Punjab-Haryana High Court
Rajesh vs State Of Haryana on 30 August, 2024
Author: Anoop Chitkara
Bench: Anoop Chitkara
Neutral Citation No:=2024:PHHC:113971
1
CRM-M-14387-2024
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CRM-M-14387-2024
Reserved on: 06.08.2024
Pronounced on: 30.08.2024
Rajesh ...Petitioner
Versus
State of Haryana ...Respondent
CORAM: HON'BLE MR. JUSTICE ANOOP CHITKARA
Present: Mr. Anshuman Dalal, 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 & 27A of NDPS
Hisar, Haryana Act
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 5 of the bail petition, the accused has the following criminal antecedents:
Sr. No. FIR No. Date Offenses Police Station
1 286 08.04.2023 20(b)(ii)(c) & 27-A Barwala, District Hisar
of NDPS Act
2 239 30.08.2022 20, 27A/29/61/85 of Bass, Hisar
NDPS Act
3. The facts and allegations are taken from the reply filed by the State. On 12th April 2023, based on secret information/chance recovery, the Police seized 4 kgs of charas from Ajit and Munim's possession. The Investigator claims to have complied with all the statutory requirements of the NDPS Act, 1985, and CrPC, 1973.
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. It would be appropriate to refer to the following portions of the reply, which read 1 1 of 8 ::: Downloaded on - 03-09-2024 02:56:36 ::: Neutral Citation No:=2024:PHHC:113971 2 CRM-M-14387-2024 as follows:
"4. That after registration of the case, a fair and impartial investigation was carried out by the local police and the two co-accused Ajit alias Jitu son of Rampal and Munim son of Gopi Ram were arrested and disclosure statements were recorded and place of incidents were demarcated. That co-accused Ajit alias Jeetu suffered disclosure statements implicating another accused namely Ram Singh and petitioner/accused Rajesh as supplier. He stated in his disclosure statement that he is addicted to sulfa/charas and known to 4 petitioner/accused Rajesh alias Bobal for a long time, who works as a supplier of Sulfa-Charas. He purchased Sulfa- Charas from Rajesh and supplied it further many times. About 2 weeks ago, he spoke to petitioner/accused Rajesh through WhatsApp and there was talk of purchasing 32 kg of charas/sulfa for Rs 3 lakh. After that petitioner/accused Rajesh supplied him 32 kilograms of charas/sulfa in a bag on his scooter in Kalayat district Kaithal near village Kalasar Kheri. Out of 32 kg of sulfa/charas, he sold 16 kg of sulfa/charas for 2 lakh 40 thousand rupees to the co-accused Munim, who is his relative, out of which 80 thousand rupees was given to him by the co-accused Munim. The remaining money was to be paid after selling sulfa charas. 16 kg of sulfa/charas was sold to co-accused Samunder for Rs 2 lakh. Samunder had given him one lakh rupees, the remaining money was to be given after selling sulfa/charas. On dated 12.04.2023 the police team arrested him and co-accused Munim with 4 kg Sulfa/Charas. Copy of disclosure statement of co-accused Ajit alias Jetu is annexed as Annexure R-1.
5. That during investigation co-accused Ram Singh was arrested on the dated 15.04.2023 and joined into the investigation. The accused Ram Singh got recovered an amount of Rs 10,000/- earned by him by selling the contraband charas. Later, accused Ram Singh also suffered a disclosure statement and he implicating the present petitioner/accused as the supplier of the contraband.
