Punjab-Haryana High Court
Gagan vs The State Of Ut Chandigarh on 27 September, 2024
Author: Anoop Chitkara
Bench: Anoop Chitkara
CRM-M-34956-2024
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CRM-M-34956-2024
Reserved on: 13.09.2024
Pronounced on: 27.09.2024
Gagan ...Petitioner
Versus
State of U.T., Chandigarh ...Respondent
CORAM: HON'BLE MR. JUSTICE ANOOP CHITKARA
Present: Mr. Jitender Singh Dadwal, Advocate
for the petitioner.
Mr. Manish Bansal, P.P., U.T., Chandigarh with
Mr. Shubham Mangla, Advocate and
Mr. Shaurya Nagpal, Advocate
****
ANOOP CHITKARA, J.
FIR Dated Police Station Sections
No.
476 25.12.2023 Section 36, Chandigarh 22 of NDPS Act (Sections 21/29 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 14 of the bail application, the accused has the following criminal antecedents:
Sr. No. FIR Dated Offences Police Station
No.
1 415 20.11.2018 21 of NDPS Act Ambala City, District Ambala
3. The facts and allegations are taken from the police report filed under section 173 CrPC (Annexure P-5). On Dec 25, 2023, based on a chance recovery, the Police seized 54.72 grams of Amphetamine (Ice) from a packet that the co-accused Mohd. Imtiyaz took out from his trousers pocket and tried to throw it, noticing the police. The Investigator claims to have complied with all the statutory requirements of the NDPS Act, 1985, and CrPC, 1973.
4. During custodial interrogation, the main accused, Mohd. Imtiyaz , named the petitioner Gagan as its seller. Based on this disclosure statement, the police arrested the petitioner, Gagan.
Jyoti Sharma 2024.10.03 16:515. On Dec 28, 2023, the petitioner disclosed the proceeds of drug money concealed I attest to the accuracy and authenticity of this order/judgment High Court, Sector 1, Chandigarh 1 CRM-M-34956-2024 in his premises. Based on such a disclosure statement, the investigator searched the petitioner's premises and the vehicle. During the vehicle's search, the Investigator stumbled upon 99.08 grams of heroin. Subsequently, based on a subsequent disclosure statement about gold bills, the Investigator recovered 4.95 grams of Amphetamine (ICE) from the petitioner's premises.
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 status report.
8. Dealing in 99.08 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 99.08 Gram Quan ty type Intermediate Drug Quan ty in % to upper limit 39.63% 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 ****** Chemical Name 2(xvi)(d) diacetylmorphine, that is, the alkaloid also known as dia-morphine or heroin and its salts;Jyoti Sharma 2024.10.03 16:51 I attest to the accuracy and
authenticity of this order/judgment High Court, Sector 1, Chandigarh 2 CRM-M-34956-2024 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 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.
9. Dealing in 4.95 grams of Amphetamine is a punishable offense under the NDPS Act in the following terms:
Substance Name METAMFETAMINE/ Ice/ Meth
Quan ty detained 4.95 Gram
Quan ty type Intermediate
Drug Quan ty in % to upper limit
9.90%
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. 159 Common Name (Name of Narco c Drug and Psychotropic Substance METAMFETAMINE (Interna onal non-proprietary name (INN) Other non-proprietary name methamphetamine (±)-(S)-N,alpha-dimethylphenethylamine, Chemical Name (+)2methylamino-1-Phenylpropane Small Quan ty 2 Gram Commercial Quan ty 50 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. 19 Jyoti Sharma 2024.10.03 16:51 I attest to the accuracy and authenticity of this order/judgment High Court, Sector 1, Chandigarh 3 CRM-M-34956-2024 Common Name (Name of Narco c Drug and Psychotropic Substance METHAMPHETAMINE (Interna onal non-proprietary name (INN) Other non-proprietary name ****** Chemical Name (+)-2-Methylamino-1-phenylpropane
10. Section 2 (vii-a) of the NDPS Act defines commercial quantity as the quantity greater than the quantity specified in the schedule. Section 2 (xxiii-a) defines a small quantity as a quantity less than the quantity specified in the table of the NDPS Act. The remaining quantity falls in an undefined category, generally called an intermediate quantity. All sections in the NDPS Act specify an offence and mention the minimum and maximum sentence, depending upon the quantity of the substance. The commercial quantity 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 quantity is less than commercial, the restrictions of Section 37 of the NDPS Act will not attract, and the factors for bail become similar to the offence regular statutes.
