Kulwinder Pal Alias Minda v. State of Punjab

ANOOP CHITKARA, J. FIR No. Dated Police Sta1on Sec1on 62 09.06.2021 Satnampura, Disti. Kapurthala 22 of NDPS Act

¶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.

¶2In paragraph 3 of Note of the bail pe!!on, the accused declares that he has the following criminal antecedents: Sr. No. FIR No. Dated Offense Police Sta1on

¶149 12.07.2019 21 of NDPS Act Goraya

¶3The facts and allega!ons are taken from the status report filed by the State. On June 09, 2021, based on a chance recovery, the Police seized 12 injec!ons with the label 'Leegesic" and 12 unlabeled injec!ons from the bag thrown by pe!!oner on being no!ced by the police. 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 refers to the bail pe!!on. It would be relevant to refer to paras 6 to 8, which read as follows: "6. That the pe--oner had been granted condi-onal interim bail vide order dated 27.07.2021 in case No.BA/1413/2021, awai-ng the FSL order/judgment. 1 Report. However, despite the FSL Report having been issued on

19.08.2021, no such cancella-on took place. Order gran-ng interim bail is Annexure P-2 and true typed copy of FSL Report is Annexure P-3.

¶7That no ac-on at all was taken in any manner concerning the case un-l

15.07.2024, wherein the pe--oner was unable to appear and his interim bail was cancelled on grounds of non-appearance. It is per-nent to men-on that the cancella-on of bail was ordered to be carried out u/s 446 of the repealed CrPC, which in itself should make the order inoperable as the law in force from 01.07.2024 is the BNSS. Zimini order dated

15.07.2024 is Annexure P-4.

¶8That the pe--oner was arrested on 18.07.2024 and has since been in custody."

¶5The 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.

¶6The State's counsel opposes bail and refers to the status report.

¶7The pe!!oner's arguments are that ini!al by bail granted to pe!!oner due to the non-availability of the FSL report, and later on, his bail was canceled due to non-appearance; as such, the present bail has to be considered due to the apprecia!on of the reasons for non-appearance and not on merits. However, once the bail has been canceled and the pe!!oner is re-arrested, had he challenged the order of bail cancella!on on the grounds of his non-appearance, he might have the right to claim such benefits. However, once he was re-arrested, this Court cannot lose sight that the ini!al bail was granted not on merits but due to delay in filing FSL report within a reasonable !me and the applica!on of S. 37 of NDPS Act would not go into oblivion.

¶8Twelve injec!ons of Leegesic had 2 ml of Buprenorphine each. The FSL report is atiached to the status report. Dealing in 24 ml of Buprenorphine without a prescrip!on or license is a punishable offense under the NDPS Act in the following terms: Substance Name BUPRENORPHINE Quan!ty detained 24 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 order/judgment. 2 Sr. No. 169 Common Name (Name of Narco!c Drug and Psychotropic Substance BUPRENORPHINE (Interna!onal non-proprietary name (INN) Other non-proprietary name ****** 21-cyclopropyl-7-alpha-[(S)-1-hydroxy-1,2,2-Chemical Name trimethylpropyl]-6,14,endo-ethano-6,7,8,14-tetrahydrooripavine Small Quan!ty 1 Gram Commercial Quan!ty 20 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.O.785(E) dated 10/26/1992 Sr. No. 92 Common Name (Name of Narco!c Drug and Psychotropic Substance BUPRENORPHINE (Interna!onal non-proprietary name (INN) Other non-proprietary name ****** 21, cyclopropyl-7-μ-[(S)-1-hydroxy-1-2, 2-Chemical Name trimethylpropyl]-6, 14-endo-ethano-6,7,8,14-tetrahydrooripavine

¶9The 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.

¶110Sec!on 37 of the NDPS Act mandates under sub-sec!on (1) (b) of sec!on 37 that no person accused of an offense punishable for offenses involving commercial quan!ty shall be released on bail unless- (i) the Public Prosecutor has been given an opportunity to oppose the applica!on of release, and (ii) where the Public Prosecutor opposes the applica!on, the Court is sa!sfied that there are reasonable grounds for believing that accused is not guilty of such offense and is not likely to commit any offense while on bail. Thus, the rigors of S. 37 of the NDPS Act apply in the present case,

¶137Offences to be cognizable and non-bailable.—(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974),—

(a) every offence punishable under this Act shall be cognizable;

(b) no person accused of an offence punishable for offences under section 19 or section 24 or section 27A and also for offences involving commercial quantity shall be released on bail or on his own bond unless—

(i) the Public Prosecutor has been given an opportunity to oppose the application for such release, and (ii) where the Public Prosecutor opposes the application, the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail.

