Banti Alias Laddu v. State of Punjab

ANOOP CHITKARA, J. FIR No. Dated Police Sta1on Sec1on 198 28.08.2022 City Kapurthala, 21 (C) of NDPS Act Dis/. Kapurthala

¶1The pe!!oner incarcerated in the FIR cap!oned above had come up before this Court under Sec!on 439 CrPC, 1973, seeking regular bail.

¶2In paragraph 12 of the bail pe!!on, the accused declares no criminal antecedents. The status report and the custody cer!ficate do not contradict it.

¶3The facts and allega!ons are taken from the status report filed by the State. On Aug 28, 2022, based on chance recovery, the Police seized 260 grams of heroin from the bag thrown by pe!!oner. The Inves!gator claims to have complied with all the statutory requirements of the NDPS Act, 1985, and CrPC, 1973.

¶4The pe!!oner seeks bail on parity and pre-trial custody of more than two years and six months. 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 and refers to status reply.

¶6Dealing in 260 grams of heroin is a punishable offense under the NDPS Act in the following terms: order/judgment. 1 Substance Name Heroin Quan!ty detained 260 Gram Quan!ty type Commercial Drug Quan-ty in % to upper limit

104.00% 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. order/judgment. 2

¶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 the Hon'ble Supreme Court had granted bail on prolonged custody in the following judicial precedents: 1) In Dheeraj Kumar Shukla v. The State of U/ar Pradesh, decided on 25 Jan 2023, SLP (Crl) 6690-2022, Hon'ble Supreme Court holds, [1]. The pe!!oner seeks enlargement on regular bail in FIR No.325/2020, dated 23.06.2020, under Sec!ons 8 and 20 of the Narco!c Drugs and Psychotropic Substances Act, 1985 (for short, `the Act') registered at Police Sta!on Jhunsi, District Pryagraj, U/ar Pradesh. [2]. The allega!ons are that on a secret informa!on, the police authori!es intercepted two vehicles on 23.06.2020 i.e. one `Gray' coloured `Honda City' Car and the second `White' coloured `SwiS Dzire' Car. On an interroga!on at the spot, Praveen Maurya @ Puneet Maurya, Rishab Kumar Maurya and Dheeraj Kumar Shukla were found to be occupants of the `Honda City' Car whereas the pe!!oner was driving the `Swife Dzire' Car. On taking a search, more than 92 kgs. Ganja was allegedly recovered from `Honda City' Car whereas more than 65 kgs. Ganja was recovered from `SwiS Dzire' Car. The accused were arrested at the spot. The pe!!oner is, thus, in custody since 24.06.2020. [3]. It appears that some of the occupants of the `Honda City' Car including Praveen Maurya @ Puneet Maurya have since been released on regular bail. It is true that the quan!ty recovered from the pe!!oner is commercial in nature and the provisions of Sec!on 37 of the Act may ordinarily be a/racted. However, in the absence of criminal antecedents and the fact that the pe!!oner is in custody for the last two and a half years, we are sa!sfied that the condi!ons of Sec!on 37 of the Act can be dispensed with at this stage, more so when the trial is yet to commence though the charges have been framed. [4]. For the reasons stated above but without expressing any views on the merits of the case, the pe!!oner is directed to be released on bail subject to his furnishing bail bonds to the sa!sfac!on of the Trial Court. 2) In Shince Babu v. The State of Kerala, decided on 21 Feb 2024, MANU/SCOR/27340/2024, Hon'ble Supreme Court holds, [2]. The prosecu!on case is that Accused No.1 (Liju) was found travelling in a private bus from Cherthala to Arooku/y and contraband MDMA, weighing 138.750gms, was recovered from his conscious possession. The said contraband was procured by Accused No.1 with the help of Accused No.2 from Bangalore. The pe!!oner is nominated as Accused No.4 in the crime. He was order/judgment. 3 arrested on 11.04.2022. The pe!!oner was granted bail by the Trial Court on 20.09.2022 but on a pe!!on filed by the State of Kerala, challenging the bail order, the High Court cancelled the pe!!oner's bail on 13.06.2023. However, liberty was granted to the pe!!oner to apply afresh before the Sessions Court. The pe!!oner again applied for bail but his prayer was declined by the Trial Court on 07.07.2023. The pe!!oner approached the High Court but his first bail applica!on was dismissed on 14.08.2023. His second bail applica!on was turned down by the High Court on

