Punjab-Haryana High Court
Rahul vs State Of Ut Chandigarh on 27 September, 2024
Author: Anoop Chitkara
Bench: Anoop Chitkara
CRM-M-41550-2024
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CRM-M-41550-2024
Reserved on: 13.09.2024
Pronounced on: 27.09.2024
Rahul ...Petitioner
Versus
State of U.T., Chandigarh ...Respondent
CORAM: HON'BLE MR. JUSTICE ANOOP CHITKARA
Present: Mr. Suram Singh Rana, Advocate
for the petitioner.
Mr. Rajeev Anand, Addl. P.P., U.T., Chandigarh.
****
ANOOP CHITKARA, J.
FIR No. Dated Police Station Sections
06 13.04.2024 Anti Narcotics Task Force, 20 of the NDPS Act
District Chandigarh
1. The petitioner incarcerated in the FIR captioned above had come up before this
Court under Section 439 CrPC, seeking regular bail.
2. In paragraph 20 of the bail petition, the accused declares that he has no criminal
antecedents.
3. The facts and allegations are taken from the reply filed by the State. On April 13,
2024, based on chance recovery, the Police seized 20.342 kgs of ganja from the co-
accused Anil Swain alias Chandan’s possession. 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, Anil Swain alias Chandan,
disclosed to the Investigator that the petitioner deals in drugs and he was going to supply
this ganja to the petitioner at Kharar. Based on this information, the Police searched the
petitioner’s premises and recovered 9.5 kgs of Ganga.
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.
Jyoti Sharma 7. The prosecution has arraigned the petitioner as an accused based on two separate
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sets of violations of S. 20 of NDPS, Act 1985. The first violation is the disclosure of the
main accused, Anil Swain alias Chandan, who disclosed that the ganja that the Police had
seized from him was meant to be sold to the petitioner. The second set is the recovery of
9.5 kgs of ganja from the petitioner’s possession.
EVIDENCE REGARDING 9.5 KGS OF GANJA:
8. There is sufficient evidence regarding the recovery of 9.5 kgs of ganja from the
petitioner’s premises.
9. Dealing in 9.5 kgs of Ganja is a punishable offense under S. 20 of the NDPS Act
in the following terms:
Substance Name Ganja/ Bhang Patti
Quantity detained 9.5 Kg
Quantity type Intermediate
Drug Quantity in % to upper limit
47.50%
of Intermediate
Specified as small & Commercial in S.2(viia) & 2(xxiiia) NDPS Act, 1985
Notification No S.O.1055(E)
dated 10/19/2001
Sr. No. 55
Common Name
(Name of Narcotic Drug and
Psychotropic Substance Ganja
(International non-proprietary
name (INN)
Other non-proprietary name ******
Chemical Name ******
Small Quantity 1000 Gram (i.e. equivalent to 1 Kg)
Commercial Quantity 20000 Gram (i.e. equivalent to 20 Kg)
0
Declared as punishable under NDPS Act and as per schedule defined in S.2(xi) & 2(xxiii)
NDPS Act, 1985
Notification No 2(iii)(b) NDPS Act, 1985, S.O.821(E)
dated 11/14/1985
Sr. No. 2(iii)(b)
Common Name
(Name of Narcotic Drug and
Psychotropic Substance ******
(International non-proprietary
name (INN)
Other non-proprietary name ******
Chemical Name S.2(iii)(b) ganja, that is, the flowering or fruiting tops
of the cannabis plant (excluding the seeds and leaves
when not accompanied by the tops), by whatever
name they may be known or designated; S. 2(viiib)]
“illicit traffic”, in relation to narcotic drugs and
psychotropic substances, means–
(i) cultivating any coca plant or gathering any portion
Jyoti Sharma of coca plant;
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(ii) cultivating the opium poppy or any cannabis plant;
(iii) engaging in the production, manufacture,
possession, sale, purchase, transportation,
warehousing, concealment, use or consumption,
import inter-State, export inter-State, import into
India, export from India or transhipment, of narcotic
drugs or psychotropic substances;
10. Given this, the rigors of S. 37 of the NDPS Act do not apply to 9.5 kgs of Ganja
recovered from the petitioner.
11. 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.
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. Per the custody certificate dated 13-09-2024, the petitioner’s custody is five
months and one day.
14. 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.
Given the quantity being intermediate 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 for 9.5 kgs of
Ganga.
EVIDENCE REGARDING 20.342 KGS OF GANJA:
15. Dealing in 20.342 kgs of Ganja is a punishable offense under S. 20 of the NDPS
Act in the following terms:
Substance Name Ganja/ Bhang Patti
Quantity detained 22.342 Kg
Jyoti Sharma Quantity type Commercial
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Drug Quantity in % to upper limit
111.71%
of Intermediate
16. 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.
17. 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.
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 investigator arraigned the
petitioner as an accused based on the disclosure statement of the main accused, from
Jyoti Sharma
whose possession the investigator had recovered the contraband. No other evidence is
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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. There is another angle to the evidence collected against the petitioner.