(2) The limitations on granting of bail specified in clause (b) of sub-section (1) are in addition to the limitations under the Code of Criminal Procedure, 1973 (2 of 1974) or any other law for the time being in order/judgment. 3 and the burden is on the pe!!oner to sa!sfy the twin condi!ons put in place by the Legislature under Sec!on 37 of the NDPS Act. Given the legisla!ve mandate of S. 37 of the NDPS Act, the Court can release a person accused of an offense punishable under the NDPS Act for possessing a commercial quan!ty of contraband only aTer recording reasonable sa!sfac!on of its rigors.

¶11The State's Counsel argues that a plain reading of Sec!on 37 reveals that the legislature intends to make the law stringent to curb the drug menace. It is further to be no!ced that the provisions are couched in nega!ve language, meaning that to grant bail, the Court needs to record a finding that there are reasonable grounds for believing that the pe!!oner is not guilty of the offense. The burden of proof is also on the pe!!oner to sa!sfy the Court about his non-involvement in the case. While interpre!ng the provisions of Sec!on 37 of the NDPS Act, the Court must be guided by the objec!ve sought to be achieved by puVng these stringent condi!ons.

¶12Sa!sfying the fetiers of S. 37 of the NDPS Act is candling the infer!le eggs. The stringent condi!ons of sec!on 37 placed in the statute by the legislature do not create a bar for bail for specified categories, including the commercial quan!ty; however, it creates hurdles by placing a reverse burden on the accused, and once crossed, the rigors no more exist, and the factors for bail become similar to the bail pe!!ons under general penal statutes like IPC. Thus, both the twin condi!ons need to be sa!sfied before a person accused of possessing a commercial quan!ty of drugs or psychotropic substance is to be released on bail. The first condi!on is to provide an opportunity to the Public Prosecutor, enabling them to take a stand on the bail applica!on. The second s!pula!on is that the Court must be sa!sfied that reasonable grounds exist for believing that the accused is not guilty of such an offense and is not likely to commit any offense while on bail. If either of these condi!ons is not met, the ban on gran!ng bail operates. The expression "reasonable grounds" means something more than prima facie grounds. It contemplates substan!al probable causes for believing the accused is not guilty of the alleged offense. Even on fulfilling one of the condi!ons, the reasonable grounds for believing that the accused is not guilty of such an offense, the Court s!ll cannot give a finding on the assurance that the accused is not likely to commit any such crime again.

¶13The submissions made above, and the grounds in the bail pe!!on do not shiT the burden the legislature places on the accused under S. 37 of the NDPS Act. The pe!!oner has not stated anything in the bail pe!!on to discharge the burden put by the stringent condi!ons placed in the statute by the legislature under sec!on 37 of the NDPS Act. The inves!ga!on reveals sufficient prima facie evidence to connect the pe!!oner with the crime; thus, the pe!!oner fails to make out a case for bail. Any detailed order/judgment. 4 discussions about the evidence may prejudice the case of the pe!!oner, the State, or the other accused.

¶14The pe!!oner has criminal antecedents. Considering the bail pe!!on of an accused with a criminal history throws an onerous responsibility upon the courts to act judiciously and reasonably because arbitrariness is the an!thesis of law. The criminal history must be of cases where the accused was convicted, including the suspended sentences and all pending First Informa!on Reports, wherein the bail pe!!oner stands arraigned as an accused. In reckoning the number of cases as criminal history, the prosecu!on resul!ng in acquitial or discharge, or when Courts quashed the FIR, the prosecu!on stands withdrawn, or the prosecu!on filed a closure report, cannot be included. Although crime is to be despised and not criminal, for a recidivist, the contours of a playing field are marshy, and the graver the criminal history, the slushier the puddles. Given the criminal history, there is no assurance of compliance with the second rigor of S. 37 of the NDPS Act.

¶15As per the custody cer!ficate dated 06.11.2024, the pe!!oner's custody is 5 months and 6 days, which cannot be considered prolonged.

