Piyaro v. State of Punjab

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

16.03.2025 Sherpur, District Sangrur 22/29/61 of NDPS Act

¶1The petitioner apprehending arrest in the FIR captioned above has come up before this Court under Section 482 of Bharatiya Nagarik Suraksha Sanhita, 2023, [BNSS], seeking anticipatory bail.

¶2Per paragraph 12 of the bail application and the status report/custody certificate, the accused has the following criminal antecedents: Sr. No. FIR No. Date Offenses Police Station

11.07.2018 15/61/85 of NDPS Act Sherpur

29.01.2019 15/61/85 of NDPS Act Sherpur

02.09.2019 21/61/85 of NDPS Act Sherpur

03.08.2022 15/21/61/85 of NDPS Act Sherpur

20.11.2022 15/21/27-A/61/85 of NDPS Act City Sunam

04.06.2023 21/61/85 of NDPS Act Sherpur

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

16.03.2025, based on secret information, the Police seized 30 tablets of Etiwill 0.5 MD and 120 tablets of Alprazolam from co-accused's possession. The Investigator claims to have complied with all the statutory requirements of the NDPS Act, 1985, and CrPC, 1973.

¶4During custodial interrogation, the main accused, Shinder Kaur @ Shindro, confessed before the Police officer that they had purchased the drugs from the petitioner. Based on such confession before the police, the petitioner was arraigned as an accused. Apprehending arrest, she filed for anticipatory bail from the Sessions Court, which denied her bail. Feeling aggrieved, she has invoked the concurrent jurisdiction of this Court under S. 482 BNSS, 2023.

¶5The petitioner's counsel prays for bail by imposing any stringent conditions and contends that pre-trial incarceration would cause an irreversible injustice to the petitioner and their family.

¶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 read as follows: "8. That it is submitted that two sample parcels each containing three strips of two different marks of intoxicant tablets duly sealed with seals AK and BS (seal of I.O) were sent for analysis to the FSL, Mohali on 20.03.2025 and the FSL report No. 1082/2025/Toxi/FSL/Pb. Dated 19.05.2025 was received on 01.07.2025 and the ingredient found present in parcels was reported as under:-Envelope 1: On opening the cloth bag, it was found to contain Thirty (30) tablets of white color packed in strips. Each strip was labelled as Etiwill-0.5 MD (Etizolam mouth dissolving tablets IP 0.5 mg), B.No. Mfg. Dt. Exp. Dt.-masked with black ink, Mfd. By: Patil Dabur Health care. Average weight=197 mg/tablet Envelope 2: One hundred and twenty (120) tablets of peach color packed in strips. Each strip was labelled as Prozolam-

0.5 (Alprazolam Tablets IP 0.5 mg). B.No., Mfg. Dt. Exp. Dt.- Masked with Black ink, Mfd. By: Neutec Health care Pvt. Ltd. Average weight=142 mg/tablet" REASONING:

¶8As per paragraph 10 (ii) of the status report, the name of the contraband is Alprazolam and its weight is 17.04 grams, and it constitutes an offense under the following provisions and notifications: Substance Name ALPRAZOLAM Quantity detained

17.04 Gram Quantity type Intermediate Drug Quantity in % to upper limit of Intermediate

17.04% 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) Punishable U/s S.22(b) of NDPS Act, 1985 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) ALPRAZOLAM Other non-proprietary name ****** Chemical Name 8-chloro-1-methyl-6-phenyl-4H-s-triazolo[4,3-a][1,4]benzodiazepine Small Quantity < 5 Gram Commercial Quantity > 100 Gram Declared as punishable under NDPS Act and as per schedule defined in S.2(xi) & 2(xxiii) NDPS Act, 1985 Notification No. & dated NDPS Act, 1985 (61 of 1985), S.O. 821(E) 11/14/1985 Sr. No. Common Name (Name of Narcotic Drug and Psychotropic Substance (International non-proprietary name (INN) ALPRAZOLAM Other non-proprietary name ****** Chemical Name 8-Chloro-1-methyl-6-phenyl-4H-s-triazolo [4, 3-a] [1, 4] benzodiazepine

