Punjab-Haryana High Court
Santosh Alias Pagla vs State Of Haryana on 17 February, 2025
Author: Anoop Chitkara
Bench: Anoop Chitkara
Neutral Citation No:=2025:PHHC:023101
CRM-M-58878-2024
246 IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CRM-M-58878-2024
Date of Decision: 17.02.2025
Santosh Kumar @ Pagla ...Pe oner
Versus
State of Haryana ...Respondent
CORAM: HON'BLE MR. JUSTICE ANOOP CHITKARA
Present: Ms. Garima Sharma, Advocate,
for the pe oner.
Mr. Aashish Bishnoi, DAG, Haryana.
****
ANOOP CHITKARA, J.
FIR No. Dated Police Sta.on Sec.ons 003 01.01.2024 Chandimandir, 20 & 29 of NDPS Act District Panchkula
1. The pe oner incarcerated in the FIR cap oned above had come up before this Court under Sec on 483 of Bhara ya Nagarik Suraksha Sanhita, 2023, [BNSS], seeking regular bail.
2. In the bail applica on, the pe oner is silent about criminal antecedents. However, as per para 9 of the status report, the accused has the following criminal antecedents:
Sr. No. FIR No. Year Offenses Police Sta.on 1. 375 2019 20 of NDPS Act Derabassi, Mohali, Pb. 2. 63 2022 20 of NDPS Act Derabassi, Mohali, Pb. 3. 568 2022 20 of NDPS Act Derabassi, Mohali, Pb.
3. The facts and allega ons are taken from the status report filed by the State. On 01.01.2024, based on prior informa on, the Police seized 21 Kg 300 grams ganja 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 the bail pe on. It would be relevant to refer to para 5 of the bail pe on, which reads as follows:
"5. That the pe oner has been falsely implicated in the present case on secret informa on and as per the instruc ons of the pe oner the recovered ganja along with the plas c bag having the total weight of 1 1 of 5 ::: Downloaded on - 20-02-2025 23:02:30 ::: Neutral Citation No:=2025:PHHC:023101 CRM-M-58878-2024 which was 21 Kg 300 Grams recovery has been a#ributed towards the present pe oner and the pe oner has been falsely implicated by the police officials as the reasons be#er known to them."
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. It would be appropriate to refer para 10 of the status report, which reads as follows:
"10. That the recovered Ganja weighing 21 Kg 300 Gm which was recovered from the possession of the pe oner on 01.01.2024 without any permit or license to keep the same in his possession. As per the No fica on dated 19.10.2001, the small quan ty of Ganja is 01 Kg and the commercial quan ty is 20 Kg. In other words, the applicant/accused Santosh Kumar @Pagla was found in possession of Ganja exceeding the commercial quan ty without any permit or license to keep the same."
REASONING:
7. The quan ty allegedly involved in this case is 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.
8. 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 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.2
2 of 5 ::: Downloaded on - 20-02-2025 23:02:30 ::: Neutral Citation No:=2025:PHHC:023101 CRM-M-58878-2024 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.
9. 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 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.
10. Sa sfying the feKers 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.
11. The pe oner's arguments did not point toward any material contradic ons and S. 42 was complied with.
12. 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 3 3 of 5 ::: Downloaded on - 20-02-2025 23:02:30 ::: Neutral Citation No:=2025:PHHC:023101 CRM-M-58878-2024 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.
13. As per the custody cer ficate dated 10.02.2025, the pe oner's custody is around eleven months, which cannot be considered prolonged.
14. In Union of India (NCB) v. Khalil Uddin, decided on 21 Oct 2022, 2022 SCC OnLine SC 2019, Hon'ble Supreme Court holds, [4]. According to the prosecu on, contraband material weighing about 13 kgs. of morphine was found in a motor vehicle which was driven by co-accused named Md. Jakir Hussain. During the course of inves ga on, it was found that the motor vehicle was recorded in the name of Md. Nizam Uddin who had executed a sale leKer and handed over the custody of the vehicle to accused Md. Abdul Hai and that accused Md. Jakir Hussain was the driver employed by accused Md. Abdul Hai and that contraband material in ques on was to be handed over to accused-Khalil Uddin, an owner of a tea shop.
[5]. The High Court by its order which is presently under challenge, directed release of both the accused as stated above on bail aHer they had undergone custody to the tune of about a year. Ques oning grant of relief to said accused, the instant appeals have been preferred.
[7]. What emerges from the record is that large quan ty of contraband weighing about 13 kgs of morphine was found in a car which was driven by Md. Jakir Hussain. Whether the role played by said Md. Jakir Hussain could get connected with both the accused is a ques on.
[8]. The answer to said ques on could be the statement recorded of Md. Nizam Uddin. The statement of Md. Jakir Hussain recorded under Sec on 67 of the Act has also named his owner accused Abdul Hai. We are conscious of the fact that the validity and scope of such statements under Sec on 67 has been pronounced upon by this Court in Tofan Singh v. State of Tamil Nadu . In State by (NCB) Bengaluru v. Pallulabid Ahmad Arimu#a , the rigour of law lay down by this Court in Tofan Singh was held to be applicable even at the stage of grant of bail.
[9]. However, going by the circumstances on record, at this stage, on the strength of the statement of Md. Nizam Uddin, though allegedly retracted later, the maKer stands on a different foo ng. In our considered view, in the face of the mandate of Sec on 37 of the Act, the High Court could not and ought not to have released the accused on bail. We, therefore, allow these appeals, set aside the view taken by the High Court and direct that both the appellants be taken in custody forthwith.
[10]. We have been given to understand that the charge-sheet has been filed. In the circumstances, we direct the Trial Court to take 4 4 of 5 ::: Downloaded on - 20-02-2025 23:02:30 ::: Neutral Citation No:=2025:PHHC:023101 CRM-M-58878-2024 up the maKer and conclude the proceedings as early as possible and preferably within six months from the receipt of this order.
15. In Narayan Takri v. State of Odisha, decided on 10 Sep 2024, SLP (Crl.) 8198- 2024, Hon'ble Supreme Court holds, The pe oners are in custody since 28th May, 2022 for alleged commission of alleged offence under Sec on 20(b)(ii)(c) of the Narco c Drugs and Psychotropic Substances Act, 1985. As per the FIR allega on, 125.3 kg. of "Ganja" was recovered from the pe oners.
[3]. It is not in dispute that the trial has commenced and that three prosecu on witnesses have been examined ll date.
[4]. Learned counsel for the pe oners submits that the third prosecu on witness was examined as far back as on 28th January, 2024 and since then, no other prosecu on witness has been examined. There is, however, no such averment in the pe on.
[5]. Learned counsel appearing for the respondent submits that every endeavor shall be made on behalf of the prosecu on to have all the witnesses examined by the end of this year.
[6]. The trial court is encouraged to expedite the trial and give its decision as early as possible, in accordance with law.
[7]. We, however, do not see any reason to interfere the impugned judgment and order at this stage; however, it is clarified that in the event the trial is not completed by the end of this year, the pe oners shall be at liberty to renew their prayer for bail before the trial court.
16. A perusal of the bail pe on and the documents aKached 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. The pe oner's custody of around eleven months cannot be termed prolonged, given the minimum sentence prescribed for the offense
18. 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.
19. Pe..on dismissed. All pending applica ons, if any, stand disposed of.
(ANOOP CHITKARA)
JUDGE
17.02.2025
Jyo -II
Whether speaking/reasoned: Yes
Whether reportable: No.
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