Sandeep v. State of Haryana

FIR No. Dated Police Station Sections 76

26.03.2023 Sahlawas, District 18, 20(b)(ii)(c) of NDPS Act Jhajjar

1. The petitioner incarcerated in the FIR captioned above had come up before this Court under Section 439 CrPC, 1973, seeking regular bail.

2. As per paragraph 16 of the bail petition and the reply, the accused has the following criminal antecedents: Sr. No. FIR No. 1 2 217 382 Offenses Date 26.12.2014 20 of NDPS Act 14.12.2021 20 of NDPS Act Police Station Salhawas Salhawas

3. The facts and allegations are taken from the reply filed by the State. On 26th March 2023, based on secret information/chance recovery, the Police seized 2.488 kg of charas and 595 grams of opium from the petitioner’s possession. The Investigator claims to have complied with all the statutory requirements of the NDPS Act, 1985, and CrPC,

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.

6. The State’s counsel opposes bail and refers to the reply. Dealing in 595 grams of opium is a punishable offense under the NDPS Act in the ANJU RANI 2024.08.31 14:52 I attest to the accuracy and integrity of this document Punjab and Haryana High Court Chandigarh 1 CRM-M-62256-2023 following terms: Substance Name Quantity detained Quantity type Drug Quantity in % to upper limit of Intermediate 2 "Opium" 595 Gram Intermediate

23.80% Specified as small & Commercial in S.2(viia) & 2(xxiiia) NDPS Act, 1985 Notification No 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 S.O.1055(E) 10/19/2001 92 Opium ****** And any preparation containing opium 25 Gram 2500 Gram 0 Declared as punishable under NDPS Act and as per schedule defined in S.2(xi) & 2(xxiii) NDPS Act, 1985 Notification No Sr. No. Common Name (Name of Narcotic Drug and Psychotropic Substance (International non-proprietary name (INN) Other non-proprietary name Chemical Name ANJU RANI 2024.08.31 14:52 I attest to the accuracy and integrity of this document Punjab and Haryana High Court Chandigarh S.18 & S.2(xv) NDPS Act, S.O.821(E) 11/14/1985 S.2(xv) ****** ****** S.2(xv) “opium” means— (a) the coagulated juice of the opium poppy; and (b) any mixture, with or without any neutral material, of the coagulated juice of the opium poppy, but does not include any preparation containing not more than 0.2 per cent. of morphine; S.2 (xvii) “opium poppy” means— (a) the plant of the species Papaver somniferum L; (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 notification in the Official Gazette, declare to be opium poppy for the purposes of this Act; 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 2 CRM-M-62256-2023 3 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.

7. Thus, the recovered opium falls in the intermediate category, and S. 37 of the NDPS Act does not apply to the recovery of opium.

8. However, dealing in 2.488 kgs of charas is a punishable offense under the NDPS Act in the following terms: Substance Name Quantity detained Quantity type Drug Quantity in % to upper limit of Intermediate Cannabis and cannabis resin/ Charas/ Hashish/ Sulpha 2.488 Kg Commercial

248.80% Specified as small & Commercial in S.2(viia) & 2(xxiiia) NDPS Act, 1985 Notification No 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 S.O.1055(E) 10/19/2001 23 Cannabis and cannabis resin CHARAS, HASHISH EXTRACTS and TINCTURES OF CANNABIS 100 Gram (i.e. equivalent to 0.1 Kg) 1000 Gram (i.e. equivalent to 1 Kg) 0 Declared as punishable under NDPS Act and as per schedule defined in S.2(xi) & 2(xxiii) NDPS Act, 1985 Notification No Sr. No. Common Name (Name of Narcotic Drug and Psychotropic Substance (International non-proprietary name (INN) Other non-proprietary name ANJU RANI 2024.08.31 14:52 I attest to the accuracy and integrity of this document Punjab and Haryana High Court Chandigarh 3 S.20 & S.2(iii) NDPS Act, S.O.821(E) 11/14/1985 S.2(iii) ****** ****** CRM-M-62256-2023 Chemical Name 4 S.2(iii) “cannabis (hemp)” means— (a) charas, that is, the separated resin, in whatever form, whether crude or purified, obtained from the cannabis plant and also includes concentrated preparation and resin known as hashish oil or liquid hashish; (b) ganja, that is, the flowering or fruiting tops of the cannabis plant (excluding the seeds and leaves when not accompanied by the tops), by whatever name they may be known or designated; and (c) any mixture, with or without any neutral material, of any of the above forms of cannabis or any drink prepared therefrom; (iv) “cannabis plant” means any plant of the genus cannabis; S. 2(viiib)] “illicit traffic”, in relation to narcotic drugs and psychotropic substances, means— (i) cultivating any coca plant or gathering any portion of coca plant; (ii) cultivating the opium poppy or any cannabis plant; (iii) engaging in the production, manufacture, possession, sale, purchase, transportation, warehousing, concealment, use or consumption, import inter-State, export inter-State, import into India, export from India or transhipment, of narcotic drugs or psychotropic substances;

