Krishan v. State of Haryana

ANOOP CHITKARA, J. FIR No. Dated Police Sta-on Sec-ons 654 11.10.2024 City Hansi, District 18C/29-61-85 of NDPS Act, Hisar 1985

¶1The pettoner incarcerated in the FIR captoned above had come up before this Court under Secton 439 CrPC seeking regular bail.

¶2Per paragraph 5(g) of the bail applicaton, the accused has the following criminal antecedents: Sr. No. FIR No. Date Offenses Police Staton

¶1201 06.04.2018 20/61/85 of NDPS Act Civil Line, Hisar

¶2153 20.04.2022 25(i)(a)/54/59 Arms Act Uklana, Hisar

¶3344 01.07.2018 323, 342, 379(b), 365, 506, Barwala, Hisar 34 IPC

¶4439 21.12.2020 452, 506, 34 IPC and 25 of Sadar Hansi Arms Act

¶3The facts and allegatons are that on Oct 11, 2024, based on secret informaton, the Police seized 38.08 grams of opium from the pettoner's possession. The Investgator claims to have complied with all the statutory requirements of the NDPS Act, 1985, and CrPC, 1973.

¶4The pettoner's counsel prays for bail by imposing any stringent conditons and contends that further pre-trial incarceraton would cause an irreversible injustce to the order/judgment. 1

¶5The State's counsel opposes bail.

¶6Dealing in 38.08 grams of opium is a punishable offense under the NDPS Act in the following terms: Substance Name "Opium" Quantty detained 38.08 Gram Quantty type Intermediate Drug Quantty in % to upper limit

1.52% of Intermediate Specified as small & Commercial in S.2(viia) & 2(xxiiia) NDPS Act, 1985 Notficaton No S.O.1055(E) dated 10/19/2001 Sr. No. 92 Common Name (Name of Narcotc Drug and Psychotropic Substance Opium (Internatonal non-proprietary name (INN) Other non-proprietary name ****** Chemical Name And any preparaton containing opium Small Quantty 25 Gram Commercial Quantty 2500 Gram Declared as punishable under NDPS Act and as per schedule defined in S.2(xi) & 2(xxiii) NDPS Act, 1985 Notficaton 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 Narcotc Drug and Psychotropic Substance ****** (Internatonal 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, but does not include any preparaton 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 notficaton in the Official GazeQe, declare to be opium poppy for the purposes of this Act; Explanaton.-- For the purposes of clauses (v) (vi), (xv) and (xvi) the order/judgment. 2 percentages in the case of liquid preparatons shall be calculated on the basis that a preparaton containing one per cent. of a substance means a preparaton in which one gram of substance, if solid, or one mililitre of substance, if liquid, is contained in every one hundred mililitre of the preparaton and so on in proporton for any greater or less percentage: Provided that the Central Government may, having regard to the developments in the field of methods of calculatng percentages in liquid preparatons prescribed, by rules, any other basis which it may deem appropriate for such calculaton.

¶7Given this, the rigors of S. 37 of the NDPS Act do not apply in the present case.

¶8Secton 2 (vii-a) of the NDPS Act defines commercial quantty as the quantty greater than the quantty specified in the schedule. Secton 2 (xxiii-a) defines a small quantty as a quantty less than the quantty specified in the table of the NDPS Act. The remaining quantty falls in an undefined category, generally called an intermediate quantty. All sectons in the NDPS Act specify an offence and menton the minimum and maximum sentence, depending upon the quantty of the substance. The commercial quantty 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 quantty is less than commercial, the restrictons of Secton 37 of the NDPS Act will not aQract, and the factors for bail become similar to the offence regular statutes.

¶9The prolonged incarceraton, generally militates against the most precious fundamental right guaranteed under Artcle 21 of the Consttuton and in such a situaton, the conditonal liberty must override the statutory embargo created under 1Secton 37(1)(b)(ii) of the NDPS Act .

