Mukesh Bhalotia v. State of Haryana

ANOOP CHITKARA, J. FIR No. Dated Police Sta1on Sec1ons 257 09.07.2017 Kundali, Sonipat 15 of NDPS Act, 420, 467, 468, 471, 120-B, 34 IPC

¶1The pe!!oner apprehending arrest in the FIR cap!oned above, registered way back in 2017, has come up before this Court under Sec!on 482 of Bhara!ya Nagarik Suraksha Sanhita, 2023, [BNSS], seeking an!cipatory bail.

¶2In paragraph 10 of the bail pe!!on, the accused declares that he has no criminal antecedents.

¶3The facts and allega!ons are taken from the status report filed by the State. "12. That in the instant case, a very large quan-ty of 'poppy husk' das recovered from the vehicle bearing registra-on No.MP-44GA-1168, which was being driven by accused Suresh Dhanka while taking out the same from premises of factory No.304, Industrial Area, Kundli. The quan-ty recovered is much more than the commercial quan-ty men-oned in the table appended with No-fica-on dated 19.10.2001, issued by the Central Government on dated 19.10.2001. The case property was also sent to FSL, Madhuban for examina-on. FSL report has already been received on dated 06.11.2017, as per which a7er applying color tests and TLC, the expert of FSL observed that the tests were posi-ve for the presence of order/judgment. 1 morphine, codeine, thebaine, narco-ne, papaverine and meconic acid in the samples and it was opined that the sample nos.1 and 2 were iden-fied as poppy straw (Choora post) of papaver somniferum L and sample nos.3 and 4 were iden-fied as poppy seeds (Post Dana) of papaver somniferum L."

¶4During the custodial interroga!on, the co-accused named the pe!!oner as the seller of the drugs, and based on this confession, the inves!gator arraigned him as an accused. The pe!!oner approached the Sessions Court for an!cipatory bail, which was surprisingly denied.

¶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 status report.

¶7It would be appropriate to refer to the following por!ons of the status report, which read as follows: "13. That in the present case, there is sufficient evidence against the pe--oner regarding his involvement in the above men-oned offence. Pe--oner had ac-vely par-cipated in the commission of above men-oned offence. It was pe--oner/accused Mukesh Bhalo-a, who got loaded the contraband in the said vehicle from go-down from Neemach. In this manner, pe--oner had ac-vely par-cipated in the commission of above men-oned offence. The case is s-ll under inves-ga-on qua pe--oner and he kept on absconding for about five years and was also declared PO. The custodial interroga-on of pe--oner is required for ascertaining the complete chain, the custodial interroga-on of pe--oner is required for ascertaining his complete involvement in the crime in the facts and circumstances of present case. His custodial interroga-on is also required for ascertaining the names of other persons involved in the above men-oned offence. It is submiAed that inves-ga-ng agency is to unearth the actual facts. If pe--oner is interrogated under the protec-ve orders of the Hon'ble High Court, he is not likely to answer the ques-ons in the right earnest. In these circumstances, pe--oner does not deserve the concession of an-cipatory bail. The custodial interroga-on of pe--oner is required to unearth certain relevant facts of the case and for effec-ve and fair inves-ga-on. Hence, instant pe--on deserve dismissal, for proper order/judgment. 2 invesgaon of the case."

¶8A perusal of the reply does not men on any convincing primafacie legally admissible evidence that connects the pe

oner with the recovery.

¶9In the absence of some legally admissible primafacie evidence collected against any accused, the custodial interroga on cannot be a hook, line, and sinker to fish for evidence.

¶10The quan ty allegedly involved in this case is commercial. Given this, the rigors of S. 37 of the NDPS Act apply in the present case. The pe

oner must sa sfy the twin condi ons put in place by the Legislature under Sec on 37 of the NDPS Act.

¶11Given the quality of evidence collected so far, the pe

oner has sa sfied the first condi on of the twin condi ons. Stringent bail condi ons would suffice to meet the second requirement.

