Punjab-Haryana High Court
Gurtej Singh Alias Chitta vs State Of Punjab on 29 November, 2024
Author: Anoop Chitkara
Bench: Anoop Chitkara
Neutral Citation No:=2024:PHHC:161328
CRM-M-50972-2024
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CRM-M-50972-2024
Reserved on: 12.11.2024
Pronounced on: 29.11.2024
Gurtej Singh @ Chi a ...Pe oner
Versus
State of Punjab ...Respondent
CORAM: HON'BLE MR. JUSTICE ANOOP CHITKARA
Present: Mr. Nirmaljeet Singh Sidhu, Advocate,
for the pe oner.
Mr. Jasjit Singh, DAG, Punjab.
****
ANOOP CHITKARA, J.
FIR No. Dated Police Sta0on Sec0ons 76 07.09.2024 Dayalpura, Dis . Bathinda, Punjab 21(a), 29 of NDPS Act
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] (replaced with Sec on 438 CrPC), seeking an cipatory bail.
2. In paragraph 17 of the bail pe on and as per paragraph 8 of the reply, the accused has the following criminal antecedents:
Sr. No. FIR Dated/Year Offenses Police Sta0on No.
1. 79 2018 341, 506, 148, 149 IPC, 25, 27, Phul, Dis . Bathinda 54, 59 of Arms Act
2. 12 17.02.2023 452, 323, 427, 509, 148, 149 IPC Smalsar, Dis . Moga
3. The facts and allega ons are taken from the reply filed by the State. On Sep 07, 2024, the Police seized 6 grams of heroin and Rs.8000/-, which the police termed as Drug money, from the possession of the co-accused Yograj. 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, Yograj, confessed before the Police officer that the heroin belonged to the pe oner and he was selling it on his behalf. Based on such confession before the police, the pe oner was arraigned as an 1 1 of 6 ::: Downloaded on - 07-12-2024 11:07:37 ::: Neutral Citation No:=2024:PHHC:161328 CRM-M-50972-2024 accused. Apprehending arrest, he filed for an cipatory bail from the Sessions Court, which denied 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 reply.
7. It would be appropriate to refer to the following por ons of the reply, which read as follows:
"Role of the pe oner
5. That there is a specific role of the pe oner in the present case and he has been nominated under Sec on 29 of NDPS Act being supplier of the contraband to the main accused. No ill-will of enmity has been shown as to why the non-applicant/accused, has named the pe oner.
Evidence against the pe oner
6. That a*er the arrest of the co-accused the police inves gated the case and call detail of the pe oner was taken by the police. The pe oner used to call from his mobile No. 99141-xxxxx to 97793-xxxxx (mobile phone of co-accused Yograj Singh). There are number of calls since long to the date of incident between the pe oner and co-accused Yograj Singh. It is per nent to men on here that the mobile no. 99141-xxxxx is on the name of the pe oner and mobile no. 97793-xxxxx is on the name of co- accused Yograj Singh. CAF report of the mobile phone of the pe oner and co-accused Yograj Singh is annexed as Annexure R-1 and Call Detail Record (CDR) of the mobile phone of the pe oner with co-accused Yograj Singh is annexed as Annexure R-2."
8. A perusal of the reply does not refer to any disclosure that Rs. 8000/- were sale proceeds of drugs and, as such, the said money cannot be taken as drug money at this stage un l evidence is led prove the same.
9. Dealing in 6 grams of heroin is a punishable offense under the NDPS Act in the following terms:
Substance Name Heroin/ Chi a/ Smack/ Brown Sugar Quan ty detained 6 Gram Quan ty type Intermediate 2 2 of 6 ::: Downloaded on - 07-12-2024 11:07:38 ::: Neutral Citation No:=2024:PHHC:161328 CRM-M-50972-2024 Drug Quan ty in % to upper limit 2.40% 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. 56 Common Name (Name of Narco c Drug and Psychotropic Substance Heroin (Interna onal non-proprietary name (INN) Other non-proprietary name ****** Chemical Name Diacetylmorphine Small Quan ty 5 Gram Commercial Quan ty 250 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.(xvi)(d) NDPS Act, 1985 (61 of 1985), S.O. 821 (E) Dated 11/14/1985 Sr. No. 2(xvi)(d) Common Name (Name of Narco c Drug and Psychotropic Substance ****** (Interna onal non-proprietary name (INN) Other non-proprietary name ****** 2(xvi)(d) diacetylmorphine, that is, the alkaloid also known as dia-morphine or heroin and its salts;
Explana on.-- For the purposes of clauses (v) (vi), (xv) and (xvi) the percentages in the case of liquid prepara ons shall be calculated on the basis that a prepara on containing one per cent. of a substance means a prepara on in which one gram of substance, if solid, or one mililitre of substance, if liquid, is Chemical Name contained in every one hundred mililitre of the prepara on and so on in propor on for any greater or less percentage:
Provided that the Central Government may, having regard to the developments in the field of methods of calcula ng percentages in liquid prepara ons prescribed, by rules, any other basis which it may deem appropriate for such calcula on.
10. Given this, the rigors of S. 37 of the NDPS Act do not apply in the present case.
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11. 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 a ract, and the factors for bail become similar to the offence regular statutes.
12. 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.
13. 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.
14. 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.
15. 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 ma er 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.
16. While furnishing a personal bond, the pe oner shall men on the following personal iden fica on details:
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1. AADHAR number
2. Passport number (If available) and when the a es ng officer/court considers it appropriate or considers the accused a flight risk.
3. Mobile number (If available)
4. E-Mail id (If available)
17. The bail order is subject to the pe oner's complying with the following terms.
18. 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.
19. 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.
20. 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.
21. 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."
22. This bail is condi onal, and the founda onal condi on is that if the pe oner 5 5 of 6 ::: Downloaded on - 07-12-2024 11:07:38 ::: Neutral Citation No:=2024:PHHC:161328 CRM-M-50972-2024 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.
23. 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.
24. 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 a est it to be a true copy. If the a es 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 a es ng bonds.
25. Pe00on allowed in terms men oned above. All pending applica ons, if any, stand disposed of.
(ANOOP CHITKARA)
JUDGE
29.11.2024
Jyo0-II
Whether speaking/reasoned: Yes
Whether reportable: No.
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