Punjab-Haryana High Court
Amit Kumar vs State Of Haryana on 21 October, 2024
Author: Anoop Chitkara
Bench: Anoop Chitkara
Neutral Citation No:=2024:PHHC:137359
CRM-M-24953-2024
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CRM-M-24953-2024
Reserved on: 16.10.2024
Pronounced on: 21.10.2024
Amit Kumar ...Pe oner
Versus
State of Haryana ...Respondent
CORAM: HON'BLE MR. JUSTICE ANOOP CHITKARA
Present: Mr. Kunal Dawar, Advocate,
for the pe oner.
Mr. Ashish Bishnoi, DAG, Haryana.
****
ANOOP CHITKARA, J.
FIR No. Dated Police Sta1on Sec1on 247 23.06.2023 Chandhut, District 22-C of the NDPS Act Palwal (Haryana) 1. The pe oner incarcerated in the FIR cap oned above had come up before this
Court under Sec on 439 CrPC, 1973, seeking regular bail.
2. In paragraph 11 of the bail pe on, the accused declares that he has no criminal antecedents.
3. The facts and allega ons are taken from the status report filed by the State. On June 23, 2023, based on prior informa on, the Police seized 25000 tablets of Alprazolam from the pe oner's possession. The Inves gator claims to have complied with all the statutory requirements of the NDPS Act, 1985, and CrPC, 1973.
4. The pe oner's counsel refers to bail pe on and specifically to para 6, which reads as follows:
"6. That it is apposite to state that as per the disclosure statement of the Pe oner dated 24.06.2023 the pe oner disclosed that his father used to sell medicine and he died 8 months ago. Pe oner further disclosed that he used to purchase contraband medicine from one Rahul, of Aligarh (U.P) and sell them at his house. However, no inves ga on was conducted by the IO qua above named person.1
1 of 5 ::: Downloaded on - 25-10-2024 19:48:31 ::: Neutral Citation No:=2024:PHHC:137359 CRM-M-24953-2024 S ll further the subsequent disclosure statement of the pe oner was recorded dated 25.06.2023 as per which, pe oner stated that his father used to run a clinic. Further, on the night of occurrence a boy came to the house of pe oner and asked for 150 tablets of Alprazolam and 50-60 capsules of Tramadol of Contraband medicine only. Further it was stated that, the police caught him in the street outside his house while he was wai ng for him. However as per the FIR dated 23.06.2023, 15000 tablets of Alprazolam and 17 strips of Paracetamol, Dicyclomine, Hydrochloride Tramadol Hydrochloride Capsules (325 mg 10 mg 50 mg) and 408 Capsules of Proxyband Spas were obtained. A true copy of the disclosure statement of the pe oner is a7ached as Annexure P-4."
5. The pe oner's counsel argues that the pe oner is in custody since 23.06.2023, challan has already been presented before the trial Court and the trial is yet to commence. He further submits that the father of pe oner was running a clinic and the pe oner was apprehended outside his house. He further submits that there is inordinate delay in sending the samples for examina on, which creates suspicion on the FSL report dated 09.11.2023. He further submits that the recovery memos show that the same are in a typed form, whereas, in the challan, nowhere it have men oned that the raiding party was carrying a laptop. Thus, the recovery memos were prepared at the police sta on subsequently. He further submits that the pe oner is a young boy aged 30 years and he has diploma in Mechanical Engineering and no other case is registered against him.
6. 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 their family.
7. The State's counsel opposes bail and refers to para 2 of the status report, which reads as follows:
"2. That brief facts of the case are that the present FIR no.247 dated 23.6.2023, P.S Chandhut, Palwal was ini ally registered under sec ons 22C of NDPS Act against Amit Kumar (present pe oner) son of Surenderpal, resident of village Baroli, Palwal upon complaint of ASI Kushal Kumar who was provided with secret inputs by an informer, with regard to the incident dated 23.6.2023, in which 25 boxes of Alprazolam Tablets IP 0.5 mg, each box contained 10 strips (total 25000 tablets) and 408 capsules of Paracetamole, Dicyclomine, Hydrochloride and Tramadol 2 2 of 5 ::: Downloaded on - 25-10-2024 19:48:31 ::: Neutral Citation No:=2024:PHHC:137359 CRM-M-24953-2024 Hydrochloride Capsules were recovered from conscious possession of the present pe oner. The present pe oner was arrested on the spot alongwith the recovered narco c drugs. A version of FIR is already on record, therefore, the same is not being reproduced here."
8. The pe oner's arguments did not point toward any material contradic ons. It was a case of chance recovery. As such, S. 42 would not apply ini ally, and recovery was not from the person. As such, S. 50 would also not aFract. Non-examina on of independent witnesses is not illegal, and its outcome depends upon the nature of evidence tendered in the examina on in chief and its cross-examina on.
