Punjab-Haryana High Court
Shivam @ Shivam Nandal vs Union Of India on 25 October, 2024
Author: Anoop Chitkara
Bench: Anoop Chitkara
CRM-M-48480-2024
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CRM-M-48480-2024
Reserved on: 16.10.2024
Pronounced on: 25.10.2024
Shivam @ Shivam Nandal ...Petitioner
Versus
Union of India ...Respondent
CORAM: HON'BLE MR. JUSTICE ANOOP CHITKARA
Present: Mr. Rohit Sapehiya, Advocate
for the petitioner.
Mr. Manish Verma, Advocate for
Mr. J.S.Lalli, Dy. Solicitor General of India
for respondent-UOI.
****
ANOOP CHITKARA, J.
NCB Crime No. Dated Police Station Sections
54 23.08.2022 NCB, 8/20/29/60 of the NDPS
Chandigarh Act, 1985
1. The petitioner incarcerated in the FIR captioned above had come up before this
Court under Section 439 CrPC, 1973, seeking interim bail.
2. In paragraph 17 of the bail petition, the accused declares that he has no criminal
antecedents.
3. The facts and allegations are being taken from the English translation of FIR,
annexed with the petition as Annexure P-1, which reads as follows:
“1. That the complainant Karamvir Singh is the Intelligence
Officer of the Narcotics Control Bureau (NCB), Chandigarh and is
duly authorized to sign and present the complaint, carry out
investigation, search, seizure and arrest eto, under Narcotic Drugs
and Psychotropio Substances Act, 1985 (herein after referred to as
‘the Act’) within the territorial jurisdiction of Chandigarh Zonal
Unit of NCB. He has conducted the investigation of the present
case and is well versed with the facts of the present case.
2. That Sandeep Kumar is also Intelligence Officer of the
Narcotics Control Bureau (NCB), Chandigarh and duly authorized
to carry out search, seizure, investigation and arrest eto, under the
Act within the territorial jurisdiction of Chandigarh Zonal Unit of
NCB. He has affected the seizure of contraband in the present case
under the Act.
Jyoti Sharma
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authenticity of this order/judgment
High Court, Sector 1, Chandigarh 1
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3. That Mohinder Jit Singh is Assistant Director of NCB
Chandigarh and Gazetted Officer and superior Officer of Sandeep
Kumar and Karamvir Singh, Intelligence Officers.
4. That Smt.Meera Kumari Meena is the Superintendent of NCB
Chandigarh and is Gazetted Officer and superior Officer of
Sandeep Kumar and Karamvir Singh, Intelligence Officers for the
provision of Section 57 of the Act. She is also the Officer in-charge
of NCB Godown.
5. That the territorial jurisdiction of Chandigarh Zonal Unit of
NCB spans to the States of Punjab, Himachal Pradesh, Haryana
(except NCR) and Chandigarh (U.T.).
6. That present complaint is being filed u/s 36-A of the Act, for
contravention of Section 8 of the Act by the above named accused,
the offences are punishable u/s 20, 25, 28& 29 of the Act r/w
Section 60 & 62 of the Act.
7. That facts leading to filing of present case are that on
23.08.2022 a ‘Secret’ specific information received by Rajneesh,
Intelligence officer NCB, that “Shivam, aged 26 years, R/o Rothak,
Kaushal, aged 26years, R/o Gurugram, Lavish aged 22 years R/o
Karnal and Kabir aged 22years, R/oKarnal are bringing a
consignment of Charas from Himachal Pradesh today in their
vehicleno.HR 12 AP 5515.All will cross toll barrier Kurali, Ropar
between 2100 hrs to2200 hrs on 23.08.2022”
8. That the information was typed by Rajneesh, IO, with request for
mounting surveillance at suitable place to apprehend the person
with contraband, and the same was put beforeSmt.Meera Kumari
Meena, Superintendent Chandigarh Zonal Unit who constituted a
team of NCB Officers/officials comprising of Sandeep Kumar
(Intelligence Officer), Sumit Saini (Junior Intelligence Officer),
Kulwinder, Sepoy, Jai Singh (Sepoy), Lalit, (S.A), Inder Singh
(Driver). The iriformation was notified to Sandeep Kumar,
Intelligence Officer. Karamvir Singh, Intelligence Officer was
designated as Investigating Officer in case of seizure as per the
order of Superintendent, NCB.
