Punjab-Haryana High Court
Harjit Kaur vs Union Of India on 30 August, 2024
Author: Anoop Chitkara
Bench: Anoop Chitkara
Neutral Citation No:=2024:PHHC:115739
CRM-M-6148-2024
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CRM-M-6148-2024
Reserved on: 12.08.2024
Pronounced on: 30.08.2024
Harjit Kaur ...Pe oner
Versus
Union of India ...Respondent
CORAM: HON'BLE MR. JUSTICE ANOOP CHITKARA
Present: Mr. Ravinder Malik, Advocate
for the pe oner.
Mr. Varun Gupta, Advocate
for the respondent-NCB.
****
ANOOP CHITKARA, J.
Crime No. Dated Police Sta1on Sec1ons 14 16.06.2023 Narco cs Control Bureau, 8, 18, 29 & 60 of NDPS Act Chandigarh 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 8 of the bail pe on, the accused declares that he has no criminal antecedents.
3. Allega ons are that on 16th June 2023, the NCB officials, based on secret informa on, the Police seized 5.529 kgs of opium from a vehicle, which was being driver by co-accused Gursaib, and the pe oner was si?ng in it, and the car belonged to the pe oner's husband. 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 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.
5. The State's counsel opposes bail and refers to the reply.
6. It would be appropriate to refer to paras 42 to 44 of the complaint, which read as follows:
11 of 5 ::: Downloaded on - 05-09-2024 21:21:55 ::: Neutral Citation No:=2024:PHHC:115739 CRM-M-6148-2024 "42. That a le er dated 20.07.2023 was sent to the Nodal Officer, Bhar Airtel Ltd. regarding calling for the CAF and CDR of the mobile numbers 9872028803, 9915718004 and 8809655578. Reply in this regard was received along with cer ficate of 65 B of the Evidence Act.
43. That the mobile number which was in possession of Gursahib Singh i.e. 9915718004 is in his name. The mobile number 9872028803 which was in possession of Harjit Kaur w/o Kawaljit Singh is in her own name.
44. That from the analysis of the CDR it is clear that both were in contact with each other and went to take delivery of the seized contraband i.e. 5.529 Kgs of opium."
7. Dealing in 5.529 kgs of opium is a punishable offense under the NDPS Act in the following terms:
Substance Name "Opium"
Quan ty detained 5.529 Kg
Quan ty type Commercial
Drug Quan ty in % to upper limit
221.16%
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. 92 Common Name (Name of Narco c Drug and Psychotropic Substance Opium (Interna onal non-proprietary name (INN) Other non-proprietary name ****** Chemical Name And any prepara on containing opium Small Quan ty 25 Gram (i.e. equivalent to 0.025 Kg) Commercial Quan ty 2500 Gram (i.e. equivalent to 2.5 Kg) 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.18 & S.2(xv) NDPS Act, S.O.821(E) dated 11/14/1985 Sr. No. S.2(xv) Common Name (Name of Narco c Drug and Psychotropic Substance ****** (Interna onal non-proprietary name (INN) Other non-proprietary name ****** Chemical Name S.2(xv) "opium" means--
(a) the coagulated juice of the opium poppy; and
(b) any mixture, with or without any neutral material, of the coagulated juice of the opium poppy, 2 2 of 5 ::: Downloaded on - 05-09-2024 21:21:56 ::: Neutral Citation No:=2024:PHHC:115739 CRM-M-6148-2024 but does not include any prepara on containing not more than 0.2 per cent. of morphine; S.2 (xvii) "opium poppy" means--
(a) the plant of the species Papaver somniferum L;
and
(b) the plant of any other species of Papaver from which opium or any phenanthrene alkaloid can be extracted and which the Central Government may, by no fica on in the Official GazeSe, declare to be opium poppy for the purposes of this Act;
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.
8. 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.
9. 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 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 - 05-09-2024 21:21:56 ::: Neutral Citation No:=2024:PHHC:115739 CRM-M-6148-2024 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 aTer recording reasonable sa sfac on of its rigors.
10. 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 pu?ng these stringent condi ons.
11. Sa sfying the feSers 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. Thus, the grant or denial of bail for possessing commercial quan ty would vary from case to case, depending upon its facts, and the parameters for an cipatory bail are stringent compared to the regular bail when the accused is in judicial custody.
12. The grounds in the bail pe on do not shiT the burden the legislature places on the accused under S. 37 of the NDPS Act. The pe oner has not stated anything in the 4 4 of 5 ::: Downloaded on - 05-09-2024 21:21:56 ::: Neutral Citation No:=2024:PHHC:115739 CRM-M-6148-2024 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 an cipatory bail. Any detailed discussions about the evidence may prejudice the case of the pe oner, the State, or the other accused.
13. The pe oner's last point for bail is prolonged pre-trial custody. The pe oner's counsel argued that she has been in custody since 06.06.2023. Thus, her total custody is of around one year and three months, which, at this stage, cannot be termed as prolonged given the quan ty involved.
14. A perusal of the bail pe on and the documents aSached primafacie points towards the pe oner's involvement and does not make out a case for bail. Any further discussions will likely prejudice the pe oner; this court refrains from doing so.
15. 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.
16. Pe11on dismissed. Interim orders, if any, are recalled with immediate effect. All pending applica ons, if any, stand disposed of.
(ANOOP CHITKARA)
JUDGE
30.08.2024
Jyo -II
Whether speaking/reasoned: Yes
Whether reportable: No.
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