Ajay Kumar v. State of Haryana
Case Details
CRM-M-63444-2024 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CRM-M-63444-2024 Date of Decision: 09.01.2025 Ajay Kumar ...Petitioner Versus State of Haryana …Respondent CORAM: HON'BLE MR. JUSTICE ANOOP CHITKARA Present: Mr. Arpandeep Narula, Advocate for the petitioner. Ms. Harpreet Kaur, A.A.G., Haryana. ANOOP CHITKARA, J. **** FIR No. 500 Dated 08.12.2024 Police Station Sadar District Sirsa Sections 21-B of NDPS Act Sirsa, 1.
Facts
The petitioner apprehending arrest in the FIR captioned above has come up before this Court under Section 482 of Bharatiya Nagarik Suraksha Sanhita, 2023, [BNSS], seeking anticipatory bail. 2. Per paragraph 13 of the bail application and 9 of the reply, the accused has the following criminal antecedents:- Sr. No. 1. 2. 3. 4. 5. FIR No. 172 1 179 210 506 Offenses Date 10.08.2019 504/506 IPC 02.01.2019 21/61/85 of NDPS Act 17.08.2019 21(b)/61/85 of NDPS Act 14.06.2021 21(b)/61/85 of NDPS Act 12.12.2021 21/61/85 of NDPS Act 6. 7. 8. 9. 10. 11. 120 297 934 241 238 473 29.03.2024 21(b)/61/85 of NDPS Act 21.08.2021 160 IPC 19.10.2022 25/54/59 of Arms Act 31.03.2023 25/54/59 of Arms Act 25.06.2021 504/506 IPC 27.11.2024 21-B of NDPS Act Line Police Station Sadar Sirsa Baragudha Sadar Sirsa Sadar Sirsa Civil Sirsa Sadar Sirsa Civil Sirsa Civil Sirsa Sadar Sirsa Sadar Sirsa - Line Line 3. The facts and allegations are taken from the reply filed by the State. On Dec 08, 2024, based on chance recovery, the Police seized 30.15 grams of heroin from the possession of the main accused Sandeep Kumar. The Investigator claims to have complied with all the statutory requirements of the NDPS Act, 1985, and CrPC, 1973. Jyoti Sharma 2025.01.13 17:46 I attest to the accuracy and authenticity of this order/judgment High Court, Sector 1, Chandigarh 1 CRM-M-63444-2024 4. During custodial interrogation, the main accused, Sandeep Kumar, confessed before the Police officer that they had purchased the drugs from the petitioner and would pay the price through PhonePe UPI App. Based on such confession before the police, the petitioner was arraigned as an accused. Apprehending arrest, he filed for anticipatory bail before the Sessions Court, which denied him bail. Feeling aggrieved, he has invoked the concurrent jurisdiction of this Court under S. 482 BNSS, 2023. 5. 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. 7. The State’s counsel opposes bail and refers to the reply. It would be appropriate to refer to the following portions of the reply, which read as follows:- “7. That the petitioner/accused Ajay Kumar is specifically named in FIR, as well as disclosure statement of his co- accused Sandeep Kumar. The petitioner/accused Ajay Kumar is the supplier of recovered contraband i.e. 30 Gm 15 Mg in this case. During investigation, petitioner/accused Ajay Kumaar was found involved in the commission of crime of recovered contraband. According to screen shots/Annexure R-2 (Colly), petitioner/accused has received money/sale consideration of recovered contraband from co-accused Sandeep Kumar. The involvement of petitioner/accused Ajay Kumar was fully established in this case during investigation.” 8. Dealing in 30.15 grams of heroin is a punishable offense under the NDPS Act in the following terms: Substance Name Quan(cid:415)ty detained Quan(cid:415)ty type Drug Quan(cid:415)ty in % to upper limit of Intermediate Heroin/ Chi(cid:425)a/ Smack/ Brown Sugar 30.15 Gram Intermediate 12.06% Specified as small & Commercial in S.2(viia) & 2(xxiiia) NDPS Act, 1985 No(cid:415)fica(cid:415)on No dated Sr. No. Common Name (Name of Narco(cid:415)c Drug and Psychotropic Substance (Interna(cid:415)onal non-proprietary name (INN) Jyoti Sharma 2025.01.13 17:46 I attest to the accuracy and authenticity of this order/judgment High Court, Sector 1, Chandigarh 2 S.O.1055(E) 10/19/2001 56 Heroin CRM-M-63444-2024 Other non-proprietary name Chemical Name Small Quan(cid:415)ty Commercial Quan(cid:415)ty ****** 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 S.(xvi)(d) NDPS Act, 1985 (61 of 1985), S.O. 821 (E) 11/14/1985 2(xvi)(d) No(cid:415)fica(cid:415)on No dated Sr. No. Common Name (Name of Narco(cid:415)c Drug and Psychotropic Substance (Interna(cid:415)onal non-proprietary name (INN) Other non-proprietary name ****** ****** 2(xvi)(d) diacetylmorphine, that is, the alkaloid also known as dia-morphine or heroin and its salts; Explana(cid:415)on.-- For the purposes of clauses (v) (vi), (xv) and (xvi) the percentages in the case of liquid prepara(cid:415)ons shall be calculated on the basis that a prepara(cid:415)on containing one per cent. of a substance means a prepara(cid:415)on in which one gram of substance, if solid, or one mililitre of substance, if liquid, is contained in every one hundred mililitre of the prepara(cid:415)on and so on in propor(cid:415)on for any greater or less percentage: Provided that the Central Government may, having regard to the developments in the field of methods of calcula(cid:415)ng percentages in liquid prepara(cid:415)ons prescribed, by rules, any other basis which it may deem appropriate for such calcula(cid:415)on. Chemical Name 9. Given this, the rigors of S. 37 of the NDPS Act do not apply in the present case. 10. Section 2 (vii-a) of the NDPS Act defines commercial quantity as 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 Jyoti Sharma 2025.01.13 17:46 I attest to the accuracy and authenticity of this order/judgment High Court, Sector 1, Chandigarh 3 CRM-M-63444-2024 the NDPS Act will not attract, and the factors for bail become similar to the offence regular statutes. 11. In Sami Ullaha v Superintendent Narcotic Control Bureau, (2008) 16 SCC 471, the Hon’ble Supreme Court holds that in intermediate quantity, the rigors of the provisions of Section 37 may not be justified. 12. Pre-trial incarceration should not be a replica of post-conviction sentencing. The