11. Given this, the rigors of S. 37 of the NDPS Act do not apply for the recovery of 99.08 grams of heroin and for the recovery of 4.95 grams of Amphetamine directly from the petitioner's possession.
12. In Sami Ullaha v Superintendent Narcotic Control Bureau, (2008) 16 SCC 471, the Hon'ble Supreme Court holds that in intermediate quantity, the rigors of the provisions of Section 37 may not be justified.
13. However, Dealing in 54.13 grams of Ice is a punishable offense under the NDPS Act in the following terms:
Substance Name METAMFETAMINE/ Ice/ Meth
Quan ty detained 54.13 Gram
Quan ty type Commercial
Drug Quan ty in % to upper limit
108.26%
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. 159 Common Name (Name of Narco c Drug and Psychotropic Substance METAMFETAMINE (Interna onal non-proprietary name (INN) Jyoti Sharma Other non-proprietary name methamphetamine 2024.10.03 16:51 I attest to the accuracy and authenticity of this order/judgment High Court, Sector 1, Chandigarh 4 CRM-M-34956-2024 (±)-(S)-N,alpha-dimethylphenethylamine, Chemical Name (+)2methylamino-1-Phenylpropane Small Quan ty 2 Gram Commercial Quan ty 50 Gram
14. The main accused, Mohd. Imtiyaz, during custodial interrogation, disclosed to the Investigator that he had purchased the 54.13 grams of Ice from the petitioner.
15. Thus, the quantity allegedly recovered from Mohd. Imtiyaz 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.
16. 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.
17. It would be appropriate to refer to the following portions of the status report, which read as follows:
"3. That the brief facts of the case are like that on 25.12.2023, the police party was patrolling in lieu of rising crime and were checking the vehicles at Dividing Road, Sector- 52 towards village Kajheri and at about 05:25 p.m., one person was seen coming from the side of Dividing Road, Sector-52 towards the naka side on activa scooter, who on seeing the police party tried to flee away and the police then stopped the activa on suspicion that it might be a case of vehicle theft. On apprehension, the said person tried to throw a heavy transparent polythene after taking it out from upper right pocket of his worn Jyoti Sharma 2024.10.03 16:51 I attest to the accuracy and authenticity of this order/judgment High Court, Sector 1, Chandigarh 5 CRM-M-34956-2024 black colour tracksuit but was caught hold off from his right hand along with the said polythene and the said activa. On interrogation, the person disclosed his name as Mohammad Imtiyaz. The said polythene was checked and it was found containing white sugar type substance and on interrogation, it was disclosed that it was ice and he used to sale the same to drug addicts. When the recovered substance was checked on Drug Detection Kit, it was found positive for Amphetamine (ice) and weighed 54.13 grams without polythene on the electronic weighing scale. Subsequently, FIR was registered om 25.12.2023 and co-accused Mohammad Imtiyaz was arrested.
During the course of further investigation, the co- accused Mohammad Imtiyaz disclosed that he had purchased the alleged contraband Amphetamine from the present petitioner/accused and regularly purchased amphetamine and heroin from the petitioner/accused. Subsequently, the present petitioner was arrested on 26.12.2023 from Sector-56, Chandigarh. Thereafter, from the accused two gold bangles weighing 153.56 grams were recovered from the residence of the petitioner/accused at Ambala, which had been purchased by him from the drug money of Rs. 9,00,000/-. On 29.12.2023, one white colour car belonging to the present petitioner/accused was recovered from Dushehra Ground, Sector-56, Chandigarh at the instance of the present petitioner wherein 99.08 grams of heroin was recovered from the said car which was purchased by the petitioner/accused purchased by the from drug money amounting to Rs. 2,60,000/-. The sample of the same was sent to the CFSL and in the CPBL report, it has been found that Levomethorphan salt was also present in quantity greater than 50 grams which is of commercial quantity. As such, the recovery of 99.08 grams of heroin is of commercial quantity.
