Balkar Singh Alias Toor v. State of Punjab

ANOOP CHITKARA, J. FIR No. Dated Police Station Sections 291 28.12.2023 Gharinda, Amritsar 21/29 of NDPS Act

¶1The pettoner incarcerated in the FIR captoned above had come up second tme before this Court under Secton 483 of Bharatya Nagarik Suraksha Sanhita, 2023, [BNSS], seeking regular bail.

¶2In paragraph 16 of the bail petton, the accused declares that he has no criminal antecedents.

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

28.12.2023, based on chance recovery, the Police seized 1 kg 500 grams of heroin from the possession of co-accused, namely, Onkar Singh. The Investgator claims to have complied with all the statutory requirements of the NDPS Act, 1985, and CrPC, 1973. During the custodial interrogaton of the co-accused Onkar Singh, he disclosed that he was going to deliver the said heroin to the pettoner; based on the disclosure statement, the police arraigned the pettoner as an accused by incorporatng S. 29 of the NDPS Act.

¶4The pettoner's counsel argued that the pettoner has been falsely implicated in the present case and nothing has been recovered from him. He submits that the name of the pettoner has been surfaced on the basis of disclosure statement of co-accused Onkar Singh.

¶5The pettoner's counsel prays for bail by imposing any stringent conditons andJYOTI order/judgment. 1 contends that further pre-trial incarceraton would cause an irreversible injustce to the pettoner and his family.

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

¶7It would be appropriate to refer to the following portons of the status report, which read as follows: "Role of the pe##oner

¶3That the co-accused Onkar Singh suffered a disclosure statement dated

28.12.2023, disclosing therein that he was going to deliver the aforesaid heroin to Balkar Singh @ Toor (present pe%%oner-accused). On the basis of the aforesaid disclosure statement dated 28.12.2023, the pe%%oner was nominated in the present case and Sec%on 29 of NDPS Act was added in the present case." REASONING:

¶8The quantty allegedly involved in this case is commercial. Given this, the rigors of S. 37 of the NDPS Act apply in the present case. The pettoner must satsfy the twin conditons put in place by the Legislature under Secton 37 of the NDPS Act.

¶9In Abida v. State of Haryana, 2022:PHHC:058722, [Para 10], CRM-M-5077-2022, decided on 13-05-2022, this court observed as follows: [10]. Thus, both the twin conditons need to be satsfied before a person accused of possessing a commercial quantty of drugs or psychotropic substance is to be released on bail. The first conditon is to provide an opportunity to the Public Prosecutor, enabling to take a stand on the bail applicaton. The second stpulaton is that the Court must be satsfied that reasonable grounds exist for believing that the accused is not guilty of such offence, and is not likely to commit any offence while on bail. If either of these two conditons is not met, the ban on grantng bail operates. The expression "reasonable grounds" means something more than prima facie grounds. It contemplates substantal probable causes for believing that the accused is not guilty of the alleged offence. Even on fulfilling one of the conditons, the reasonable grounds for believing that the accused is not guilty of such an offence, the Court stll cannot give a finding on assurance that the accused is not likely to commit any such crime again. Thus, the grant of bail or denial of bail for possessing commercial quantty would vary from case to case, depending upon its facts. [31]. Satsfying the feKers of S. 37 of the NDPS Act is candling the infertle eggs. The stringent conditons of secton 37 placed in the statute by the legislature do not create a bar for bail for specified categories, including the commercial quantty; however, it creates hurdles by placing a reverse burden on the accused, and once crossed, the rigors no more subsist, and the factors for bail become similar to order/judgment. 2 the bail pettons under general penal statutes like IPC.

¶10It would be appropriate to refer to the evidence collected against the pettoner, which is taken from the status report, which reads as follows: "Evidence against the pe##oner

¶5That it is humbly submitied that the only evidence against the present pe%%oner, which connects him to the present case is the disclosure statement of the co-accused Onkar Singh, who had stated in his disclosure statement dated 28.12.2023 that he was going to deliver the heroin, which was recovered from him, to the present pe%%oner."

¶11Thus, the evidence collected so far consists of disclosure statements and there is no recovery from the pettoner. Such statements can be proven subject to the mandatory restrictons imposed in S. 25 & 26 of the Indian Evidence Act, 1872/ S. 23 of BSA, 2023.

¶12In Tofan Singh v. State of Tamil Nadu, (2021) 4 SCC 1, the majority view of a three-member bench holds as follows: We answer the reference by statng:

(i) That the officers who are invested with powers under secton 53 of the NDPS Act are "police officers" within the meaning of secton 25 of the Evidence Act, as a result of which any confessional statement made to them would be barred under the provisions of secton 25 of the Evidence Act, and cannot be taken into account in order to convict an accused under the NDPS Act.

(ii) That a statement recorded under secton 67 of the NDPS Act cannot be used as a confessional statement in the trial of an offence under the NDPS Act.

¶13The status report filed by the police reveals that the investgator arraigned the pettoner as an accused based on the disclosure statement of the main accused, from whose possession the investgator had recovered the contraband. No other evidence is collected at this stage to connect the pettoner with the main accused. Thus, there is no justficaton to deny bail. Consequently, the pettoner has satsfied the first rider of secton 37 of the NDPS Act. Regarding the second rider of S. 37, this court will put very stringent conditons in this order to ensure that the pettoner does not repeat the offense.

