumstances as are sufficient in themselves to jus(cid:21)fy sa(cid:21)sfac(cid:21)on 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]. Twin condi(cid:21)ons of S. 37 are cumula(cid:21)ve and not (h). alterna(cid:21)ve. [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 me(cid:21)culously to arrive at a posi(cid:21)ve finding as to whether or not the accused has commiPed an offence under the NDPS Act and further that he is not likely to commit an offence under the said Act while on bail. [Union of India v. RaPan Mallik @ Habul, (2009) 2 SCC 624, Para 14]. (j). If the statements of the prosecu(cid:21)on witnesses are believed, then they would not result in a convic(cid:21)on. [Babua v. State of Orissa, (2001) 2 SCC 566, Para 3]. (k). Merely recording the submissions of the par(cid:21)es does not amount to an indica(cid:21)on of a judicial mind or a judicious applica(cid:21)on of mind. [UOI v. Prateek Shukla, 2021:INSC:165 [Para 11], (2021) 5 SCC 430, Para 12]. (l). Sec(cid:21)on 37 departs from the long-established principle of presump(cid:21)on of innocence in favour of an accused person un(cid:21)l proved otherwise. [Union of India v. Sanjeev v. Deshpande, (2014) 13 SCC 1, Para 5]. (m). While considering the applica(cid:21)on for bail concerning Sec(cid:21)on 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 Sec(cid:21)on 67 of the NDPS Act is inadmissible in the trial of an offence under the NDPS Act. [Tofan Singh v. State of Tamil Nadu, 2020:INSC:620, (2021) 4 SCC 1] In the absence of clarity on the quan(cid:21)ta(cid:21)ve analysis of the (o). samples from the laboratory, the prosecu(cid:21)on cannot be heard to state at this preliminary stage that the accused possessed a quan(cid:21)ty of psychotropic substances as commercial 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 quan(cid:21)ty of psychotropic substances, such accused is not en(cid:21)tled to bail given Sec(cid:21)on 37 of the Act as contemplated under the NDPS Act. [State by (NCB) Bengaluru v. Pallulabid Ahmad ArimuPa, 2022:INSC:26 [Para 11], 2022 SCC OnLine SC 47, Para 12]. JYOTI 2025.01.20 14:14 I attest to the accuracy and integrity of this order/judgment. 4 CRM-M-57238-2024 (p). Bail must be subject to stringent condi(cid:21)ons. [Sujit Tiwari v. State of Gujarat, 2020:INSC:101 [Para 12], 2020 SCC Online SC 84, Para 12]. [31]. Sa(cid:21)sfying the fePers of S. 37 of the NDPS Act is candling the infer(cid:21)le eggs. The stringent condi(cid:21)ons of sec(cid:21)on 37 placed in the statute by the legislature do not create a bar for bail for specified categories, including the commercial quan(cid:21)ty; 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 pe(cid:21)(cid:21)ons under general penal statutes like IPC. 12. The inves(cid:21)ga(cid:21)on indicates that the pe(cid:21)(cid:21)oner is not the main accused, so the pe(cid:21)(cid:21)oner's bail shall not be treated as a precedent for gran(cid:21)ng bail to the other co- accused with a higher role. 13. A primafacie analysis of the nature of allega(cid:21)ons and the other factors peculiar to this case, there would be no jus(cid:21)fiability for custodial interroga(cid:21)on or the pre-trial incarcera(cid:21)on at this stage. Without commen(cid:21)ng on the case's merits, in the facts and circumstances peculiar to this case, and for the reasons men(cid:21)oned above, the pe(cid:21)(cid:21)oner makes a case for an(cid:21)cipatory bail. 14. Given above, provided the pe(cid:21)(cid:21)oner is not required in any other case, the pe(cid:21)(cid:21)oner shall be released on bail in the FIR cap(cid:21)oned above subject to furnishing bonds to the sa(cid:21)sfac(cid:21)on of the Arres(cid:21)ng Officer, and if the maPer is before a Court, then the concerned Court and due to unavailability before any nearest Ilaqa Magistrate/duty Magistrate. Before accep(cid:21)ng the surety, the concerned Officer/Court must be sa(cid:21)sfied that if the accused fails to appear, such surety can produce the accused. 15. While furnishing a personal bond, the pe(cid:21)(cid:21)oner shall men(cid:21)on the following personal iden(cid:21)fica(cid:21)on details: 1. AADHAR number 2. Passport number (If available) and when the aPes(cid:21)ng officer/court considers it appropriate or considers the accused a flight risk. 3. Mobile number (If available) E-Mail id (If available) 4. 16.
