Punjab-Haryana High Court
Happy Alias Bholla vs State Of Punjab on 29 November, 2024
Author: Anoop Chitkara
Bench: Anoop Chitkara
Neutral Citation No:=2024:PHHC:160374
CRM-M-48055-2024
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CRM-M-48055-2024
Reserved on: 13.11.2024
Pronounced on: 29.11.2024
Happy @ Bholla ...Pe oner
Versus
State of Punjab ...Respondent
CORAM: HON'BLE MR. JUSTICE ANOOP CHITKARA
Present: Ms. Rashi Verma, Advocate for
Mr. Manu Loona, Advocate,
for the pe oner.
Mr. Sukhdev Singh, AAG, Punjab.
****
ANOOP CHITKARA, J.
FIR No. Dated Police Sta1on Sec1ons 168 07.08.2024 City Jagraon, Dis3. 22, 25 of NDPS Act Ludhiana Rural
1. The pe oner apprehending arrest in the FIR cap oned above has come up before this Court under Sec on 482 of Bhara ya Nagarik Suraksha Sanhita, 2023, [BNSS], seeking an cipatory bail.
2. As per paragraph 10 of the bail pe on and as per paragraph 8 of the status report, the accused has the following criminal antecedents:
Sr. No. FIR No. Dated Offenses Police Sta1on 1. 5 08.01.2024 21, 61, 85 of NDPS Act Dakha
3. The facts and allega ons are taken from the reply filed by the State. On Aug 07, 2024, based on a chance recovery, the Police seized 220 tablets of Alprazolam and 120 loose capsules of Pregabalin from the possession of co-accused Akash and Sunil. The Inves gator claims to have complied with all the statutory requirements of the NDPS Act, 1985, and BNSS, 2023.
4. During custodial interroga on, the main accused, Akash and Sunil, confessed before the Police officer that they were selling the drugs on the pe oner's behalf. Based on such confession before the police, the pe oner was arraigned as an accused. Apprehending arrest, he filed for an cipatory bail from the Sessions Court, which denied 1 1 of 6 ::: Downloaded on - 02-12-2024 23:28:32 ::: Neutral Citation No:=2024:PHHC:160374 CRM-M-48055-2024 him bail. Feeling aggrieved, he has invoked the concurrent jurisdic on of this Court under S. 482 BNSS, 2023.
5. The pe oner's counsel prays for bail by imposing any stringent condi ons and contends that further pre-trial incarcera on would cause an irreversible injus ce to the pe oner and his family.
6. The State's counsel opposes bail and refers to the status report.
7. It would be appropriate to refer to the following por ons of the status report, which read as follows:
"3. That then ASI Dharminder Singh counted the tablets and capsules which were in the envelope of these accused persons. There were 120 loose capsules. There were 22 strips of tablets of Alprazolam 05 but batch number was deleted on the strips. There were 10 tablets in each strip. So total 220 tablets of Alprazolam were recovered from that envelope. ASI Dharminder Singh prepared one parcel of the tablets and capsules and sealed the same with his seal bearing impression DS and taken into possession. Then the I.O. sent ruqa to the police sta&on and got registered FIR No. 168 dated 07-08-2024 u/s 22/25/61/85 NDPS Act, PS City Jagraon against accused Akash @ Ladoo, Sunil and pe&&oner Happy @ Bhola. Accused Akash @ Ladoo and Sunil were arrested at the spot.
6. That parcel of intoxicant tablets and capsules was deposited in Regional Tes&ng FSL Ludhiana on 13-08-2024 for report. A:er analysis the FSL has issued report No. 1333/2024/Toxi/RTFSL/LSH/Pb dated 26-09-2024. The report reveals that salt Alprazolam was detected in the tablets and average weight of one tablet was 133 mg. and salt Pregabalin was detected in the contents of capsules and average weight of one capsule was 921 mg.
9. That head wise reply of the orders passed by this Hon'ble Court is as under:-
(i) That the role of the pe&&oner is that he has employed the above men&oned accused persons to sell his intoxicant tablets and capsules to the people.
(ii) That the evidence against the pe&&oner in this case is that on interroga&on of accused Akash @ Ladoo and Sunil Kumar, they told that pe&&oner Happy @ Bhola has le: them at the place of recovery on his car to sell his intoxicant tablets and capsules."2
2 of 6 ::: Downloaded on - 02-12-2024 23:28:32 ::: Neutral Citation No:=2024:PHHC:160374 CRM-M-48055-2024
8. Thus, the evidence collected so far consists of disclosure statements without any discovery of fact.
9. The status report filed by the police reveals that the inves gator arraigned the pe oner as an accused based on the disclosure statement of the main accused, from whose possession the inves gator had recovered the contraband. No other evidence is collected at this stage to connect the pe oner with the main accused. Thus, there is no jus fica on to deny bail.
10. Dealing in 29.26 Grams of Alprazolam is a punishable offense under the NDPS Act in the following terms:
Substance Name ALPRAZOLAM
Quan ty detained 29.26 Gram
Quan ty type Intermediate
Drug Quan&ty in % to upper limit
29.26%
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. 178 Common Name (Name of Narco c Drug and Psychotropic Substance ALPRAZOLAM (Interna onal non-proprietary name (INN) Other non-proprietary name ****** 8-chloro-1-methyl-6-phenyl-4H-s-triazolo[4,3-a] Chemical Name [1,4]benzodiazepine Small Quan ty 5 Gram Commercial Quan ty 100 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 NDPS Act, 1985 (61 of 1985), S.O. 821(E) Dated 11/14/1985 Sr. No. 30 Common Name (Name of Narco c Drug and Psychotropic Substance ALPRAZOLAM (Interna onal non-proprietary name (INN) Other non-proprietary name ****** 8-Chloro-1-methyl-6-phenyl-4H-s-triazolo [4, 3-a] [1, Chemical Name 4] benzodiazepine
