Punjab-Haryana High Court
Pawan @ Samunder vs State Of Haryana on 30 August, 2024
Author: Anoop Chitkara
Bench: Anoop Chitkara
Neutral Citation No:=2024:PHHC:113203
CRM-M-4841-2024 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CRM-M No.4841 of 2024
Reserved on: 13.08.2024
Pronounced on: 30.08.2024
Pawan @ Samunder ...Petitioner
Versus
State of Haryana ...Respondent
CORAM: HON'BLE MR. JUSTICE ANOOP CHITKARA
Present: Mr. Parminder Singh Sekhon, Advocate
for the petitioner.
Mr. Vikrant Pamboo, Sr. DAG, Haryana.
****
ANOOP CHITKARA, J.
FIR No. Dated Police Station Sections
101 12.04.2023 Uklana, District 20(B)(ii)C, 27A and 29 of
Hisar NDPS Act, 1985
1. The petitioner apprehending arrest in the FIR captioned above has come up before this Court under Section 438 CrPC, 1973, seeking anticipatory bail.
2. In paragraph 12 of the bail petition, the accused declares that he has no criminal antecedents.
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 the possession of Ajit alias Jitu. The Investigator claims to have complied with all the statutory requirements of the NDPS Act, 1985, and CrPC, 1973.
4. During interrogation, Ajit informed that he had purchased this charas from the petitioner and, in fact, had purchased 16 kgs of charas from the petitioner.
5. 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.
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6. The State's counsel opposes bail and refers to the reply.
7. It would be appropriate to refer to the following portions of the reply, which read as follows:
"6. That as per disclosure statement of the accused Ajit @ Jittu he had sold 16 kg Sulfa/Ganja to petitioner/accused Samunder Singh for an amount of Rs.2 Lakh, out of which an amount of Rs.1 Lakh was paid and rest of the amount will be paid after selling the same and in this manner 10 Kg Sulfa/Charas sold to co-accused Ram Singh in furtherance of an amount of Rs.1,50,000/-. Accordingly the name of petitioner/accused and co-accused Ram Singh was incorporated in the present case and co-accused Ram Singh was arrested on 15.04.2023 on the demarcation and identification made by the accused Ajit @ Jittu.
14. That the name of petitioner/ accused incorporated in the present case on the basis of disclosure statement of co-accused Ajit @ Jittu and as per version put forth the co-accused Ajit @ Jittu sold 16 Kg Charas/ Sulfa to the petitioner/ accused in furtherance of 2 Lakh rupees."
8. Dealing in 4 kg of charas is a punishable offense under the NDPS Act in the 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 2 2 of 6 ::: Downloaded on - 03-09-2024 02:59:27 ::: Neutral Citation No:=2024:PHHC:113203 CRM-M-4841-2024 -3- 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
(c) any mixture, with or without any neutral material, of any of the above forms of cannabis or any drink Chemical Name 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, 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;
9. The quantity allegedly involved in this case is commercial. Given this, the rigors of S. 37 of the NDPS Act.
10. In State of Haryana v. Samarth Kumar, 2022(3) R.C.R.(Criminal) 991, wherein the Hon'ble Supreme Court holds, [8]. In cases of this nature, the respondents may be able to take advantage of the decision in Tofan Singh v. State of Tamil Nadu (supra), perhaps at the time of arguing the regular bail application or at the time of final hearing after conclusion of the trial.
[9]. To grant anticipatory bail in a case of this nature is not really warranted. Therefore, we are of the view that the High Court fell into an error in granting anticipatory bail to the respondents.
11. The quantity of heroin that was seized falls in the commercial category. Section 371 1
37. Offences to be cognizable and non-bailable.--(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974),--
33 of 6 ::: Downloaded on - 03-09-2024 02:59:27 ::: Neutral Citation No:=2024:PHHC:113203 CRM-M-4841-2024 -4- of the NDPS Act mandates under sub-section (1) (b) of section 37, that no person accused of an offence punishable for offences involving commercial quantity shall be released on bail unless- (i) the Public Prosecutor has been given an opportunity to oppose the application of release, and (ii) where the Public Prosecutor opposes the application, the Court is satisfied that there are reasonable grounds for believing that accused is not guilty of such offence and is not likely to commit any offence while on bail. Thus, the rigors of S. 37 of the NDPS Act apply in the present case, and the burden is on the petitioner to satisfy the twin conditions put in place by the Legislature under Section 37 of the NDPS Act. Given the legislative mandate of S. 37 of the NDPS Act, the Court can release a person accused of an offence punishable under the NDPS Act for possessing a commercial quantity of contraband only after recording reasonable satisfaction of its rigors.
