Sulochna v. State of Haryana

ANOOP CHITKARA, J. FIR No. Dated Police Sta/on Sec/on 33 14.01.2025 Krishana Gate, Thanesar, 20 of NDPS Act District Kurukshetra

¶1The pettoner apprehending arrest in the FIR captoned above has come up before this Court second tme for similar relief under Secton 482 of Bharatya Nagarik Suraksha Sanhita, 2023, [BNSS], seeking antcipatory bail. First petton was withdrawn on 07.02.2025 with liberty to file fresh, as such second petton is maintainable.

¶2In paragraph 11 of the bail petton and as per paragraph 5 of the status report, the accused has the following criminal antecedents: Sr. No. FIR No. Year Offenses Police Sta/on

¶1688 2016 61-1-14 of Excise Act & City Thanesar, Dis>. 188 IPC Kurukshetra (Haryana)

¶2299 2020 20(B)-61-85 of NDPS Act Cheeka, Dis>. Kaithal (Haryana)

¶3252 2022 20-61-85 of NDPS Act City Thanesar, Dis>. Kurukshetra (Haryana)

¶4365 2022 20-61-85 of NDPS Act Sadar North, Delhi, Delhi

¶3The facts and allegatons are taken from the status report filed by the State. On

14.01.2025, based on chance recovery, the Police seized 1 kg 146 grams of ganja from the pettoner's house. The Investgator claims to have complied with all the statutory requirements of the NDPS Act, 1985, and BNSS, 2023.

¶4At the tme of recovery, no one was present in the house of the pettoner. On enquiry, the people and women living nearby told that this house belongs to the pettoner. The pettoner was earlier caught in Delhi in a case of recovery of Ganja, who order/judgment. 1 has gone to Delhi Court for her hearing in connecton with the said case. Apprehending arrest, she filed for antcipatory bail from the Sessions Court, which denied her bail. Feeling aggrieved, he has invoked the concurrent jurisdicton of this Court under S. 482 BNSS, 2023.

¶5The pettoner's counsel submits that the police recovered 1 kg 146 grams of ganja from a house, which is alleged to be of the pettoner. He submits that the fact cannot be ignored that the main gate of the house was found open and the pettoner was not found present at the spot and on calling at the gate, no person came outside and during the search also, no person was found inside. He further submits that the pettoner was not apprehended at the spot and she has been falsely implicated in the said case. He further submits that there is no evidence that pettoner is owner of the house. In the reply, the State made averments that house owned by the father-in-law of the pettoner, who had died, and her husband also died, hence, she is now in possession of the said house. However, no evidence regarding this has been produced, so such an averment cannot be sustained. He further submits that the address mentoned in the FIR is totally different from the address mentoned in the identty proof of the pettoner. Hence, the averment pertaining to the house being possessed by the pettoner cannot be sustained.

¶6The 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 pettoner and her family.

¶7The State's counsel opposes bail and refers to the status report.

¶8It would be appropriate to refer to the following portons of the status report, which read as follows: "7. xxxxx A. That the contraband was recovered from the house of the present pettoner and custodial interrogaton is necessary to go to the root of the Main Drug peddler. B. That the Contraband is recovered from the house in which the present pettoner is residing since a long tme and the house belongs to her Father in Law, who had died and her husband has also died. Therea%er she has the possession of the above said house from whom the contraband was recovered. C. Yes, the Police will arrest the pettoner in the above noted case and police needs the custody of the pettoner as the police needs informaton order/judgment. 2 regarding from where the contraband was purchased and to whom the contraband will supplied. D. That the contraband recovered from the house of present pettoner is GANJA having Weight 1KG & 146 Grams along with the wax polythene." REASONING:

¶9The evidence collected so far against the pettoner is not enough to deny her bail. Police recovered the contraband from a house which is alleged to be in possession of pettoner and at the tme of recovery, the door of the house was open and no one was present in the house, as such, these facts can only be proved into evidence only.

¶10Given the quantty involved, the rigors of S. 37 of the NDPS Act do not apply in the present case.

¶11Secton 2 (vii-a) of the NDPS Act defines commercial quantty as 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 a>ract, and the factors for bail become similar to the offence regular statutes.

¶12Pre-trial incarceraton should not be a replica of post-convicton sentencing. The evidence might be prima facie sufficient to launch prosecuton or to frame charges, but this Court is not considering the evidence at that stage but is analyzing it for the stage of antcipatory bail. An analysis of the above does not justfy custodial interrogaton or pre-trial incarceraton.