¶9As per paragraph 10(i) of the status report, the name of the contraband is Etizolam and its weight is 5.91 grams, and it constitutes an offense under the following provisions and notifications: Substance Name Etizolam Quantity detained

5.91 Gram Quantity type Commercial Drug Quantity in % to upper limit of Intermediate

236.40% Drug's Small & Commercial Qty. suggested by Committee report Notification No. & date S.O. 1351 (E) dated 13.03.2019 Punishable U/s S.22(c) of NDPS Act, 1985 Specified as small & Commercial in S.2(viia) & 2(xxiiia) NDPS Act, 1985 Notification No. & dated S.O.1276(E) 3/23/2021 Sr. No. 238ZZC Common Name (Name of Narcotic Drug and Psychotropic Substance (International non-proprietary name (INN) Etizolam Other non-proprietary name ****** Chemical Name 4-(2-Chlorophenyl)-2-ethyl-9-methyl-6H-thieno[3,2-f][1,2,4]triazolo[4,3a] [1,4]diazepine Small Quantity < 0.05 Gram Commercial Quantity > 2.5 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.O.1275(E) 3/23/2021 Sr. No. 110ZN Common Name (Name of Narcotic Drug and Psychotropic Substance (International non-proprietary name (INN) Etizolam Other non-proprietary name ****** Chemical Name 4-(2-Chlorophenyl)-2-ethyl-9-methyl-6H-thieno[3,2-f][1,2,4]triazolo[4,3a][1,4]diazepine

¶10The quantity allegedly involved in this case is commercial. Given this, the rigors of S. 37 of the NDPS Act.

¶11In State of Haryana v. Samarth Kumar, 2022(3) R.C.R.(Criminal) 991, wherein the Hon'ble Supreme Court holds, [8]. In cases of this nature, the respondents may be able to take advantage of the decision in Tofan Singh v. State of Tamil Nadu (supra), perhaps at the time of arguing the regular bail application or at the time of final hearing after conclusion of the trial. [9]. To grant anticipatory bail in a case of this nature is not really warranted. Therefore, we are of the view that the High Court fell into an error in granting anticipatory bail to the respondents.

¶112The quantity of heroin that was seized falls in the commercial category. Section 37 of the NDPS Act mandates under sub-section (1) (b) of section 37, that no person accused of an offence punishable for offences involving commercial quantity shall be released on bail unless- (i) the Public Prosecutor has been given an opportunity to oppose the application of release, and (ii) where the Public Prosecutor opposes the application, the Court is satisfied that there are reasonable grounds for believing that accused is not guilty of such offence and is not likely to commit any offence while on bail. Thus, the rigors of S. 37 of the NDPS Act apply in the present case, and the burden is on the petitioner to satisfy the twin conditions put in place by the Legislature under Section 37 of the NDPS Act. Given the legislative mandate of S. 37 of the NDPS Act, the Court can release a person accused of an offence punishable under the NDPS Act for possessing a commercial quantity of contraband only after recording reasonable satisfaction of its rigors.

¶13The State's counsel argues that a plain reading of Section 37 reveals that the legislature intends to make the law stringent to curb the drug menace. It is further to be noticed that the provisions are couched in negative language, meaning that to grant bail, the Court needs to record a finding that there are reasonable grounds for believing that the petitioner is not guilty of the offense. The burden of proof is also on the petitioner to satisfy the Court about his non-involvement in the case. While interpreting the provisions of Section 37 of the NDPS Act, the Court must be guided by the objective sought to be achieved by putting these stringent conditions.

¶14Satisfying the fetters of S. 37 of the NDPS Act is candling the infertile eggs. The stringent conditions of section 37 placed in the statute by the legislature do not create a bar for bail for specified categories, including the commercial quantity; however, it creates hurdles by placing a reverse burden on the accused, and once crossed, the rigors no more exist, and the factors for bail become similar to the bail petitions under general 1 37. Offences to be cognizable and non-bailable.—(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974),—

(a) every offence punishable under this Act shall be cognizable;

(b) no person accused of an offence punishable for offences under sec!on 19 or sec!on 24 or sec!on 27A and also for offences involving commercial quan!ty shall be released on bail or on his own bond unless—

(i) the Public Prosecutor has been given an opportunity to oppose the applica!on for such release, and (ii) where the Public Prosecutor opposes the applica!on, the court is sa!sfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail.