09.10.2023. Meanwhile, Accused No.2 was granted bail by the High Court on 11.10.2023. Seeking parity with the co-accused, the pe!!oner moved third bail applica!on, which has been rejected by the High Court vide the impugned order dated 09.11.2023. [3]. We have heard learned counsel for the par!es and carefully perused the material placed on record. [4]. It may be seen from para 6 of the impugned order that the High Court, while declining bail to the pe!!oner, was largely influenced by the fact that a huge quan!ty of contraband, which falls in the category of 'commercial', was recovered and as such, the rigors of Sec!on 37 of the NDPS Act are a/racted. On a specific query, it is not disputed by learned State counsel that no contraband was recovered from the conscious possession of the pe!!oner. In such circumstances, it is difficult for us to apply the twin test of Sec!on 37 of the NDPS Act while considering the pe!!oner's prayer for bail. [5]. Be that as it may, the pe!!oner is in custody since 11.04.2022 except for the period from 20.09.2022 to 27.06.2023 when he remained on bail pursuant to the order passed by the Trial Court/Sessions Court. [6]. It seems that the inves!ga!on is complete and the conclusion of trial will take some reasonable !me. The pe!!oner's co-accused are already on regular bail/default bail. As per the record, there are no criminal antecedents of the pe!!oner. [7]. Taking into considera!on all the a/ending circumstances but without expressing any views on the merits of the case, we are inclined to grant bail to the pe!!oner. [8]. The pe!!oner is, accordingly, directed to be enlarged on bail subject to his furnishing bail bonds to the sa!sfac!on of the Trial Court. [9]. The pe!!oner shall remain present before the Trial Court on each and every date of hearing, failing which it shall be taken as a misuse of concession of bail granted to him today by this Court. 3) In Sohrab Khan v. The State of Madhya Pradesh, decided on 13 Aug 2024, SLP (Crl.) 7115-2024, Hon'ble Supreme Cort holds, The pe!!oner is an accused for the alleged offences punishable under Sec!ons 8/22 and 29 of the Narco!c Drugs and Psychotropic Substances Act. His bail applica!on was dismissed by order/judgment. 4 the High Court. He has already undergone about one year and four months in jail. The pe!!oner and coaccused were found in possession of 80 grams of MD powder each of which commercial quan!ty is 50 grams. Considering the fact that the pe!!oner has no criminal antecedents and the en!re facts and circumstances of this case, we are of the opinion that a case of bail is made out for the pe!!oner and therefore, the prayer of the pe!!oner is allowed. Accordingly, the pe!!oner is directed to be released on bail forthwith on the usual terms and condi!ons to be decided by the concerned Court. 4) In Ramlal v. The State of Rajasthan, decided on 17 Sep 2024, SLP (Crl) 9510-2024, wherein Hon'ble Supreme Court granted bail to a first offender aSer one year and six months of custody who was possessing 450 grams of smack (Heroin), and the holds as follows: The pe!!oner and the other accused persons are accused for the offences punishable under Sec!ons 8/21 & 8/29 of the Narco!c Drugs and Psychotropic Substances Act and allega!on is that 450 gram of smack has been recovered from them. The bail applica!on of the pe!!oner was dismissed by the High Court. Hence, he approached this Court. He has already undergone about 1 year and 6 months in jail. Heard learned counsel for the pe!!oner. As per office report dated 13.09.2024, the service is deemed complete on the sole respondent-State but no one has appeared for the State. Considering the period of incarcera!on of the pe!!oner and the fact that the pe!!oner has no criminal antecedents, we are of the opinion that a case of bail is made out for the pe!!oner. 5) In Sabat Mehtab Khan v. The State of Maharashtra, decided on 03 Sep 2024, SLP (Crl) 8557-2024, Hon'ble Supreme Court holds, The pe!!oner is an accused for the offences punishable under Sec!ons 21(c) and 29 of the of the Narco!c Drugs and Psychotropic Substances Act and allega!on is that 275 gms. and

50.01 gms of heroine has been recovered from him. His regular bail applica!on was dismissed by the High Court. He has already undergone about 1 year six months in jail. Heard learned senior counsel/counsel for the par!es. Considering the quan!ty of the contraband ar!cles and the period of his incarcera!on, we are of the opinion that a case of bail is made out for the pe!!oner.

¶9As per the custody cer!ficate dated 06.11.2024, the pe!!oner is in custody for 1 year, 10 months, and 8 days in this FIR.

¶10The 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 underJYOTI order/judgment. 5 Sec!on 37(1)(b)(ii) of the NDPS Act.

¶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.

¶12Given the above, the pe!!oner's pretrial custody is more than some of the judicial precedents men!oned above, and since the pe!!oner is also a first offender, she shall have a right of bail under Ar!cle 14 of the Cons!tu!on of India.

¶13Considering the quan!ty involved and the pre-trial custody, Sec!on 37 of the NDPS Act would not be a/racted. 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.

¶14Given 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 of further pre-trial incarcera!on at this stage.

¶15Without 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.

¶16Given 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.

¶17While furnishing a personal bond, the pe!!oner shall men!on the following personal iden!fica!on details: order/judgment. 6

¶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)

¶18This order is subject to the pe!!oner's complying with the following terms.

¶19The 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.

¶20Given 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 fiSeen 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.

¶21The 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 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 order/judgment. 7 doing so, condi!ons that would result in the depriva!on of rights and liber!es must be eschewed."

¶22Any observa!on made hereinabove is neither an expression of opinion on the case's merits nor shall the trial Court advert to these comments.

¶23A 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.

¶24Pe11on 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. 8

IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Reserved on: 07.11.2024 Pronounced on: 20.11.2024 Ban! @ Laddu ...Pe!!oner Versus State of Punjab …Respondent CORAM: HON'BLE MR. JUSTICE ANOOP CHITKARA Present: Mr. Ruhani Chadha, Advocate, for the pe!!oner. Mr. Jasjit Singh, DAG, Punjab. ****