Nirvar Singh Alais Nirvair Singh Alais Gopi v. State of Punjab

ANOOP CHITKARA, J. FIR No. Dated Police Sta1on Sec1ons 9 09.01.2023 Dharamkot, District Moga 21, 22, 29 of NDPS Act

¶1The pettoner incarcerated in the FIR captoned above had come up before this Court under Secton 439 CrPC seeking regular bail.

¶2In paragraph 8 of the bail petton, the accused declares that he has no criminal antecedents. However, as per paragraph 12 of the status report and custody certficate, the accused has the following criminal antecedents: Sr. No. FIR No. Dated Offenses Police Sta1on

¶191 11.05.2023 21 of NDPS Act Dharamkot

¶259 13.05.2023 304 IPC Dharamkot

¶3The facts and allegatons are taken from the translated copy of FIR as Annexure P-1. On 09.01.2023, based on a chance recovery, the Police seized 10 grams of heroin and 220 intoxicant tablets from the pettoner's possession. The Investgator claims to have complied with all the statutory requirements of the NDPS Act, 1985, and CrPC, 1973.

¶4The pettoner's counsel prays for bail by imposing any stringent conditons and contends that further pre-trial incarceraton would cause an irreversible injustce to the order/judgment. 1

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

¶6It would be appropriate to refer to para 8 and 11 of the status report, which reads as follows:

¶8That as per result of FSL, total 220 intoxicant tablets, salt of Alprazolam was found in 199 tablets, E#zolam salt was found in 21 tablets and Diacetylmorphine salt was found in the heroin. Copy of FSL report is a'ached herewith.

¶11That recovery effected in this case falls within ambit of commercial quan#ty, so provisions of Sec#on 37 of NDPS Act are applicable in this case and pe##oner is not en#tled for concession of regular bail."

¶7As per FSL report, following ingredients are found: Parcels Detail Ingredient found present Parcel 1 Diacetylmorphine Parcel 2 Exhibit 1 Alprazolam Exhibit 2 Etzolam 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.

¶9However, the pettoner is enttled to bail because Hon'ble Supreme Court had granted bail on prolonged custody in the following judicial precedents: 1) In Junaid Alam v. State of UEarakhand, decided on 12 Aug 2024, SLP(Crl.) 7708-2024, Hon'ble Supreme Court holds, [2]. It is pointed out that the pettoner has been in custody for last more than 18 months since he was arrested on 25.01.2023. It is then submiEed that only 3 out of the 10 cited prosecuton witnesses have been examined and they have not said anything to connect the pettoner with the crime. [3]. The learned counsel for the State would submit that the concerned Contraband are medicinal drugs but they are sold for profit. Moreover, it is of commercial quantty. [4]. We have perused the nature of the Contraband i.e., the prohibited medicines (SYP Codectus 100 BoEles (100 Ml each), Cap Pyeevon Spas Plus 720 Cap Parvion Spas 800 Capsules, Spasonof NF 960 capsules, Capsules Spasmoproxyvon Plus 144, Proxywell Spas 2568 Capsules, Alprasafe Table 600 Tablets, Pyeevon Spas Plus 32 Capsules). order/judgment. 2 [5]. Having considered the above and the fact that the trial is unlikely to conclude on a near date, we are of the view that the pettoner – Junaid Alam deserves to be granted bail. It is ordered accordingly. Appropriate bail conditons be imposed by the trial court.

¶10The prolonged incarceraton, generally militates against the most precious fundamental right guaranteed under Artcle 21 of the Consttuton and in such a situaton, the conditonal liberty must override the statutory embargo created under 1Secton 37(1)(b)(ii) of the NDPS Act .

¶11Given this, the criminal antecedents are also not legal grounds for denying the rigors of S. 37 of the NDPS Act at this stage.

¶12In Tajmul SK v. The State of West Bengal, decided on 23 Jul 2024, CrA 3047-2024, Hon'ble Supreme Court holds, [5]. We are inclined to set aside the impugned order only on the premise that right to speedy trial is a fundamental right. Despite the fact that the appellant has been under incarceraton for more than one and a half years, the trial is yet to start, though, it is submiEed by learned counsel appearing for the State that charges have been framed. Suffice it is to state that trial would take considerable length of tme. There is no antecedent involving the appellant. [6]. Accordingly, the impugned order is set aside and the appellant is granted bail, subject to the conditons that may be imposed by the Trial Court.

¶13Given the above, the pettoner's pretrial custody is more than some of the judicial precedents mentoned above; the pettoner is enttled to bail under Artcle 14 of the Consttuton of India.

¶14As per the custody certficate dated 12.02.2025, the pettoner's custody in this FIR is of one year, seven months and two days. Given the drugs were medicines that aEracted violaton of S. 22 of NDPS Act, 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 for justfiability for further pre-trial incarceraton at this stage.

¶15Without commentng on the case's merits, in the facts and circumstances peculiar to this case, and for the reasons mentoned above, the pettoner makes a case for bail. CONDITIONS: 1 Supreme 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

¶16Given 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.

¶17While furnishing a personal bond, the pettoner shall menton the following personal identficaton details:

¶1AADHAR number

¶2Passport number (If available) and when the aEestng 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 pettoner's complying with the following terms.

¶19The 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.

¶20Given 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 acquiEal. 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 fiSeen 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 acquiEal 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. order/judgment. 4

¶21The 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."

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

¶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 conditons and shall be competent to do so in accordance with the law.

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

¶26A 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 aEest it to be a true copy. If the aEestng officer wants to verify its authentcity, such an officer can also verify its authentcity and may download and use the downloaded copy for aEestng bonds.

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

19.02.2025 Jyot-II Whether reportable: No. order/judgment. 5

IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Reserved on: 13.02.2025 Pronounced on: 19.02.2025 Nirvar Singh @ Nirvair Singh @ Gopi ...Pettoner Versus State of Punjab …Respondent CORAM: HON'BLE MR. JUSTICE ANOOP CHITKARA Present: Mr. Prateek pandit, Advocate, for the pettoner. Mr. Jasjit Singh, DAG, Punjab. ****