Legal Reasoning
This order is subject to the pe(cid:21)(cid:21)oner’s complying with the following terms. 17. The pe(cid:20)(cid:20)oner is directed to join the inves(cid:20)ga(cid:20)on within seven days of uploading this order on the official webpage of the High Court of Punjab and Haryana and as and when called by the Inves(cid:20)gator. The pe(cid:21)(cid:21)oner shall be in deemed custody for Sec(cid:21)on 27 of the Indian Evidence Act. The pe(cid:21)(cid:21)oner shall join the inves(cid:21)ga(cid:21)on as and when JYOTI 2025.01.20 14:14 I attest to the accuracy and integrity of this order/judgment. 5 CRM-M-57238-2024 called by the Inves(cid:21)ga(cid:21)ng Officer or any Superior Officer and shall cooperate with the inves(cid:21)ga(cid:21)on at all further stages as required. In the event of failure to do so, the prosecu(cid:21)on will be open to seeking cancella(cid:21)on of the bail. During the inves(cid:21)ga(cid:21)on, the pe(cid:21)(cid:21)oner shall not be subjected to third-degree, indecent language, inhuman treatment, etc. 18. The pe(cid:21)(cid:21)oner shall abide by all statutory bond condi(cid:21)ons and appear before the concerned Court(s) on all dates. The pe(cid:21)(cid:21)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. 19. Given the background of allega(cid:21)ons against the pe(cid:21)(cid:21)oner, it becomes paramount to protect the drug detec(cid:21)on squad, their family members, as well as the members of society, and incapacita(cid:21)ng the accused would be one of the primary op(cid:21)ons un(cid:21)l the filing of the closure report or discharge, or acquiPal. Consequently, it would be appropriate to restrict the possession of firearm(s). [This restric(cid:21)on is being imposed based on the preponderance of evidence of probability and not of evidence of certainty, i.e., beyond reasonable doubt; and as such, it is not to be construed as an intermediate sanc(cid:21)on]. Given the nature of the allega(cid:21)ons and the other circumstances peculiar to this case, the pe(cid:21)(cid:21)oner shall surrender all weapons, firearms, and ammuni(cid:21)on, if any, along with the arms license to the concerned authority within fiTeen days from release from prison and inform the Inves(cid:21)gator about the compliance. However, subject to the Indian Arms Act, 1959, the pe(cid:21)(cid:21)oner shall be en(cid:21)tled to renew and take it back in case of acquiPal in this case, provided otherwise permissible in the concerned rules. Restric(cid:21)ng firearms would ins(cid:21)ll confidence in the vic(cid:21)m(s), their families, and society; it would also restrain the accused from influencing the witnesses and repea(cid:21)ng the offense. 20. The condi(cid:21)ons men(cid:21)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:21)(cid:21)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:21)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:21)onal to the purpose of imposing them. The courts, while imposing bail condi(cid:21)ons must balance the liberty of the accused and the necessity of a fair trial. While doing so, condi(cid:21)ons that would result in the depriva(cid:21)on of rights and liber(cid:21)es must be JYOTI 2025.01.20 14:14 I attest to the accuracy and integrity of this order/judgment. 6 CRM-M-57238-2024 eschewed.” 21. In case the Inves(cid:21)gator/Officer-In-Charge of the concerned Police Sta(cid:21)on arraigns another sec(cid:21)on of any penal offense in this FIR, and if the new sec(cid:21)on prescribes a maximum sentence that is not greater than the sec(cid:21)ons men(cid:21)oned above, then this bail order shall be deemed to have also been passed for the newly added sec(cid:21)on(s). However, suppose the newly inserted sec(cid:21)ons prescribe a sentence exceeding the maximum sentence prescribed in the sec(cid:21)ons men(cid:21)oned above; then, in that case, the Inves(cid:21)gator/Officer-In-Charge shall give the pe(cid:21)(cid:21)oner no(cid:21)ce of a minimum of seven days, providing an opportunity to avail the remedies available in law. 22. 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:21)(cid:21)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:21)(cid:21)oner is bound to face the necessary consequences.” 23. This bail is condi(cid:21)onal, and the founda(cid:21)onal condi(cid:21)on is that if the pe(cid:21)(cid:21)oner indulges in any non-bailable offense, the State may file an applica(cid:21)on for cancella(cid:21)on of this bail before the Sessions Court, which shall be at liberty to cancel this bail. 24. Any observa(cid:21)on made hereinabove is neither an expression of opinion on the case's merits nor shall the trial Court advert to these comments. 25. A cer(cid:21)fied copy of this order would not be needed for furnishing bonds, and any Advocate for the Pe(cid:21)(cid:21)oner can download this order along with case status from the official web page of this Court and aPest it to be a true copy. If the aPes(cid:21)ng officer wants to verify its authen(cid:21)city, such an officer can also verify its authen(cid:21)city and may download and use the downloaded copy for aPes(cid:21)ng bonds. 26. Pe//on allowed in terms men(cid:21)oned above. All pending applica(cid:21)ons, if any,
Decision
stand disposed of. 14.01.2025 Jyo/-II (ANOOP CHITKARA) JUDGE Whether speaking/reasoned: Whether reportable: Yes No. JYOTI 2025.01.20 14:14 I attest to the accuracy and integrity of this order/judgment. 7