Harchand Singh v. State of Punjab

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

14.11.2024 Gharinda, Distt. Amritsar 21/61/85 of NDPS Act (Section 29 of NDPS Act added later on)

¶1The petitioner apprehending arrest in the FIR captioned above has come up before this Court under Section 482 of Bharatiya Nagarik Suraksha Sanhita, 2023, [BNSS], seeking anticipatory bail.

¶2As per para 23 of the bail application and as per para 13 of the status report, the accused has the following criminal antecedents: Sr. No. FIR No. Dated Offenses Police Station

1.

04.07.2025 21-C/25 of NDPS Act Lopok, Distt. Amrit-sar Rural

¶3The facts and allegations are taken from the status report filed by the State. On

14.11.2024, based on secret information, the Police seized 450 grams heroin from the car, in which the co-accused, namely, Simranpreet Singh @ Simar, Gurbaksh Singh @ Babbal and Akashpreet Singh were travelling. Further, during checking of co-accused Akashpreet Singh, one .32 bore pistol was recovered and during the search of car, 4 live cartridges of .32 bore were also recovered. The Investigator claims to have complied with all the statutory requirements of the NDPS Act, 1985, and CrPC, 1973.

¶4It would be appropriate to refer para 2 of the status report, which reads as follows: "2. That the brief and relevant facts of the case are that the aforesaid FIR No.288 dated 14.11.2024 was registered on the basis of 'Ruqa' sent by ASI Harpal Singh No.444/ASR-C, stating therein that he along with the police party was present near Khasa Highway Bridge in respect of special nakabandi where he received a secret information that Akashpreet Singh alias Akash, Gurbaksh Singh alias Babbal and Simranpreet Singh alias Simar alias Simmu, who are involved in selling heroin and they had gone towards Attari on Skoda Car No.PB08-BQ-2179 to supply heroin and if apprehended, huge quantity of heroin can be recovered from them. The detailed facts mentioned in the aforesaid 'Ruqa' attached with the petition as Annexure P-1 (FIR No. 288/2024) and its translated version, which may kindly be read as a part of the present paragraph as same are not repeated here for the sake of brevity."

¶5During custodial interrogation, the co-accused, Akashpreet Singh, confessed before the Police officer that he contacted petitioner, who got him in touch with Pakistan based smugglers on mobile and thereafter, he used to procure heroin from Pakistan and he used to give heroin to petitioner and he used to get Rs.50,000/- per packet from petitioner. Based on such confession before the police, the petitioner was arraigned as an accused. Apprehending arrest, he filed for anticipatory bail from the Sessions Court, which denied him bail. Feeling aggrieved, he has invoked the concurrent jurisdiction of this Court under S. 482 BNSS, 2023.

¶6The 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 his family.

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

¶8It would be appropriate to refer to the following portions of the status report, which reads as follows: "3. That after the registration of the FIR, the investigation was commenced by ASI Harpal Singh, who along with the police party apprehended Simranpreet Singh alias Simar, Gurbaksh Singh alias Babbal and Akashpreet Singh on 14.11.2024 and Simranpreet Singh and Gurbaksh Singh presented one black polythene containing heroin from the space near the gear of the car and on weighing, heroin weighing 450 grams was got recovered in the presence of the answering deponent in compliance with the provision of section 50 NDPS Act.

¶4That it is humbly submitted that during the checking of the co-accused Akashpreet Singh alias Akash, one 32 bore pistol inscribed with FG42436 was recovered from his right flank and during the search of the car, 4 live cartridges of .32 bore were recovered from the seat cover of driver seat, which was taken into police possession vide recovery memo dated

14.11.2024." REASONING:

¶9As per paragraph 3 of the status report, the name of the contraband is heroin, and its weight is 450 grams.

