Jonny Masih v. State of Punjab

ANOOP CHITKARA, J. FIR No. Dated Police Sta1on Sec1ons 39 09.10.2024 Ghuman Kalan, Disti. Gurdaspur 21(b), 27-A of NDPS Act

¶1The pe!!oner incarcerated in the FIR cap!oned above had come up before this Court under Sec!on 439 CrPC, seeking regular bail.

¶2In paragraph 13 of the bail pe!!on, the accused declares that he has no criminal antecedents. However, as per paragraph 7 of the status report, the accused has the following criminal antecedents: Sr. No. FIR No. Dated Offenses Police Sta1on

¶1105 29.09.2021 21-B, 29, 61, 85 of NDPS Act Kalanaur

¶248 05.09.2022 21-B, 61, 85 of NDPS Act Ghuman Kalan

¶3The facts and allega!ons are taken from the status report filed by the State. On Oct 09, 2024, based on chance recovery, the Police seized 10 grams of heroin from the pe!!oner's possession, along with Rs.860/-, which the police termed as drug money. The Inves!gator claims to have complied with all the statutory requirements of the NDPS Act, 1985, and CrPC, 1973.

¶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 his family.

¶5The State's counsel opposes bail and refers to the status report. order/judgment. 1

¶6A perusal of the status report does not indicate even an iota of evidence that how Rs.860/- was proceeds of drug sale, on what basis the offense of S. 27-A has been added. In all probability, it was done to atiract S. 27-A, to make bail difficult.

¶7Dealing in 10 grams of heroin is a punishable offense under the NDPS Act in the following terms: Substance Name Heroin Quan!ty detained 10 Gram Quan!ty type Intermediate Drug Quan-ty in % to upper limit

4.00% of Intermediate Specified as small & Commercial in S.2(viia) & 2(xxiiia) NDPS Act, 1985 No!fica!on No S.O.1055(E) dated 10/19/2001 Sr. No. 56 Common Name (Name of Narco!c Drug and Psychotropic Substance Heroin (Interna!onal non-proprietary name (INN) Other non-proprietary name ****** Chemical Name Diacetylmorphine 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.(xvi)(d) NDPS Act, 1985 (61 of 1985), S.O. 821 (E) dated 11/14/1985 Sr. No. 2(xvi)(d) Common Name (Name of Narco!c Drug and Psychotropic Substance ****** (Interna!onal non-proprietary name (INN) Other non-proprietary name ****** Chemical Name 2(xvi)(d) diacetylmorphine, that is, the alkaloid also known as dia-morphine or heroin and its salts; Explana!on.-- For the purposes of clauses (v) (vi), (xv) and (xvi) the percentages in the case of liquid prepara!ons shall be calculated on the basis that a prepara!on containing one per cent. of a substance means a prepara!on in which one gram of substance, if solid, or one mililitre of substance, if liquid, is contained in every one hundred mililitre of the prepara!on and so on in propor!on for any greater or less percentage: order/judgment. 2 Provided that the Central Government may, having regard to the developments in the field of methods of calcula!ng percentages in liquid prepara!ons prescribed, by rules, any other basis which it may deem appropriate for such calcula!on.

¶8Given this, the rigors of S. 37 of the NDPS Act do not apply in the present case.

¶9Sec!on 2 (vii-a) of the NDPS Act defines commercial quan!ty as the quan!ty greater than the quan!ty specified in the schedule. Sec!on 2 (xxiii-a) defines a small quan!ty as a quan!ty less than the quan!ty specified in the table of the NDPS Act. The remaining quan!ty falls in an undefined category, generally called an intermediate quan!ty. All sec!ons in the NDPS Act specify an offence and men!on the minimum and maximum sentence, depending upon the quan!ty of the substance. The commercial quan!ty 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 quan!ty is less than commercial, the restric!ons of Sec!on 37 of the NDPS Act will not atiract, and the factors for bail become similar to the offence regular statutes.