9. The quan ty allegedly involved in this case is mes more than the quan ty specified as commercial. Given this, the rigors of S. 37 of the NDPS Act apply in the present case. The pe oner must sa sfy the twin condi ons put in place by the Legislature under Sec on 37 of the NDPS Act.
10. Sec on 371 of the NDPS Act mandates under sub-sec on (1) (b) of sec on 37 that no person accused of an offense punishable for offenses involving commercial quan ty shall be released on bail unless- (i) the Public Prosecutor has been given an opportunity to oppose the applica on of release, and (ii) where the Public Prosecutor opposes the applica on, the Court is sa sfied that there are reasonable grounds for believing that accused is not guilty of such offense and is not likely to commit any offense while on bail. Thus, the rigors of S. 37 of the NDPS Act apply in the present case, and the burden is on the pe oner to sa sfy the twin condi ons put in place by the Legislature under Sec on 37 of the NDPS Act. Given the legisla ve mandate of S. 37 of the NDPS Act, the Court can release a person accused of an offense punishable under the NDPS Act for possessing a commercial quan ty of contraband only aHer recording reasonable sa sfac on of its rigors.
11. The State's Counsel argues that a plain reading of Sec on 37 reveals that the legislature intends to make the law stringent to curb the drug menace. It is further to be no ced that the provisions are couched in nega ve language, meaning that to grant bail, the Court needs to record a finding that there are reasonable grounds for believing 1
37. Offences to be cognizable and non-bailable.--(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974),--
(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.3
3 of 5 ::: Downloaded on - 25-10-2024 19:48:31 ::: Neutral Citation No:=2024:PHHC:137359 CRM-M-24953-2024 that the pe oner is not guilty of the offense. The burden of proof is also on the pe oner to sa sfy the Court about his non-involvement in the case. While interpre ng the provisions of Sec on 37 of the NDPS Act, the Court must be guided by the objec ve sought to be achieved by puJng these stringent condi ons.
12. Sa sfying the feFers of S. 37 of the NDPS Act is candling the infer le eggs. The stringent condi ons of sec on 37 placed in the statute by the legislature do not create a bar for bail for specified categories, including the commercial quan ty; 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 pe ons under general penal statutes like IPC. Thus, both the twin condi ons need to be sa sfied before a person accused of possessing a commercial quan ty of drugs or psychotropic substance is to be released on bail. The first condi on is to provide an opportunity to the Public Prosecutor, enabling them to take a stand on the bail applica on. The second s pula on is that the Court must be sa sfied 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 condi ons is not met, the ban on gran ng bail operates. The expression "reasonable grounds" means something more than prima facie grounds. It contemplates substan al probable causes for believing the accused is not guilty of the alleged offense. Even on fulfilling one of the condi ons, the reasonable grounds for believing that the accused is not guilty of such an offense, the Court s ll cannot give a finding on the assurance that the accused is not likely to commit any such crime again.
13. The submissions made above and the grounds in the bail pe on do not shiH the burden the legislature places on the accused under S. 37 of the NDPS Act. The pe oner has not stated anything in the bail pe on to discharge the burden put by the stringent condi ons placed in the statute by the legislature under sec on 37 of the NDPS Act. The inves ga on reveals sufficient prima facie evidence to connect the pe oner with the crime; thus, the pe oner fails to make out a case for bail. Any detailed discussions about the evidence may prejudice the case of the pe oner, the State, or the other accused.
14. As Per the custody cer ficate dated 14.10.2024, the pe oner's custody is one year and three months, which, given the quan ty involved, cannot be considered prolonged, and the ra o of Dheeraj Shukla does not apply.
15. The pe oner is not en tled to bail based on Dheeraj Kumar Shukla v. The State of UFar Pradesh [SLP (Crl) 6690-2022], decided on 25 Jan 2023. Dheeraj Shukla would be aFracted when the three condi ons are fulfilled, 4 4 of 5 ::: Downloaded on - 25-10-2024 19:48:31 ::: Neutral Citation No:=2024:PHHC:137359 CRM-M-24953-2024
(a). The custody of more than two years and six months and the delay was not aFributable to the accused.
(b). The trial is at an ini al stage.
(c) The pe oner is the first offender.
16. A perusal of the bail pe on and the documents aFached primafacie points
towards the pe oner's involvement and does not make out a case for bail. The impact
of crime would also not jus fy bail. Any further discussions will likely prejudice the pe oner; this court refrains from doing so.
17. 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.
18. Pe11on dismissed. Interim orders, if any, are recalled with immediate effect. All pending applica ons, if any, stand disposed of.
(ANOOP CHITKARA)
JUDGE
21.10.2024
Jyo -II
Whether speaking/reasoned: Yes
Whether reportable: No
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