Vijay v. State of Haryana

ANOOP CHITKARA, J. FIR No. Dated Police Sta.on Sec.ons 456 25.09.2023 Narnaund, District Hisar 21(b), 61-85 of the NDPS Act

¶1The pettoner apprehending arrest in the FIR captoned above has come up before this Court under Secton 482 of Bharatya Nagarik Suraksha Sanhita, 2023, [BNSS], seeking antcipatory bail.

¶2In paragraph 9 of the bail petton and as per paragraph 6 of the status report, the accused has the following criminal antecedents: Sr. No. FIR No. Dated Offenses Police Sta.on

¶1341 06.06.2015 61-1-14 of Excise Act City Rohtak

¶2505 31.08.2016 21-61-85 of NDPS Act City Rohtak

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

25.09.2023, based on secret informaton, the Police seized 15 grams of heroine/chiCa from the possession of co-accused Jeewan. The Investgator claims to have complied with all the statutory requirements of the NDPS Act, 1985, and CrPC, 1973.

¶4During custodial interrogaton, the main accused, Jeewan, confessed before the Police officer that the alleged heroine/chiCa had been given by co-accused Amit, who is his brother-in-law. He further disclosed that his brother-in-law Amit and his father-in-law had a business of narcotc substance. ThereaHer, on 30.09.2023 the said Amit was arrested. During custodial interrogaton, he confessed before the Police officer that on

23.09.2023 he and his uncle Hawa Singh had gone to Khokhrakot, Rohtak and from there they had taken alleged heroine/chiCa from the present pettoner on the pretext order/judgment. 1 of Rs.15,000/- and aHer returning back to their village, he had given the alleged contraband to co-accused Jeewan. Based on such confession before the police, the pettoner was arraigned as an accused. Apprehending arrest, he filed for antcipatory bail from the Sessions Court, which denied him bail. Feeling aggrieved, he has invoked the concurrent jurisdicton of this Court under S. 482 BNSS, 2023.

¶5The pettoner's counsel prays for bail by imposing any stringent conditons and contends that pre-trial incarceraton would cause an irreversible injustce to the pettoner and his family.

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

¶7It would be appropriate to refer to the following portons of the status report, which read as follows: "4. That on dated 30.09.2023, during the investgaton of the case accused Amit was arrested in this case. During his interrogaton he got recorded his confessional disclosure statement in which he stated that on dated 23.09.2023 he and his uncle Hawa Singh son of Surajbhan had gone to Khokhrakot Rohtak and from where they had taken alleged heroine/chi)a from the present pettoner namely Vijay resident of Khokhrakot, Rohtak on the pretext of Rs.15,000/-. He further stated that atier that they had come back to their village Rajthal on dated

25.09.2023, he had given the alleged contraband to co-accused Jeewan. In furtherance of the investgaton of the case he had been demarcated the place from where he had purchased the alleged heroine/chi)a from present pettoner Vijay. Copy of the disclosure statement is annexed herewith as Annexure R-1." REASONING:

¶8The evidence collected so far consists of disclosure statements of co-accused. Such statements can be proven subject to the mandatory restrictons imposed in S. 25 & 26 of the Indian Evidence Act, 1872/ S. 23 of BSA, 2023.

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

¶10Secton 2 (vii-a) of the NDPS Act defines commercial quantty as greater than the quantty specified in the schedule. Secton 2 (xxiii-a) defines a small quantty as a quantty less than the quantty specified in the table of the NDPS Act. The remaining order/judgment. 2 quantty falls in an undefined category, generally called an intermediate quantty. All sectons in the NDPS Act specify an offence and menton the minimum and maximum sentence, depending upon the quantty of the substance. The commercial quantty 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 quantty is less than commercial, the restrictons of Secton 37 of the NDPS Act will not aCract, and the factors for bail become similar to the offence regular statutes.

¶11Pre-trial incarceraton should not be a replica of post-convicton sentencing. The evidence might be prima facie sufficient to launch prosecuton or to frame charges, but this Court is not considering the evidence at that stage but is analyzing it for the stage of antcipatory bail. An analysis of the above does not justfy custodial interrogaton or pre-trial incarceraton.

¶12Given the penal provisions invoked, the legal admissibility of evidence collected against the pettoner, coupled with the prima facie analysis of the nature of allegatons, and the other factors peculiar to this case, there would be no justfiability for custodial interrogaton or pre-trial incarceraton.

¶13Given the above, without 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 antcipatory bail.

¶14The investgaton indicates that the pettoner is not the main accused, so the pettoner's bail shall not be treated as a precedent for grantng bail to the other co-accused with a higher role.

¶15Given 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 Arrestng Officer, and if the maCer is before a Court, then the concerned Court and due to unavailability before any nearest Ilaqa Magistrate/duty Magistrate. Before acceptng the surety, the concerned Officer/Court must be satsfied that if the accused fails to appear, such surety can produce the accused.

¶16While furnishing a personal bond, the pettoner shall menton the following personal identficaton details:

¶1AADHAR number

¶2Passport number (If available) and when the order/judgment. 3 aCestng officer/court considers it appropriate or considers the accused a flight risk.

¶3Mobile number (If available)

¶4E-Mail id (If available)

¶17The bail order is subject to the pettoner's complying with the following terms.

¶18The 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 pettoner shall be in deemed custody for Secton 27 of the Indian Evidence Act, 1872/ Secton 23 of BSA, 2023. The pettoner shall join the investgaton as and when called by the Investgatng Officer or any Superior Officer and shall cooperate with the investgaton at all further stages as required. In the event of failure to do so, the prosecuton will be open to seeking cancellaton of the bail. During the investgaton, the pettoner shall not be subjected to third-degree, indecent language, inhuman treatment, etc.

¶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 acquiCal. 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 fiHeen 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 acquiCal 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.

¶21In case the Investgator/Officer-In-Charge of the concerned Police Staton order/judgment. 4 arraigns another secton of any penal offense in this FIR, and if the new secton prescribes a maximum sentence that is not greater than the sectons mentoned above, then this bail order shall be deemed to have also been passed for the newly added secton(s). However, suppose the newly inserted sectons prescribe a sentence exceeding the maximum sentence prescribed in the sectons mentoned above; then, in that case, the Investgator/Officer-In-Charge shall give the pettoner notce of a minimum of seven days, providing an opportunity to avail the remedies available in law.

¶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 may file an applica#on for cancella#on of this bail before the Sessions Court, which shall have the liberty to cancel this bail.

¶24Any observaton made hereinabove is neither an expression of opinion on the case's merits nor shall the trial Court advert to these comments.

¶25A 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 aCest it to be a true copy. If the aCestng officer wants to verify its authentcity, such an officer can also verify its authentcity and may download and use the downloaded copy for aCestng bonds.

¶26Pe..on allowed in terms mentoned above. All pending applicatons, if any, stand disposed of. (ANOOP CHITKARA) JUDGE

03.03.2025 Jyot-II Whether reportable: No. order/judgment. 5

IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH 291 CRM-M-5653-2025 Date of Decision: 03.03.2025 Vijay ...Pettoner Versus State of Haryana …Respondent CORAM: HON'BLE MR. JUSTICE ANOOP CHITKARA Present: Mr. Manoj Tanwar, Advocate for the pettoner. Mr. Naveen Kumar Sheoran, D.A.G., Haryana. ****