¶10Dealing in 450 grams of heroin in contravention of the NDPS Act, 1985, constitutes an offense under the following provisions and notifications: Substance Name Heroin/ Chitta/ Smack/ Brown Sugar/ Diacetylmorphine Quantity detained 450 Gram Punishable U/s S.21(c) of NDPS Act, 1985 Quantity type Commercial Drug's Small & Commercial Qty. suggested by Committee report Notification No. & date Expert Committee Report dated

24.03.1995 & 23.08.2001 (Small and Commercial) Specified as small & Commercial in S.2(viia) & 2(xxiiia) NDPS Act, 1985 Notification No. & dated S.O.1055(E) 10/19/2001 Sr. No. Common Name (Name of Narcotic Drug and Psychotropic Substance (International non-proprietary name (INN) Heroin Other non-proprietary name ****** Chemical Name Diacetylmorphine Small Quantity < 5 Gram Commercial Quantity > 250 Gram Declared as punishable under NDPS Act and as per schedule defined in S.2(xi) & 2(xxiii) NDPS Act, 1985 Notification No. & dated S.(xvi)(d) NDPS Act, 1985 (61 of 1985), S.O. 821 (E) 11/14/1985 Sr. No. 2(xvi)(d) Common Name (Name of Narcotic Drug and Psychotropic Substance (International non-proprietary name (INN) ****** Other non-proprietary name ****** Chemical Name 2(xvi)(d) diacetylmorphine, that is, the alkaloid also known as dia-morphine or heroin and its salts; Explanation.-- For the purposes of clauses (v) (vi), (xv) and (xvi) the percentages in the case of liquid preparations shall be calculated on the basis that a preparation containing one per cent. of a substance means a preparation in which one gram of substance, if solid, or one mililitre of substance, if liquid, is contained in every one hundred mililitre of the preparation and so on in proportion for any greater or less percentage: Provided that the Central Government may, having regard to the developments in the field of methods of calculating percentages in liquid preparations prescribed, by rules, any other basis which it may deem appropriate for such calculation.

¶11The quantity allegedly involved in this case is commercial. Given this, the rigors of S. 37 of the NDPS Act.

¶12It shall be relevant to refer to paragraphs 9 & 10 of the status report dated

30.08.2025, which reads as follows: "Evidence against the petitioner

¶9That it is humbly submitted that the only evidence available against the petitioner is in the form of disclosure statement of the co-accused Akashpreet Singh. Role of the petitioner

¶10That as per the prosecution version, the petitioner is actively involved in smuggling heroin along with the other nominated co-accused."

¶13Petitioner is conniving with the Pakistan-based drug mafia, which makes the offence graver, and custodial interrogation is necessary to find out other anti-national activities and the names of other people involved to weaken the country.

¶14In State of Haryana v. Samarth Kumar, 2022(3) R.C.R.(Criminal) 991, wherein the Hon'ble Supreme Court holds, [8]. In cases of this nature, the respondents may be able to take advantage of the decision in Tofan Singh v. State of Tamil Nadu (supra), perhaps at the time of arguing the regular bail application or at the time of final hearing after conclusion of the trial. [9]. To grant anticipatory bail in a case of this nature is not really warranted. Therefore, we are of the view that the High Court fell into an error in granting anticipatory bail to the respondents.

¶15The quantity of heroin that was seized falls in the commercial category. Section 371 1 37. Offences 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 sec)on 19 or sec)on 24 or sec)on 27A and also for offences involving commercial quan)ty shall be released on bail or on his own bond unless—

(i) the Public Prosecutor has been given an opportunity to oppose the applica)on for such release, and (ii) where the Public Prosecutor opposes the applica)on, the court is sa)sfied 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 limita)ons on gran)ng of bail specified in clause (b) of sub-sec)on (1) are in addi)on to the limita)ons under the Code of Criminal Procedure, 1973 (2 of 1974) or any other law for the )me being in of the NDPS Act mandates under sub-section (1) (b) of section 37, that no person accused of an offence punishable for offences involving commercial quantity shall be released on bail unless- (i) the Public Prosecutor has been given an opportunity to oppose the application of release, and (ii) where the Public Prosecutor opposes the application, the Court is satisfied that there are reasonable grounds for believing that accused is not guilty of such offence and is not likely to commit any offence while on bail. Thus, the rigors of S. 37 of the NDPS Act apply in the present case, and the burden is on the petitioner to satisfy the twin conditions put in place by the Legislature under Section 37 of the NDPS Act. Given the legislative mandate of S. 37 of the NDPS Act, the Court can release a person accused of an offence punishable under the NDPS Act for possessing a commercial quantity of contraband only after recording reasonable satisfaction of its rigors.

