Punjab-Haryana High Court
Gagan vs The State Of Ut Chandigarh on 27 September, 2024
Author: Anoop Chitkara
Bench: Anoop Chitkara
CRM-M-34956-2024
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CRM-M-34956-2024
Reserved on: 13.09.2024
Pronounced on: 27.09.2024
Gagan ...Petitioner
Versus
State of U.T., Chandigarh ...Respondent
CORAM: HON'BLE MR. JUSTICE ANOOP CHITKARA
Present: Mr. Jitender Singh Dadwal, Advocate
for the petitioner.
Mr. Manish Bansal, P.P., U.T., Chandigarh with
Mr. Shubham Mangla, Advocate and
Mr. Shaurya Nagpal, Advocate
****
ANOOP CHITKARA, J.
FIR Dated Police Station Sections
No.
476 25.12.2023 Section 36, Chandigarh 22 of NDPS Act (Sections 21/29 of
NDPS Act added later on)
1. The petitioner incarcerated in the FIR captioned above had come up before this
Court under Section 439 CrPC, 1973, seeking regular bail.
2. Per paragraph 14 of the bail application, the accused has the following criminal
antecedents:
Sr. No. FIR Dated Offences Police Station
No.
1 415 20.11.2018 21 of NDPS Act Ambala City, District Ambala
3. The facts and allegations are taken from the police report filed under section 173
CrPC (Annexure P-5). On Dec 25, 2023, based on a chance recovery, the Police seized
54.72 grams of Amphetamine (Ice) from a packet that the co-accused Mohd. Imtiyaz took
out from his trousers pocket and tried to throw it, noticing the police. The Investigator
claims to have complied with all the statutory requirements of the NDPS Act, 1985, and
CrPC, 1973.
4. During custodial interrogation, the main accused, Mohd. Imtiyaz , named the
petitioner Gagan as its seller. Based on this disclosure statement, the police arrested the
petitioner, Gagan.
Jyoti Sharma
2024.10.03 16:51
5. On Dec 28, 2023, the petitioner disclosed the proceeds of drug money concealed
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High Court, Sector 1, Chandigarh 1
CRM-M-34956-2024
in his premises. Based on such a disclosure statement, the investigator searched the
petitioner’s premises and the vehicle. During the vehicle’s search, the Investigator
stumbled upon 99.08 grams of heroin. Subsequently, based on a subsequent disclosure
statement about gold bills, the Investigator recovered 4.95 grams of Amphetamine (ICE)
from the petitioner’s premises.
6. 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.
7. The State’s counsel opposes bail and refers to the status report.
8. Dealing in 99.08 grams of heroin is a punishable offense under the NDPS Act in
the following terms:
Substance Name Heroin/ Chi a/ Smack/ Brown Sugar
Quan ty detained 99.08 Gram
Quan ty type Intermediate
Drug Quan ty in % to upper limit
39.63%
of IntermediateSpecified as small & Commercial in S.2(viia) & 2(xxiiia) NDPS Act, 1985
No fica on No S.O.1055(E)
dated 10/19/2001
Sr. No. 56
Common Name
(Name of Narco c Drug and
Psychotropic Substance Heroin
(Interna onal non-proprietary
name (INN)
Other non-proprietary name ******
Chemical Name Diacetylmorphine
Small Quan ty 5 Gram
Commercial Quan ty 250 Gram
0
Declared as punishable under NDPS Act and as per schedule defined in S.2(xi) & 2(xxiii)
NDPS Act, 1985
No fica on No S.(xvi)(d) NDPS Act, 1985 (61 of 1985), S.O. 821 (E)
dated 11/14/1985
Sr. No. 2(xvi)(d)
Common Name
(Name of Narco c Drug and
Psychotropic Substance ******
(Interna onal non-proprietary
name (INN)
Other non-proprietary name ******
Chemical Name 2(xvi)(d) diacetylmorphine, that is, the alkaloid also
known as dia-morphine or heroin and its salts;
Jyoti Sharma
2024.10.03 16:51
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authenticity of this order/judgment
High Court, Sector 1, Chandigarh 2
CRM-M-34956-2024
Explana on.– For the purposes of clauses (v) (vi), (xv)
and (xvi) the
percentages in the case of liquid prepara ons shall be
calculated on the basis that
a prepara on containing one per cent. of a substance
means a prepara 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 on and so on in
propor 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 ng
percentages in liquid
prepara ons prescribed, by rules, any other basis
which it may deem appropriate
for such calcula on.
