Vinay Kumar Singh v. State of Haryana

ANOOP CHITKARA, J.

FIR No. Dated Police Station Sections

17.09.2024 Pinjore, District Panchkula 22(C) & 29 NDPS Act, 1985

¶1The petitioner incarcerated in the FIR captioned above had come up before this Court under Section 483 of Bharatiya Nagarik Suraksha Sanhita, 2023, [BNSS], seeking regular bail.

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

¶3The facts and allegations are taken from the reply filed by the State. On Sep 17, 2024, based on chance recovery, the Police seized 15 strips, each containing 60 tablets of Lomotil, and the weight of each tablet was 2.5 mg., from the possession of co-accused Dalip. The Investigator claims to have complied with all the statutory requirements of the NDPS Act, 1985, and CrPC, 1973.

¶4During custodial interrogation, Dalip disclosed to the Investigator of purchasing the tablets from the co-accused Rashid, and based on such evidence, the Investigator arrested Rashid.

¶5Rashid was subjected to custodial interrogation, and he disclosed the petitioner's name as the seller of the contraband. Based on this evidence, the police arrested the

petitioner.

¶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 their family.

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

¶8It would be appropriate to refer to para 11 of the reply, which reads as follows: "11. That during the course of investigation, sample of the contraband has been vide sent RC No. 28205620240920456325/756 dated 20.09.2024 to the FSL for examination. That in this regard, a report No.FSL(H)24/FSLMBN/2409205019 dated 07.11.2024 has been received, wherein the doctor has opined "Diphenoxylate & Atropine were detected in the sample". The copy of the FSL has been annexed herewith as ANNEXURE R-2."

¶9The total number of tablets recovered was in 15 strips, each containing 60 tablets, i.e., 900 tablets. Each tablet weighed 2.5 mg, so the weight of 900 tablets would primafacie come to 2.25 grams.

¶10Dealing in 2.25 grams of Diphenoxylate is a punishable offense under the NDPS Act in the following terms: Substance Name Diphenoxylate Quantity detained

2.25 Gram Quantity type Intermediate Drug Quantity in % to upper limit of Intermediate

4.50% Specified as small & Commercial in S.2(viia) & 2(xxiiia) NDPS Act, 1985 Notification No S.O.1055(E) dated 10/19/2001 Sr. No. Common Name (Name of Narcotic Drug and Psychotropic Substance (International non-proprietary name (INN) Diphenoxylate Other non-proprietary name ****** Chemical Name 1-(3-cyano-3,3-diphenyIpropyI)-4-phenylpiperidine-4-carboxylic acid ethyl ester Small Quantity 2 Gram Commercial Quantity 50 Gram Declared as punishable under NDPS Act and as per schedule defined in S.2(xi) & 2(xxiii) NDPS Act, 1985 Notification No S.O.826(E) dated 11/14/1985

Common Name (Name of Narcotic Drug and Psychotropic Substance (International non-proprietary name (INN) DIPHENOXYLATE Other non-proprietary name ****** Chemical Name Ethyl 1-(3-Cyano-3, 3-diphenyIpropyl)-4-phenylpiperidine-4-carboxylic acid ethyl ester (the international non-proprietary name of which is Diphenoxylate), and its salts, preparations, admixtures, extracts and other substances containing any of these drugs, except preparations of diphnoxylate containing, per dosage unit, not more than 2.5 mg. of diphenoxylate calculated as base, and a quantity of atrophine sulphate equivalent to at least one per cent of the dose of diphenoxylate.

¶11Given this, the rigors of S. 37 of the NDPS Act do not apply in the present case.

¶12Section 2 (vii-a) of the NDPS Act defines commercial quantity as the quantity greater than the quantity specified in the schedule. Section 2 (xxiii-a) defines a small quantity as a quantity less than the quantity specified in the table of the NDPS Act. The remaining quantity falls in an undefined category, generally called an intermediate quantity. All sections in the NDPS Act specify an offence and mention the minimum and maximum sentence, depending upon the quantity of the substance. The commercial quantity 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 quantity is less than commercial, the restrictions of Section 37 of the NDPS Act will not attract, and the factors for bail become similar to the offence regular statutes.

¶13In Sami Ullaha v Superintendent Narcotic Control Bureau, (2008) 16 SCC 471, the Hon'ble Supreme Court holds that in intermediate quantity, the rigors of the provisions of Section 37 may not be justified.

