Darshana v. State of Punjab

ANOOP CHITKARA, J. FIR No. Dated Police Sta/on Sec/on

07.05.2024 Bhikhi, District Mansa 22 (C) 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.

¶2As per paragraph 14 of the bail applica on and as per the status report, the accused has the following criminal antecedents: Sr. No. FIR No. Dated Offenses Police Sta/on

1.

13.05.2023 22 of NDPS Act Bhikhi

2.

01.06.2018 61 of Excise Act Bhikhi

3.

13.05.2020 22 of NDPS Act Bhikhi

¶3The facts and allega ons are taken from the status report filed by the State. On May 7, 2024, based on a chance recovery, the Police seized 1200 tablets containing Tramadol from the pe

oner's possession. The Inves gator claims to have complied with all the statutory requirements of the NDPS Act, 1985, and BNSS, 2023.

¶4The pe

oner's counsel refers to para 3 to para 7 of the bail pe

on, which reads as follows: "3. That alleged recovery affected from plasc sack which was wrongly been planted and challan has already been presented before Ld. trial order/judgment. Court and ma er is pending for prosecu"on evidence but none of the witness has been examined "ll date as per the instruc"ons given by the pe""oner to the undersigned counsels.

¶4That it is very important to men"on here that name of the pe""oner was wrongly been implicated just to detain her in police custody illegally by plan"ng alleged recovery wrongly without conduc"ng any Inves"ga"on because there is no rela"on or any concern of the pe""oner as recovery was not affected from conscious possession of the pe""oner but inspite of the knowledge of this fact that no recovery has been affected from the possession she has been falsely implicated In Impugned FIR without any reason and as such no alleged offence has ever been commi ed by her.

¶5That when the pe""oner has no concern with the alleged recovery and his name was wrongly men"oned in FIR then it is very much clear that the pe""oner is Innocent person & not commi ed any offence. So therefore, implica"on of pe""oner without any valid reason or without having any evidence being a poor old aged women is totally illegal and against the law.

¶6That the prosecu"on agency was not adopted procedure as prescribed in the Act/mandatory provisions i.e. Sec"on 42, 50 and 57 of NDPS Act, has not been complied with by inves"ga"ng agency at the "me of recovery and hence, the pe""oner deserves bail on this ground also.

¶7That the pe""oner is falsely implicated in present FIR as such no offence has been commi ed by her because even from the allega"ons of the FIR it is very much clear that no recovery was affected from the pe""oner and the same was recovered from plas"c sack. Moreover, it is very important to men"on here she has no link or rela"on with alleged recovery."

¶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 her family.

¶6The State's counsel opposes bail and refers to paras 4 to 6 of the status report, which reads as follows: "ROLE OF PETITIONER

¶4That the pe""oner has been found keeping and carrying intoxicated tablets i.e. Tramadol Prolonged Released tablets IP Tramawel SR 100 in heavy quan"ty i.e. 1200 tablets however she was having no license or order/judgment. 2 permit doing so as described hereinabove. The pe""oner was arrested on

7.5.2024 and was presented before the Id. Magistrate and the pe""oner was sent in judicial custody. EVIDENCE AGAINST PETITIONER.

¶5That police party apprehended the pe""oner on the basis of doubt and further her checking conducted by LC Kiranjeet Kaur in presence of ASI Gurmail Singh No. 683/Mansa, LC Kiranjeet Kaur 1339/MNS, HC Jarnail Singh, C. Avtar Singh and DSP Gurpreet Singh (SD) Mansa and 1200 Tramadol Prolonged Released tablets IP Tramawel SR 100 were recovered from the black colored plas"c bag handed by pe""oner. There is sufficient, solid and strong evidence against the pe""oner. NAME AND TOTAL WEIGHT OF CONTRABAND OF THE DRUG

¶6That when the pe""oner along with parcel of recovered contraband was produced before the Id. Illaqa Magistrate Sh. Ravneet Singh, PCS, JMIC, Mansa then the Id. Magistrate found the seal intact and then broke it and aGer being confirmed that batch number and expiry date is not men"oned on en"re 120 strips, put the same in cloth bag and then put the cloth bag in a yellow colored paper envelope and sealed with four seals, two each of GS and RS. The said parcel was deposited with RTFSL, Bathinda vide reference No.256/SC dated 13.5.2024. As per report of chemical examiner the contraband, aGer iden"fica"on and tests, it was reported as under: - Tramadol Found present in the tablets Hydrochloride contained in the envelope Average weight of each tablet was 375 mg. and total weight of 1200 tablets comes to 450 Gm. Copy of FSL report No. 853/2024/ Toxi/RTFSL/BTI/Pb. Dated 18.6.2024 is a ached as Annexure R-1."

¶7Dealing in 450 grams of Tramadol Hydrochloride is a punishable offense under the NDPS Act in the following terms: Substance Name Tramadol Quan!ty detained 450 Gram Quan!ty type Commercial Drug Quan"ty in % to upper limit

180.00% of Intermediate Specified as small & Commercial in S.2(viia) & 2(xxiiia) NDPS Act, 1985 No!fica!on No S.O.1762(E) Dated 4/26/2018 Sr. No. 238 ZH order/judgment. 3 Common Name (Name of Narco!c Drug and Psychotropic Substance Tramadol (Interna!onal non-proprietary name (INN) Other non-proprietary name ****** Chemical Name ****** 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.O.1761(E) & S.O. 3448(E) Dated 26-Apr-2018 & 26-Jul-2018 Sr. No. 110Y Common Name (Name of Narco!c Drug and Psychotropic Substance Tramadol (Interna!onal non-proprietary name (INN) Other non-proprietary name ****** Chemical Name ******

¶8The 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.

¶19Sec!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, 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 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 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. 4 the NDPS Act for possessing a commercial quan ty of contraband only aOer recording reasonable sa sfac on of its rigors.

¶10The 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 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 puQng these stringent condi ons.

¶11Sa sfying the feRers 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.

¶12The pe

oner's arguments did not point toward any material contradic ons. It was a case of chance recovery. As such, S. 42 would not apply ini ally, and recovery was not from the person. As such, S. 50 would also not aRract. Non-examina on of independent witnesses is not illegal, and its outcome depends upon the nature of evidence tendered in the examina on in chief and its cross-examina on.

¶13The submissions made above, and the grounds in the bail pe

on do not shiO 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

order/judgment. 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 discussions about the evidence may prejudice the case of the pe!!oner, the State, or the other accused.

¶14As per custody cer!ficate dated 05.11.2024, the pe!!oner's custody is around six months, which cannot be considered prolonged.

¶15A perusal of the bail pe!!on and the documents aRached 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.

¶16Any observa!on made hereinabove is neither an expression of opinion on the case's merits nor shall the trial Court advert to these comments.

¶17Pe//on dismissed. All pending applica!ons, if any, stand disposed of. (ANOOP CHITKARA) JUDGE

12.11.2024 Jyo/-II Whether reportable: No. order/judgment. 6

IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Reserved on: 06.11.2024 Pronounced on: 12.11.2024 Darshana ...Pe oner Versus State of Punjab …Respondent CORAM: HON'BLE MR. JUSTICE ANOOP CHITKARA Present: Mr. J.K. Singla, Advocate and Ms. Suman Rani, Advocate for the pe oner. Mr. Jasjit Singh, DAG, Punjab. ****