Pinta v. State of Punjab
Case Details
CRM-M-63857-2024 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CRM-M-63857-2024 Reserved on: 15.01.2025 Pronounced on: 21.01.2025 Nishan Singh @ Pinta ...Petitioner Versus State of Punjab …Respondent CORAM: HON'BLE MR. JUSTICE ANOOP CHITKARA Present: Mr. Vikas Gupta, Advocate for the petitioner. Mr. Akshay Kumar, A.A.G., Punjab. ANOOP CHITKARA, J. ****
Legal Reasoning
FIR No. Dated Police Station Sections 54 31.03.2024 Chheharta, District 21-B, 27-A, 29, 61 of NDPS Amritsar Act 1. The petitioner incarcerated in the FIR captioned above had come up before this Court under Section 483 of Bharatiya Nagarik Suraksha Sanhita, 2023, [BNSS], seeking regular bail. 2. In paragraph 13 of the bail petition, the accused declares that he has no criminal antecedents. 3. The facts and allegations are taken from translated copy of FIR annexed with the petition as Annexure P-1. On 31-03-2024, based on chance recovery, the Police seized 10 grams of heroin and Rs 2000/- which was termed as drug money, from the petitioner’s possession. The Investigator claims to have complied with all the statutory requirements of the NDPS Act, 1985, and CrPC, 1973. 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. 5. 6. The State’s counsel opposes bail. Dealing in 10 grams of heroin is a punishable offense under the NDPS Act in the following terms: Jyoti Sharma 2025.01.21 16:43 I attest to the accuracy and authenticity of this order/judgment High Court, Sector 1, Chandigarh 1 CRM-M-63857-2024 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 10 Gram Intermediate 4.00% 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) Other non-proprietary name Chemical Name Small Quan(cid:415)ty Commercial Quan(cid:415)ty S.O.1055(E) 10/19/2001 56 Heroin ****** 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 Jyoti Sharma 2025.01.21 16:43 I attest to the accuracy and authenticity of this order/judgment High Court, Sector 1, Chandigarh 2 CRM-M-63857-2024 7. 8. Given this, the rigors of S. 37 of the NDPS Act do not apply in the present case. Section 2 (vii-a) of the NDPS Act defines commercial quantity as the quantity 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 the NDPS Act will not attract, and the factors for bail become similar to the offence regular statutes. 9. There is no evidence to primafacie establish that Rs 2000/- was the proceeds of drugs sale or was drug money. 10. The prolonged incarceration, generally militates against the most precious fundamental right guaranteed under Article 21 of the Constitution and in such a situation, the conditional liberty must override the statutory embargo created under Section 37(1) (b)(ii) of the NDPS Act1. 11. The pre-trial incarceration should not be a replica of post-conviction sentencing. There is sufficient primafacie evidence connecting the petitioner with the alleged crime. However, per paragraph 5 of the bail petition, the petitioner has been in custody since 31.03.2024. Per the custody certificate dated 14.01.2025, the petitioner’s total custody in this FIR is 09 months and 11 days. Given the penal provisions invoked viz-a-viz pre-trial custody, coupled with the primafacie analysis of the nature of allegations, and the other factors peculiar to this case, there would be no justifiability for further pre-trial incarceration at this stage. 12. 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 bail. This order shall come into force from the time it is uploaded on the official webpage of this Court. 13. 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 concerned Court and due to unavailability before any nearest 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 Sharma 2025.01.21 16:43 I attest to the accuracy and authenticity of this order/judgment High Court, Sector 1, Chandigarh 3 CRM-M-63857-2024 Ilaqa Magistrate/duty Magistrate. Before accepting the surety, the concerned Court must be satisfied that if the accused fails to appear, such surety can produce the accused. 14. 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) 15.
Legal Reasoning
This order is subject to the petitioner’s complying with the following terms. 16. 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. 17. The possibility of the accused influencing the investigation, tampering with evidence, intimidating witnesses, and the likelihood of fleeing justice can be taken care of by imposing elaborative and stringent conditions. In Sushila Aggarwal v. State (NCT of Delhi), 2020:INSC:106 [Para 92], (2020) 5 SCC 1, Para 92, the Constitutional Bench held that unusually, subject to the evidence produced, the Courts can impose restrictive conditions. 18. Given the background of allegations against the petitioner, it becomes paramount to protect the drug detection squad, their family members, as well as the members of society, and incapacitating the accused would be one of the primary options until the filing of the closure report or discharge, or acquittal. Consequently, it would be appropriate to restrict the possession of firearm(s). [This restriction 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 sanction]. Given the nature of the allegations and the other circumstances peculiar to this case, the petitioner shall surrender all weapons, firearms, ammunition, if any, along with the arms license to the concerned authority within fifteen days from release from prison and inform the Investigator about the compliance. However, subject to the Indian Arms Act, 1959, the petitioner shall be entitled to renew and take it back in case of acquittal in this case, provided otherwise permissible in the concerned rules. Restricting firearms would instill confidence in the victim(s), their families, and society; it would also restrain the accused from influencing the witnesses and repeating the offence. Jyoti Sharma 2025.01.21 16:43 I attest to the accuracy and authenticity of this order/judgment High Court, Sector 1, Chandigarh 4 CRM-M-63857-2024 19. This bail is conditional, and the foundational condition is that if the petitioner repeats the offense, the State shall file an application for cancellation of this bail before the Sessions Court, which shall be at liberty to cancel this bail. 20. Any observation made hereinabove is neither an expression of opinion on the case's merits nor shall the trial Court advert to these comments. 21. 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. 22. Petition allowed in terms mentioned above. All pending applications, if any,
Decision
stand disposed of. 21.01.2025 Jyoti Sharma Whether speaking/reasoned: Yes No. Whether reportable: (ANOOP CHITKARA) JUDGE Jyoti Sharma 2025.01.21 16:43 I attest to the accuracy and authenticity of this order/judgment High Court, Sector 1, Chandigarh 5