CRM-M No. 62943 of 2024 · Punjab And Haryana High Court · 2023

FIR No. Dated Police Sta1on Sec1ons 232

03.07.2019 Narnaund, District Hansi 20 and 27-A of NDPS Act

1. The pe(cid:9)(cid:9)oner incarcerated in the FIR cap(cid:9)oned above had come up before this Court under Sec(cid:9)on 483 of Bhara(cid:9)ya Nagarik Suraksha Sanhita, 2023, [BNSS], seeking regular bail.

2. In para 14 of the bail applica(cid:9)on and as per para 7 of the status report, the accused has the following criminal antecedents: Sr. No. 1. FIR No. 158 Dated 23.06.2019 Offenses 20/61/85 of NDPS Act Police Sta1on Sadar Hansi

3. The facts and allega(cid:9)ons are taken from the status report filed by the State. On

02.07.2019, based on secret informa(cid:9)on, the Police seized 20 kg 500 gram ganja from the possession of main accused Kehar Singh. The said co-accused disclosed in his disclosure statement that pe(cid:9)(cid:9)oner had supplied ganja to him. The Inves(cid:9)gator claims to have complied with all the statutory requirements of the NDPS Act, 1985, and CrPC

4. The pe(cid:9)(cid:9)oner seeks bail on pre-trial custody of more than two years and six months. He further prays for bail by imposing any stringent condi(cid:9)ons and contends that further pre-trial incarcera(cid:9)on would cause an irreversible injus(cid:9)ce to the pe(cid:9)(cid:9)oner and his family.

5. The State’s counsel opposes bail and refers to the status report. “8. That in this regard, it is most humbly submi(cid:23)ed before this Hon’ble High Court that the present pe(cid:29)(cid:29)oner supplied 20.500 Kg. Ganja to co- accused Kehar Singh, who was apprehended by the police officials. It is 1 JYOTI 2025.02.15 15:17 I attest to the accuracy and integrity of this order/judgment. CRM-M-62943-2024 specifically submi(cid:23)ed that alleged contraband which is more than the commercial quan(cid:29)ty. Therefore, the pe(cid:29)(cid:29)oner/accused is not en(cid:29)tled to any relief of regular bail and the applica(cid:29)on under Sec(cid:29)on 483 of BNSS is liable to be out rightly rejected being devoid of any merits therein.” REASONING:

6. The quan(cid:9)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:9)(cid:9)oner must sa(cid:9)sfy the twin condi(cid:9)ons put in place by the Legislature under Sec(cid:9)on 37 of the NDPS Act.

7. As per the custody cer(cid:9)ficate dated 03.02.2025, the pe(cid:9)(cid:9)oner is in custody for 02 years, 07 months and 02 days in this FIR.

8. The prolonged incarcera(cid:9)on, generally militates against the most precious fundamental right guaranteed under Ar(cid:9)cle 21 of the Cons(cid:9)tu(cid:9)on and in such a situa(cid:9)on, the condi(cid:9)onal liberty must override the statutory embargo created under Sec(cid:9)on 37(1)(b)(ii) of the NDPS Act1.

9. The pe(cid:9)(cid:9)oner is en(cid:9)tled to bail based on Dheeraj Kumar Shukla v. The State of UIar Pradesh [SLP (Crl) 6690-2022], decided on 25 Jan 2023. Dheeraj Shukla would be aIracted when the three condi(cid:9)ons are fulfilled, (a). (b). (c) The custody of more than two years and six months and the delay was not aIributable to the accused. The trial is at an ini(cid:9)al stage. The pe(cid:9)(cid:9)oner is the first offender.

10. Considering the quan(cid:9)ty involved and the pre-trial custody, Sec(cid:9)on 37 of the NDPS Act would not be aIracted. Given this, the criminal antecedents are also not a legal ground for denying the rigors of S. 37 of the NDPS Act at this stage.

11. Given the penal provisions invoked viz-a-viz pre-trial custody, coupled with the primafacie analysis of the nature of allega(cid:9)ons and the other factors peculiar to this case, there would be no jus(cid:9)fiability of further pre-trial incarcera(cid:9)on at this stage.