¶12In Abida v. State of Haryana, 2022:PHHC:058722, [Para 10], CRM-M-5077-2022, decided on 13-05-2022, this court observed as follows: [10]. Thus, both the twin condi ons need to be sa sfied before a person accused of possessing a commercial quan ty of drugs or psychotropic substance is to be released on bail. The first condi on is to provide an opportunity to the Public Prosecutor, enabling to take a stand on the bail applica on. The second s pula on is that the Court must be sa sfied that reasonable grounds exist for believing that the accused is not guilty of such offence, and is not likely to commit any offence while on bail. If either of these two condi ons is not met, the ban on gran ng bail operates. The expression "reasonable grounds" means something more than prima facie grounds. It contemplates substan al probable causes for believing that the accused is not guilty of the alleged offence. Even on fulfilling one of the condi ons, the reasonable grounds for believing that the accused is not guilty of such an offence, the Court s ll cannot give a finding on assurance that the accused is not likely to commit any such crime again. Thus, the grant of bail or denial of bail for possessing commercial quan ty would vary from case to case, depending upon its facts. [30]. From the summary of the law rela ng to rigors of S.37 of NDPS Act, while gran ng bail involving commercial quan

es, the following fundamental principles emerge:

(a). In case of inconsistency, S. 37 of the NDPS Act prevails over S. 439 CrPC. [Narco cs Control Bureau v Kishan Lal, 1991

(1) SCC 705, Para 6].

(b). The limita ons on gran ng of bail come in only when the ques on of gran ng bail arises on merits. [Customs, New Delhi v. AhmadalievaNodira, (2004) 3 SCC 549, Para 7].

(c). The provisions of Sec on 37 of the NDPS Act provide the legal norms which have to be applied in determining whether a case for grant of bail has been made out. [UOI v. Prateek Shukla, 2021:INSC:165 [Para 11], (2021) 5 SCC 430, Para 12].

(d). In case the Court proposes to grant bail, two condi ons are to be mandatorily sa sfied in addi on to the standard requirements under the provisions of the CrPC or any other enactment. [Union of India v. Niyazuddin SK &Anr, 2017:INSC:686 [Para 7], (2018) 13 SCC 738, Para 7].

(e). Apart from gran ng opportunity to the Public Prosecutor, the other twin condi ons which really have relevance are the Court's sa sfac on that there are reasonable grounds for believing that the accused is not guilty of the alleged offence. [N.R. Mon v. Md. Nasimuddin, (2008) 6 SCC 721, Para 9].

(f). The sa sfac on contemplated regarding the accused being not guilty has to be more than prima facie grounds, considering substan al probable causes for believing and jus fying that the accused is not guilty of the alleged offence. [Customs, New Delhi v. Ahmadalieva Nodira, (2004) 3 SCC 549, Para 7].

(g). The reasonable belief contemplated in the provision requires existence of such facts and circumstances as are sufficient in themselves to jus fy sa sfac on that the accused is not guilty of the alleged offence. [State of Kerala v. Rajesh, 2020:INSC:88 [Para 21], AIR 2020 SC 721, Para 21].

(h). Twin condi ons of S. 37 are cumula ve and not alterna ve. [Customs, New Delhi v. Ahmadalieva Nodira, (2004) 3 SCC 549, Para 7].

(i). At the bail stage, it is neither necessary nor desirable to weigh the evidence me culously to arrive at a posi ve finding as to whether or not the accused has commiMed an offence under the NDPS Act and further that he is not likely to commit an offence under the said Act while on bail. [Union of India v. RaMan Mallik @ Habul, (2009) 2 SCC 624, Para 14].

(j). If the statements of the prosecu on witnesses are believed, then they would not result in a convic on. [Babua v. State of Orissa, (2001) 2 SCC 566, Para 3].

(k). Merely recording the submissions of the par es does not amount to an indica on of a judicial mind or a judicious applica on of mind. [UOI v. Prateek Shukla, 2021:INSC:165 [Para 11], (2021) 5 SCC 430, Para 12].

(l). Sec on 37 departs from the long-established principle of presump on of innocence in favour of an accused person un l proved otherwise. [Union of India v. Sanjeev v. Deshpande,

(2014) 13 SCC 1, Para 5].

(m). While considering the applica on for bail concerning Sec on 37, the Court is not called upon to record a finding of not guilty. [Union of India v. Shiv Shanker Kesari, (2007) 7 SCC 798, Para 11].

(n). The confessional statement recorded under Sec on 67 of the NDPS Act is inadmissible in the trial of an offence under the NDPS Act. [Tofan Singh v. State of Tamil Nadu, 2020:INSC:620,

(2021) 4 SCC 1]

(o). In the absence of clarity on the quan ta ve analysis of the samples from the laboratory, the prosecu on cannot be heard to state at this preliminary stage that the accused possessed a commercial quan ty of psychotropic substances as contemplated under the NDPS Act. [Bharat Chaudhary v. Union of India2021:INSC:877 [Para 11], 2021 SCC OnLine SC 1235, Para 10].

