Imran Ansari v. State of Punjab

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

21.08.2024 Division No.1, District Police Commissionerate 18 of NDPS Act (Section 29 of NDPS act added during investigation)

¶1The petitioner incarcerated in the FIR captioned above had come up before this Court under Section 439 CrPC, seeking regular bail.

¶2In paragraph 13 of the bail petition, the accused declares that he has no criminal antecedents.

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

21.08.2024, based on chance recovery, the Police seized 2 kg 300 grams of opium from the petitioner's possession and 2 kg 700 grams of opium from the co-accused's possession. The Investigator claims to have complied with all the statutory requirements of the NDPS Act, 1985, and CrPC, 1973.

¶4The 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.

¶5The State's counsel opposes bail and refers to the status report.

¶6It would be appropriate to refer to the following portions of the status report, which read as follows: "5. Role of the present petitioner: That there are serious allegations that on 21.08.2024 the petitioner with the other accused Bablu was apprehended by the police and contraband 2 kg 300 grams recovered from the petitioner and 2 kg 700 grams from the co-accused Bablu, both were having total contraband 5 kg of opium and the same falls under the commercial quantity. Both the accused have purchased the opium in conspiracy with each other collectively from U.P. and then later on divided the same for the purpose of sale." REASONING:

¶7Given the quantity of opium recovered from the petitioner the rigors of S. 37 of the NDPS Act do not apply in the present case.

¶8Section 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.

¶9The 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.

¶10The pre-trial incarceration should not be a replica of post-conviction sentencing. There is sufficient primafacie evidence connecting the petitioner with the alleged crime. However, as per paragraph 5 of the status report, the petitioner is in custody since

21.08.2024. As per the same, the petitioner's total custody in this FIR is around seven months. 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 for further pre-trial incarceration at this stage.

¶11The investigation indicates that contraband recovered from the petitioner is non-commercial, so the petitioner's bail shall not be treated as a precedent for granting bail to the other co-accused with a higher role. 1 Supreme Court of India, in Rabi Prakash v. The State of Odisha, SLP (Crl) 4169-2023, Para 4, decided on 13 July 2023

¶12Without 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. CONDITIONS:

¶13Given 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.

¶14While 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)

¶15This order is subject to the petitioner's complying with the following terms.

¶16The 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.

¶17Given the background of allegations against the petitioner, it becomes paramount to protect the members of society, detection staff 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 firearms. [This restriction 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 sanction]. Given the nature of the allegations and the other circumstances peculiar to this case, the petitioner shall surrender all weapons, firearms, and ammunition, if any, along with the arms license to the concerned authority within fifteen days of release from prison and inform the Investigator of the compliance. However, subject to the Indian Arms Act, 1959, the petitioner shall be entitled to renew and reclaim them in case of acquittal in this case, provided otherwise permissible under 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

¶18This bail is conditional, and the foundational condition is that if the petitioner

indulges in any non-bailable offense, the State may file an application for cancellation of this bail before the Sessions Court, which shall have the liberty to cancel this bail.

¶19Any observation made hereinabove is neither an expression of opinion on the case's merits nor shall the trial Court advert to these comments.

¶20A 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.

¶21Petition allowed in terms mentioned above. All pending applications, if any, stand disposed of. (ANOOP CHITKARA) JUDGE

25.03.2025 Jyoti-II

IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Reserved on: 17.03.2025 Pronounced on: 25.03.2025 Imran Ansari ...Petitioner Versus State of Punjab …Respondent CORAM: HON'BLE MR. JUSTICE ANOOP CHITKARA Present: Mr. Deepak Arora, Advocate, for the petitioner. Mr. Akshay Kumar, AAG, Punjab. ****