¶10In Sami Ullaha v Superintendent Narco!c Control Bureau, (2008) 16 SCC 471, the Hon'ble Supreme Court holds that in intermediate quan!ty, the rigors of the provisions of Sec!on 37 may not be jus!fied.

¶11The prolonged incarcera!on, generally militates against the most precious fundamental right guaranteed under Ar!cle 21 of the Cons!tu!on and in such a situa!on, the condi!onal liberty must override the statutory embargo created under 1Sec!on 37(1)(b)(ii) of the NDPS Act .

¶12The pre-trial incarcera!on should not be a replica of post-convic!on sentencing. There is sufficient primafacie evidence connec!ng the pe!!oner with the alleged crime. However, as per paragraph 8 of the bail pe!!on, the pe!!oner has been in custody since

09.10.2024. As per the custody cer!ficate dated 16.12.2024, the pe!!oner's total custody in this FIR is around two months. 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 for further pre-trial 1Supreme Court of India, in Rabi Prakash v. The State of Odisha, SLP (Crl) 4169-2023, Para 4, decided on 13 July 2023 order/judgment. 3 incarcera!on at this stage.

¶13Without commen!ng on the case's merits, in the facts and circumstances 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 the official webpage of this Court.

¶14Given 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.

¶15While 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 aties!ng officer/court considers it appropriate or considers the accused a flight risk.

¶3Mobile number (If available)

¶4E-Mail id (If available)

¶16This order is subject to the pe!!oner's complying with the following terms.

¶17The pe!!oner shall abide by all statutory bond condi!ons and appear before the 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.

¶18The possibility of the accused influencing the inves!ga!on, tampering with evidence, in!mida!ng witnesses, and the likelihood of fleeing jus!ce can be taken care of by imposing elabora!ve and stringent condi!ons. In Sushila Aggarwal v. State (NCT of Delhi), 2020:INSC:106 [Para 92], (2020) 5 SCC 1, Para 92, the Cons!tu!onal Bench held that unusually, subject to the evidence produced, the Courts can impose restric!ve condi!ons.

¶19Given the background of allega!ons against the pe!!oner, it becomes paramount to protect the drug detec!on squad, their family members, as well as the members of society, and incapacita!ng the accused would be one of the primary op!ons order/judgment. 4 un!l the filing of the closure report or discharge, or acquitial. Consequently, it would be appropriate to restrict the possession of firearm(s). [This restric!on 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 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, ammuni!on, if any, along with the arms license to the concerned authority within fiReen days from release from prison and inform the Inves!gator about the compliance. However, subject to the Indian Arms Act, 1959, the pe!!oner shall be en!tled to renew and take it back in case of acquitial in this case, provided otherwise permissible in 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 offence.

¶20This bail is condi!onal, and the founda!onal condi!on is that if the pe!!oner repeats the offense, the State may file an applica!on for cancella!on of this bail before the Sessions Court, which shall be at liberty to cancel this bail.

¶21Any observa!on made hereinabove is neither an expression of opinion on the case's merits nor shall the trial Court advert to these comments.

¶22A cer!fied copy of this order would not be needed for furnishing bonds, and any Advocate for the Pe!!oner can download this order along with case status from the official web page of this Court and atiest it to be a true copy. If the aties!ng officer wants to verify its authen!city, such an officer can also verify its authen!city and may download and use the downloaded copy for aties!ng bonds.

¶23Pe11on allowed in terms men!oned above. All pending applica!ons, if any, stand disposed of. (ANOOP CHITKARA) JUDGE

19.12.2024 Jyo!-II Whether reportable: No. order/judgment. 5

IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Reserved on: 17.12.2024 Pronounced on: 19.12.2024 Jonny Masih ...Pe!!oner Versus State of Punjab …Respondent CORAM: HON'BLE MR. JUSTICE ANOOP CHITKARA Present: Mr. Hitesh Chopra, Advocate, for the pe!!oner. Mr. Sukhdev Singh, AAG, Punjab. ****