Punjab-Haryana High Court
Chander Mohan vs State Of Punjab on 29 November, 2024
Author: Anoop Chitkara
Bench: Anoop Chitkara
Neutral Citation No:=2024:PHHC:159602
CRM-M-50413-2024 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CRM-M No.50413 of 2024
Reserved on: 12.11.2024
Pronounced on: 29.11.2024
Chander Mohan ...Petitioner
Versus
State of Punjab ...Respondent
CORAM: HON'BLE MR. JUSTICE ANOOP CHITKARA
Present: Mr. Digvijay Nagpal, Advocate and
Mr. Vedant Setia, Advocate
for the petitioner(s).
Mr. Akshay Kumar, AAG, Punjab.
****
ANOOP CHITKARA, J.
FIR No. Dated Police Station Sections
140 23.10.2020 STF, SAS Nagar, 21, 25, 29, 61 and 85 of NDPS
Mohali Act
1. The petitioner incarcerated in the FIR captioned above had come up before this
Court under Section 439, Cr.P.C., 1973., seeking regular bail.
2. In paragraph 13 of the bail petition, the accused declares that one FIR is pending
against the petitioner, however as per custody certificate, the petitioner is involved in
cases the details of which are given as under:
Sr. No. FIR No. Date Offenses Police
Station
1. 120/2015 -- Under sections 22, 61, 85 of Chherretta
NDPS Act
2. 159 01.12.2020 Under sections 21, 25, 29, 61 and STF
85 of NDPS Act
3. The facts and allegations are taken from the reply filed by the State. On Oct 23,
2020, based on secret information, the Police seized 300 grams of heroin from the
possession of co-accused Amritpal Singh and Varun Kumar’s possession. The Investigator
claims to have complied with all the statutory requirements of the NDPS Act, 1985, and
CrPC, 1973.
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4. During the custodial interrogation, the co-accused informed the investigator that
they had purchased the heroin from the petitioner, and based on the disclosure
statement, the investigator arrested the petitioner.
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. The State’s counsel opposes bail and refers to the reply.
7. The petitioner seeks bail on parity and pre-trial custody of more than 03 years.
8. The quantity 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.
9. However, the petitioner is entitled to bail because the Hon’ble Supreme Court
had granted bail on prolonged custody in the following judicial precedents:
1) In Dheeraj Kumar Shukla v. The State of Uttar Pradesh, decided on 25 Jan
2023, SLP (Crl) 6690-2022, Hon’ble Supreme Court holds,
[1]. The petitioner seeks enlargement on regular bail in FIR
No.325/2020, dated 23.06.2020, under Sections 8 and 20 of the
Narcotic Drugs and Psychotropic Substances Act, 1985 (for short,
`the Act’) registered at Police Station Jhunsi, District Pryagraj,
Uttar Pradesh.
[2]. The allegations are that on a secret information, the police
authorities intercepted two vehicles on 23.06.2020 i.e. one `Gray’
coloured `Honda City’ Car and the second `White’ coloured `Swift
Dzire’ Car. On an interrogation at the spot, Praveen Maurya @
Puneet Maurya, Rishab Kumar Maurya and Dheeraj Kumar Shukla
were found to be occupants of the `Honda City’ Car whereas the
petitioner was driving the `Swife Dzire’ Car. On taking a search,
more than 92 kgs. Ganja was allegedly recovered from `Honda
City’ Car whereas more than 65 kgs. Ganja was recovered from
`Swift Dzire’ Car. The accused were arrested at the spot. The
petitioner is, thus, in custody since 24.06.2020.
[3]. It appears that some of the occupants of the `Honda City’ Car
including Praveen Maurya @ Puneet Maurya have since been
released on regular bail. It is true that the quantity recovered
from the petitioner is commercial in nature and the provisions of
Section 37 of the Act may ordinarily be attracted. However, in the
absence of criminal antecedents and the fact that the petitioner is
in custody for the last two and a half years, we are satisfied that
the conditions of Section 37 of the Act can be dispensed with at
this stage, more so when the trial is yet to commence though the
charges have been framed.
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[4]. For the reasons stated above but without expressing any
views on the merits of the case, the petitioner is directed to be
released on bail subject to his furnishing bail bonds to the
satisfaction of the Trial Court.
2) In Shince Babu v. The State of Kerala, decided on 21 Feb 2024,
MANU/SCOR/27340/2024, Hon’ble Supreme Court holds,
[2]. The prosecution case is that Accused No.1 (Liju) was found
travelling in a private bus from Cherthala to Arookutty and
contraband MDMA, weighing 138.750 gms, was recovered from
his conscious possession. The said contraband was procured by
Accused No.1 with the help of Accused No.2 from Bangalore. The
petitioner is nominated as Accused No.4 in the crime. He was
arrested on 11.04.2022. The petitioner was granted bail by the
Trial Court on 20.09.2022 but on a petition filed by the State of
Kerala, challenging the bail order, the High Court cancelled the
petitioner’s bail on 13.06.2023. However, liberty was granted to
the petitioner to apply afresh before the Sessions Court. The
petitioner again applied for bail but his prayer was declined by the
Trial Court on 07.07.2023. The petitioner approached the High
Court but his first bail application was dismissed on 14.08.2023.
