Arshad Saifi v. State of Punjab

ANOOP CHITKARA, J. FIR No. Dated Police Station Sections 122 23.09.2021 Khamanon, Dis,. 22 and 29 of NDPS Act Fatehgarh Sahib

¶1The pe!!oner incarcerated in the FIR cap!oned above had come up before this Court under Sec!on 439 CrPC, seeking regular bail.

¶2In paragraph 9 of the bail applica!on and as per para 7 of the status report, the accused has the following criminal antecedents: Sr. No. FIR No. Dated Offenses Police Station

¶1150 20.09.2021 22, 29 of NDPS Act Amloh, Dis,. Fatehgarh Sahib

¶3The facts and allega!ons are taken from the status report filed by the State. On Sep 23, 2021, based on a chance recovery, the Police seized 65000 tablets containing Tramadol 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.

¶4The 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 and refers to the status report.

¶6It would be appropriate to refer to para 3 to 5 of the status report filed to the bail pe!!on, which reads as follows: order/judgment. 1 "3. That in compliance with the above noted order of this Hon'ble Court, it is respectfully submi:ed that on 23.09.2021, SI Gurmit Singh along with other police officials was present near Water Tank, Village Sanghol in connec,on with checking of suspected persons. In the mean,me one Swi-Car No.UP-19F-2331 came from the side of G.T. Road which was stopped by the police party. The present pe,,oner was in the said car and it was suspected that some intoxicant substance was there in the car. On this, the said SI Informed the nearby Police Post to send some other Inves,ga,ng Officer as per guidelines of Hon'ble Supreme Court so as to the check the car. Accordingly SI Suresh Kumar, Incharge, P.P.Sanghol reached at the spot and informa,on as envisaged u/s 42 of NDPS Act was sent to the senior officers. In compliance with sec,on 50 of NDPS Act, the pe,,oner was given an offer by the said SI for ge=ng the search of his car done from some gaze:ed officer or magistrate on which the pe,,oner opted to get the search conducted from some gaze:ed officer. Accordingly, Sh. Jaspinder Singh, PPS, the then DSP-Khamano was requested by the said SI to come at the spot, who reached there and he also gave an offer to the pe,,oner in compliance of sec,on 50 of NDPS Act for ge=ng the search conducted from some other gaze:ed officer or magistrate wherein the pe,,oner reposed his faith in the said DSP. Accordingly search of the said car was conducted by the said SI in the presence of the said DSP during which one Plas,c Bag was found from the Dicky of the car which was containing 130 Cardboard Boxes and when those boxes were checked, then 10 Strips of 50 Tablets from each box i.e. each box containing tables; 500 total 65,000 Tablets of Tramadol Hydrochloride were recovered. Apart from it, Drug Money of Rs.4.00 Lac was also recovered from an Envelope in the same plas,c bag. Accordingly the pe,,oner was arrested on 23.09.2021 and during his examina,on, the pe,,oner disclosed that one Vanit Kumar had given him two bags of intoxicant drugs out of which one bag was sold by the pe,,oner to one person at Ambala-Kalka Road for Rs.4.00 Lac and had kept that Drug Money of Rs.4.00 Lac in the above said bag which was recovered from the pe,,oner by the police as men,oned above. The said Vaneet Kumar was also nominated as accused. An involvement of Mohamad Amjad and Nabeel Zafar was also found in the commission of the crime and offence u/s 29 of NDPS Act was added.

¶4That the said Vanit Kumar was arrested on 28.09.2021 when he was JYOTI going on a motorcycle No.UP-12AW-9671 and one bag was kept by him on order/judgment. 2 the Fuel Tank of the motorcycle and when the said bag was checked, then 10 boxes each containing 10 Strips of 50 total tablets; 5000 tables of Tramadol Hydrochloride were recovered.

¶5That therea-er, the pe,,oner was granted condi,onal bail by the Ld. trial court vide order dated 07.02.2022 (Annexure P-4) with the condi,on that in case a report of the FSL comes against the pe,,oner, then he will surrender himself. However, in the FSL Reports (Annexures P-3 and P-5), it was men,oned that chemical Chlorpheniramine Maleate was found in the contents. Therea-er, with the permission of the Ld. trial court, re-tes,ng of the samples was got done from CFSL as held by Hon'ble Supreme Court in Criminal Appeal No.1640 of 2010 ,tled as Thana Singh V/s Central Bureau of Narco,cs and the CFSL vide its report No. CFSL (C) 204/22/Chem/43/22/717 dated 22.03.2022 men,oned that chemical "Tramadol" has been detected in the contents. It was further men,oned by the CFSL that the weight of 1000 sample tablets was 399 grams and in this way the total weight of 70,000 tablets (65,000 + 5,000) comes to

27.930 kgs. Thus the quan,ty comes within the purview of commercial quan,ty."

