Akashdeep Snigh Alias Akashdeep Singh v. State of Punjab

ANOOP CHITKARA, J. FIR No. Dated Police Station Sections 81 31.07.2024 Sadar Batala, District Batala 21 and 29 of NDPS Act

¶1The pe!!oner apprehending arrest in the FIR cap!oned above has come up before this Court under Sec!on 482 of Bhara!ya Nagarik Suraksha Sanhita, 2023, [BNSS], seeking an!cipatory bail.

¶2In paragraph 11 of the bail pe!!on, the accused declares that he has no criminal antecedents.

¶3The facts and allega!ons are taken from the reply filed by the State. On July 31, 2024, based on chance recovery, the Police seized 8 grams of heroin from the possession of co-accused Parminder Singh. The Inves!gator claims to have complied with all the statutory requirements of the NDPS Act, 1985, and BNS, 2023.

¶4During custodial interroga!on, Parminder Singh confessed before the Police Officer that the pe!!oner was the seller of the drug and based on this confession, the police arraigned the pe!!oner as an accused. Apprehending arrest, he filed a bail, which the Special Court rejected.

¶5During the custodial interroga!on, the co-accused named the pe!!oner as the seller of the drugs, and based on this confession, the inves!gator arraigned him as an accused. The pe!!oner approached the Sessions Court for an!cipatory bail, which was order/judgment. 1

¶6The 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.

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

¶8It would be appropriate to refer to the following por!ons of the reply, which read as follows: "5.1 ROLE OF THE PETITIONER Accused Parminder Singh @ Prince had made his disclosure statement under sec"on 27 Evidence Act before SI Ranjit Singh Inves"ga"ng officer, PS Sadar Batala to the effect that the pe""oner had sold the recovered heroin to the accused Parminder Singh @ Prince and on the basis of said disclosure statement the pe""oner was nominated as accused in the present case.

¶2The Evidence against the pe""oner The disclosure statement of the accused Parminder Singh @ Prince wherein he admi/ed that the recovered heroin was purchased from the pe""oner."

¶9Dealing in 8 grams of heroin is a punishable offense under the NDPS Act in the following terms: Substance Name Heroin/ ChiFa/ Smack/ Brown Sugar Quan!ty detained 8 Gram Quan!ty type Intermediate Drug Quan"ty in % to upper limit

3.20% 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 order/judgment. 2 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.

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

¶11Sec!on 2 (vii-a) of the NDPS Act defines commercial quan!ty as greater than the quan!ty specified in the schedule. Sec!on 2 (xxiii-a) defines a small quan!ty as a quan!ty less than the quan!ty specified in the table of the NDPS Act. The remaining quan!ty falls in an undefined category, generally called an intermediate quan!ty. All sec!ons in the NDPS Act specify an offence and men!on the minimum and maximum sentence, depending upon the quan!ty of the substance. The commercial quan!ty 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 quan!ty is less than commercial, the restric!ons of Sec!on 37 of the NDPS Act will not aFract, and the factors for bail become similar to the offence regular statutes.

¶12In Sami Ullaha v Superintendent Narco!c Control Bureau, (2008) 16 SCC 471, the Hon'ble Supreme Court holds that in intermediate quan!ty, the rigors of the provisions order/judgment. 3 of Sec!on 37 may not be jus!fied.

¶13Pre-trial incarcera!on should not be a replica of post-convic!on sentencing. The evidence might be prima facie sufficient to launch prosecu!on or to frame charges, but this Court is not considering the evidence at that stage but is analyzing it for the stage of an!cipatory bail. An analysis of the above does not jus!fy custodial interroga!on or pre-trial incarcera!on.

¶14Given the above, the penal provisions invoked 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 for custodial interroga!on or the pre-trial incarcera!on at this stage. Without 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 an!cipatory bail. This order shall come into force from the !me it is uploaded on this Court's official webpage.

¶15The inves!ga!on indicates that the pe!!oner is not the main accused, sothe pe!!oner's bail shall not be treated as a precedent for gran!ng bail to the other co-accused with a higher role.

¶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 Arres!ng Officer, and if the maFer is before a Court, then the concerned Court and due to unavailability before any nearest Ilaqa Magistrate/duty Magistrate. Before accep!ng the surety, the concerned Officer/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:

¶1AADHAR number

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

¶3Mobile number (If available)

¶4E-Mail id (If available)

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

¶19The pe""oner is directed to join the inves"ga"on 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 Inves"gator. The pe!!oner shall be in deemed custody for Sec!on order/judgment. 4 27 of the Indian Evidence Act, 1872/ Sec!on 23 of BSA, 2023. The pe!!oner shall join the inves!ga!on as and when called by the Inves!ga!ng Officer or any Superior Officer and shall cooperate with the inves!ga!on at all further stages as required. In the event of failure to do so, the prosecu!on will be open to seeking cancella!on of the bail. During the inves!ga!on, the pe!!oner shall not be subjected to third-degree, indecent language, inhuman treatment, etc.

¶20The 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.

¶21In case the Inves!gator/Officer-In-Charge of the concerned Police Sta!on arraigns another sec!on of any penal offense in this FIR, and if the new sec!on prescribes a maximum sentence that is not greater than the sec!ons men!oned above, then this bail order shall be deemed to have also been passed for the newly added sec!on(s). However, suppose the newly inserted sec!ons prescribe a sentence exceeding the maximum sentence prescribed in the sec!ons men!oned above; then, in that case, the Inves!gator/Officer-In-Charge shall give the pe!!oner no!ce 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 pe!!oner is found involved in such like offence in future, the concession of bail granted to him today will liable to be withdrawn and the pe!!oner 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 be at liberty to cancel this bail.

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

¶25A 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 aFest it to be a true copy. If the aFes!ng officer wants to verify its authen!city, such an officer can also verify its authen!city and may order/judgment. 5 download and use the downloaded copy for aFes!ng bonds.

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

29.11.2024 Jyo!-II Whether reportable: No. order/judgment. 6

IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Reserved on: 13.11.2024 Pronounced on: 29.11.2024 Akashdeep Snigh @ Akashdeep Singh ...Pe!!oner Versus State of Punjab …Respondent CORAM: HON'BLE MR. JUSTICE ANOOP CHITKARA Present: Mr. G.S. Tiwari, Advocate, for the pe!!oner. Mr. Sukhdev Singh, AAG, Punjab. ****