Sokha v. State of Punjab

ANOOP CHITKARA, J. FIR No. Dated Police Station Sections

24.04.2023 Mahilpur, Distt. Hoshiarpur 21 & 22 of NDPS Act

¶1The petitioner incarcerated in the FIR captioned above had come up before this Court second time under Section 483 of Bharatiya Nagarik Suraksha Sanhita, 2023, [BNSS], seeking regular bail.

¶2As per paragraph 10 of the bail application and as per paragraph 10 of the status report, the accused has the following criminal antecedents: Sr. No. FIR No. Dated Offenses Police Station

1.

21.05.2018 22/61/85 of NDPS Act Chabbewal, Hoshiarpur

2.

10.10.2023 52-A of Prison Act City Hoshiarpur

3.

06.09.2023 52-A of Prison Act City Hoshiarpur

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

24.04.2023, based on chance recovery, the Police seized 1 kg of heroin, 50 loose injections each 2/2 ML marka Tramadol Hydrochloride (Cepamol T2) along with drug money of Rs.25,000/- and 25 syringes from petitioner's possession. The Investigator claims to have complied with all the statutory requirements of the NDPS Act, 1985, and CrPC, 1973.

¶4The petitioner's counsel prays for bail by imposing any stringent conditions and contends that further pre-trial incarceration would cause an irreversible injustice to the petitioner and his family.

¶5The petitioner's counsel submits that the petitioner would have no objection whatsoever to any stringent conditions that this Court may impose, including that if the petitioner repeats the offense or commits any non-bailable offense which provides for a sentence of imprisonment for more than seven years, or commits any offence under the NDPS Act, where the quantity involved is more than half of the intermediate, or commercial quantity, or violates S. 19, or 24, or 27-A of the NDPS Act, the State may file an application to revoke this bail before the concerned Court having jurisdiction over this FIR, which shall have the authority to cancel this bail, and may do so at their discretion, to which the petitioner shall have no objection.

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

¶7It would be appropriate to refer to the following portions of the status report, which reads as follows: "Evidence against the petitioner

¶8That it is submitted that the present case was registered against the petitioner on recovery of 1 kg heroin and 50 loose injections each 2/2 ML marka Tramadol Hydrochloride (Cepamol-T2) along with drug money of Rs.25,000/- and 25 syringes from him. As per FSL report, the recovery of 1 kg heroin from the petitioner contains salt Diacetylmorphine and the recovery of 50 loose injections each 2/2 ML marka Tramadol Hydrochloride (Cepamol-T2) contain salt Tramadol Hydrochloride Seizure was done in accordance with the NDPS procedure and is backed by a FSL report confirming the substance as narcotic drug/phychotropic substance. Role of petitioner

¶9That it is submitted that the present case was registered against the petitioner at P.S. Mahilpur, District Hoshiarpur on recovery of 1 kg heroin and 50 loose injections each 2/2 ML marka TramadolHydrochloride (Cepamol-T2) along with drug money of Rs.25,000/- and 25 syringes from him. As per FSL report, 1 kg heroin contains salt Diacetylmorphine and 50 loose injections contains salt Tramadol Hydrochloride with a total weight of 49.85 grams. As per Central Government notification under NDPS Act, 250 grams Diacetylmorphine is specified as a commercial quantity. Therefore, the recovered quantity of Diacetylmorphine falls within the definition of commercial quantity as per NDPS Act. Seizure was effected in accordance with the NDPS Act procedure and is backed by a FSL report confirming the substance as narcotic drug/phychotropic substance." REASONING:

¶8Dealing with this contraband is an offence under the following provisions and notifications: Substance Name Heroin/ Chitta/ Smack/ Brown Sugar/ Diacetylmorphine Drug's Small & Commercial Qty. suggested by Committee report Notification No. & date Expert Committee Report dated

24.03.1995 & 23.08.2001 (Small and Commercial) Specified as small & Commercial in S.2(viia) & 2(xxiiia) NDPS Act, 1985 Notification No. & dated S.O.1055(E) 10/19/2001 Sr. No. Common Name (Name of Narcotic Drug and Psychotropic Substance (International non-proprietary name (INN) Heroin Other non-proprietary name ****** Chemical Name Diacetylmorphine Small Quantity 5 Gram Commercial Quantity 250 Gram Declared as punishable under NDPS Act and as per schedule defined in S.2(xi) & 2(xxiii) NDPS Act, 1985 Notification No. & dated S.(xvi)(d) NDPS Act, 1985 (61 of 1985), S.O. 821 (E) 11/14/1985 Sr. No. 2(xvi)(d) Common Name (Name of Narcotic Drug and Psychotropic Substance (International 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; Explanation.-- For the purposes of clauses (v) (vi), (xv) and (xvi) the percentages in the case of liquid preparations shall be calculated on the basis that a preparation containing one per cent. of a substance means a preparation in which one gram of substance, if solid, or one mililitre of substance, if liquid, is contained in every one hundred mililitre of the preparation and so on in proportion for any greater or less percentage: Provided that the Central Government may, having regard to the developments in the field of methods of calculating percentages in liquid preparations prescribed, by rules, any other basis which it may deem appropriate

¶9The quantity allegedly involved in this case is commercial. Given this, the rigors of S. 37 of the NDPS Act apply in the present case. The petitioner must satisfy the twin conditions put in place by the Legislature under Section 37 of the NDPS Act.