¶13Given the penal provisions invoked, the legal admissibility of evidence collected against the petton, coupled with the prima facie analysis of the nature of allegatons, and the other factors peculiar to this case, there would be no justfiability for custodial interrogaton or pre-trial incarceraton.

¶14Given the above, without commentng on the case's merits, in the facts and circumstances peculiar to this case, and for the reasons mentoned above, the pettoner order/judgment. 3 makes a case for antcipatory bail.

¶15Given 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 Arrestng Officer, and if the ma>er is before a Court, then the concerned Court and due to unavailability before any nearest Ilaqa Magistrate/duty Magistrate. Before acceptng the surety, the concerned Officer/Court must be satsfied that if the accused fails to appear, such surety can produce the accused.

¶16While furnishing a personal bond, the pettoner shall menton the following personal identficaton details:

¶1AADHAR number

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

¶3Mobile number (If available)

¶4E-Mail id (If available)

¶17The bail order is subject to the pettoner's complying with the following terms.

¶18The pettoner is directed to join the investgaton within seven days of uploading this order on the official webpage of the High Court of Punjab and Haryana and as and when called by the Investgator. The pettoner shall be in deemed custody for Secton 27 of the Indian Evidence Act, 1872/ Secton 23 of BSA, 2023. The pettoner shall join the investgaton as and when called by the Investgatng Officer or any Superior Officer and shall cooperate with the investgaton at all further stages as required. In the event of failure to do so, the prosecuton will be open to seeking cancellaton of the bail. During the investgaton, the pettoner shall not be subjected to third-degree, indecent language, inhuman treatment, etc.

¶19The 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.

¶20Given the background of allegatons against the pettoner, it becomes paramount to protect the members of society, detecton staff and incapacitatng the accused would be one of the primary optons untl the filing of the closure report or discharge, or acqui>al. Consequently, it would be appropriate to restrict the possessionJYOTI order/judgment. 4 of firearms. [This restricton 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 sancton]. Given the nature of the allegatons and the other circumstances peculiar to this case, the pettoner shall surrender all weapons, firearms, and ammuniton, if any, along with the arms license to the concerned authority within fiNeen days of release from prison and inform the Investgator of the compliance. However, subject to the Indian Arms Act, 1959, the pettoner shall be enttled to renew and reclaim them in case of acqui>al in this case, provided otherwise permissible under 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 offense.

¶21In case the Investgator/Officer-In-Charge of the concerned Police Staton arraigns another secton of any penal offense in this FIR, and if the new secton prescribes a maximum sentence that is not greater than the sectons mentoned above, then this bail order shall be deemed to have also been passed for the newly added secton(s). However, suppose the newly inserted sectons prescribe a sentence exceeding the maximum sentence prescribed in the sectons mentoned above; then, in that case, the Investgator/Officer-In-Charge shall give the pettoner notce of a minimum of seven days, providing an opportunity to avail the remedies available in law.

¶22In Md. Tajiur Rahaman v. The State of West Bengal, decided on 08-Nov-2024, SLP

(Crl) 12225-2024, Hon'ble Supreme Court holds in Para 7, "It goes without saying that if the pettoner is found involved in such like offence in future, the concession of bail granted to him today will liable to be withdrawn and the pettoner is bound to face the necessary consequences."

¶23This 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.

¶24Any observaton made hereinabove is neither an expression of opinion on the case's merits nor shall the trial Court advert to these comments.

¶25A 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 a>est it to be a true copy. If the a>estng officer wants to verify its authentcity, such an officer can also verify its authentcity and may download and use the downloaded copy for a>estng bonds. order/judgment. 5

¶26Pe//on allowed in terms men oned above. All pending applica ons, if any, stand disposed of. (ANOOP CHITKARA) JUDGE

03.03.2025 Jyo -II order/judgment.

IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH 297 CRM-M-9248-2025 Date of Decision: 03.03.2025 Sulochna ...Pettoner Versus State of Haryana …Respondent CORAM: HON'BLE MR. JUSTICE ANOOP CHITKARA Present: Mr. Kulvir Narwal, Advocate and Mr. Abhisar Chaudhary, Advocate for the pettoner. Mr. Naveen Kumar Sheoran, D.A.G., Haryana. ****