9. That further information about the suspect/accused was received
and more information about the car was derived from online
method. This further information was also placed before the
Superintendent in written form by Rajneesh, Intelligence Officer
and then passed on to Sandeep Kumar, Intelligence Officer by the
Superintendent.
10. That the above team, which was present in the office on
23.08.2022, moved from the NCB office in one official vehicle and
reached at Toll plaza Kurali, Rupnagar, Punjab.
11. That on arriving at Kurali Toll Tax Barrier, the N.C.B.
team requested the passersby to join the team as public witness
during the course of search, but all went away on the pretext of
busy schedule & night hours. Then the N.C.B. Team contacted the
Police of Police Station, Singh Bhagwantpura, on which ASI Telu
Ram No.911 & ASI Mohan Lal No. 895/R from Police Station
Singh Bhagwantpura arrived at the spot, who were told that the
team from N.C.B., Chandigarh was having a secret information to
the effect that one Shivam son of Suresh Kumar Nandal, resident of
Jyoti Sharma
2024.10.25 17:31
411/30, Dev Colony, Rohtak with his associates Kaushal Yadav,
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Lavish &Kabir is bringing a huge consignment of Charas from
Kasol (H.P.) in a Baleno Car bearing Regn. No.HR 12AP 5515
colour grey, who will cross. Kurali Toll Tax Barrier, Ropar between
21.00-22.00 Hrs. Both the ASIs of Punjab Police were requested to
remain present during search & recovery in capacity of
independent witnesses, to which, ASI Telu Ram & ASI Mohan Lal
agreed. They were also issued written notices by Sandeep Kumar,
Intelligence Officer which they both accepted.
12. That thereafter, the team from N.C.B., Chandigarh along
with both the said independent witnesses started keeping vigil for
the vehicles coming from Kiratpur side towards Kurali Toll Tax
Barrier, Ropar. Then at about 2120 Hrs, a Grey colour Baleno car
found coming from Kiratpur side. On arriving close, it found
having Regn. No.HR 12AP 5515, on which, N.C.B. team gave
signal to stop. On this, its driver stopped his car on left side.
13. Then Sandeep Kumar introduced himself & N.C.B. team
by showing the Departmental I. Card and asked the name &
address from the youngster sitting on driving seat, who told his
name as Shivam Kumar son of Suresh Kumar Nandal, resident of
411/30, Dev Colony, Rohtak, while the youngster sitting on his
adjoining seat told his name as Kabir and three youngsters, sitting
on rear seat, told their name as Lavish, Kaushal &Lakshya. Then
Sandeep Kumar, 1.0., told all the persons, travelling in said car,
about secret information available with them, on which first, all the
said persons denied, but after some time Shivam admitted that
there is a Charas consignment in dicky of their car bearing
Registration No.HR 12AP 5515, which they have concealed in
Speaker Box, kept in dicky of their car.
14. That as there was traffic jam problem, hence said
Baleno car bearing Registration No.HR 12AP 5515 with all the
said youngsters & independent witnesses was brought to Toll
Barrier office, situated near Kurali Toll Barrier. Then said Shivam
was asked to bring out the Charas consignment, concealed in car,
on which, he opened the Speaker Box, kept in dicky of their car,
with the help of screw driver and brought out a blue colour-
polythene bag. On opening the said polythene bag, it was found
containing four packets & three small plastic pouches. Moreover, a
Charas crushing bowl, OCB Papers (Rolling papers for Charas) &
an empty Tobacco packet were also found. On having asked, said
Shivam told that said small three plastic pouches are also carrying
Charas, which he had taken out from packets in order to use the
same on the way. On being asked Shivam further told that from the
recovered Charas packet weighing 700 Gms belonged to Shivam,
packet weighing 300 Gms belonged to Kaushal, the packet having
about 100 Gms Charaş belonged to Kabir, while the packet with 14
Gms Charas belonged to Lavish. Then on having asked, all the
said persons agreed to this fact.
