Punjab-Haryana High Court
Ram Singh vs State Of Haryana on 30 August, 2024
Author: Anoop Chitkara
Bench: Anoop Chitkara
Neutral Citation No:=2024:PHHC:113226
CRM-M-59223-2023 1
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CRM-M-59223-2023
Reserved on: 06.08.2024
Pronounced on: 30.08.2024
Ram Singh ...Petitioner
Versus
State of Haryana ...Respondent
CORAM: HON'BLE MR. JUSTICE ANOOP CHITKARA
Present: Mr. P.S. Sekhon, Advocate
for the petitioner.
Mr. Rajat Gautam, Addl. AG, Haryana.
****
ANOOP CHITKARA, J.
FIR No. Dated Police Station Sections
101 12.04.2023 Uklana, District 20(B)(ii)C of NDPS act 1985
Hisar
1. The petitioner incarcerated in the FIR captioned above had come up before this
Court under Section 439 CrPC, 1973, seeking regular bail.
2. As per paragraph 12 of the reply, the accused has the following criminal
antecedents:
Sr. No. FIR No. Date Offenses Police Station
1 59 02.04.2013 15, 18, 21, 22 of City Sunam
NDPS Act and 25 of
Arms Act
2 82 07.07.2016 21 of NDPS Act City Sunam
3 70 22.04.2018 379 IPC City Sunam
4 138 25.06.2021 21 of NDPS Act City Sunam
5 96 06.04.2020 21 of NDPS Act City Sunam
6 49 28.05.2020 15 of NDPS Act Cheema
3. The facts and allegations are being taken from the reply filed by the State, which
reads as follows:
“That as per disclosure statement of the accused Ajit @ Jittu he had sold
10 Kg Sulfa/Charas to petitioner/accused in furtherance of an amount of
Rs.1,50,000/- and accordingly the petitioner/accused name was
incorporated in the present case and he was arrested on 15.04.2023 on the
demarcation and identification made by the accused Ajit @ Jittu.
6. That during further investigation of the case the petitioner/accused
disclosure statement was recorded and he was produced before the Ld.1
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Illaqa Magistrate on 16.04.2023 and 3 days police rernand of the
petitioner/accused was approved. During further investigation in
furtherance of disclosure statement the petitioner/accused demarcated the
place from where he purchased 10 kg Charas/Sulfa from accused Ajit @
Jittu and site plan of same was prepared separately. Petitioner/accused
got recovered an amount of Rs.10,000/- which he get after selling the
Charas/Sulfa and recovery memo of the same was prepared separately by
the investigating officer in the present case. On 19.04.2023 after
completing police remand the petitioner/accused was produced before the
Ld. Illaqa Magistrate and confined into Judicial Custody. Copy of
disclosure statement of petitioner/accused is appended herewith as
Annexure R-2.”
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. The State’s counsel opposes bail and refers to the reply.
6. 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.
7. Given the evidence being in the shape of a disclosure statement of the co-accused,
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.
8. 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.
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[30]. From the summary of the law relating to rigors of S.37 of NDPS
Act, while granting bail involving commercial quantities, the following
fundamental principles emerge:
(a). In case of inconsistency, S. 37 of the NDPS Act prevails
over S. 439 CrPC. [Narcotics Control Bureau v Kishan Lal, 1991
(1) SCC 705, Para 6].
(b). The limitations on granting of bail come in only when the
question of granting bail arises on merits. [Customs, New Delhi
v. AhmadalievaNodira, (2004) 3 SCC 549, Para 7].
(c). The provisions of Section 37 of the NDPS Act provide the
legal norms which have to be applied in determining whether a
case for grant of bail has been made out. [UOI v. Prateek Shukla,
2021:INSC:165 [Para 11], (2021) 5 SCC 430, Para 12].
(d). In case the Court proposes to grant bail, two conditions are
to be mandatorily satisfied in addition to the standard
requirements under the provisions of the CrPC or any other
enactment. [Union of India v. Niyazuddin SK &Anr,
2017:INSC:686 [Para 7], (2018) 13 SCC 738, Para 7].
