Punjab-Haryana High Court
Pankaj Garg Alias Nannu vs State Of Punjab on 19 October, 2024
Author: Anoop Chitkara
Bench: Anoop Chitkara
CRM-M-44171-2024
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CRM-M-44171-2024
Reserved on: 16.10.2024
Pronounced on: 19.10.2024
Pankaj Garg @ Nannu ...Petitioner
Versus
State of Punjab ...Respondent
CORAM: HON'BLE MR. JUSTICE ANOOP CHITKARA
Present: Mr. Ruhani Chadha, Advocate
for the petitioner.
Mr. Akshay Kumar, A.A.G., Punjab.
****
ANOOP CHITKARA, J.
FIR No. Dated Police Station Sections
146 06.12.2019 Longowal, District 22, 29 of NDPS Act (Section
Sangrur 31 of NDPS Act added later
on)
1. The petitioner incarcerated in the FIR captioned above had come up before this Court under Section 439 CrPC, 1973, seeking regular bail.
2. Per paragraph 15 of the bail application, the accused has the following criminal antecedents:-
Sr. No. FIR No. Date Offenses Police Station
1. 99 15.09.2017 22, 29 of NDPS Act Longowal
2. 147 06.12.2019 22, 29 of NDPS Act Longowal
3. 10 18.01.2017 22, 29 of NDPS Act Dharamgarh,
District Sangrur
3. The facts and allegations are taken from the reply filed by the State. On Dec 06, 2019, based on prior information, the Police seized thirteen injections of Buprenorphine and eight injections of promethazine hydrochloride phenergan from the possession of co- accused Bahadur Singh. The Investigator claims to have complied with all the statutory requirements of the NDPS Act, 1985, and CrPC, 1973. During the custodial interrogation, Bahadur Singh named the petitioner, Pankaj Garg, as its supplier.
4. The Investigator claims to have complied with all the statutory requirements of the NDPS Act, 1985, and CrPC, 1973.
Jyoti Sharma 2024.10.19 13:10 I attest to the accuracy andauthenticity of this order/judgment High Court, Sector 1, Chandigarh 1 CRM-M-44171-2024
5. The petitioner's counsel referred to para 12 of the bail petition and submitted that the petitioner has been in custody since 12.12.2019.
6. 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.
7. The State's counsel opposes bail and refers to the reply.
8. As per the labeling on the Promethazine Hydrochloride Phenegran injection, it contains 2ml liquid. A total of 8 injections were recovered from the main accused, Bahadur Singh. Thus, the total weight of the Promethazine Hydrochloride is 16 ml. The reply did not refer to the notification vide which Promethazine Hydrochloride Phenegran is an offence punishable under the NDPS Act. Thus, until such notifications are produced, this Court shall not take Promethazine Hydrochloride as an offense.
9. As per the labeling on the Buprenorphine injection, it contains 2ml liquid. A total of 13 injections were recovered from the main accused, Bahadur Singh. Thus, the total weight of the substance is 26 ml. Dealing in 26 ml of buprenorphine is a punishable offense under the NDPS Act in the following terms:
Substance Name BUPRENORPHINE
Quan ty detained 26 Gram
Quan ty type Commercial
Drug Quan ty in % to upper limit
130.00%
of Intermediate
Specified as small & Commercial in S.2(viia) & 2(xxiiia) NDPS Act, 1985 No fica on No S.O.1055(E) dated 10/19/2001 Sr. No. 169 Common Name (Name of Narco c Drug and Psychotropic Substance BUPRENORPHINE (Interna onal non-proprietary name (INN) Other non-proprietary name ****** 21-cyclopropyl-7-alpha-[(S)-1-hydroxy-1,2,2- Chemical Name trimethylpropyl]-6,14,endo-ethano-6,7,8,14-
tetrahydrooripavine
Small Quan ty 1 Gram
Commercial Quan ty 20 Gram
0
Declared as punishable under NDPS Act and as per schedule defined in S.2(xi) & 2(xxiii) NDPS Act, 1985 No fica on No S.O.785(E) dated 10/26/1992 Sr. No. 92 Jyoti Sharma 2024.10.19 13:10 I attest to the accuracy and authenticity of this order/judgment High Court, Sector 1, Chandigarh 2 CRM-M-44171-2024 Common Name (Name of Narco c Drug and Psychotropic Substance BUPRENORPHINE (Interna onal non-proprietary name (INN) Other non-proprietary name ****** 21, cyclopropyl-7-μ-[(S)-1-hydroxy-1-2, 2- Chemical Name trimethylpropyl]-6, 14-endo-ethano-6,7,8,14- tetrahydrooripavine
10. The quantity of Buprenorphine 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.
11. 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.