15. That thereafter on opening all the packets, two packets
were found containing dark brown colour round shape substance,
while two other packets were found containing flat shape
substance. Then small quantity of substance was taken out all
packets and checked with the help of Drug Detection Kit, on which
it werefound to be positive for Charas. Then entire consignment of
Charas was seized and the said packets were accordingly put in
separate transparent polythene bags &weighed with the help of
Jyoti Sharma
digital weighing scale, upon which the weight was found to be
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High Court, Sector 1, Chandigarh 3
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01.114 Kg.
16. That the Charas lying in said three small plastic pouches
was put in packet belonging to Shivam. Then all the packets were
hent sealed & put in separate white colour markin bags. The
packing material was separately put in markin bag and crushing
bowl, rolling paper & empty tobacco packets were put in markin
bag in the way, as mentioned above. The opening side of parcels
were sealed with the help of needle & thread & tagged with a
cardboard piece, which were marked as Lot-A, Lot-B, Lot-C, Lot-
D, Lot-P & Lot-P1.
17. That thereafter, brass seal bearing Impression of
N.C.B./CHD-20 was obtained from Sumit Saini, J.LO. and affixed
on all the lots (parcels) with the help of sealing wax. The
impression of seal, used in seizure proceeding, was also affixed on
the Panchnama.
18. That after using the said brass seal, the same handed
over to Sumit Saini, J.LO. Thereafter, said Baleno car bearing
Registration No.HR 12AP. 5515 was also seized. The recovery-
cum-seizure memo & site plan of place of occurrence were also
drafted at the spot. A Panchnama was also drafted by recording
entire proceeding conducted in this connection, contents of which
were, read over & explained to all those present at the spot, on
which, all of them admitted the same to be true & correct. All the
said persons as well as both independent witnesses put their
respective signatures on all lots, recovery-cum-seizure memo &
site plan of place of occurrence, in presence of each other.
19. That thereafter, all the accused were issued a Notice U/s.
67 N.D.P.S. Act for recording their statement in Crime No. 54/2022
dated 23.8.2022 of Narcotics Control Bureau, Chandigarh for
appearing before Intelligence Officer Karamvir Singh. Panchnama
proceeding finished at 23.45 Hrs. in peaceful manner. That
proceeding of seizure was completed peacefully at about 2345
hours on 23.08.2022. The Panchnama contained all the details of
search and seizure proceedings and it was read over to all which
then was signed by NCB officer Sandeep Kumar, Intelligence
Officer, Sumit Saini, Junior Intelligence Officer, Shivam, Lavish,
Kabir, Kaushal, Lakshaya and both witnesses. Written proceedings
were conducted in. the office room of Kurali Toll Tax Barrier.
20. That the crime case file of NCB Cr.No-54/2022 was also
handed over to Karamvir Singh, IO for further investigation vide
office order NCB F.No-VIII/NCB/CZU/CF-A/54/2022 dated
23.08.2022 issued by Meera Kumari Meena, Superintendent and
handing taking over was done accordingly.
21. That after coming back at NCB office, case property was
deposited with the Officer in-charge of Godown of NCB
Chandigarh and a receipt dt-24.08.2022 was obtained in this
regard.