12. The State's counsel argues that a plain reading of Section 37 reveals that the legislature intends to make the law stringent to curb the drug menace. It is further to be noticed that the provisions are couched in negative language, meaning that to grant bail, the Court needs to record a finding that there are reasonable grounds for believing that the petitioner is not guilty of the offense. The burden of proof is also on the petitioner to satisfy the Court about his non-involvement in the case. While interpreting the provisions of Section 37 of the NDPS Act, the Court must be guided by the objective sought to be achieved by putting these stringent conditions.
13. 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 exist, and the factors for bail become similar to the bail petitions under general penal statutes like IPC. 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 them to take a stand on the bail application. The second stipulation
(a) every offence punishable under this Act shall be cognizable;
(b) no person accused of an offence punishable for offences under section 19 or section 24 or section 27A and also for offences involving commercial quantity shall be released on bail or on his own bond unless--
(i) the Public Prosecutor has been given an opportunity to oppose the application for such release, and (ii) where the Public Prosecutor opposes the application, the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail.
(2) The limitations on granting of bail specified in clause (b) of sub-section (1) are in addition to the limitations under the Code of Criminal Procedure, 1973 (2 of 1974) or any other law for the time being in force on granting of bail.
44 of 6 ::: Downloaded on - 03-09-2024 02:59:27 ::: Neutral Citation No:=2024:PHHC:113203 CRM-M-4841-2024 -5- is that the Court must be satisfied that reasonable grounds exist for believing that the accused is not guilty of such an offense and is not likely to commit any offense while on bail. If either of these 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 the accused is not guilty of the alleged offense. Even on fulfilling one of the conditions, the reasonable grounds for believing that the accused is not guilty of such an offense, the Court still cannot give a finding on the assurance that the accused is not likely to commit any such crime again. Thus, the grant or denial of bail for possessing commercial quantity would vary from case to case, depending upon its facts, and the parameters for anticipatory bail are stringent compared to the regular bail when the accused is in judicial custody.
14. The quantity involved is commercial, and the burden to satisfy the rigor of condition of Section 37 of the NDPS Act was on the petitioner, which he did not discharge to the satisfaction of the statutory requirements. The investigation reveals sufficient prima facie evidence to connect the petitioner with the crime; thus, the petitioner fails to make out a case for anticipatory bail. Any detailed discussions about the evidence may prejudice the case of the petitioner, the State, or the other accused.
15. The learned Special Judge, while dismissing the anticipatory bail of the petitioner, has given elaborative reasons and considered almost every aspect.
16. The grounds in the bail petition do not shift the burden the legislature places on the accused under S. 37 of the NDPS Act. The petitioner has not stated anything in the bail petition to discharge the burden put by the stringent conditions placed in the statute by the legislature under section 37 of the NDPS Act.
17. In Jai Prakash Singh v. State of Bihar and another (2012) 4 SCC 379, Hon'ble Supreme Court holds, [19]. Parameters for grant of anticipatory bail in a serious offence are required to be satisfied and further while granting such relief, the court must record the reasons therefor. Anticipatory bail can be granted only in exceptional circumstances where the court is prima facie of the view that the applicant has falsely been enroped in the crime and would not misuse his liberty. [See D.K. Ganesh Babu v. P.T. Manokaran (2007) 4 SCC 434, State of Maharashtra v. Mohd. Sajid Husain Mohd. S. Husain (2008) 1 SCC 213 and Union of India v. Padam Narain Aggarwal (2008) 13 SCC 305].
18. A perusal of the bail petition and the documents attached primafacie points towards the petitioner's involvement and does not make out a case for bail. Any further 5 5 of 6 ::: Downloaded on - 03-09-2024 02:59:27 ::: Neutral Citation No:=2024:PHHC:113203 CRM-M-4841-2024 -6- discussions will likely prejudice the petitioner; this court refrains from doing so.
19. Any observation made hereinabove is neither an expression of opinion on the case's merits nor shall the trial Court advert to these comments.
20. Petition dismissed. Interim orders are recalled with immediate effect. All pending applications, if any, are disposed of.
(ANOOP CHITKARA)
JUDGE
30.08.2024
Sonia Puri
Whether speaking/reasoned: Yes
Whether reportable: No.
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