Legal Reasoning
evidence might be prima facie sufficient to launch prosecution or to frame charges, but this Court is not considering the evidence at that stage but is analyzing it for the stage of anticipatory bail. An analysis of the above does not justify custodial interrogation or pre- trial incarceration. 13. The Police did not arrest the petitioner; if they intended to arrest the petitioner, it was not impossible. A perusal of the reply does not point out the steps taken to arrest the accused. 14. Given the above, the penal provisions invoked coupled with the primafacie analysis of the nature of allegations and the other factors peculiar to this case, there would be no justifiability for custodial interrogation or the pre-trial incarceration at this stage. Without commenting on the case's merits, in the facts and circumstances peculiar to this case, and for the reasons mentioned above, the petitioner makes a case for anticipatory bail. This order shall come into force from the time it is uploaded on this Court's official webpage. 15. Given 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 Arresting Officer, and if the matter is before a Court, then the concerned Court and due to unavailability before any nearest Ilaqa Magistrate/duty Magistrate. Before accepting the surety, the concerned Officer/Court must be satisfied that if the accused fails to appear, such surety can produce the accused. 16. 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) 17. The bail order is subject to the petitioner’s complying with the following terms. 18. The petitioner is directed to join the investigation within seven days of uploading this order on the official webpage of the High Court of Punjab and Haryana and as and Jyoti Sharma 2025.01.13 17:46 I attest to the accuracy and authenticity of this order/judgment High Court, Sector 1, Chandigarh 4 CRM-M-63444-2024 when called by the Investigator. The petitioner shall be in deemed custody for Section 27 of the Indian Evidence Act, 1872/ Section 23 of BSA, 2023. The petitioner shall join the investigation as and when called by the Investigating Officer or any Superior Officer and shall cooperate with the investigation at all further stages as required. In the event of failure to do so, the prosecution will be open to seeking cancellation of the bail. During the investigation, the petitioner shall not be subjected to third-degree, indecent language, inhuman treatment, etc. 19. 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. 20. In case the Investigator/Officer-In-Charge of the concerned Police Station arraigns another section of any penal offense in this FIR, and if the new section prescribes a maximum sentence that is not greater than the sections mentioned above, then this bail order shall be deemed to have also been passed for the newly added section(s). However, suppose the newly inserted sections prescribe a sentence exceeding the maximum sentence prescribed in the sections mentioned above; then, in that case, the Investigator/Officer-In-Charge shall give the petitioner notice of a minimum of seven days, providing an opportunity to avail the remedies available in law. 21. 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 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.” 22. This bail is conditional, and the foundational condition is that if the petitioner indulges in any non-bailable offense, the State may file an application for cancellation of this bail before the Sessions Court, which shall be at liberty to cancel this bail. 23. Any observation made hereinabove is neither an expression of opinion on the case's merits nor shall the trial Court advert to these comments. 24. A certified copy of this order would not be needed for furnishing bonds, and any Advocate for the Petitioner can download this order along with case status from the official web page of this Court and attest it to be a true copy. If the attesting officer wants to verify its authenticity, such an officer can also verify its authenticity and may download and use the downloaded copy for attesting bonds. Jyoti Sharma 2025.01.13 17:46 I attest to the accuracy and authenticity of this order/judgment High Court, Sector 1, Chandigarh 5 CRM-M-63444-2024 25. Petition allowed in terms mentioned above. All pending applications, if any,
Decision
stand disposed of. 09.01.2025 Jyoti Sharma Whether speaking/reasoned: Yes No. Whether reportable: (ANOOP CHITKARA) JUDGE Jyoti Sharma 2025.01.13 17:46 I attest to the accuracy and authenticity of this order/judgment High Court, Sector 1, Chandigarh 6