22. That on 24.08.2022 accused Shivam was made to
understand about the provisions of section 67 NDPS Act by
Karamvir Singh, I.O., that his statement can be used against him
or against anybody else as evidence in the court of law and that he
had right to remain silent. Accused Shivam got recorded his
Jyoti Sharma
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statement in which he discloses mobile number as 8930507474 and
that on 20/08/22 he had left from Gurugram in his Baleno car
bearing registration number HR12AP5515 and met Lakshya and
accused Kabir at Mohali and all left for Kasol where they took
around in Shivalaya Guest House and on the next morning he and
Kabir met Lucky and asked for Charas and that Lucky gave them
700 g of Charas per which he had paid Rs. 1 lakh 20 thousand to
him and that a friend of accused Kabir asked him to take him also
on the back and that mobile number of accused Kabir was
7015208359 and mobile number of Lakshya was 9876330243 and
mobile number of accused Kaushal was 8700938685. Accused
Shivam further disclosed that accused Kaushal and also purchased
about 300 g of Charas and accused Kabir had purchased about
100 g of Charas and accused Lavish had purchased 14 g of Charas
and that they had collected all the Charas and concealed in the
Speaker and that Lakshya had also called to take him along on the
way back. Accused Shivam in his statement had admitted the
manner and factum of the recovery of Charas.
23. That similarly accused Lavish was made to understand
about the provisions of section 67 NDPS Act that his statement can
be used against him or against anybody else as evidence in the
court of law and that he had right to remain silent. Accused Lavish
stated in his statement that he was 12th pass was running a
restaurant and that his mobile number was 9671271076 and that
he had reached Bhunter on 20/08/22 from Delhi on Volvo bus
which he had taken on 19/08/22 and from Bhunter he had taken a
taxi for Kasol readily stayed in a tent. Accused Lavish further
stated in his statement that he met one Nepali person from whom
he had purchased 14 g of Charas for a payment of Rs. 2000 and
that he had also called accused Kabir during that time for taking
in alongside on the way back. Accused Lavish in his statement had
admitted the manner and factum of the recovery of Charas.
24. That in the same manner accused Kaushal was made to
understand about the provisions of section 67 NDPS Act that his
statement can be used against him or against anybody else as
evidence in the court of law and that he had right to remain silent.
Accused Kaushal stated in his statement that his mobile number
was 8700938685 and that he had booked Volvo bus on 20/08/2022
from Ambala to Bhunter and after reaching Bhunter it took a taxi
to Kasol and booked room in hotel Highland and that on
22/08/2022 he met accused Shivam who was staying in Shivalaya
Guest House and that he had purchased about 300 g of Charas for
a payment of Rs. 45,000 which was made in cash and had handed
over the purchased Charas to accused Shivam for keeping with
him. Accused Kaushal in his statement had admitted the manner
and factum of the recovery of Charas.
25. That during investigation accused Kabir was also made
to understand about the provisions of section 67 NDPS Act that his
statement can be used against him or against anybody else as
evidence in the court of law and that he had right to remain silent.
Accused Kabir disclosed in his statement that he stayed at the
house of his cousin as he had come to Mohali for admission
consultancy at Amity University and that he had left with accused
Shivam Naridal for Kasol in his car and both of them along with
Lakshay stayed at Shivalya Guest House which is owned by a boy
namely Lucky from whom he purchased under the of Charas for a
Jyoti Sharma payment of Rs. 40,000. Accused Kabir in his statement had
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admitted the manner and factum of the recovery of Charas.
26. That after that Lakshay Chanana was made to
understand about the provisions of section 67 NDPS Act that his
statement can be used against him or against anybody else as
evidence in the court of law and that he had right to remain silent.
Lakshay Chanana stated in his statement the manner in which he
visited Kasol along with his friend Shivam and Kabir and also
about their stay at Shivalya Guest House and he came to know
about Charas only when the car in which they were travelling was
stopped by NCB and Sandeep Kumar Intelligence Officer disclosed
about the secrets information and he also disclosed the manner in
which the recovery was affected in his presence from the car and
also disclosed his mobile number as 9876330243.
27. That on the basis of recovery and voluntary confessional
statements U/s 67 of NDPS Act 1985, accused persons Shivam,
Lavish, Kabir and Kaushal were arrested on 24.08.2022 after
explaining them the grounds of arrest and arrest memos were
prepared. The Jama Talashi was conducted. Jama Talashi memos
were prepared.. The information of arrest of acoused was given as
per his request to their family members and memos in this regard
wore also prepared.
28. That the mobiles of accused persons Shivam, Lavish,
Kabir and Kaushal and Lakshya were taken into possession and
separate receipts in this regard were prepared.