¶16In Union of India (NCB) v. Khalil Uddin, decided on 21 Oct 2022, 2022 SCC OnLine SC 2109, Hon'ble Supreme Court holds, [4]. According to the prosecu!on, contraband material weighing about 13 kgs. of morphine was found in a motor vehicle which was driven by co-accused named Md. Jakir Hussain. During the course of inves!ga!on, it was found that the motor vehicle was recorded in the name of Md. Nizam Uddin who had executed a sale letier and handed over the custody of the vehicle to accused Md. Abdul Hai and that accused Md. Jakir Hussain was the driver employed by accused Md. Abdul Hai and that contraband material in ques!on was to be handed over to accused-Khalil Uddin, an owner of a tea shop. [5]. The High Court by its order which is presently under challenge, directed release of both the accused as stated above on bail aTer they had undergone custody to the tune of about a year. Ques!oning grant of relief to said accused, the instant appeals have been preferred. [7]. What emerges from the record is that large quan!ty of contraband weighing about 13 kgs of morphine was found in a car which was driven by Md. Jakir Hussain. Whether the role played by said Md. Jakir Hussain could get connected with both the accused is a ques!on. [8]. The answer to said ques!on could be the statement recorded of Md. Nizam Uddin. The statement of Md. Jakir Hussain recorded under Sec!on 67 of the Act has also named his owner accused order/judgment. 5 Abdul Hai. We are conscious of the fact that the validity and scope of such statements under Sec!on 67 has been pronounced upon by this Court in Tofan Singh v. State of Tamil Nadu . In State by

(NCB) Bengaluru v. Pallulabid Ahmad Arimu?a, the rigour of law lay down by this Court in Tofan Singh was held to be applicable even at the stage of grant of bail. [9]. However, going by the circumstances on record, at this stage, on the strength of the statement of Md. Nizam Uddin, though allegedly retracted later, the matier stands on a different foo!ng. In our considered view, in the face of the mandate of Sec!on 37 of the Act, the High Court could not and ought not to have released the accused on bail. We, therefore, allow these appeals, set aside the view taken by the High Court and direct that both the appellants be takenin custody forthwith. [10]. We have been given to understand that the charge-sheet has been filed. In the circumstances, we direct the Trial Court to take up the matier and conclude the proceedings as early as possible and preferably within six months from the receipt of this order.

¶17In Narayan Takri v. State of Odisha, decided on 10 Sep 2024, SLP (Crl.) 8198-2024, Hon'ble Supreme Court holds, The pe!!oners are in custody since 28th May, 2022 for alleged commission of alleged offence under Sec!on 20(b)(ii)(c) of the Narco!c Drugs and Psychotropic Substances Act, 1985. As per the FIR allega!on, 125.3 kg. of "Ganja" was recovered from the pe!!oners. [3]. It is not in dispute that the trial has commenced and that three prosecu!on witnesses have been examined !ll date. [4]. Learned counsel for the pe!!oners submits that the third prosecu!on witness was examined as far back as on 28th January, 2024 and since then, no other prosecu!on witness has been examined. There is, however, no such averment in the pe!!on. [5]. Learned counsel appearing for the respondent submits that every endeavor shall be made on behalf of the prosecu!on to have all the witnesses examined by the end of this year. [6]. The trial court is encouraged to expedite the trial and give its decision as early as possible, in accordance with law. [7]. We, however, do not see any reason to interfere the impugned judgment and order at this stage; however, it is clarified that in the event the trial is not completed by the end of this year, the pe!!oners shall be at liberty to renew their prayer for bail before the trial court.

¶18A perusal of the bail pe!!on and the documents atiached primafacie points towards the pe!!oner's involvement and does not make out a case for bail. The impact of crime would also not jus!fy bail. Any further discussions will likely prejudice the pe!!oner; this court refrains from doing so. order/judgment. 6

¶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.

¶20Pe11on dismissed. All pending applica!ons, if any, stand disposed of. (ANOOP CHITKARA) JUDGE

21.11.2024 Jyo!-II Whether reportable: YES. order/judgment. 7

IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Reserved on: 08.11.2024 Pronounced on: 21.11.2024 Kulwinder Pal @ Minda ...Pe!!oner Versus State of Punjab …Respondent CORAM: HON'BLE MR. JUSTICE ANOOP CHITKARA Present: Ms. Taranjit Kaur Hundal, Advocate and Ms. Harnaaz Kaur Hundal, Advocate, for the pe!!oner. Mr. Jasjit Singh, DAG, Punjab. ****