(p). When there is evidence of conscious possession of commercial quan ty of psychotropic substances, such accused is not en tled to bail given Sec on 37 of the Act as contemplated under the NDPS Act. [State by (NCB) Bengaluru v. Pallulabid Ahmad ArimuMa, 2022:INSC:26 [Para 11], 2022 SCC OnLine SC 47, Para 12].

(p). Bail must be subject to stringent condi ons. [Sujit Tiwari v. State of Gujarat, 2020:INSC:101 [Para 12], 2020 SCC Online SC 84, Para 12]. [31]. Sa sfying the feMers of S. 37 of the NDPS Act is candling the infer le eggs. The stringent condi ons of sec on 37 placed in the statute by the legislature do not create a bar for bail for specified categories, including the commercial quan ty; however, it creates hurdles by placing a reverse burden on the accused, and once crossed, the rigors no more subsist, and the factors for bail become similar to the bail pe

ons under general penal statutes like IPC.

¶13The offense pertains to the year 2017, and the Police did not arrest the pe

oner; if they intended to arrest the pe

oner, it was not impossible. A perusal of the status report does not point out the steps taken to arrest the accused.

¶14Given the above and an analysis of the nature of the allega ons and the other factors peculiar to this case, pre-trial incarcera on at this stage would be unjus fiable.

¶15The inves ga on indicates that the pe

oner is not the main accused, sothe pe

oner's bail shall not be treated as a precedent for gran ng bail to the other co-accused with a higher role.

¶16A 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. 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. This order shall come into force from the uploaded on this Court's official webpage.

¶17Given 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 maMer 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.

¶18While 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 aMes!ng officer/court considers it appropriate or considers the accused a flight risk.

¶3Mobile number (If available)

¶4E-Mail id (If available)

¶19This order is subject to the pe!!oner's complying with the following terms.

¶20The pe--oner is directed to join the inves-ga-on 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 Inves-gator. The pe!!oner shall be in deemed custody for Sec!on 27 of the Indian Evidence Act. 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.

¶21The 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, 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.

¶22Given the background of allega!ons against the pe!!oner, it becomes paramount to protect the drug detec!on squad, their family members, as well as the members of society, and incapacita!ng the accused would be one of the primary op!ons un!l the filing of the closure report or discharge, or acquiMal. Consequently, it would beJYOTI order/judgment. 6 appropriate to restrict the possession of firearm(s). [This restric on is being imposed based on the preponderance of evidence of probability and not of evidence of certainty, i.e., beyond reasonable doubt; and as such, it is not to be construed as an intermediate sanc on]. Given the nature of the allega ons and the other circumstances peculiar to this case, the pe

oner shall surrender all weapons, firearms, and ammuni on, if any, along with the arms license to the concerned authority within fiSeen days from release from prison and inform the Inves gator about the compliance. However, subject to the Indian Arms Act, 1959, the pe

oner shall be en tled to renew and take it back in case of acquiMal in this case, provided otherwise permissible in the concerned rules. Restric ng firearms would ins ll confidence in the vic m(s), their families, and society; it would also restrain the accused from influencing the witnesses and repea ng the offense.

¶23The condi ons men oned 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 Pe

on (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 condi ons imposed by the Court must not only have a nexus to the purpose that they seek to serve but must also be propor onal to the purpose of imposing them. The courts, while imposing bail condi ons must balance the liberty of the accused and the necessity of a fair trial. While doing so, condi ons that would result in the depriva on of rights and liber es must be eschewed."

¶24In 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.

¶25In 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."

¶26This 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.

¶27Any observa on made hereinabove is neither an expression of opinion on the case's merits nor shall the trial Court advert to these comments.

¶28A 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 aMest it to be a true copy. If the aMes 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 aMes ng bonds.

¶29Pe11on allowed in terms men oned above. All pending applica ons, if any, stand disposed of. (ANOOP CHITKARA) JUDGE

29.11.2024 Jyo -II

IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Reserved on: 13.11.2024 Pronounced on: 29.11.2024 Mukesh Bhalo!a ...Pe!!oner Versus State of Haryana …Respondent CORAM: HON'BLE MR. JUSTICE ANOOP CHITKARA Present: Mr. Akshay Kumar Dahiya, Advocate and Mr. Deepak Dahiya, Advocate, for the pe!!oner. Mr. Vikrant Pamboo, Sr. DAG, Haryana. ****