29. That the custody of Lakshya Chariana was handed over
to his father as prima facie his role was not found in the trafficking
of seized Charas.
30. That the accused persons were got medically. examined
on 25.08.2022at Govt. Hospital Sector 16,Chandigarh and
produced before the Ld. Chief Judicial Magistrate, Rupnagar,
Punjab along with case property, inventory and relevant
documents. LOT-A, LOT- B, LOT-C and LOT-D were opened after
breaking open the NCB seal and six Court Samples of 25 gm each
were taken out from LOT- A, LOT-B, LOT-C. LOT-D itself was
taken as sample since there was insufficient quantity for taking
separate samples. The remaining contraband in LOT-A and two
Court samples i.e. Mark-Al and Mark-A2,LOT-B and two Court
samples i.e. Mark-B1 and Mark- B2,LOT-C and two Court samples
ie. Mark-Cl and Mark-C2 and LOT-D along with LOT-P and LOT-
Piwere sealed with the Court seal bearing impression of ‘APS’.
31. That Test Memo in triplicate was also prepared before
the Court. Photographs of the sampling process were taken. The
photographs were developed and certified by Ld. Chief Judicial
Magistrate, Rupnagar, Punjab.
32. That accused Shivam, Kaushal, Kabir and Kabirwere
reinanded to NCB remand for two days and the NCB team along
with recovered case property and accused persons came to the
NCB office, Chandigarh for further proceedings.
33. That after coming back at NCB office, case property
including the samples was deposited with the Officer in-charge of
Godown of NCB Chandigarh. The copies of Test memo were also
provided to the Officer in-charge.
Jyoti Sharma
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34. That Sandeep Kumar, 1.0 submitted the report U/s 57 of
NDPS Act, 1985 regarding seizure to the MeeraKumari Meena,
Superintendent, NCB on 24.08.2022.
35. That Karamvir Singh, I.O submitted the report U/s 57 of
NDPS Act, 1985 regarding arrest to the Meera Kumari Meena,
Superintendent NCB Chandigarh on 26.08.2022.
36. That during the remand period, further statements of the
accused Shivam, Kaushal, Kabir and Kabir were recorded. In his
statement dated 25.08.2022, accused Shivamdivulged information
about his bank accounts and land etc. for the purpose of financial
investigation under Chapter VA of the NDPS Act and also
disclosed more information about other accomplice. Similarly,
accused Kaushal, Lavish and Kabiralso disclosed about his bank
accounts and ownership of vehicle.
37. That the medical examinations of the accused persons
were conducted in Government Hospital, Chandigarh.
38. That accused Shivam, Kaushal, Kabir and Kabirwere
produced before the Hon’ble Court Chief Judicial Magistrate,
Rupnagar, Punjabon 26.08.2022 and accused were sent in judicial
custody to Distt. Jail, Rupnagar, Punjab.
39. That a letter was written to the Superintendent, NCB,Sub
Zone Mandi, HP for follow up action in connection with NCB
crime No.54/2022qua accused Lucky owner of Shivalya Guest
House, Kazol, Distt. Kullu, HP.On25.08.2022 the NCB officials
went to Guest house of accused Lucky owner of Shivalya Guest
House, Kasol, Distt. Kullu, HP and his guest house search was
conducted by Ashok Kumar Prajapti, IO, NCB, Sub-Zone Mandi,
HP. During the search the Panchnama of House search was drawn
and the witness and family member present during the search
appended their signatures.
40. That a letter no.NCB/CZU/Cr.No.54/2022/2132 dated
26.08.2022 was written to the Zonal Director, Narcotics Control
Bureau, Delhi Zonal Unit for follow up of Shivam, Kaushal, Lavish
and Kabir. The house searches were carried out and certain
documents were taken into possession. Respective Panchnama
were also prepared.
41. That sample packet marked as Mark as A1, B1,C1 and
D1 along with rwo copies of Test Memos having facsimile
impression of the Seal ‘APS’ were sent to the Chemical Examiner,
C.R.C.L, New Delhi vide letter No. NCB/CZU/Cr.
