Anjali v. State of Haryana

ANOOP CHITKARA, J. FIR No. Dated Police Station Sections

01.09.2022 Parao Ambala 21/27-A of NDPS Act

¶1The petitioner incarcerated in the FIR captioned above had come up before this Court under Section 439 CrPC, 1973, seeking regular bail.

¶2In para 9 of the bail application, the accused has no criminal antecedents.

¶3The facts and allegations are taken from the reply filed by the State. On Sep 01, 2022, based on secret information, the Police seized 300 grams of heroin from a purse that the petitioner was holding. The Investigator claims to have complied with all the statutory requirements of the NDPS Act, 1985, and CrPC, 1973.

¶4The petitioner's counsel prays for bail by imposing any stringent conditions and contends that further pre-trial incarceration would cause an irreversible injustice to the petitioner and their family.

¶5The State's counsel opposes bail and refers to the reply.

¶6The petitioner seeks bail on parity and pre-trial custody of more than two years and six months.

¶7Dealing in 300 grams of heroin is a punishable offense under the NDPS Act in the following terms: Substance Name Heroin/ ChiIa/ Smack/ Brown Sugar High Court, Sector 1, Chandigarh 2 Quan!ty detained 300 Gram Quan!ty type Commercial Drug Quan-ty in % to upper limit

120.00% 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. 56 Common Name (Name of Narco!c Drug and Psychotropic Substance Heroin (Interna!onal non-proprietary name (INN) Other non-proprietary name ****** Chemical Name Diacetylmorphine Small Quan!ty 5 Gram Commercial Quan!ty 250 Gram 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.(xvi)(d) NDPS Act, 1985 (61 of 1985), S.O. 821 (E) dated 11/14/1985 Sr. No. 2(xvi)(d) Common Name (Name of Narco!c Drug and Psychotropic Substance ****** (Interna!onal non-proprietary name (INN) Other non-proprietary name ****** 2(xvi)(d) diacetylmorphine, that is, the alkaloid also known as dia-morphine or heroin and its salts; 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 Chemical Name 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. High Court, Sector 1, Chandigarh 3

¶8The quantity allegedly involved in this case is commercial. Given this, the rigors of S. 37 of the NDPS Act apply in the present case. The petitioner must satisfy the twin conditions put in place by the Legislature under Section 37 of the NDPS Act.

¶9Per the custody certificate dated 03.11.2024, the petitioner total custody in this FIR is 02 years and 02 months.

¶10The petitioner is entitled to bail on prolonged custody because the Hon'ble Supreme Court has granted bail on prolonged custody in the following cases: a) In Dheeraj Kumar Shukla v. The State of Uttar Pradesh [SLP (Crl) 6690-2022], decided on 25 Jan 2023. Dheeraj Shukla would be attracted when the three conditions are fulfilled,

(a). The custody of more than two years and six months and the delay was not attributable to the accused.

(b). The trial is at an initial stage.

(c) The petitioner is the first offender. b) In Ramlal v. The State of Rajasthan, Special Leave to Appeal (Crl) No. 9510-2024, decided on 17-09-2024, wherein the Hon'ble Supreme Court granted bail to a first offender after one year and six months of custody who was possessing 450 grams of smack (Heroin).

¶11Given the above, the petitioner's pretrial custody is more than the case cited in the judicial precedents mentioned above, and since the petitioner is also a first offender, she shall have a right of bail under Article 14 of the Constitution of India.

¶12Considering the quantity involved and the pre-trial custody, Section 37 of the NDPS Act would not be attracted. Given this, the criminal antecedents are also not a legal ground for denying the rigors of S. 37 of the NDPS Act at this stage.

¶13Given the penal provisions invoked viz-a-viz pre-trial custody, coupled with the primafacie analysis of the nature of allegations and the other factors peculiar to this case, there would be no justifiability further pre-trial incarceration at this stage.

¶14Without commenting on the case's merits, in the facts and circumstances peculiar to this case, and for the reasons mentioned above, the petitioner makes a case for bail. This order shall come into force from the time it is uploaded on this Court's official webpage.

¶15Given above, provided the petitioner is not required in any other case, the petitioner shall be released on bail in the FIR captioned above subject to furnishing bonds to the satisfaction of the concerned Court and due to unavailability before any nearest Ilaqa Magistrate/duty Magistrate. Before accepting the surety, the concerned Court must be satisfied that if the accused fails to appear, such surety can produce the accused.

¶16While furnishing a personal bond, the petitioner shall mention the following personal identification details:

¶1AADHAR number

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

¶3Mobile number (If available)

¶4E-Mail id (If available)

¶17This order is subject to the petitioner's complying with the following terms.

¶18The petitioner shall abide by all statutory bond conditions and appear before the concerned Court(s) on all dates. The petitioner 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.

¶19Given the background of allegations against the petitioner, it becomes paramount to protect the drug detection squad, their family members, as well as the members of society, and incapacitating the accused would be one of the primary options until the filing of the closure report or discharge, or acquittal. Consequently, it would be appropriate to restrict the possession of firearm(s). [This restriction 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 sanction]. Given the nature of the allegations and the other circumstances peculiar to this case, the petitioner shall surrender all weapons, firearms, and ammunition, if any, along with the arms license to the concerned authority within fifteen days from release from prison and inform the Investigator about the compliance. However, subject to the Indian Arms Act, 1959, the petitioner shall be entitled to renew and take it back in case of acquittal in this case, provided otherwise permissible in the concerned rules. Restricting firearms would instill confidence in the victim(s), their families, and society; it would also restrain the accused from influencing the witnesses and repeating the offense.

¶20The conditions mentioned 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 Petition (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 conditions imposed by the Court must not only have a nexus to the purpose that they seek to serve but must also be proportional to the purpose of imposing them. The courts, while imposing bail conditions must balance the liberty of the accused and the necessity of a fair trial. While doing so, conditions that would result in the deprivation of rights and liberties must be eschewed."

¶21Any observation made hereinabove is neither an expression of opinion on the case's merits nor shall the trial Court advert to these comments.

¶22A certified copy of this order would not be needed for furnishing bonds, and any Advocate for the Petitioner can download this order along with case status from the official web page of this Court and attest it to be a true copy. If the attesting officer wants to verify its authenticity, such an officer can also verify its authenticity and may download and use the downloaded copy for attesting bonds.

¶23Petition allowed in terms mentioned above. All pending applications, if any, stand disposed of. (ANOOP CHITKARA) JUDGE

12.11.2024

IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Reserved on: 04.11.2024 Pronounced on: 12.11.2024 Anjali ...Petitioner Versus State of Haryana …Respondent CORAM: HON'BLE MR. JUSTICE ANOOP CHITKARA Present: Ms. Garima Sharma, Advocate for the petitioner. Mr. Viney Phogat, DAG, Haryana. ****