¶10The pre-trial incarceraton should not be a replica of post-convicton sentencing. There is sufficient primafacie evidence connectng the pettoner with the alleged crime. However, per para no. 5(c) of the petton, the pettoner has been in custody since 11-10-2024. Given the penal provisions invoked viz-a-viz pre-trial custody, coupled with the primafacie analysis of the nature of allegatons, and the other factors peculiar to this 1 Supreme Court of India, in Rabi Prakash v. The State of Odisha, SLP (Crl) 4169-2023, Para 4, decided on 13 July 2023 order/judgment. 3 case, there would be no justfiability further pre-trial incarceraton at this stage.

¶11Without commentng on the case's merits, in the facts and circumstances peculiar to this case, and for the reasons mentoned above, the pettoner makes a case for bail. This order shall come into force from the tme it is uploaded on the official webpage of this Court.

¶12Given above, provided the pettoner is not required in any other case, the pettoner shall be released on bail in the FIR captoned above subject to furnishing bonds to the satsfacton of the concerned Court and due to unavailability before any nearest Ilaqa Magistrate/duty Magistrate. Before acceptng the surety, the concerned Court must be satsfied that if the accused fails to appear, such surety can produce the accused.

¶13While furnishing a personal bond, the pettoner shall menton the following personal identficaton details:

¶1AADHAR number

¶2Passport number (If available) and when the aQestng officer/court considers it appropriate or considers the accused a flight risk.

¶3Mobile number (If available)

¶4E-Mail id (If available)

¶14This order is subject to the pettoner's complying with the following terms.

¶15The pettoner shall abide by all statutory bond conditons and appear before the concerned Court(s) on all dates. The pettoner 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.

¶16The possibility of the accused influencing the investgaton, tampering with evidence, intmidatng witnesses, and the likelihood of fleeing justce can be taken care of by imposing elaboratve and stringent conditons. In Sushila Aggarwal v. State (NCT of Delhi), 2020:INSC:106 [Para 92], (2020) 5 SCC 1, Para 92, the Consttutonal Bench held that unusually, subject to the evidence produced, the Courts can impose restrictve conditons.

¶17Given the background of allegatons against the pettoner, it becomes paramount to protect the drug detecton squad, their family members, as well as the members of society, and incapacitatng the accused would be one of the primary optons order/judgment. 4 untl the filing of the closure report or discharge, or acquiQal. Consequently, it would be appropriate to restrict the possession of firearm(s). [This restricton 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 sancton]. Given the nature of the allegatons and the other circumstances peculiar to this case, the pettoner shall surrender all weapons, firearms, ammuniton, if any, along with the arms license to the concerned authority within fiVeen days from release from prison and inform the Investgator about the compliance. However, subject to the Indian Arms Act, 1959, the pettoner shall be enttled to renew and take it back in case of acquiQal in this case, provided otherwise permissible in the concerned rules. Restrictng firearms would instll confidence in the victm(s), their families, and society; it would also restrain the accused from influencing the witnesses and repeatng the offence.

¶18This bail is conditonal, and the foundatonal conditon is that if the pettoner repeats the offense, the State may file an applicaton for cancellaton of this bail before the Sessions Court, which shall be at liberty to cancel this bail.

¶19Any observaton made hereinabove is neither an expression of opinion on the case's merits nor shall the trial Court advert to these comments.

¶20A certfied copy of this order would not be needed for furnishing bonds, and any Advocate for the Pettoner can download this order along with case status from the official web page of this Court and aQest it to be a true copy. If the aQestng officer wants to verify its authentcity, such an officer can also verify its authentcity and may download and use the downloaded copy for aQestng bonds.

¶21Pe--on allowed in terms mentoned above. All pending applicatons, if any, stand disposed of. (ANOOP CHITKARA) JUDGE

21.01.2025 Jyot-II Whether reportable: No. order/judgment. 5

217 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Date of Decision: 21.01.2025 Krishan ...Pettoner Versus State of Haryana …Respondent CORAM: HON'BLE MR. JUSTICE ANOOP CHITKARA Present: Mr. B.S. Beniwal, Advocate for the pettoner. Mr. Aashish Bishnoi, D.A.G., Haryana. ****