¶10The petitioner is entitled to bail because for the same drug, and when the quantity involved was either more or closer to the quantity seized in the present FIR, the Hon'ble Supreme Court has granted bail on prolonged custody in the following judicial precedent:

¶11In Sabat Mehtab Khan v. The State of Maharashtra, decided on 03 Sep 2024, SLP

(Crl) 8557-2024, Hon'ble Supreme Court holds, The petitioner is an accused for the offences punishable under Sections 21(c) and 29 of the of the Narcotic Drugs and Psychotropic Substances Act and allegation is that 275 gms. and 50.01 gms of heroine has been recovered from him. His regular bail application was dismissed by the High Court. He has already undergone about 1 year six months in jail. Heard learned senior counsel/counsel for the parties. Considering the quantity of the contraband articles and the period of his incarceration, we are of the opinion that a case of bail is made out for the petitioner.

¶12As per paragraph 3 (g) of the bail petition, the petitioner has been in custody since

24.04.2023. As per the custody certificate dated 04.07.2025, the petitioner's total custody in this FIR is 02 years, 02 months and 08 days. Given the penal provisions invoked viz-a-viz pre-trial custody, coupled with the primafacie analysis of the nature of allegations, and the other factors peculiar to this case, there would be no justifiability for further pre-trial incarceration at this stage.

¶13The prolonged incarceration, generally militates against the most precious fundamental right guaranteed under Article 21 of the Constitution and in such a situation, the conditional liberty must override the statutory embargo created under Section 37(1)

(b)(ii) of the NDPS Act1.

¶14Following the judicial precedent mentioned above, without commenting on the case's merits, and considering the petitioner's pre-trial custody, the weight of the drugs, coupled with the other factors peculiar to this case, further pre-trial incarceration is not justified at this stage. CONDITIONS:

¶15Given above, provided the petitioner is not required in any other case, the 1 Supreme Court of India, in Rabi Prakash v. The State of Odisha, SLP (Crl) 4169-2023, Para 4, decided on 13 July 2023 petitioner shall be released on bail in the FIR captioned above, subject to furnishing bonds to the satisfaction of the concerned Court and due to unavailability before any nearest Ilaqa Magistrate or duty Magistrate. Before accepting the surety, the concerned Court must be satisfied that if the accused fails to appear, such surety can produce the accused.

¶16While furnishing a personal bond, the petitioner shall mention the following personal identification details:

¶1AADHAR number

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

¶3Mobile number (If available)

¶4E-Mail id (If available)

¶17This order is subject to the petitioner's complying with the following terms.

¶18The petitioner shall abide by all statutory bond conditions and appear before the concerned Court(s) on all dates. The petitioner 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.

¶19Given the background of allegations against the petitioner, it becomes paramount to protect the members of society, detection squad and incapacitating the accused would be one of the primary options until the filing of the closure report or discharge, or acquittal. Consequently, it would be appropriate to restrict the possession of firearms. [This restriction 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 sanction]. Given the nature of the allegations and the other circumstances peculiar to this case, the petitioner shall surrender all weapons, firearms, and ammunition, if any, along with the arms license to the concerned authority within fifteen days of release from prison and inform the Investigator of the compliance. However, subject to the Indian Arms Act, 1959, the petitioner shall be entitled to renew and reclaim them in case of acquittal in this case, provided otherwise permissible under the concerned rules. Restricting firearms would instill confidence in the victim(s), their families, and society; it would also restrain the accused from influencing the witnesses and repeating the offense.

¶20The conditions mentioned 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 Petition (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 conditions imposed by the Court must not only have a nexus to the purpose that they seek to serve but must also be proportional to the purpose of imposing them. The courts, while imposing bail conditions must balance the liberty of the accused and the necessity of a fair trial. While doing so, conditions that would result in the deprivation of rights and liberties must be eschewed."

¶21In 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 petitioner is found involved in such like offence in future, the concession of bail granted to him today will liable to be withdrawn and the petitioner is bound to face the necessary consequences."

¶22The significant consideration for granting bail is that the Court aims to give the petitioner another chance to course-correct, reform, and reintegrate into the community as an ideal citizen. To ensure that the petitioner also abides by the assurance made on the petitioner's behalf by not repeating the offence or indulging in any crime, it shall be desirable to impose the following additional condition.

¶23This bail is conditional, with the foundational condition being that if the petitioner

repeats the offense or commits any non-bailable offense which provides for a sentence of imprisonment for more than seven years, or commits any offence under the NDPS Act, where the quantity involved is more than half of the intermediate, or commercial, or violates S. 19, or 24, or 27-A of the NDPS Act, the State shall file an application to revoke this bail before the concerned Court having jurisdiction over this FIR, which shall have the authority to cancel this bail, and as per their discretion, they may cancel this bail.

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

¶25A certified copy of this order would not be needed for furnishing bonds, and any Advocate for the Petitioner can download this order along with case status from the official web page of this Court and attest it to be a true copy. If the attesting officer wants to verify its authenticity, such an officer can also verify its authenticity and may download and use the downloaded copy for attesting bonds.

¶26Petition allowed in terms mentioned above. All pending applications, if any, stand disposed of. (ANOOP CHITKARA)

31.07.2025 JUDGE Jyoti-II

IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Reserved on: 07.07.2025 Pronounced on: 31.07.2025 Sokha ...Petitioner Versus State of Punjab …Respondent CORAM: HON'BLE MR. JUSTICE ANOOP CHITKARA Present: Mr. Rahul Aggarwal, Advocate, for the petitioner. Mr. Akshay Kumar, AAG, Punjab. ****