¶7The 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.

¶8However, the pe!!oner is en!tled to bail because Hon'ble Supreme Court had granted bail on prolonged custody in the following judicial precedents: 1) In Junaid Alam v. State of U,arakhand, decided on 12 Aug 2024, SLP(Crl.) 7708-2024, Hon'ble Supreme Court holds, [2]. It is pointed out that the pe!!oner has been in custody for last more than 18 months since he was arrested on 25.01.2023. It is then submi,ed that only 3 out of the 10 cited prosecu!on witnesses have been examined and they have not said anything to connect the pe!!oner with the crime. [3]. The learned counsel for the State would submit that the concerned Contraband are medicinal drugs but they are sold for profit. Moreover, it is of commercial quan!ty. [4]. We have perused the nature of the Contraband i.e., the prohibited medicines (SYP Codectus 100 Bo,les (100 Ml each), Cap Pyeevon Spas Plus 720 Cap Parvion Spas 800 Capsules, Spasonof NF 960 capsules, Capsules Spasmoproxyvon Plus 144, Proxywell Spas 2568 Capsules, Alprasafe Table 600 Tablets, Pyeevon Spas Plus 32 Capsules). order/judgment. 3 [5]. Having considered the above and the fact that the trial is unlikely to conclude on a near date, we are of the view that the pe!!oner – Junaid Alam deserves to be granted bail. It is ordered accordingly. Appropriate bail condi!ons be imposed by the trial court.

¶9The 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 Act.

¶10Given this, the criminal antecedents are also not legal grounds for denying the rigors of S. 37 of the NDPS Act at this stage.

¶11In Tajmul SK v. The State of West Bengal, decided on 23 Jul 2024, CrA 3047-2024, Hon'ble Supreme Court holds, [5]. We are inclined to set aside the impugned order only on the premise that right to speedy trial is a fundamental right. Despite the fact that the appellant has been under incarcera!on for more than one and a half years, the trial is yet to start, though, it is submi,ed by learned counsel appearing for the State that charges have been framed. Suffice it is to state that trial would take considerable length of !me. There is no antecedent involving the appellant. [6]. Accordingly, the impugned order is set aside and the appellant is granted bail, subject to the condi!ons that may be imposed by the Trial Court.

¶12As per custody cer!ficate dated 05.11.2024, the pe!!oner's custody in this FIR is of around two years and nine months. Given the drugs were medicines that a,racted viola!on of S. 22 of NDPS Act, 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 of further pre-trial incarcera!on at this stage.

¶13Without 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 this Court's official webpage.

¶14Given 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 order/judgment. 4

¶15While 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)

¶16This order is subject to the pe!!oner's complying with the following terms.

¶17The 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.

¶18Given the background of allega!ons against the pe!!oner, it becomes paramount to protect the drug detec!on squad, their family members, as well as the members of society, and incapacita!ng the accused would be one of the primary op!ons un!l the filing of the closure report or discharge, or acqui,al. Consequently, it would be appropriate to restrict the possession of firearm(s). [This restric!on 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 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 fiQeen days from release from prison and inform the Inves!gator about the compliance. However, subject to the Indian Arms Act, 1959, the pe!!oner shall be en!tled to renew and take it back in case of acqui,al in this case, provided otherwise permissible in 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.

¶19The condi!ons men!oned above imposed by this court are to endeavor to reform and ensure the accused does not repeat the offense and also to block the menace of drug abuse. In Mohammed Zubair v. State of NCT of Delhi, 2022:INSC:735 [Para 28], Writ Pe!!on (Criminal) No 279 of 2022, Para 29, decided on July 20, 2022, A Three-Judge bench of Hon'ble Supreme Court holds that "The bail condi!ons imposed by the Court must not only have a nexus to the purpose that they seek to serve but must order/judgment. 5 also be propor!onal to the purpose of imposing them. The courts, while imposing bail condi!ons must balance the liberty of the accused and the necessity of a fair trial. While doing so, condi!ons that would result in the depriva!on of rights and liber!es must be eschewed."

¶20Any observa!on made hereinabove is neither an expression of opinion on the case's merits nor shall the trial Court advert to these comments.

¶21A 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.

¶22Petition allowed in terms men!oned above. All pending applica!ons, if any, stand disposed of. (ANOOP CHITKARA) JUDGE

20.11.2024 Jyo!-II Whether reportable: No. order/judgment. 6

IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Reserved on: 06.11.2024 Pronounced on: 20.11.2024 Arshad Saifi ...Pe!!oner Versus State of Punjab …Respondent CORAM: HON'BLE MR. JUSTICE ANOOP CHITKARA Present: Mr. Vikas Dahiya, Advocate for the pe!!oner. Mr. Sukhdev Singh, AAG, Punjab. ****