9. Dealing in 4.95 grams of Amphetamine is a punishable offense under the NDPS
Act in the following terms:
Substance Name METAMFETAMINE/ Ice/ Meth
Quan ty detained 4.95 Gram
Quan ty type Intermediate
Drug Quan ty in % to upper limit
9.90%
of Intermediate
Specified as small & Commercial in S.2(viia) & 2(xxiiia) NDPS Act, 1985
No fica on No S.O.1055(E)
dated 10/19/2001
Sr. No. 159
Common Name
(Name of Narco c Drug and
Psychotropic Substance METAMFETAMINE
(Interna onal non-proprietary
name (INN)
Other non-proprietary name methamphetamine
(±)-(S)-N,alpha-dimethylphenethylamine,
Chemical Name
(+)2methylamino-1-Phenylpropane
Small Quan ty 2 Gram
Commercial Quan ty 50 Gram
0
Declared as punishable under NDPS Act and as per schedule defined in S.2(xi) & 2(xxiii)
NDPS Act, 1985
No fica on No NDPS Act, 1985 (61 of 1985), S.O. 821(E)
dated 11/14/1985
Sr. No. 19
Jyoti Sharma
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High Court, Sector 1, Chandigarh 3
CRM-M-34956-2024
Common Name
(Name of Narco c Drug and
Psychotropic Substance METHAMPHETAMINE
(Interna onal non-proprietary
name (INN)
Other non-proprietary name ******
Chemical Name (+)-2-Methylamino-1-phenylpropane
10. 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.
11. Given this, the rigors of S. 37 of the NDPS Act do not apply for the recovery of
99.08 grams of heroin and for the recovery of 4.95 grams of Amphetamine directly from
the petitioner’s possession.
12. 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.
13. However, Dealing in 54.13 grams of Ice is a punishable offense under the NDPS
Act in the following terms:
Substance Name METAMFETAMINE/ Ice/ Meth
Quan ty detained 54.13 Gram
Quan ty type Commercial
Drug Quan ty in % to upper limit
108.26%
of Intermediate
Specified as small & Commercial in S.2(viia) & 2(xxiiia) NDPS Act, 1985
No fica on No S.O.1055(E)
dated 10/19/2001
Sr. No. 159
Common Name
(Name of Narco c Drug and
Psychotropic Substance METAMFETAMINE
(Interna onal non-proprietary
name (INN)
Jyoti Sharma Other non-proprietary name methamphetamine
2024.10.03 16:51
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High Court, Sector 1, Chandigarh 4
CRM-M-34956-2024
(±)-(S)-N,alpha-dimethylphenethylamine,
Chemical Name
(+)2methylamino-1-Phenylpropane
Small Quan ty 2 Gram
Commercial Quan ty 50 Gram
14. The main accused, Mohd. Imtiyaz, during custodial interrogation, disclosed to the
Investigator that he had purchased the 54.13 grams of Ice from the petitioner.
15. Thus, the quantity allegedly recovered from Mohd. Imtiyaz 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.
16. 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 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 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 offence, and is not likely to commit any
offence while on bail. If either of these two 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 that the accused is not guilty
of the alleged offence. Even on fulfilling one of the conditions, the
reasonable grounds for believing that the accused is not guilty of such
an offence, the Court still 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 quantity would vary
from case to case, depending upon its facts.
[31]. 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 subsist, and the factors for bail become similar to
the bail petitions under general penal statutes like IPC.
