Jatinder Singh Alias Gobind v. State of Punjab

ANOOP CHITKARA, J. FIR No. Dated Police Sta1on Sec1ons 120 10.06.2022 Baghapurana, District Moga 21, 25 and 29 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 13 of the bail pe!!on and as per paragraph 12 of the status report, the accused has following criminal antecedents: Sr. No. FIR No. Dated Offenses Police Sta1on

¶127 14.02.2019 21 of NDPS Act Jamsher

¶2173 10.06.2022 22 of NDPS Act Kot Ise Khan

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

10.06.2022, based on secret informa!on, the Police seized 2 kg of heroin from the car in which three co-accused, namely Jaswant Singh, Sukhchain Singh and Satnam Singh were travelling. The Inves!gator claims to have complied with all the statutory requirements of the NDPS Act, 1985, and BNSS, 2023. During the custodial interroga!on of the accused Jaswant Singh @ Kala vide DDR No. 43 dated 15.06.2023, he disclosed the pe!!oner as the supplier of the drugs; based on the disclosure statement, the police arraigned the pe!!oner as an accused by incorpora!ng S. 29 of the NDPS Act. order/judgment. 1

¶4The 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 their family.

¶5The State's counsel opposes bail and refers to the reply. REASONING:

¶6The 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.

¶7In 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 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 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 offence, and is not likely to commit any offence while on bail. If either of these two 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 that the accused is not guilty of the alleged offence. Even on fulfilling one of the condi!ons, the reasonable grounds for believing that the accused is not guilty of such an offence, the Court s!ll 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 quan!ty would vary from case to case, depending upon its facts. [31]. Sa!sfying the feKers 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 subsist, and the factors for bail become similar to the bail pe!!ons under general penal statutes like IPC.

¶8It would be appropriate to refer to the evidence collected against the pe!!oner, which is taken from the reply, which reads as follows: "Role of the pe##oner and evidence against him:

¶10That the present pettoner has been nominated as accused vide DDR No.43 dated 15.06.2023 recorded on the basis of interrogaton of co-accused Jaswant Singh who was nabbed by police with heavy recovery of Heroin. Co-accused Jaswant Singh had disclosed that the recovered order/judgment. 2 Heroin from his possession was meant for further supply to co-accused Ninder Singh and Gobind Singh (pettoner). This fact found corroborated from the statement of a witness namely Malkiat Singh s/o Ginder Singh r/o Smadh Bhai who had stated that he is a drug addict and used to purchase Heroin from present pettoner Jatnder Singh @ Gobind which unequivocally proved that the pettoner is actvely working as a drug trafficker and has deep connecton with the drug trafficking.

¶11That the case in hand involves the contraband known as 'Heroin' and recovery effected from co-accused is 02 (two) killo gram which is itself a very heavy quantty and sufficient to show the gravity of offence. The present pettoner is in custody in the present case, since of his arrest on

15.12.2022."

¶9Thus, the evidence collected so far consists of disclosure statements and the pe!!oner's confession without discovering any facts. Such statements can be proven subject to the mandatory restric!ons imposed in S. 25 & 26 of the Indian Evidence Act, 1872/ S. 23 of BSA, 2023.

¶10In 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.

¶11The status report filed by the police reveals that the inves!gator arraigned the pe!!oner as an accused based on the disclosure statement of the main accused, from whose possession the inves!gator had recovered the contraband. No other evidence is collected at this stage to connect the pe!!oner with the main accused. Thus, there is no jus!fica!on to deny bail. Consequently, the pe!!oner has sa!sfied the first rider of sec!on 37 of the NDPS Act. Regarding the second rider of S. 37, this court will put very stringent condi!ons in this order to ensure that the pe!!oner does not repeat the order/judgment. 3 offense.

¶12For now, the pe!!oner has prima facie sa!sfied the first condi!on of sec!on 37 of the NDPS Act to make a case for bail. Regarding the second rider of S. 37, this court will put very stringent condi!ons in this order to ensure that the pe!!oner does not repeat the offense.