His second bail application was turned down by the High Court on
09.10.2023. Meanwhile, Accused No.2 was granted bail by the
High Court on 11.10.2023. Seeking parity with the co-accused, the
petitioner moved third bail application, which has been rejected
by the High Court vide the impugned order dated 09.11.2023.
[3]. We have heard learned counsel for the parties and carefully
perused the material placed on record.
[4]. It may be seen from para 6 of the impugned order that the
High Court, while declining bail to the petitioner, was largely
influenced by the fact that a huge quantity of contraband, which
falls in the category of ‘commercial’, was recovered and as such,
the rigors of Section 37 of the NDPS Act are attracted. On a
specific query, it is not disputed by learned State counsel that no
contraband was recovered from the conscious possession of the
petitioner. In such circumstances, it is difficult for us to apply the
twin test of Section 37 of the NDPS Act while considering the
petitioner’s prayer for bail.
[5]. Be that as it may, the petitioner is in custody since 11.04.2022
except for the period from 20.09.2022 to 27.06.2023 when he
remained on bail pursuant to the order passed by the Trial
Court/Sessions Court.
[6]. It seems that the investigation is complete and the conclusion
of trial will take some reasonable time. The petitioner’s co-
accused are already on regular bail/default bail. As per the record,
there are no criminal antecedents of the petitioner.
[7]. Taking into consideration all the attending circumstances but
without expressing any views on the merits of the case, we are
inclined to grant bail to the petitioner.
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[8]. The petitioner is, accordingly, directed to be enlarged on bail
subject to his furnishing bail bonds to the satisfaction of the Trial
Court.
[9]. The petitioner shall remain present before the Trial Court on
each and every date of hearing, failing which it shall be taken as a
misuse of concession of bail granted to him today by this Court.
3) In Sohrab Khan v. The State of Madhya Pradesh, decided on 13 Aug 2024, SLP
(Crl.) 7115-2024, Hon’ble Supreme Cort holds,
The petitioner is an accused for the alleged offences punishable
under Sections 8/22 and 29 of the Narcotic Drugs and
Psychotropic Substances Act. His bail application was dismissed by
the High Court. He has already undergone about one year and
four months in jail. The petitioner and coaccused were found in
possession of 80 grams of MD powder each of which commercial
quantity is 50 grams.
Considering the fact that the petitioner has no criminal
antecedents and the entire facts and circumstances of this case,
we are of the opinion that a case of bail is made out for the
petitioner and therefore, the prayer of the petitioner is allowed.
Accordingly, the petitioner is directed to be released on bail
forthwith on the usual terms and conditions to be decided by the
concerned Court.
4) In Ramlal v. The State of Rajasthan, decided on 17 Sep 2024, SLP (Crl) 9510-
2024, wherein Hon’ble Supreme Court granted bail to a first offender after
one year and six months of custody who was possessing 450 grams of smack
(Heroin), and the holds as follows:
The petitioner and the other accused persons are accused for the
offences punishable under Sections 8/21 & 8/29 of the Narcotic
Drugs and Psychotropic Substances Act and allegation is that 450
gram of smack has been recovered from them. The bail
application of the petitioner was dismissed by the High Court.
Hence, he approached this Court. He has already undergone
about 1 year and 6 months in jail.
Heard learned counsel for the petitioner. As per office report
dated 13.09.2024, the service is deemed complete on the sole
respondent-State but no one has appeared for the State.
Considering the period of incarceration of the petitioner and the
fact that the petitioner has no criminal antecedents, we are of the
opinion that a case of bail is made out for the petitioner.
5) In Sabat Mehtab Khan v. The State of Maharashtra, decided on 03 Sep 2024,
SLP (Crl) 8557-2024, Hon’ble Supreme Court holds,
The petitioner is an accused for the offences punishable under
Sections 21(c) and 29 of the of the Narcotic Drugs and
Psychotropic Substances Act and allegation is that 275 gms. and
50.01 gms of heroine has been recovered from him. His regular
bail application was dismissed by the High Court. He has already
undergone about 1 year six months in jail.
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Heard learned senior counsel/counsel for the parties.
Considering the quantity of the contraband articles and the period
of his incarceration, we are of the opinion that a case of bail is
made out for the petitioner.