17. It would be appropriate to refer to the following portions of the status report,
which read as follows:
“3. That the brief facts of the case are like that on
25.12.2023, the police party was patrolling in lieu of rising
crime and were checking the vehicles at Dividing Road, Sector-
52 towards village Kajheri and at about 05:25 p.m., one person
was seen coming from the side of Dividing Road, Sector-52
towards the naka side on activa scooter, who on seeing the
police party tried to flee away and the police then stopped the
activa on suspicion that it might be a case of vehicle theft. On
apprehension, the said person tried to throw a heavy transparent
polythene after taking it out from upper right pocket of his worn
Jyoti Sharma
2024.10.03 16:51
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High Court, Sector 1, Chandigarh 5
CRM-M-34956-2024black colour tracksuit but was caught hold off from his right
hand along with the said polythene and the said activa. On
interrogation, the person disclosed his name as Mohammad
Imtiyaz. The said polythene was checked and it was found
containing white sugar type substance and on interrogation, it
was disclosed that it was ice and he used to sale the same to
drug addicts. When the recovered substance was checked on
Drug Detection Kit, it was found positive for Amphetamine (ice)
and weighed 54.13 grams without polythene on the electronic
weighing scale. Subsequently, FIR was registered om 25.12.2023
and co-accused Mohammad Imtiyaz was arrested.
During the course of further investigation, the co-
accused Mohammad Imtiyaz disclosed that he had purchased the
alleged contraband Amphetamine from the present
petitioner/accused and regularly purchased amphetamine and
heroin from the petitioner/accused. Subsequently, the present
petitioner was arrested on 26.12.2023 from Sector-56,
Chandigarh. Thereafter, from the accused two gold bangles
weighing 153.56 grams were recovered from the residence of the
petitioner/accused at Ambala, which had been purchased by him
from the drug money of Rs. 9,00,000/-. On 29.12.2023, one white
colour car belonging to the present petitioner/accused was
recovered from Dushehra Ground, Sector-56, Chandigarh at the
instance of the present petitioner wherein 99.08 grams of heroin
was recovered from the said car which was purchased by the
petitioner/accused purchased by the from drug money amounting
to Rs. 2,60,000/-. The sample of the same was sent to the CFSL
and in the CPBL report, it has been found that Levomethorphan
salt was also present in quantity greater than 50 grams which is
of commercial quantity. As such, the recovery of 99.08 grams of
heroin is of commercial quantity.
EVIDENCE:
4. That during the course of investigation, on the statement
of the accused Imtiyaz, Gagan was arrested. On 26.12.2023, two
mobile phones were recovered from the petitioner/accused.
Further on the disclosure statement of the petitioner/accused, on
28.12.2023, two gold bangles weighing 153.56 grams were
recovered from the residence of the petitioner/accused at Ambala
which were purchased out of drug money amounting to Rs.
9,00,000/-.
5. That petitioner/accused suffered disclosure statement in
which he stated that he had parked a car in parking of Dussehra
Ground, Jamun Chowk Road, Sector 56, Chandigarh and a raid
was conducted On 29.12.2023 at the said spot and the car was
found, thereafter, a search was conducted upon the car and
99.08 grams heroin was recovered from below the foot mat of the
driver’s seat which was purchased by the petitioner/accused
from drug money amounting to Rs. 2,60,000/-. The sample of the
same was sent to the CFSL and in the CFSL report, it has been
found that Levomethorphan salt was also present in quantity
greater than 50 grams which is of commercial quantity. As such,
the recovery of 99.08 grams of heroin is of commercial quantity.
A copy of the CFSL report is attached herewith as Annexure R-1.
6. That on the disclosure of petitioner/accused, a raid was
conducted on 03.01.2024 wherein a recovery of 4.95 grams of
Amphetamine (ice) was affected from Chawla Tea and Coffee
Shop, MC Market, Jagadhri Gate, District Ambala the instance
of the petitioner/accused.