(e). Apart from granting opportunity to the Public Prosecutor,
the other twin conditions which really have relevance are the
Court’s satisfaction that there are reasonable grounds for
believing that the accused is not guilty of the alleged offence.
[N.R. Mon v. Md. Nasimuddin, (2008) 6 SCC 721, Para 9].
(f). The satisfaction contemplated regarding the accused being
not guilty has to be more than prima facie grounds, considering
substantial probable causes for believing and justifying that the
accused is not guilty of the alleged offence. [Customs, New
Delhi v. Ahmadalieva Nodira, (2004) 3 SCC 549, Para 7].
(g). The reasonable belief contemplated in the provision
requires existence of such facts and circumstances as are
sufficient in themselves to justify satisfaction that the accused is
not guilty of the alleged offence. [State of Kerala v. Rajesh,
2020:INSC:88 [Para 21], AIR 2020 SC 721, Para 21].
(h). Twin conditions of S. 37 are cumulative and not
alternative. [Customs, New Delhi v. Ahmadalieva Nodira, (2004)
3 SCC 549, Para 7].
(i). At the bail stage, it is neither necessary nor desirable to
weigh the evidence meticulously to arrive at a positive finding as
to whether or not the accused has committed an offence under the
NDPS Act and further that he is not likely to commit an offence
under the said Act while on bail. [Union of India v. Rattan Mallik
@ Habul, (2009) 2 SCC 624, Para 14].
(j). If the statements of the prosecution witnesses are believed,
then they would not result in a conviction. [Babua v. State of
Orissa, (2001) 2 SCC 566, Para 3].
(k). Merely recording the submissions of the parties does not
amount to an indication of a judicial mind or a judicious
application of mind. [UOI v. Prateek Shukla, 2021:INSC:165
[Para 11], (2021) 5 SCC 430, Para 12].
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(l). Section 37 departs from the long-established principle of
presumption of innocence in favour of an accused person until
proved otherwise. [Union of India v. Sanjeev v. Deshpande,
(2014) 13 SCC 1, Para 5].
(m). While considering the application for bail concerning
Section 37, the Court is not called upon to record a finding of not
guilty. [Union of India v. Shiv Shanker Kesari, (2007) 7 SCC
798, Para 11].
(n). The confessional statement recorded under Section 67 of
the NDPS Act is inadmissible in the trial of an offence under the
NDPS Act. [Tofan Singh v. State of Tamil Nadu,
2020:INSC:620, (2021) 4 SCC 1]
(o). In the absence of clarity on the quantitative analysis of the
samples from the laboratory, the prosecution cannot be heard to
state at this preliminary stage that the accused possessed a
commercial quantity of psychotropic substances as contemplated
under the NDPS Act. [Bharat Chaudhary v. Union of India
2021:INSC:877 [Para 11], 2021 SCC OnLine SC 1235, Para
10].
(p). When there is evidence of conscious possession of
commercial quantity of psychotropic substances, such accused is
not entitled to bail given Section 37 of the Act as contemplated
under the NDPS Act. [State by (NCB) Bengaluru v. Pallulabid
Ahmad Arimutta, 2022:INSC:26 [Para 11], 2022 SCC OnLine
SC 47, Para 12].
(p). Bail must be subject to stringent conditions. [Sujit Tiwari
v. State of Gujarat, 2020:INSC:101 [Para 12], 2020 SCC Online
SC 84, Para 12].
[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.
9. As per paragraph 7 of the bail petition, the petitioner has been in custody since
12.04.2023. 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.
10. 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.
11. 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
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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.
12. 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)
13. This order is subject to the petitioner’s complying with the following terms.
14. 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.
15. 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.
16. 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
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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.”
17. Any observation made hereinabove is neither an expression of opinion on the
case’s merits nor shall the trial Court advert to these comments.
18. 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.
19. Petition allowed in terms mentioned above. All pending applications, if any,
stand disposed of.
(ANOOP CHITKARA)
JUDGE
30.08.2024
anju rani
Whether speaking/reasoned: Yes
Whether reportable: No.
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