6. That during investigation the present petitioner/accused Rajesh was arrested on 30.05.2023 and his disclosure statement was recorded and places of incidents were demarcated. He stated in his disclosure statement that his friend is co-accused Pardeep son of Jagdish resident of Beer Farm, Hansi, district Hisar, who supplies Sulfa Charas and lives in Nepal. He talks to him on WhatsApp through Pardeep's mobile number +9979849553269. Pradeep has given him a SIM number 779825130787 from Nepal and a SIM number 7366946275 from Bihar. Co-accused Pradeep sent Sulfa/Charas from Nepal at a cheap price. He supplies Sulfa Charas to Jind, Kaithal, Punjab, Hisar etc. by talking on WhatsApp from the above mobile given by co- accused Pradeep. Co-accused Pradeep keeps sending Sulfa Charas to him from Nepal and about 2 months ago, he had ordered 60 kg of Sulfa Charas from Pardeep, who after talking to him got the Sulfa, sent to him in a Wagon-R car, whose driver's name he do not know, nor did he see the number of the Wagon-R. He had sold 32 kg of Sulfa/Charas on his Scooty No. HR 31M 2511 to co-accused Ajit and the rest of the Sulfa/Charas he had sold to individuals unknown. Copy of disclosure statement of petitioner/accused Rajesh alias Bobal is annexed as Annexure R-2."
7. Dealing in 4 kgs of charas is a punishable offense under the NDPS Act in the 2 2 of 8 ::: Downloaded on - 03-09-2024 02:56:37 ::: Neutral Citation No:=2024:PHHC:113971 3 CRM-M-14387-2024 following terms:
Cannabis and cannabis resin/ Charas/ Hashish/ Substance Name Sulpha Quantity detained 4 Kg Quantity type Commercial Drug Quantity in % to upper limit 400.00% 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. 23 Common Name (Name of Narcotic Drug and Psychotropic Substance Cannabis and cannabis resin (International non-proprietary name (INN) Other non-proprietary name CHARAS, HASHISH Chemical Name EXTRACTS and TINCTURES OF CANNABIS Small Quantity 100 Gram (i.e. equivalent to 0.1 Kg) Commercial Quantity 1000 Gram (i.e. equivalent to 1 Kg) 0 Declared as punishable under NDPS Act and as per schedule defined in S.2(xi) & 2(xxiii) NDPS Act, 1985 Notification No S.20 & S.2(iii) NDPS Act, S.O.821(E) dated 11/14/1985 Sr. No. S.2(iii) Common Name (Name of Narcotic Drug and Psychotropic Substance ****** (International non-proprietary name (INN) Other non-proprietary name ****** S.2(iii) "cannabis (hemp)" means--
(a) charas, that is, the separated resin, in whatever form, whether crude or purified, obtained from the cannabis plant and also includes concentrated preparation and resin known as hashish oil or liquid hashish;
(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; and Chemical Name
(c) any mixture, with or without any neutral material, of any of the above forms of cannabis or any drink prepared therefrom;
(iv) "cannabis plant" means any plant of the genus cannabis; S. 2(viiib)] "illicit traffic", in relation to narcotic drugs and psychotropic substances, means--
(i) cultivating any coca plant or gathering any portion of coca plant;
(ii) cultivating the opium poppy or any cannabis plant;
(iii) engaging in the production, manufacture, 3
3 of 8 ::: Downloaded on - 03-09-2024 02:56:37 ::: Neutral Citation No:=2024:PHHC:113971 4 CRM-M-14387-2024 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;
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. 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.
[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 4 4 of 8 ::: Downloaded on - 03-09-2024 02:56:37 ::: Neutral Citation No:=2024:PHHC:113971 5 CRM-M-14387-2024 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].
(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 5 5 of 8 ::: Downloaded on - 03-09-2024 02:56:37 ::: Neutral Citation No:=2024:PHHC:113971 6 CRM-M-14387-2024 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.
10. 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.
11. 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.
12. As per paragraph 4(d) of the bail petition, the petitioner has been in custody since 30-05-2023. Per the custody certificate dated 05.08.2024, the petitioner's total custody in this FIR is 01 year, 02 months & 06 days. 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.
13. 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.
14. 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.
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15. 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)
16. 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.
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 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.
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. Any observation made hereinabove is neither an expression of opinion on the 7 7 of 8 ::: Downloaded on - 03-09-2024 02:56:37 ::: Neutral Citation No:=2024:PHHC:113971 8 CRM-M-14387-2024 case's merits nor shall the trial Court advert to these comments.
20. 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.
21. 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. 8 8 of 8 ::: Downloaded on - 03-09-2024 02:56:37 :::