No.54/2022/2131 dated 26.08.2022 through Rakesh Kumar, Sepoy,
PIC No. NCB/4633 and their receipt vide CRCL Dy. No. 309 dated
26.08.2022 was obtained which was deposited with NCB office
vide Dy. No. 3581 dt. 01.09.2022.
42. That the Chemical Examination Report No- CLD-1946to
1949(N) dated 26.08.2022 from the CRCL, New Delhi was
received in the office on 07.11.2022, Dy.No.4472. The report
confirmed the presence of Charas in the sample. The report in
original is attached with this complaint.
43. That copies of Test report were sent to Superintendent
Jail, Rupnagar, Punjab for serving of reports to the accused and
Jyoti Sharma report was received.
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44. That on 02.09.2022 a letter written to the Superintendent
of Police, Distt. Rothak, Haryana for intimation of arrest and
requisition for criminal record of accused Shivam and report are
still awaited.
45. That on 02.09.2022 a letter written to the Superintendent
of Police, Distt. Gurugram, Haryana for intimation of arrest and
requisition for criminal record of acoused Kaushal and report was
received. No other case is found to be registered against him.
46. That on 02.09.2022 a letter written to the Superintendent
of Police, Distt. Karnal, Haryana for intimation of arrest and
requisition for criminal record of accused Lavish and Kabir and
report are still awaited.
47. That a letter was written to the RTO, Distt. Rothak,
Haryana for providing the details of seized vehicle no.HR12AP
5515 on 02.09.2022 through speed post. Further reminder on
24.01.2023 was also send to RTO office, Distt. Rothak, Haryana
and email was send on 24.01.2023. The reply was received.
48. That as stated above, accused Shivam had disclosed
about Lucky and his mobile number, as supplier of the seized
contraband. Accordinglya notice u/s 67 issued in the name of
Lucky, owner of Shivalaya Guest House, Kasol, Distt. Kullu, HP
for giving him an opportunity to join the investigation in the case
and to appear before the Intelligence Officer at NCB office,
Chandigarh on 05.12.2022but he did not join the investigation.
Copies of notice u/s 67 of NDPS Act 1985 and summon sent by
“SPEED POST” are attached.
49. That second time notices u/s 67were issued in the name
of Lucky owner of Shivalaya Guest House, Kasol, Distt. Kullu, HP
for recording of their statements in the case and to appear before
the Intelligence Officer at NCB office, Chandigarh on 10.01.2023
but again he did not join the investigation.
50. That letter for obtaining CAF & CDR was sent to the
Nodal Officer of Reliance IO on 07.09.2022 in r/o the
mobilenumber-9671271076, 7015208359, 8930507474,
8700938685 related to arrested accused and supplier as provided
by the accused in their voluntary statement. Further reminder
letters for obtaining CAF & CDR were sent to the Nodal Officer of
Reliance IO in ro the mobile number-
9671271076,7015208359,8930507474, 8700938685 and report
was received on 10.09.2022 and documents are attached in the
final complaint.
51. That the CDR analysis revealed that there are sufficient
communication between Shivam, Lavish, Kabir and Koushal. After
analysis of CDRs all accused were found connected with each
other. The details of the same are as under :-
52. That a letter was sent to Nodal Officer of BHARTI
AIRTEL Ltd for CAF and CDR of mobile no-
8570020028,9876330243and report was received and CDR, CAF
copy are attached in the final complaint.
53. That on 23.01.2023 a letter written to the Director,
Central Forensic Science Laboratory, Chandigarh request for
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analysis and supply of data of reoovered mobiles and SIMS cards
and providing 65-B Certificate and were sent to C.F.S.L,
Chandigarh vide letter No. NCB/CZU/Cr. No.54/2022/249 dated
23.01.2023 through Nand Singh Shekhawat, Sepoy, and their
receipt vide CFCL Chandigarh Dy. No.
