Sukhwinder Singh @ Sukhvinder Singh v. State of Haryana

ANOOP CHITKARA, J. FIR No. Dated Police Sta!on Sec!ons 549 07.12.2024 Sadar, Fatehabad 21(B), 29 of NDPS Act and (Sec!on 61/85 of NDPS Act added later on)

¶1The pe!!oner apprehending arrest in the FIR cap!oned above has come up before this Court under Sec!on 482 of Bhara!ya Nagarik Suraksha Sanhita, 2023, [BNSS], seeking an!cipatory bail.

¶2In paragraph 14 of the bail pe!!on, the accused declares that he has no criminal antecedents.

¶3The facts and allega!ons are taken from the reply filed by the State. On Dec 07, 2024, based on secret informa!on, the Police seized 12.19 grams of heroin from the possession of Rajender whereas Sukhwinder Singh, the pe!!oner fled away. The Inves!gator claims to have complied with all the statutory requirements of the NDPS Act, 1985, and CrPC, 1973.

¶4During custodial interroga!on, the main accused, Rajinder confirmed that the person who had absconded was the pe!!oner. Based on such confession before the police, the pe!!oner was arraigned as an accused. Apprehending arrest, he filed for an!cipatory bail from the Sessions Court, which denied him bail. Feeling aggrieved, he has invoked the concurrent jurisdic!on of this Court under S. 482 BNSS, 2023. order/judgment. 1

¶5The 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.

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

¶7It would be appropriate to refer to the following por!ons of the status report, which read as follows: "6. That during further investgaton of the case on 08.12.2024 disclosure statement of the accused Rajender @ Aman was recorded and in furtherance of which the accused Rajender @ Aman demarcated the place from where he alongwith pettoner/accused purchased recovered contraband from Sandeep @ CP i.e. 13 gram heroin in furtherance of an amount of Rs.19,500/-. Copy of disclosure statement of accused Rajender @ Aman is appended herewith as Annexure R-1."

¶8Dealing in 12.19 grams of heroin is a punishable offense under the NDPS Act in the following terms: Substance Name Heroin Quan!ty detained 12.19 Gram Quan!ty type Intermediate Drug Quantty in % to upper limit

4.88% 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) order/judgment. 2 Common Name (Name of Narco!c Drug and Psychotropic Substance ****** (Interna!onal non-proprietary name (INN) Other non-proprietary 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 Chemical Name contained in every one hundred mililitre of the prepara!on and so on in propor!on for any greater or less percentage: 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.

¶9Given this, the rigors of S. 37 of the NDPS Act do not apply in the present case.

¶10Sec!on 2 (vii-a) of the NDPS Act defines commercial quan!ty as 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 aPract, and the factors for bail become similar to the offence regular statutes.

¶11Pre-trial incarcera!on should not be a replica of post-convic!on sentencing. The evidence might be prima facie sufficient to launch prosecu!on or to frame charges, but this Court is not considering the evidence at that stage but is analyzing it for the stage of an!cipatory bail. An analysis of the above does not jus!fy custodial interroga!on or pre-order/judgment. 3 trial incarcera!on.

¶12Given the above, the penal provisions invoked 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 custodial interroga!on or the pre-trial incarcera!on at this stage, subject to the compliance of terms and condi!ons men!oned in this order. Without 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 an!cipatory bail.

¶13Given 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 Arres!ng Officer, and if the maPer is before a Court, then the concerned Court and due to unavailability before any nearest Ilaqa Magistrate/duty Magistrate. Before accep!ng the surety, the concerned Officer/Court must be sa!sfied that if the accused fails to appear, such surety can produce the accused.

¶14While 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 aPes!ng officer/court considers it appropriate or considers the accused a flight risk.

¶3Mobile number (If available)

¶4E-Mail id (If available)

¶15The bail order is subject to the pe!!oner's complying with the following terms.

¶16The pettoner is directed to join the investgaton within seven days of uploading this order on the official webpage of the High Court of Punjab and Haryana and as and when called by the Investgator. The pe!!oner shall be in deemed custody for Sec!on 27 of the Indian Evidence Act, 1872/ Sec!on 23 of BSA, 2023. The pe!!oner shall join the inves!ga!on as and when called by the Inves!ga!ng Officer or any Superior Officer and shall cooperate with the inves!ga!on at all further stages as required. In the event of failure to do so, the prosecu!on will be open to seeking cancella!on of the bail. During the inves!ga!on, the pe!!oner shall not be subjected to third-degree, indecent language, inhuman treatment, etc.

¶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, anyJYOTI order/judgment. 4 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.

¶18In case the Inves!gator/Officer-In-Charge of the concerned Police Sta!on arraigns another sec!on of any penal offense in this FIR, and if the new sec!on prescribes a maximum sentence that is not greater than the sec!ons men!oned above, then this bail order shall be deemed to have also been passed for the newly added sec!on(s). However, suppose the newly inserted sec!ons prescribe a sentence exceeding the maximum sentence prescribed in the sec!ons men!oned above; then, in that case, the Inves!gator/Officer-In-Charge shall give the pe!!oner no!ce of a minimum of seven days, providing an opportunity to avail the remedies available in law.

¶19In 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."

¶20This bail is condi!onal, and the founda!onal condi!on is that if the pe!!oner indulges in any non-bailable 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 aPest it to be a true copy. If the aPes!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 aPes!ng bonds.

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

27.01.2025 Jyo!-II Whether reportable: No. order/judgment. 5

IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Reserved on: 16.01.2025 Pronounced on: 27.01.2025 Sukhwinder Singh@ Sukhvinder Singh ...Pe!!oner Versus State of Haryana …Respondent CORAM: HON'BLE MR. JUSTICE ANOOP CHITKARA Present: Mr. S.K. Sirsa, Advocate for the pe!!oner. Mr. Naveen Kumar Sheoran, D.A.G., Haryana. ****