EVIDENCE:
4. That during the course of investigation, on the statement of the accused Imtiyaz, Gagan was arrested. On 26.12.2023, two mobile phones were recovered from the petitioner/accused. Further on the disclosure statement of the petitioner/accused, on 28.12.2023, two gold bangles weighing 153.56 grams were recovered from the residence of the petitioner/accused at Ambala which were purchased out of drug money amounting to Rs. 9,00,000/-.
5. That petitioner/accused suffered disclosure statement in which he stated that he had parked a car in parking of Dussehra Ground, Jamun Chowk Road, Sector 56, Chandigarh and a raid was conducted On 29.12.2023 at the said spot and the car was found, thereafter, a search was conducted upon the car and 99.08 grams heroin was recovered from below the foot mat of the driver's seat which was purchased by the petitioner/accused from drug money amounting to Rs. 2,60,000/-. The sample of the same was sent to the CFSL and in the CFSL report, it has been found that Levomethorphan salt was also present in quantity greater than 50 grams which is of commercial quantity. As such, the recovery of 99.08 grams of heroin is of commercial quantity. A copy of the CFSL report is attached herewith as Annexure R-1.
6. That on the disclosure of petitioner/accused, a raid was conducted on 03.01.2024 wherein a recovery of 4.95 grams of Amphetamine (ice) was affected from Chawla Tea and Coffee Shop, MC Market, Jagadhri Gate, District Ambala the instance of the petitioner/accused.
ROLE OF THE PETITIONER:
Jyoti Sharma 2024.10.03 16:517. That the petitioner/accused is deeply involved I attest to the accuracy and authenticity of this order/judgment High Court, Sector 1, Chandigarh 6 CRM-M-34956-2024 in the regular sale and purchase of narcotics and contraband substances, as evidenced by substantial recoveries made following his disclosure statements. The petitioner's activities pose a significant threat to public safety and underscore his active participation in a larger drug trafficking network.
Granting bail could lead to the petitioner/accused absconding, tampering with evidence, or influencing witnesses, thereby hindering the ongoing investigation.
8. That on disclosure statement petitioner/accused, of the it also surfaced that he had received three deliveries of 04 kg cach of heroin from Srinagar and thereafter, he had handed over the same to co-accused Resham Singh and Sukhpreet Singh alias Pradeep for which the co-accused Resham Singh used to pay him Rs. 2 lakhs for each delivery. The above said Sukhpreet Singh has been arrested and has been granted concession of regular bail by this Hon'ble court, however, the present petitioner/accused cannot claim parity because of the fact that recovery of 22 gm heroin from co-accused Sukhpreet was non- commercial in nature with no past antecedents but the petitioner has been undergoing trial in another NDPS case and recovery affected from the petitioner/accused has been that of commercial quantity. Co-accused Resham Singh is yet to be arrested."
18. 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.
19. The status report filed by the police reveals that the evidence qua the commercial quantity is 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.
20. 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.
Jyoti Sharma 2024.10.03 16:51 I attest to the accuracy andauthenticity of this order/judgment High Court, Sector 1, Chandigarh 7 CRM-M-34956-2024
21. The petitioner's total custody in this FIR is around nine months. 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.
22. 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.
23. 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.
24. 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)
25. This order is subject to the petitioner's complying with the following terms.
26. 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.
27. 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 Jyoti Sharma with the arms license to the concerned authority within fifteen days from release from 2024.10.03 16:51 I attest to the accuracy and authenticity of this order/judgment High Court, Sector 1, Chandigarh 8 CRM-M-34956-2024 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.
28. 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."
29. Any observation made hereinabove is neither an expression of opinion on the case's merits nor shall the trial Court advert to these comments.
30. 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.
31. Petition allowed in terms mentioned above. All pending applications, if any, stand disposed of.
(ANOOP CHITKARA) JUDGE 27.09.2024 Jyoti Sharma Whether speaking/reasoned: Yes Whether reportable: No. Jyoti Sharma 2024.10.03 16:51 I attest to the accuracy and authenticity of this order/judgment High Court, Sector 1, Chandigarh 9