6) In Md. Tajiur Rahaman v. The State of West Bengal, decided on 08-Nov-2024,
SLP (Crl) 12225-2024, Hon’ble Supreme Court holds,
[2]. The allegations are that upon receipt of a secret information,
the police conducted a raid in which the petitioner and the co-
accused Rabiul Alam were arrested and 4 kgs., 920 gms of opium
latex was seized.
[4]. It is not in dispute that after filing of chargesheet and framing
of charges, the trial has commenced but only examination-in-chief
of P.W.1 has been completed. However, there are 12 witnesses,
who are proposed to be examined by the prosecution.
[5]. It may be mentioned that the High Court while declining bail
to the petitioner has directed for conclusion of trial within one
year. But it seems that regardless thereto, the trial has not
been expedited as no effective hearing took place for the last 2/3
dates. That being so, the conclusion of trial is likely to take some
reasonable time. The petitioner does not have any criminal
antecedents. He has already spent one year and six months in
custody. The continued incarceration of the petitioner will not
serve any useful purpose.
[6]. Taking into consideration the period spent by the petitioner in
custody and the fact that the petitioner does not have any
criminal antecedents, we are satisfied that the conditions
prescribed under Section 37 of the NDPS Act can be relaxed at this
stage.
7) Bhola Shikari v. The State of Chhattisgarh, decided on 11-Nov-2024, SLP (Crl)
13236-2024, Hon’ble Supreme Court holds,
In connection with FIR No. 150 of 2024 dated 10.03.2024,
registered at Police Station-Sipat, District Bilaspur, Chhattisgarh
under Section 20(b) of the Narcotic Drugs and Psychotropic
Substances Act, 1985 (for short ‘NDPS Act’), the petitioner was
arrested on 10.03.2024, as the petitioner along with three others
were found in joint possession of 21 Kgs of Ganja.
Heard learned counsel appearing for the petitioner and also the
learned counsel appearing for the respondent-State.
It is submitted by the learned counsel appearing for the State that
final report was already filed and thereafter, the Court has also
framed the charges against them.
In the said circumstances and taking note of the fact that the
petitioner has been in custody since 10.03.2024, we are of the
considered view that this special leave petition can be disposed of
ordering that the petitioner shall be released on bail, subject to
the stringent terms and conditions to be imposed by the Trial
Court. Ordered accordingly.
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10. Per the custody certificate dated 11.11.2024, the petitioner is in custody for 03
years 11 months and 5 days in this FIR.
11. 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.
12. In Tajmul SK v. The State of West Bengal, decided on 23 Jul 2024, CrA
3047-2024, Hon’ble Supreme Court holds,
[5]. We are inclined to set aside the impugned order only on the
premise that right to speedy trial is a fundamental right. Despite
the fact that the appellant has been under incarceration for more
than one and a half years, the trial is yet to start, though, it is
submitted by learned counsel appearing for the State that charges
have been framed. Suffice it is to state that trial would take
considerable length of time. There is no antecedent involving the
appellant.
[6]. Accordingly, the impugned order is set aside and the appellant
is granted bail, subject to the conditions that may be imposed by
the Trial Court.
13. It would be appropriate to refer to the evidence collected against the petition,
which is taken from the reply, which reads as follows:
“8. Role of Petitioner:- That during the interrogation of the present petitioner he
gave his voluntarily statement that “I joined the society of bad peoples and
started doing the business of heroin. The said recovered heroin of 300 grams in
present case was also taken from me by Amritpal Singh and Varun Kumar
@Kaku. The co-accused Varun Kumar @ Kaku had also taken heroin from me
many times.”
14. Thus, the evidence collected so far consists of disclosure statements without any
discovery of fact.
15. 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.
1
Supreme Court of India, in Rabi Prakash v. The State of Odisha, SLP (Crl) 4169-2023, Para 4, decided on
13 July 2023
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(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.
16. The status report filed by the police reveals that the investigator arraigned the
petitioner as an accused 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.
17. Given the above, the petitioner’s pretrial custody is more than some of the
judicial precedents mentioned above; the petitioner is entitled to bail under Article 14 of
the Constitution of India.
18. Considering the quantity of evidence involved and the pre-trial custody, rigors of
Section 37 of the NDPS Act would be satisfied. 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.
19. 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.
20. 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.
21. 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)
22. This order is subject to the petitioner’s complying with the following terms.
23. The petitioner shall abide by all statutory bond conditions and appear before the
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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.
24. 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 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
offense.
25. 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.”
26. 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.”
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27. 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.
28. Any observation made hereinabove is neither an expression of opinion on the
case’s merits nor shall the trial Court advert to these comments.
29. 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.
30. Petition allowed in terms mentioned above. All pending applications, if any, stand
disposed of.
(ANOOP CHITKARA)
JUDGE
29.11.2024
Sonia Puri
Whether speaking/reasoned: Yes
Whether reportable: No.
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