¶14For now, the pettoner has prima facie satsfied the first conditon of secton 37 of the NDPS Act to make a case for bail. Regarding the second rider of S. 37, this court will put very stringent conditons in this order to ensure that the pettoner does not order/judgment. 3 repeat the offense.

¶15As per the custody certficate dated 03.02.2025, the pettoner's total custody in this FIR is one year, one months and two days. Given the penal provisions invoked viz-a-viz pre-trial custody, coupled with the primafacie analysis of the nature of allegatons, and the other factors peculiar to this case, there would be no justfiability further pre-trial incarceraton at this stage.

¶16The investgaton indicates that the pettoner is not the main accused, so the pettoner's bail shall not be treated as a precedent for grantng bail to the other co-accused with a higher role.

¶17The evidence collected might be prima facie sufficient to launch prosecuton or even to frame the charges.

¶18Given the penal provisions invoked, the legal admissibility of evidence collected against the petton, coupled with the prima facie analysis of the nature of allegatons, and the other factors peculiar to this case, there would be no justfiability for further pre-trial incarceraton at this stage, subject to compliance with the terms and conditons mentoned in this order.

¶19Without commentng on the case's merits, in the facts and circumstances unique and peculiar to this case, and for the reasons mentoned above, the pettoner makes a case for bail. CONDITIONS:

¶20Given above, provided the pettoner is not required in any other case, the pettoner shall be released on bail in the FIR captoned above subject to furnishing bonds to the satsfacton of the concerned Court and due to unavailability before any nearest Ilaqa Magistrate/duty Magistrate. Before acceptng the surety, the concerned Court must be satsfied that if the accused fails to appear, such surety can produce the accused.

¶21While furnishing a personal bond, the pettoner shall menton the following personal identficaton details:

¶1AADHAR number

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

¶3Mobile number (If available)

¶4E-Mail id (If available) order/judgment. 4

¶22This order is subject to the pettoner's complying with the following terms.

¶23The pettoner shall abide by all statutory bond conditons and appear before the concerned Court(s) on all dates. The pettoner 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.

¶24Given the background of allegatons against the pettoner, it becomes paramount to protect the members of society, detecton staff and incapacitatng the accused would be one of the primary optons untl the filing of the closure report or discharge, or acquiKal. Consequently, it would be appropriate to restrict the possession of firearms. [This restricton is being imposed based on the preponderance of the evidence of probability and not of evidence of certainty, i.e., beyond a reasonable doubt; and as such, it is not to be construed as an intermediate sancton]. Given the nature of the allegatons and the other circumstances peculiar to this case, the pettoner shall surrender all weapons, firearms, and ammuniton, if any, along with the arms license to the concerned authority within fiReen days of release from prison and inform the Investgator of the compliance. However, subject to the Indian Arms Act, 1959, the pettoner shall be enttled to renew and reclaim them in case of acquiKal in this case, provided otherwise permissible under the concerned rules. Restrictng firearms would instll confidence in the victm(s), their families, and society; it would also restrain the accused from influencing the witnesses and repeatng the offense.

¶25The conditons mentoned above imposed by this court are to endeavor to reform and ensure the accused does not repeat the offense and also to block the menace of drug abuse. In Mohammed Zubair v. State of NCT of Delhi, 2022:INSC:735 [Para 28], Writ Petton (Criminal) No 279 of 2022, Para 29, decided on July 20, 2022, A Three-Judge bench of Hon'ble Supreme Court holds that "The bail conditons imposed by the Court must not only have a nexus to the purpose that they seek to serve but must also be proportonal to the purpose of imposing them. The courts, while imposing bail conditons must balance the liberty of the accused and the necessity of a fair trial. While doing so, conditons that would result in the deprivaton of rights and libertes must be eschewed."

¶26In 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 pettoner is found involved in such like offence in future, the concession of bail order/judgment. 5 granted to him today will liable to be withdrawn and the pettoner is bound to face the necessary consequences."

¶27This bail is condi#onal, and the founda#onal condi#on is that if the pe##oner indulges in any non-bailable offense, the State shall file an applica#on for cancella#on of this bail before the Trial Court, which shall be at liberty to cancel this bail.

¶28The concerned trial court is authorized to delete, modify, or relax any of the above conditons and shall be competent to do so in accordance with the law.

¶29Any observaton made hereinabove is neither an expression of opinion on the case's merits nor shall the trial Court advert to these comments.

¶30A certfied copy of this order would not be needed for furnishing bonds, and any Advocate for the Pettoner can download this order along with case status from the official web page of this Court and aKest it to be a true copy. If the aKestng officer wants to verify its authentcity, such an officer can also verify its authentcity and may download and use the downloaded copy for aKestng bonds.

¶31Petition allowed in terms mentoned above. All pending applicatons, if any, stand disposed of. (ANOOP CHITKARA) JUDGE

28.02.2025 Jyoti-II Whether reportable: No. order/judgment. 6

IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Reserved on: 04.02.2025 Pronounced on: 28.02.2025 Balkar Singh @ Toor ...Pettoner Versus State of Punjab …Respondent CORAM: HON'BLE MR. JUSTICE ANOOP CHITKARA Present: Mr. Rishu Mahajan, Advocate for the pettoner. Mr. Jasjit Singh, DAG, Punjab. ****