CFSL(CHD)/324/FC/54/23 dated 23.01.2023. The reports are
awaited and same shall be placed on record as soon as these are
received.
54. That on 08.02.2023 Notices U/s 67 of NDPS Act, 1985
were served to independent witnesses ASI Teluram, Belt No.911
and ASI Mohanlal, Belt No.895R, Thana Singh Bhagatpura and
both independent witnesses have tendered their voluntary
statements reconfirming the manner and factum of the seizure
affected by Narcotics Control Bureau, Chandigarh under Crime
NO. 75/2020 on dated 29.12.2020.
55. That accused Shivamhas filed ari application in Hon’ble
High Court, Punjab& Haryana Chandigarh for interim bail in
CRM-M 55667/2022 and Hon’ble High Court Punjab & Haryana
Chandigarh allowed interim bail of accused Shivam on
31.03.2023.
56. That Lucky owner of Shivalaya Guest House, Kasol,
Distt. Kullu, HPis the supplier of part of seized Charas and has
not joined the investigation despite issuance of notices to him.
Moreover, the proceeding by NCB is already in his knowledge as a
team of NCB had searched his premises. So there is no other
efficacious way available other than issuance of Non Bailable
Wirrant against Lucky owner of Shivalaya Guest House, Kasol,
Distt. Kullu, HP.
57. That the present complaint is being filed against the
accused Shivam, Kaushal, Kabir, Lavish and Lucky. Further
investigation regarding the conspiracy behind trafficking of Illiolt
Charas and the other suspected persons involved is going on.
Moreover, the reports of data extraction of mobiles of accused and
also of LakshayChanana are also pending and the same shall be
placed on record as soon as these are received. On receipt of
mobile data or any other document or information, if the role of
any other person is found then NCB reserves its rights to proceed
accordingly and additional/supplementary/separate complaint
shall be filed in that regard.
58. That all the documents prepared and/or procured during
the investigation form part of this complaint and have been
annexed in original with this Complaint. The same shall be proved
during the evidence.
59. That from the facts stated above it is clear that accused
Shivam, Kaushal, Kabir and Lavish purchased the seized Charas
and accused Lucky was one of the suppliers and accused Shivam,
Kaushal, Kabir and Lavish were trafficking the seized 1.114 KGs
Charas in criminal conspiracy with each other without any
permission, authority or licence, and seized Charns which is of
Commercial Quantity, was recovered from conscious possession of
accused Shivam, Kaushal, Kabir and Lavish as detailed above,
while in illegal transit from H.P. to Haryana. The car from which
the recovery was affected i.e. the car bearing registration number,
Jyoti Sharma
HR12AP-5515, owned by accused Shivam was allowed to be used
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for illegal trafficking of Charas. Therefore they have contravened
the provisions of section 8 of NDPS Act and which is punishable
u/s 20, 25, 28, 29, 60 and 62 of NDPS Act, 1985. The guilt of the
accused persons would bej sstablished by the oral testimony of the
witnesses, the case property, documents and the report of
Chemical Examiner.
60. That accused Lucky has not co-operated with
investigation of this case and instead he is evading the
investigation of this case and the evidence show that he was
actively involved with the arrested accused in sale and conspiracy
of transporting, possessing of Charas without any lioit document
and necessary process may be issued against him for bringing the
aforesaid Lucky before the Hon’ble Court for facing trial of this
case.
59. That from the facts and circumstances stated in the
forgoing paragraphs it has be established that the seized
contraband and the vehicle owned by accused Shivam are liable
for confiscation u/s 60 and 62 of NDPS Act, 1985. The vehicle
bearing registration number HR12AP 5515 is liable to be
confiscated as per provision of section 60 of the NDPS Act, 1985,
for being used for transportation of seized Charas.
60. That furthermore presumption u/s 35 and 54 of the
NDPS Act 1985 attracted against the accused persons.
61. That the remand papers of accused nó. 1 to 4 are
pending before this Hon’ble Court and also this Hon’ble Court has
territorial jurisdiotion over the present complaint case u/s 36A of
the NDPS Act.