21. It shall be relevant to extract Paras 3, 4(a) and 4(b) of the reply which read as
follows:
“3. That it is submitted that the role attributed to the present
Petitioner i.e. Rahul [co-accused] is that during the course of
investigation the main accused namely Anil Swain alias Chandan
got recorded his disclosure statement wherein, he stated that he
was going to supply the contraband recovered [20.342 Kg Ganja]
to the Petitioner at Kharar, Punjab. Furthermore, during the
course of investigation a raid was conducted at Swaraj Enclave,
Kharar, Punjab and the present Petitioner was apprehended from
there who was at the time of such apprehension in possession of
9.5kg Ganja which he had kept at his house. It is relevant to
mention here that, the Petitioner was asked by the Police officials
to show any permit or license for being in possession of contraband
recovered which he failed to provide.
4. That it is submitted that both the accused persons are in
custody since 13.04.2024. The evidence against the Petitioner is as
under-
a. After the arrest of the Petitioner/accused the
mobile phone Samsung Galaxy M-11 with sim of Mobile
No. 7077482283 of the main accused Anil Swain alias
Chandan and Mobile phone of VIVO Company having
Sims of Mobile No. 9518610688 and 7015316486
belonging to present petitioner has been taken into
police possession vide a seizure memo dated 13.04.2024
and both the mobile phones have been sent to CFSL,
Sector-36, Chandigarh on 25.04.2024 for examination,
however the CFSL Report is awaited.
b. The call detail records between main accused
and the Petitioner have been scrutinized wherein it has
been found out that the main accused as well as the
present petitioner were constantly in touch with each
other and a total 287 calls were found to be made
between each other. The certified copies as well as the
certificate under Section 65-B of Indian Evidence Act
has been obtained by the police authorities.
c. The Police authorities deposited Sample A
containing 1 Kg Ganja and Sample C containing 500
grams Ganja to the CFSL, Sector 36, Chandigarh, on
15.04.2024. The CFSL, Sector 36, Chandigarh,
submitted its report on 20.06.2024, wherein, it was
observed that the Exhibits A and Exhibit C are samples
of Ganja.
Jyoti Sharma
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CRM-M-41550-2024d. During the course of investigation the account
statements of accused persons w.e.f. 10.10.2023 to
15.03.2024 have been scrutinized and it has been found
that total of amount of Rs. 113,102/- have been found to
be credited in the Account no. 6239649972 of Indian
Bank, Chandiputh, Gajjapati, Odisha belonging to main
accused Anil Swain alias Chandan from the Account no.
9864001700014176 of Punjab National Bank, Sector-
25/29, Part 2, Sanholi road, Panipat, Haryana belonging
to the Present petitioner. Furthermore, other bank
account transactions were also scrutinized which
revealed the present Petitioner has transferred total of
Rs.2,60,998/- to Mr. Romiya Kumar Jena and Rs.
2,24,996/- through money transfer agent at Kharar to
Ram Babu Sahani. The police authorities have also
issued notices to Romiya Kumar Jena and Ram Babu
abu Sahani to join the investigation, however, till date
they have not joined the investigation in regards to
present matter.”
22. Thus, the petitioner had not yet taken possession of the Ganja from the main
accused, Anil Swain alias Chandan. There is no investigation regarding the payment of
advance money for this ganja. However, 287 calls do point towards the connection, but
the police also recovered 9.5 kgs of Ganja from the petitioner, and thus, there is no
evidence that these 287 calls were not made for the Ganja already recovered and that
these calls were for any commitment or verbal contract or advance payment for 20.342
kgs of Ganja that was not recovered from the petitioner but was recovered from Anil
Swain alias Chandan. The issue is that, based on this investigation, what is the evidence
about the petitioner’s Actus Reus?
23. S. 20 of NDPS punishes for violation and S. 29 for criminal conspiracy. The
investigation does not suggest that the main accused, Anil Swain alias Chandan, had
already sold the 20.342 kgs of ganja to the petitioner. The disclosure statement of Anil
Swain alias Chandan shows that he was going to supply 20.342 kgs of ganja to the
petitioner, but there is no presumption that the petitioner would have purchased it. There
is no evidence of the petitioner paying any advance or verbal commitment. Criminal
deeds must precede the criminal outcome. Can the petitioner be blamed for an act that
lacks evidence of contract or commitment? Even if it is presumed that the main accused
intended to sell it to the petitioner, where is the certainty of the petitioner, in fact, buying
it? What would be the criteria for blaming the petitioner? Calls can be for previous sales;
part of it stands recovered and falls in intermediate quantity, and nothing can be
presumed for what could not be recovered.
24. 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
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25. 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.
26. 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.
27. 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)
28. This order is subject to the petitioner’s complying with the following terms.
29. 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.
30. 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
Jyoti Sharma
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also restrain the accused from influencing the witnesses and repeating the offense.
31. 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.”
32. Any observation made hereinabove is neither an expression of opinion on the
case’s merits nor shall the trial Court advert to these comments.
33. 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.
34. 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: YES.
Jyoti Sharma
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