¶16The State's counsel argues that a plain reading of Section 37 reveals that the legislature intends to make the law stringent to curb the drug menace. It is further to be noticed that the provisions are couched in negative language, meaning that to grant bail, the Court needs to record a finding that there are reasonable grounds for believing that the petitioner is not guilty of the offense. The burden of proof is also on the petitioner to satisfy the Court about his non-involvement in the case. While interpreting the provisions of Section 37 of the NDPS Act, the Court must be guided by the objective sought to be achieved by putting these stringent conditions.

¶17Satisfying the fetters of S. 37 of the NDPS Act is candling the infertile eggs. The stringent conditions of section 37 placed in the statute by the legislature do not create a bar for bail for specified categories, including the commercial quantity; 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 petitions under general penal statutes like IPC. Thus, both the twin conditions need to be satisfied before a person accused of possessing a commercial quantity of drugs or psychotropic substance is to be released on bail. The first condition is to provide an opportunity to the Public Prosecutor, enabling them to take a stand on the bail application. The second stipulation is that the Court must be satisfied 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 conditions is not met, the ban on granting bail operates. The expression "reasonable grounds" means something more than prima facie grounds. It contemplates substantial probable causes for believing the accused is not guilty of the alleged offense. Even on fulfilling one of the conditions, the reasonable grounds for believing that the accused is not guilty of such an offense, the Court still cannot give a finding on the assurance that the accused is not likely to commit any such crime again. Thus, the grant or denial of bail for possessing commercial quantity would vary from case to case, depending upon its force on gran)ng of bail. facts, and the parameters for anticipatory bail are stringent compared to the regular bail when the accused is in judicial custody.

¶18The quantity involved is commercial, and the burden to satisfy the rigor of condition of Section 37 of the NDPS Act was on the petitioner, which he did not discharge to the satisfaction of the statutory requirements. The investigation reveals sufficient prima facie evidence to connect the petitioner with the crime; thus, the petitioner fails to make out a case for anticipatory bail. Any detailed discussions about the evidence may prejudice the case of the petitioner, the State, or the other accused.

¶19The learned Special Judge, while dismissing the anticipatory bail of the petitioner, has given elaborative reasons and considered almost every aspect.

¶20The grounds in the bail petition do not shift the burden the legislature places on the accused under S. 37 of the NDPS Act. The petitioner has not stated anything in the bail petition to discharge the burden put by the stringent conditions placed in the statute by the legislature under section 37 of the NDPS Act.

¶21In Jai Prakash Singh v. State of Bihar and another (2012) 4 SCC 379, Hon'ble Supreme Court holds, [19]. Parameters for grant of anticipatory bail in a serious offence are required to be satisfied and further while granting such relief, the court must record the reasons therefor. Anticipatory bail can be granted only in exceptional circumstances where the court is prima facie of the view that the applicant has falsely been enroped in the crime and would not misuse his liberty. [See D.K. Ganesh Babu v. P.T. Manokaran (2007) 4 SCC 434, State of Maharashtra v. Mohd. Sajid Husain Mohd. S. Husain (2008) 1 SCC 213 and Union of India v. Padam Narain Aggarwal (2008) 13 SCC 305].

¶22A perusal of the bail petition and the documents attached primafacie points towards the petitioner's involvement and does not make out a case for bail. The impact of crime would also not justify bail. Any further discussions will likely prejudice the petitioner; this court refrains from doing so.

¶23Any observation made hereinabove is neither an expression of opinion on the case's merits nor shall the trial Court advert to these comments.

¶24Petition dismissed. All pending applications, if any, are disposed of. (ANOOP CHITKARA)

01.09.2025 JUDGE Jyoti-II

IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Decided on: 01.09.2025 Harchand Singh ...Petitioner Versus State of Punjab …Respondent CORAM: HON'BLE MR. JUSTICE ANOOP CHITKARA Present: Mr. Ranbir Singh Sekhon, Advocate for the petitioner. Ms. Pooja Nayar Sharma, DAG, Punjab. ****