ROLE OF THE PETITIONER:
Jyoti Sharma
2024.10.03 16:51
7. That the petitioner/accused is deeply involved
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CRM-M-34956-2024in the regular sale and purchase of narcotics and contraband
substances, as evidenced by substantial recoveries made
following his disclosure statements. The petitioner’s activities
pose a significant threat to public safety and underscore his
active participation in a larger drug trafficking network.
Granting bail could lead to the petitioner/accused absconding,
tampering with evidence, or influencing witnesses, thereby
hindering the ongoing investigation.
8. That on disclosure statement petitioner/accused, of the it
also surfaced that he had received three deliveries of 04 kg cach
of heroin from Srinagar and thereafter, he had handed over the
same to co-accused Resham Singh and Sukhpreet Singh alias
Pradeep for which the co-accused Resham Singh used to pay
him Rs. 2 lakhs for each delivery. The above said Sukhpreet
Singh has been arrested and has been granted concession of
regular bail by this Hon’ble court, however, the present
petitioner/accused cannot claim parity because of the fact that
recovery of 22 gm heroin from co-accused Sukhpreet was non-
commercial in nature with no past antecedents but the petitioner
has been undergoing trial in another NDPS case and recovery
affected from the petitioner/accused has been that of commercial
quantity. Co-accused Resham Singh is yet to be arrested.”
18. In Tofan Singh v. State of Tamil Nadu, (2021) 4 SCC 1, the majority view of a
three-member bench holds as follows:
We answer the reference by stating:
(i) That the officers who are invested with powers under section 53 of the
NDPS Act are “police officers” within the meaning of section 25 of the
Evidence Act, as a result of which any confessional statement made to
them would be barred under the provisions of section 25 of the Evidence
Act, and cannot be taken into account in order to convict an accused
under the NDPS Act.
(ii) That a statement recorded under section 67 of the NDPS Act cannot
be used as a confessional statement in the trial of an offence under the
NDPS Act.
19. The status report filed by the police reveals that the evidence qua the commercial
quantity is based on the disclosure statement of the main accused, from whose possession
the investigator had recovered the contraband. No other evidence is collected at this stage
to connect the petitioner with the main accused. Thus, there is no justification to deny
bail. Consequently, the petitioner has satisfied the first rider of section 37 of the NDPS
Act. Regarding the second rider of S. 37, this court will put very stringent conditions in
this order to ensure that the petitioner does not repeat the offense.
20. For now, the petitioner has prima facie satisfied the first condition of section 37 of
the NDPS Act to make a case for bail. Regarding the second rider of S. 37, this court will
put very stringent conditions in this order to ensure that the petitioner does not repeat the
offense.
Jyoti Sharma
2024.10.03 16:51
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High Court, Sector 1, Chandigarh 7
CRM-M-34956-2024
21. The petitioner’s total custody in this FIR is around nine months. 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 further pre-trial incarceration at this stage.
22. 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 this Court’s official
webpage.
23. 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
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.
24. 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)
25. This order is subject to the petitioner’s complying with the following terms.
26. 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.
27. 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, and ammunition, if any, along
Jyoti Sharma with the arms license to the concerned authority within fifteen days from release from
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CRM-M-34956-2024
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 offense.
28. The conditions mentioned 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
Petition (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 conditions imposed by the Court
must not only have a nexus to the purpose that they seek to serve but must also be
proportional to the purpose of imposing them. The courts, while imposing bail conditions
must balance the liberty of the accused and the necessity of a fair trial. While doing so,
conditions that would result in the deprivation of rights and liberties must be eschewed.”
29. Any observation made hereinabove is neither an expression of opinion on the
case’s merits nor shall the trial Court advert to these comments.
30. 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.
31. Petition allowed in terms mentioned above. All pending applications, if any,
stand disposed of.
(ANOOP CHITKARA)
JUDGE
27.09.2024
Jyoti Sharma
Whether speaking/reasoned: Yes
Whether reportable: No.
Jyoti Sharma
2024.10.03 16:51
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High Court, Sector 1, Chandigarh 9