62. That the relevant documents and the goods seized would
be submitted before your Honour at the time of trial for making
exhibits and complainant craves leave of this Hon’ble Court to file
supplementary complaint if any after filing the complaint.
The complainant humbly prays that Your Honour may be
pleased to admit this Complaint in connection with this case and
be pleased to issue process against the absconder acoused namely
Lucky and upon his arrest, after recording the statements of the
listed witnesses be pleased to punish the accused person Shivam,
Kaushal, Kabir, Lavish and Lucky for violation of section 8(c) of
NDPS Act, 1985, and punishable u/s 20 b (li)(c), 25, 28 and 29 of
NDPS Act, 1985 as per the provisions of the law.
It is further prayed that the vehicle bearing registration
number HR12AP 5515 may kindly be confiscated as per provision
of section 60 of the NDPS Act, 1985, being used for transportation
of seized Charas.
It is also further prayed that the complainant being a
public servant, he may be exempted from personally attending the
court each and every date unless specially called for and for this
act of kindness the complaint as is duty bound shall ever pray.”
4. The Investigator claims to have complied with all the statutory requirements of
the NDPS Act, 1985, and CrPC, 1973.
Jyoti Sharma 5. The petitioner’s counsel prays for bail on medical grounds by imposing any
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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. It would be relevant to refer to the following portions of the reply dated
04.10.2024, filed by SSP, Ferozepur, which read as follows:
“10. That it is pertinent to mention here that the present
petitioner was allowed interim bail on the ground of the treatment of
his wife, where he produced medical certificates from two different
hospitals i.e. on the first instance he produced medical certificate
issued from Apollo Hospital, New Delhi. On the second instance he
produced medical certificate Rohtak Civil Hospital, Haryana. On
third instance he produced medical certificate which was issued from
Sector 16, Govt. Hospital, GMSH, Chandigarh. On fourth instance
he produced medical certificate which is issued from Apollo Hospital,
New Delhi and Yashoda Super Speciality Hospitals, Ghaziabad, U.P.
which was verified. But, now in the present petition he is producing
Doctor’s medical prescription of Fortis Hospital, Mohali, Punjab and
for taking concession of interim bail.
12. That as such the present case comes under the strict
provisions of Section 37 of the NDPS Act as far as the provision of
bail is concerned. The petitioner was working in a very planned
manner with other co-accused and in case bail is granted to the
petitioner, he shall indulge in similar activities as he has in-depth
experience & knowledge of the illegal trade.”
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. The petitioner’s medical condition is critical, so the rigors of S. 37 cannot override
the priority of taking care of these conditions.
10. The medical record confirms the need to take extra precautions because of
medical conditions, which, in the given facts, can be taken care of at home by the family
members or by admitting him to the hospital at their end and attending to the petitioner
for all such medical assistance by his close circle. 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.
11. Without commenting on the case’s merits, only because of the petitioner’s medical
condition, in the facts and circumstances peculiar to this case, does the petitioner make a
Jyoti Sharma case for bail. This order shall come into force from the time it is uploaded on this Court’s
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official webpage.
12. Given above, provided the petitioner is not required in any other case, the
petitioner shall be released on interim bail for a period of three months i.e. 28.10.2024 to
27.01.2025 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.
13. 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)
14. This order is subject to the petitioner’s complying with the following terms.
15. 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.
16. The petitioner shall attend the trial and, if not possible, inform the court well in
advance seeking exemption from personal appearance or attendance through video
conference. The petitioner’s counsel shall put signatures on his behalf, and the petitioner
shall not claim any prejudice in this regard at any stage before any Court.
17. 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
Jyoti Sharma Arms Act, 1959, the petitioner shall be entitled to renew and take it back in case of
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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.
18. 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.”
19. Petitioner shall surrender in the Jail from where he would release on 27.01.2025
upto 05:00 P.M.
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,
stand disposed of.
(ANOOP CHITKARA)
JUDGE
25.10.2024
Jyoti Sharma
Whether speaking/reasoned: Yes
Whether reportable: No.
Jyoti Sharma
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