¶14The prolonged incarceration, generally militates against the most precious fundamental right guaranteed under Article 21 of the Constitution and in such a situation, the conditional liberty must override the statutory embargo created under Section 37(1)(b)(ii) of the NDPS Act1.

¶15The pre-trial incarceration should not be a replica of post-conviction sentencing.

1 Supreme Court of India, in Rabi Prakash v. The State of Odisha, SLP (Crl) 4169-2023, Para 4, decided on 13 July 2023

There is sufficient primafacie evidence connecting the petitioner with the alleged crime. However, per paragraph 7 of the bail petition, the petitioner has been in custody since

21.09.2024. Per the custody certificate dated 04.11.2024, the petitioner's total custody in this FIR is 01 months and 13 days. Given the penal provisions invoked viz-a-viz pre-trial custody, coupled with the primafacie analysis of the nature of allegations, and the other factors peculiar to this case, there would be no justifiability further pre-trial incarceration at this stage, subject to the compliance of terms and conditions mentioned in this order.

¶16Without commenting on the case's merits, in the facts and circumstances peculiar to this case, and for the reasons mentioned above, the petitioner makes a case for bail. This order shall come into force from the time it is uploaded on the official webpage of this Court.

¶17Given above, provided the petitioner is not required in any other case, the petitioner shall be released on bail in the FIR captioned above subject to furnishing bonds to the satisfaction of the concerned Court and due to unavailability before any nearest Ilaqa Magistrate/duty Magistrate. Before accepting the surety, the concerned Court must be satisfied that if the accused fails to appear, such surety can produce the accused.

¶18While furnishing a personal bond, the petitioner shall mention the following personal identification details:

¶1AADHAR number

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

¶3Mobile number (If available)

¶4E-Mail id (If available)

¶19This order is subject to the petitioner's complying with the following terms.

¶20The petitioner shall abide by all statutory bond conditions and appear before the concerned Court(s) on all dates. The petitioner 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.

¶21The possibility of the accused influencing the investigation, tampering with evidence, intimidating witnesses, and the likelihood of fleeing justice can be taken care of by imposing elaborative and stringent conditions. In Sushila Aggarwal v. State (NCT of

Delhi), 2020:INSC:106 [Para 92], (2020) 5 SCC 1, Para 92, the Constitutional Bench held that unusually, subject to the evidence produced, the Courts can impose restrictive conditions.

¶22Given the background of allegations against the petitioner, it becomes paramount to protect the drug detection squad, their family members, as well as the members of society, and incapacitating the accused would be one of the primary options until the filing of the closure report or discharge, or acquittal. Consequently, it would be appropriate to restrict the possession of firearm(s). [This restriction 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 sanction]. Given the nature of the allegations and the other circumstances peculiar to this case, the petitioner shall surrender all weapons, firearms, ammunition, if any, along with the arms license to the concerned authority within fifteen days from release from prison and inform the Investigator about the compliance. However, subject to the Indian Arms Act, 1959, the petitioner shall be entitled to renew and take it back in case of acquittal in this case, provided otherwise permissible in the concerned rules. Restricting firearms would instill confidence in the victim(s), their families, and society; it would also restrain the accused from influencing the witnesses and repeating the offence.

¶23This bail is conditional, and the foundational condition is that if the petitioner repeats the offense, the State may file an application for cancellation of this bail before the Sessions Court, which shall be at liberty to cancel this bail.

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

¶25A certified copy of this order would not be needed for furnishing bonds, and any Advocate for the Petitioner can download this order along with case status from the official web page of this Court and attest it to be a true copy. If the attesting officer wants to verify its authenticity, such an officer can also verify its authenticity and may download and use the downloaded copy for attesting bonds.

¶26Petition allowed in terms mentioned above. All pending applications, if any, stand disposed of.

(ANOOP CHITKARA)

JUDGE

28.11.2024

IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CRM-M No.52562 of 2024 Reserved on: 12.11.2024 Pronounced on: 28.11.2024 Vinay Kumar ...Petitioner Versus State of Haryana …Respondent CORAM: HON'BLE MR. JUSTICE ANOOP CHITKARA Present: Mr. A.S. Nirmaan, Advocate (Through VC) for the petitioner. Mr. Aashish Bishnoi, DAG, Haryana. ****