11. Given this, the rigors of S. 37 of the NDPS Act do not apply in the present case.
33 of 6 ::: Downloaded on - 02-12-2024 23:28:32 ::: Neutral Citation No:=2024:PHHC:160374 CRM-M-48055-2024
12. Sec on 2 (vii-a) of the NDPS Act defines commercial quan ty as greater than the quan ty specified in the schedule. Sec on 2 (xxiii-a) defines a small quan ty as a quan ty less than the quan ty specified in the table of the NDPS Act. The remaining quan ty falls in an undefined category, generally called an intermediate quan ty. All sec ons in the NDPS Act specify an offence and men on the minimum and maximum sentence, depending upon the quan ty of the substance. The commercial quan ty 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 quan ty is less than commercial, the restric ons of Sec on 37 of the NDPS Act will not a3ract, and the factors for bail become similar to the offence regular statutes.
13. In Sami Ullaha v Superintendent Narco c Control Bureau, (2008) 16 SCC 471, the Hon'ble Supreme Court holds that in intermediate quan ty, the rigors of the provisions of Sec on 37 may not be jus fied.
14. Pre-trial incarcera on should not be a replica of post-convic on sentencing. The evidence might be prima facie sufficient to launch prosecu on or to frame charges, but this Court is not considering the evidence at that stage but is analyzing it for the stage of an cipatory bail. An analysis of the above does not jus fy custodial interroga on or pre- trial incarcera on.
15. Given the above, the penal provisions invoked coupled with the primafacie analysis of the nature of allega ons and the other factors peculiar to this case, there would be no jus fiability for custodial interroga on or the pre-trial incarcera on at this stage. Without commen ng on the case's merits, in the facts and circumstances peculiar to this case, and for the reasons men oned above, the pe oner makes a case for an cipatory bail. This order shall come into force from the me it is uploaded on this Court's official webpage.
16. Given above, provided the pe oner is not required in any other case, the pe oner shall be released on bail in the FIR cap oned above subject to furnishing bonds to the sa sfac on of the Arres ng Officer, and if the ma3er is before a Court, then the concerned Court and due to unavailability before any nearest Ilaqa Magistrate/duty Magistrate. Before accep ng the surety, the concerned Officer/Court must be sa sfied that if the accused fails to appear, such surety can produce the accused.
17. While furnishing a personal bond, the pe oner shall men on the following personal iden fica on details:
44 of 6 ::: Downloaded on - 02-12-2024 23:28:32 ::: Neutral Citation No:=2024:PHHC:160374 CRM-M-48055-2024
1. AADHAR number
2. Passport number (If available) and when the a3es ng officer/court considers it appropriate or considers the accused a flight risk.
3. Mobile number (If available)
4. E-Mail id (If available)
18. The bail order is subject to the pe oner's complying with the following terms.
19. The pe&&oner is directed to join the inves&ga&on within seven days of uploading this order on the official webpage of the High Court of Punjab and Haryana and as and when called by the Inves&gator. The pe oner shall be in deemed custody for Sec on 27 of the Indian Evidence Act, 1872/ Sec on 23 of BSA, 2023. The pe oner shall join the inves ga on as and when called by the Inves ga ng Officer or any Superior Officer and shall cooperate with the inves ga on at all further stages as required. In the event of failure to do so, the prosecu on will be open to seeking cancella on of the bail. During the inves ga on, the pe oner shall not be subjected to third-degree, indecent language, inhuman treatment, etc.
20. The pe oner shall abide by all statutory bond condi ons and appear before the concerned Court(s) on all dates. The pe oner 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.
21. In case the Inves gator/Officer-In-Charge of the concerned Police Sta on arraigns another sec on of any penal offense in this FIR, and if the new sec on prescribes a maximum sentence that is not greater than the sec ons men oned above, then this bail order shall be deemed to have also been passed for the newly added sec on(s). However, suppose the newly inserted sec ons prescribe a sentence exceeding the maximum sentence prescribed in the sec ons men oned above; then, in that case, the Inves gator/Officer-In-Charge shall give the pe oner no ce of a minimum of seven days, providing an opportunity to avail the remedies available in law.
22. In Md. Tajiur Rahaman v. The State of West Bengal, decided on 08-Nov-2024, SLP (Crl) 12225-2024, Hon'ble Supreme Court holds in Para 7, "It goes without saying that if the pe oner is found involved in such like offence in future, the concession of bail granted to him today will liable to be withdrawn and the pe oner is bound to face the necessary consequences."
23. This bail is condi onal, and the founda onal condi on is that if the pe oner 5 5 of 6 ::: Downloaded on - 02-12-2024 23:28:32 ::: Neutral Citation No:=2024:PHHC:160374 CRM-M-48055-2024 indulges in any non-bailable offense, the State may file an applica on for cancella on of this bail before the Sessions Court, which shall be at liberty to cancel this bail.
24. Any observa on made hereinabove is neither an expression of opinion on the case's merits nor shall the trial Court advert to these comments.
25. A cer fied copy of this order would not be needed for furnishing bonds, and any Advocate for the Pe oner can download this order along with case status from the official web page of this Court and a3est it to be a true copy. If the a3es ng officer wants to verify its authen city, such an officer can also verify its authen city and may download and use the downloaded copy for a3es ng bonds.
26. Pe11on allowed in terms men oned above. All pending applica ons, if any, stand disposed of.
(ANOOP CHITKARA)
JUDGE
29.11.2024
Jyo1-II
Whether speaking/reasoned: Yes
Whether reportable: No.
6
6 of 6
::: Downloaded on - 02-12-2024 23:28:32 :::