9. The quantity of charas 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.

10. Section 371 of the NDPS Act mandates under sub-section (1) (b) of section 37 that no person accused of an offense punishable for offenses involving commercial quantity shall be released on bail unless- (i) the Public Prosecutor has been given an opportunity to oppose the application of release, and (ii) where the Public Prosecutor opposes the application, the Court is satisfied that there are reasonable grounds for believing that accused is not guilty of such offense and is not likely to commit any offense while on bail. Thus, the rigors of S. 37 of the NDPS Act apply in the present case, and the burden is on the petitioner to satisfy the twin conditions put in place by the Legislature under Section 37 of the NDPS Act. Given the legislative mandate of S. 37 of the NDPS Act, the Court can release a person accused of an offense punishable under the NDPS Act for 1 37. Offences to be cognizable and non-bailable.—(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974),— (a) every offence punishable under this Act shall be cognizable; (b) no person accused of an offence punishable for offences under section 19 or section 24 or section 27A and also for offences involving commercial quantity shall be released on bail or on his own bond unless— (i) the Public Prosecutor has been given an opportunity to oppose the application for such release, and (ii) where the Public Prosecutor opposes the application, the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail. (2) The limitations on granting of bail specified in clause (b) of sub-section (1) are in addition to the limitations under the Code of Criminal Procedure, 1973 (2 of 1974) or any other law for the time being in force on granting of bail. ANJU RANI 2024.08.31 14:52 I attest to the accuracy and integrity of this document Punjab and Haryana High Court Chandigarh 4 5 CRM-M-62256-2023 possessing a commercial quantity of contraband only after recording reasonable satisfaction of its rigors.

11. The State’s Counsel argues that a plain reading of Section 37 reveals that the legislature intends to make the law stringent to curb the drug menace. It is further to be noticed that the provisions are couched in negative language, meaning that to grant bail, the Court needs to record a finding that there are reasonable grounds for believing that the petitioner is not guilty of the offense. The burden of proof is also on the petitioner to satisfy the Court about his non-involvement in the case. While interpreting the provisions of Section 37 of the NDPS Act, the Court must be guided by the objective sought to be achieved by putting these stringent conditions.

12. 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 exist, and the factors for bail become similar to the bail petitions under general penal statutes like IPC. 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 them 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 an offense and is not likely to commit any offense while on bail. If either of these 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 the accused is not guilty of the alleged offense. Even on fulfilling one of the conditions, the reasonable grounds for believing that the accused is not guilty of such an offense, the Court still cannot give a finding on the assurance that the accused is not likely to commit any such crime again. Thus, the grant or denial of bail for possessing commercial quantity would vary from case to case, depending upon its facts, and the parameters for anticipatory bail are stringent compared to the regular bail when the accused is in judicial custody.

13. The grounds in the bail petition do not shift the burden the legislature places on the accused under S. 37 of the NDPS Act. The petitioner has not stated anything in the bail petition to discharge the burden put by the stringent conditions placed in the statute by the legislature under section 37 of the NDPS Act. The investigation reveals sufficient prima facie evidence to connect the petitioner with the crime; thus, the petitioner fails to make out a case for anticipatory bail. Any detailed discussions about the evidence may prejudice the case of the petitioner, the State, or the other accused.

14. ANJU RANI 2024.08.31 14:52 I attest to the accuracy and integrity of this document Punjab and Haryana High Court Chandigarh 5 A perusal of the bail petition and the documents attached primafacie points CRM-M-62256-2023 towards the petitioner’s involvement and does not make out a case for bail. Any further discussions will likely prejudice the petitioner; this court refrains from doing so.

15. Any observation made hereinabove is neither an expression of opinion on the case's merits nor shall the trial Court advert to these comments. 6

16. Petition dismissed. All pending applications, if any, stand disposed of. (ANOOP CHITKARA) JUDGE

30.08.2024 anju rani Whether speaking/reasoned: Yes No. Whether reportable: ANJU RANI 2024.08.31 14:52 I attest to the accuracy and integrity of this document Punjab and Haryana High Court Chandigarh 6