12. Without commen(cid:9)ng on the case's merits, in the facts and circumstances peculiar to this case, and for the reasons men(cid:9)oned above, the pe(cid:9)(cid:9)oner makes a case for bail. This order shall come into force from the (cid:9)me it is uploaded on this Court's official webpage. CONDITIONS: 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 2025.02.15 15:17 I attest to the accuracy and integrity of this order/judgment. 2 CRM-M-62943-2024

13. Given above, provided the pe(cid:9)(cid:9)oner is not required in any other case, the pe(cid:9)(cid:9)oner shall be released on bail in the FIR cap(cid:9)oned above subject to furnishing bonds to the sa(cid:9)sfac(cid:9)on of the concerned Court and due to unavailability before any nearest Ilaqa Magistrate/duty Magistrate. Before accep(cid:9)ng the surety, the concerned Court must be sa(cid:9)sfied that if the accused fails to appear, such surety can produce the accused.

14. While furnishing a personal bond, the pe(cid:9)(cid:9)oner shall men(cid:9)on the following personal iden(cid:9)fica(cid:9)on details:

1. AADHAR number 2. Passport number (If available) and when the aIes(cid:9)ng officer/court considers it appropriate or considers the accused a flight risk.

3. Mobile number (If available) E-Mail id (If available) 4.

15. This order is subject to the pe(cid:9)(cid:9)oner’s complying with the following terms.

16. The pe(cid:9)(cid:9)oner shall abide by all statutory bond condi(cid:9)ons and appear before the concerned Court(s) on all dates. The pe(cid:9)(cid:9)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.

17. Given the background of allega(cid:9)ons against the pe(cid:9)(cid:9)oner, it becomes paramount to protect the detec(cid:9)on staff, members of society, and incapacita(cid:9)ng the accused would be one of the primary op(cid:9)ons un(cid:9)l the filing of the closure report or discharge, or acquiIal. Consequently, it would be appropriate to restrict the possession of firearms. [This restric(cid:9)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:9)on]. Given the nature of the allega(cid:9)ons and the other circumstances peculiar to this case, the pe(cid:9)(cid:9)oner shall surrender all weapons, firearms, and ammuni(cid:9)on, if any, along with the arms license to the concerned authority within fiPeen days of release from prison and inform the Inves(cid:9)gator of the compliance. However, subject to the Indian Arms Act, 1959, the pe(cid:9)(cid:9)oner shall be en(cid:9)tled to renew and reclaim them in case of acquiIal in this case, provided otherwise permissible under the concerned rules. Restric(cid:9)ng firearms would ins(cid:9)ll confidence in the vic(cid:9)m(s), their families, and society; it would also restrain the accused from influencing the witnesses and repea(cid:9)ng the offense. JYOTI 2025.02.15 15:17 I attest to the accuracy and integrity of this order/judgment. 3 CRM-M-62943-2024

18. The condi(cid:9)ons men(cid:9)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:9)(cid:9)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:9)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:9)onal to the purpose of imposing them. The courts, while imposing bail condi(cid:9)ons must balance the liberty of the accused and the necessity of a fair trial. While doing so, condi(cid:9)ons that would result in the depriva(cid:9)on of rights and liber(cid:9)es must be eschewed.”

19. 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:9)(cid:9)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:9)(cid:9)oner is bound to face the necessary consequences.”

20. 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.

21. Any observa(cid:9)on made hereinabove is neither an expression of opinion on the case's merits nor shall the trial Court advert to these comments.

22. The concerned trial court is authorized to delete, modify, or relax any of the above condi(cid:9)ons and shall be competent to do so in accordance with the law.

23. A cer(cid:9)fied copy of this order would not be needed for furnishing bonds, and any Advocate for the Pe(cid:9)(cid:9)oner can download this order along with case status from the official web page of this Court and aIest it to be a true copy. If the aIes(cid:9)ng officer wants to verify its authen(cid:9)city, such an officer can also verify its authen(cid:9)city and may download and use the downloaded copy for aIes(cid:9)ng bonds.

24. Pe11on allowed in terms men(cid:9)oned above. All pending applica(cid:9)ons, if any, stand disposed of.

15.02.2025 Jyo(cid:9)-II (ANOOP CHITKARA) JUDGE JYOTI 2025.02.15 15:17 I attest to the accuracy and integrity of this order/judgment. Whether speaking/reasoned: Whether reportable: Yes No. 4