¶13As per paragraph 11 of the bail pe!!on, the pe!!oner has been in custody since

15.12.2022. Given the penal provisions invoked viz-a-viz pre-trial custody, coupled with the primafacie analysis of the nature of allega!ons, and the other factors peculiar to this case, there would be no jus!fiability further pre-trial incarcera!on at this stage.

¶14The inves!ga!on indicates that the pe!!oner is not the main accused, so the pe!!oner's bail shall not be treated as a precedent for gran!ng bail to the other co-accused with a higher role.

¶15Without commen!ng on the case's merits, in the facts and circumstances unique and peculiar to this case, and for the reasons men!oned above, the pe!!oner makes a case for bail. This order shall come into force from the !me it is uploaded on this Court's official webpage. CONDITIONS:

¶16Given above, provided the pe!!oner is not required in any other case, the pe!!oner shall be released on bail in the FIR cap!oned above subject to furnishing bonds to the sa!sfac!on of the concerned Court and due to unavailability before any nearest Ilaqa Magistrate/duty Magistrate. Before accep!ng the surety, the concerned Court must be sa!sfied that if the accused fails to appear, such surety can produce the accused.

¶17While furnishing a personal bond, the pe!!oner shall men!on the following personal iden!fica!on details:

¶1AADHAR number

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

¶3Mobile number (If available)

¶4E-Mail id (If available)

¶18This order is subject to the pe!!oner's complying with the following terms.

¶19The pe!!oner shall abide by all statutory bond condi!ons and appear before the order/judgment. 4 concerned Court(s) on all dates. The pe!!oner 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.

¶20Given the background of allega!ons against the pe!!oner, it becomes paramount to protect the members of society, and incapacita!ng the accused would be one of the primary op!ons un!l the filing of the closure report or discharge, or acquiKal. Consequently, it would be appropriate to restrict the possession of firearms. [This restric!on 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 sanc!on]. Given the nature of the allega!ons and the other circumstances peculiar to this case, the pe!!oner shall surrender all weapons, firearms, and ammuni!on, if any, along with the arms license to the concerned authority within fiSeen days of release from prison and inform the Inves!gator of the compliance. However, subject to the Indian Arms Act, 1959, the pe!!oner shall be en!tled to renew and reclaim them in case of acquiKal in this case, provided otherwise permissible under the concerned rules. Restric!ng firearms would ins!ll confidence in the vic!m(s), their families, and society; it would also restrain the accused from influencing the witnesses and repea!ng the offense.

¶21The condi!ons men!oned 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 Pe!!on (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 condi!ons imposed by the Court must not only have a nexus to the purpose that they seek to serve but must also be propor!onal to the purpose of imposing them. The courts, while imposing bail condi!ons must balance the liberty of the accused and the necessity of a fair trial. While doing so, condi!ons that would result in the depriva!on of rights and liber!es must be eschewed."

¶22In 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 pe!!oner is found involved in such like offence in future, the concession of bail granted to him today will liable to be withdrawn and the pe!!oner is bound to face the necessary consequences." order/judgment. 5

¶23This 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.

¶24The concerned trial court is authorized to delete, modify, or relax any of the above condions and shall be competent to do so in accordance with the law.

¶25Any observaon made hereinabove is neither an expression of opinion on the case's merits nor shall the trial Court advert to these comments.

¶26A cerfied copy of this order would not be needed for furnishing bonds, and any Advocate for the Peoner 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 aKesng officer wants to verify its authencity, such an officer can also verify its authencity and may download and use the downloaded copy for aKesng bonds.

¶27Pe11on allowed in terms menoned above. All pending applicaons, if any, stand disposed of. (ANOOP CHITKARA) JUDGE

07.02.2025 Jyo-II order/judgment.

IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Reserved on: 03.02.2025 Pronounced on: 07.02.2025 Ja!nder Singh @ Gobind ...Pe!!oner Versus State of Punjab …Respondent CORAM: HON'BLE MR. JUSTICE ANOOP CHITKARA Present: Mr. Ruhani Chadha, Advocate for the pe!!oner. Mr. Rubal Pawar, A.A.G. Punjab. ****