(2) The limita!ons on gran!ng of bail specified in clause (b) of sub-sec!on (1) are in addi!on to the limita!ons under the Code of Criminal Procedure, 1973 (2 of 1974) or any other law for the !me being in Jyoti Sharma force on gran!ng of bail. High Court, Sector 1, Chandigarh 5 penal statutes like IPC. Thus, both the twin conditions need to be satisfied before a person accused of possessing a commercial quantity of drugs or psychotropic substance is to be released on bail. The first condition is to provide an opportunity to the Public Prosecutor, enabling them to take a stand on the bail application. The second stipulation is that the Court must be satisfied that reasonable grounds exist for believing that the accused is not guilty of such an offense and is not likely to commit any offense while on bail. If either of these conditions is not met, the ban on granting bail operates. The expression "reasonable grounds" means something more than prima facie grounds. It contemplates substantial probable causes for believing the accused is not guilty of the alleged offense. Even on fulfilling one of the conditions, the reasonable grounds for believing that the accused is not guilty of such an offense, the Court still cannot give a finding on the assurance that the accused is not likely to commit any such crime again. Thus, the grant or denial of bail for possessing commercial quantity would vary from case to case, depending upon its facts, and the parameters for anticipatory bail are stringent compared to the regular bail when the accused is in judicial custody.

¶15The quantity involved is commercial, and the burden to satisfy the rigor of condition of Section 37 of the NDPS Act was on the petitioner, which he did not discharge to the satisfaction of the statutory requirements. The investigation reveals sufficient prima facie evidence to connect the petitioner with the crime; thus, the petitioner fails to make out a case for anticipatory bail. Any detailed discussions about the evidence may prejudice the case of the petitioner, the State, or the other accused.

¶16The learned Special Judge, while dismissing the anticipatory bail of the petitioner, has given elaborative reasons and considered almost every aspect.

¶17The grounds in the bail petition do not shift the burden the legislature places on the accused under S. 37 of the NDPS Act. The petitioner has not stated anything in the bail petition to discharge the burden put by the stringent conditions placed in the statute by the legislature under section 37 of the NDPS Act.

¶18In Jai Prakash Singh v. State of Bihar and another (2012) 4 SCC 379, Hon'ble Supreme Court holds, [19]. Parameters for grant of anticipatory bail in a serious offence are required to be satisfied and further while granting such relief, the court must record the reasons therefor. Anticipatory bail can be granted only in exceptional circumstances where the court is prima facie of the view that the applicant has falsely been enroped in the crime and would not misuse his liberty. [See D.K. Ganesh Babu v. P.T. Manokaran (2007) 4 SCC 434, State of Maharashtra v. Mohd. Sajid Husain Mohd. S. Husain (2008) 1 SCC 213 and Union of India v. Padam Narain Aggarwal (2008) 13 SCC 305].

¶19A perusal of the bail petition and the documents attached primafacie points towards the petitioner's involvement and does not make out a case for bail. The impact of crime would also not justify bail. Any further discussions will likely prejudice the petitioner; this court refrains from doing so.

¶20Any observation made hereinabove is neither an expression of opinion on the case's merits nor shall the trial Court advert to these comments.

¶21Petition dismissed. Interim orders are recalled with immediate effect. All pending applications, if any, are disposed of. (ANOOP CHITKARA) JUDGE

26.08.2025

IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Reserved on: 01.08.2025 Pronounced on: 26.08.2025 Piyaro ...Petitioner Versus State of Punjab …Respondent CORAM: HON'BLE MR. JUSTICE ANOOP CHITKARA Present: Mr. Mikhail Kad, Advocate for the petitioner. Mr. Akshay Kumar, AAG, Punjab. ****