12. It would be appropriate to refer to the following portions of the reply, which read as follows:-
"6. A) ROLE OF THE PETITIONER PANKAJ GARG @ NANNU The present FIR No.146 dated 06.12.2019 under section 22,29 NDPS Act P.S., Longowal was registered against Bahadur Singh s/o Late Sukhdev Singh r/o Randhawa Patti, Mandher Kalan Road, Longowal and Pankaj Garg s/o Satpal Garg r/o Longowal on the basis of secret Jyoti Sharma information received by A.S.I. Jagdev Singh STF Sangrur. Further 2024.10.19 13:10 I attest to the accuracy and authenticity of this order/judgment High Court, Sector 1, Chandigarh 3 CRM-M-44171-2024 investigation was carried out by A.S.I. Jagsir Singh and accused Bahadur Singh was apprehended and (21 intoxicant injections) i.e. 13 intoxicant injections Make BUPRENORPHINE INJECTION IP 2 ML Leegesic and 8 intoxicant injection Make PROMETHAZINE HYDROCHLORIDE INJECTION IP 2 ML PHENERGAN were recovered from the possession of accused Bahadur Singh @ Soni. During interrogation accused Bahadur Singh @ Soni disclosed that he had brought the above said intoxicant injections from Pankaj Garg (now petitioner). Accused/petitioner Pankaj Garg @Nannu was arrested in this case on 09.01.2020. Although nothing was recovered from the possession of petitioner Pankaj Garg but infact, he supplied those 21 intoxicant injections to co-accused Bahadur Singh @ Soni for selling purpose. So, a specific role of the petitioner is found to have involved in the commission of drug trafficking.
B) THE EVIDENCE AGAINST THE PETITIONER.
i)Bahadur Singh co-accused of the petitioner during his interrogation disclosed that, "I brought 25 intoxicant injections from Pankaj (now petitioner), out of which I injected 4 injections to myself and the remaining 21 intoxicant injections have been recovered from me.
ii)During investigation Naib Singh son of Basant Singh resident of Randhawa Patti, Longowal recorded in his statement u/s 161 Cr.P.C.
dated 11.12.2019 that on 06.12.2019 he saw Pankaj Garg (now petitioner) while handing over the envelope containing intoxicated injection and giving money to Bahadur Singh @ Soni (co-accused of the petitioner).
iii)During investigation Bhim Dass son of Arjun Dass resident of Longowal recorded in his statement u/s 161 Cr.P.C dated 11.12.2019 that on 06.12.2019 he saw Pankaj Garg (now petitioner) while handing over the envelope containing intoxicated injection and giving money to Bahadur Singh @Soni (co-accused of the petitioner).
iv)That during investigation 21 intoxicant injections were recovered from the possession of Bahadur Singh @ Soni (co-accused of the petitioner), out of 25 injections which were supplied to him by Pankaj Garg and he injected the remaining 4 injections himself."
13. 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.Jyoti Sharma 2024.10.19 13:10 I attest to the accuracy and
authenticity of this order/judgment High Court, Sector 1, Chandigarh 4 CRM-M-44171-2024
14. 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.
15. 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.
16. Given this, the criminal antecedents are also not legal grounds for denying the rigors of S. 37 of the NDPS Act at this stage.
17. Per para 6C of the reply, the petitioner has been in custody since 09-01-2020, and his total custody is 4 years, 8 months, and 14 days. Given the quality of evidence being in the shape of disclosure during custodial interrogation of the main accused, drugs were medicines that attracted violation of S. 22 of NDPS Act, 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.
18. 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.
19. 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.
20. 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) Jyoti Sharma 2024.10.19 13:10 I attest to the accuracy and authenticity of this order/judgment High Court, Sector 1, Chandigarh 5 CRM-M-44171-2024
21. This order is subject to the petitioner's complying with the following terms.
22. 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.
23. 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.
24. 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."
25. Any observation made hereinabove is neither an expression of opinion on the case's merits nor shall the trial Court advert to these comments.
26. 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 Jyoti Sharma 2024.10.19 13:10 I attest to the accuracy and authenticity of this order/judgment High Court, Sector 1, Chandigarh 6 CRM-M-44171-2024 download and use the downloaded copy for attesting bonds.
27. Petition allowed in terms mentioned above. All pending applications, if any, stand disposed of.
(ANOOP CHITKARA) JUDGE 19.10.2024 Jyoti Sharma Whether speaking/reasoned: Yes Whether reportable: No. Jyoti Sharma 2024.10.19 13:10 I attest to the accuracy and authenticity of this order/judgment High Court, Sector 1, Chandigarh 7