Ashwani v. State of Haryana

ANOOP CHITKARA, J. FIR No. Dated Police Station Sections 8 07.01.2025 Ambala Cant. Dist. Ambala 21 of NDPS Act (Sec!on 29 of NDPS Act added lateron)

¶1The 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.

¶2As per paragraph 11 of the bail pe!!on and as per the custody cer!ficate dated

02.02.2025, the accused has the following criminal antecedents: Sr. No. FIR No. Dated Offenses Police Station

¶1317 21.10.2017 148, 149, 323, 506 IPC Mahesh Nagar, Ambala

¶2359 23.07.2022 25(1A), 25(6) of Arms Act Mahesh Nagar, Ambala

¶3331 08.09.2024 21, 29 of NDPS Act Mahesh Nagar, Ambala

¶4136 14.03.2023 13-A, 3-67 of the Gambling Mahesh Nagar, District Act Ambala

¶5405 14.11.2024 21, 29 of NDPS Act Ambala City, District Ambala

¶3As per the FIR, on 07.01.2025, based on secret informa!on, the Police seized 14 grams of heroin from the possession of co-accused Shahrukh Khan @ Kaka. The said accused disclosed in his disclosure statement that he purchased the said heroin from the pe!!oner. The Inves!gator claims to have complied with all the statutory requirements of the NDPS Act, 1985, and BNSS, 2023.

¶4The pe!!oner's counsel submits that the name of the pe!!oner has been order/judgment. 1 surfaced on the basis of disclosure statement of co-accused Shahrukh Khan @ Kaka. He further submits that the pe

oner had no connec on with the alleged recovery and nothing has been recovered from the pe

oner. 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.

¶5The State's counsel opposes bail. REASONING:

¶6Given the quan ty the rigors of S. 37 of the NDPS Act do not apply in the present case.

¶7Sec on 2 (vii-a) of the NDPS Act defines commercial quan ty as the quan ty greater than the quan ty specified in the schedule. Sec on 2 (xxiii-a) defines a small quan ty as a quan ty less than the quan ty specified in the table of the NDPS Act. The remaining quan ty falls in an undefined category, generally called an intermediate quan ty. All sec ons in the NDPS Act specify an offence and men on the minimum and maximum sentence, depending upon the quan ty of the substance. The commercial quan ty 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 quan ty is less than commercial, the restric ons of Sec on 37 of the NDPS Act will not a ract, and the factors for bail become similar to the offence regular statutes.

¶8The prolonged incarcera on, generally militates against the most precious fundamental right guaranteed under Ar cle 21 of the Cons tu on and in such a situa on, the condi onal liberty must override the statutory embargo created under Sec on 37(1)(b)(ii) of the NDPS Act1.

¶9The pre-trial incarcera on should not be a replica of post-convic on sentencing. There is sufficient primafacie evidence connec ng the pe

oner with the alleged crime. However, as per paragraph 3 of the bail pe

on, the pe

oner has been in custody since

08.01.2025. As per the custody cer ficate dated 02.02.2025, the pe

oner's total custody in this FIR is around one month. Given the penal provisions invoked viz-a-viz pre-trial custody, coupled with the primafacie analysis of the nature of allega ons, and the other factors peculiar to this case, there would be no jus fiability for further pre-trial incarcera on at this stage. 1 Supreme Court of India, in Rabi Prakash v. The State of Odisha, SLP (Crl) 4169-2023, Para 4, decided on 13 July 2023

¶10Without commen ng on the case's merits, in the facts and circumstances peculiar to this case, and for the reasons men oned above, the pe

oner makes a case for bail. This order shall come into force from the me it is uploaded on the official webpage of this Court. CONDITIONS:

¶11Given above, provided the pe

oner is not required in any other case, the pe

oner shall be released on bail in the FIR cap oned above subject to furnishing bonds to the sa sfac on of the concerned Court and due to unavailability before any nearest Ilaqa Magistrate/duty Magistrate. Before accep ng the surety, the concerned Court must be sa sfied that if the accused fails to appear, such surety can produce the accused.

¶12While furnishing a personal bond, the pe

oner shall men on the following personal iden fica on details:

¶1AADHAR number

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

¶3Mobile number (If available)

¶4E-Mail id (If available)

¶13This order is subject to the pe

oner's complying with the following terms.

¶14The pe

oner shall abide by all statutory bond condi ons and appear before the concerned Court(s) on all dates. The pe

oner 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.

¶15The possibility of the accused influencing the inves ga on, tampering with evidence, in mida ng witnesses, and the likelihood of fleeing jus ce can be taken care of by imposing elabora ve and stringent condi ons. In Sushila Aggarwal v. State (NCT of Delhi), 2020:INSC:106 [Para 92], (2020) 5 SCC 1, Para 92, the Cons tu onal Bench held that unusually, subject to the evidence produced, the Courts can impose restric ve condi ons.

¶16Given the background of allega ons against the pe

oner, it becomes paramount to protect the detec on staff, members of society, and incapacita ng the accused would be one of the primary op ons un discharge, or acqui al. Consequently, it would be appropriate to restrict the possession of firearms. [This restric on is being imposed based on the preponderance of the evidence of probability and not of evidence of certainty, i.e., beyond a reasonable doubt; and as such, it is not to be construed as an intermediate sanc on]. Given the nature of the allega ons and the other circumstances peculiar to this case, the pe

oner shall surrender all weapons, firearms, and ammuni on, if any, along with the arms license to the concerned authority within fiOeen days of release from prison and inform the Inves gator of the compliance. However, subject to the Indian Arms Act, 1959, the pe

oner shall be en tled to renew and reclaim them in case of acqui al in this case, provided otherwise permissible under the concerned rules. Restric ng firearms would ins ll confidence in the vic m(s), their families, and society; it would also restrain the accused from influencing the witnesses and repea ng the offense.

¶17This bail is condi onal, and the founda onal condi on is that if the pe

oner

indulges in any non-bailable offense, the State may file an applica on for cancella on of this bail before the Sessions Court, which shall have the liberty to cancel this bail.

¶18The concerned trial court is authorized to delete, modify, or relax any of the above condi ons and shall be competent to do so in accordance with the law.

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

¶20A cer fied copy of this order would not be needed for furnishing bonds, and any Advocate for the Pe

oner can download this order along with case status from the official web page of this Court and a est it to be a true copy. If the a es ng officer wants to verify its authen city, such an officer can also verify its authen city and may download and use the downloaded copy for a es ng bonds.

¶21Petition allowed in terms men oned above. All pending applica ons, if any, stand disposed of. (ANOOP CHITKARA) JUDGE

14.02.2025 Jyoti-II

IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Reserved on: 04.02.2025 Pronounced on: 14.02.2025 Ashwani ...Pe!!oner Versus State of Haryana …Respondent CORAM: HON'BLE MR. JUSTICE ANOOP CHITKARA Present: Mr. Sandeep Singh Jatan, Advocate, for the pe!!oner. Mr. Aashish Bishnoi, DAG, Haryana. ****