Ishant v. State of Haryana

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

05.06.2025 Bhiwani

Civil Lines,

District Bhiwani 20(b) (ii) B/25 of NDPS Act

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

¶2Per paragraph 8 of the bail petition, the petitioner has no criminal antecedents.

¶3The facts and allegations are taken from the order rejecting bail by the Special Judge, Bhiwani. On 05.06.2025, based on prior information, the Police seized 01 kg 252 grams of Ganja from the possession of petitioner and co-accused. The Investigator claims to have complied with all the statutory requirements of the NDPS Act, 1985, and BNSS, 2023.

¶4The petitioner's counsel seeks bail on the grounds of prolonged pretrial custody.

¶5The 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 their family.

¶6The 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.

¶7The State's counsel opposes bail on instructions. REASONING:

¶8As per paragraph 7 of the order dated 05.08.2025 rejecting bail by the Special Judge, Bhiwani, the name of the contraband is Ganja and its weight is 1 kg 252 grams.

¶9Dealing in Ganja in contravention of the NDPS Act, 1985, constitutes an offense under the following provisions and notifications: Substance Name Ganja/ Bhang Patti Quantity detained

1.252 Kg Punishable U/s S.20(b)(ii)B of NDPS Act, 1985 Quantity type Intermediate 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) Ganja Other non-proprietary name ****** Chemical Name ****** Small Quantity < 1000 Gram (i.e. equivalent to 1 Kg) Commercial Quantity > 20000 Gram (i.e. equivalent to 20 Kg) Declared as punishable under NDPS Act and as per schedule defined in S.2(xi) & 2(xxiii) NDPS Act, 1985 Notification No. & dated 2(iii)(b) NDPS Act, 1985, S.O.821(E) 11/14/1985 Sr. No. 2(iii)(b) Common Name (Name of Narcotic Drug and Psychotropic Substance (International non-proprietary name (INN) ****** Other non-proprietary name ****** Chemical Name S.2(iii)(b) ganja, that is, the flowering or fruiting tops of the cannabis plant (excluding the seeds and leaves when not accompanied by the tops), by whatever name they may be known or designated; S. 2(viiib)] "illicit traffic", in relation to narcotic drugs and psychotropic substances, means—

(i) cultivating any coca plant or gathering any portion of coca plant;

(ii) cultivating the opium poppy or any cannabis plant;

(iii) engaging in the production, manufacture, possession, sale, purchase, transportation, warehousing, concealment, use or consumption, import inter-State, export inter-State, import into India, export from India or transhipment, of narcotic drugs or psychotropic substances;

¶10Given the quantity involved, the rigors of Section 37 of NDPS Act would not apply in the present case.

¶11Section 2 (vii-a) of the NDPS Act defines commercial quantity as the quantity greater than the quantity specified in the schedule. Section 2 (xxiii-a) defines a small quantity as a quantity less than the quantity specified in the table of the NDPS Act. The remaining quantity falls in an undefined category, generally called an intermediate quantity. All sections in the NDPS Act specify an offence and mention the minimum and maximum sentence, depending upon the quantity of the substance. The commercial quantity 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 quantity is less than commercial, the restrictions of Section 37 of the NDPS Act will not attract, and the factors for bail become similar to the offence regular statutes.

¶12Per the custody certificate dated 20.08.2025, the petitioner's custody in this FIR is 02 months and 15 days.

¶13Without 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. However, this order shall take effect from the time it is uploaded to this Court's official webpage.

¶14Given above, provided the petitioner is not required in any other case, the 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.

¶15While 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)

¶16This order is subject to the petitioner's complying with the following terms.

¶17The 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.

¶18Given the background of allegations against the petitioner, it becomes paramount to protect the detection squad, members of society, 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 society; it would also restrain the accused from influencing the witnesses and repeating the offense.

¶19The 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 the Hon'ble Supreme Court held 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."

¶20In Md. Tajiur Rahaman v. The State of West Bengal, decided on 08-Nov-2024, SLP

(Crl) 12225-2024, the 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."

¶21The 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.

¶22This bail is conditional, with the foundational condition being that if the

petitioner repeats the offense where the quantity involved is more than half of the intermediate, or commercial, or violates S. 19, 24, or 27-A of the NDPS Act, or commits any non-bailable offense which provides for a sentence of imprisonment for more than seven years, 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.

¶23Any observation made hereinabove is neither an expression of opinion on the case's merits nor shall the trial Court advert to these comments.

¶24In Amit Rana v. State of Haryana, CRM-18469-2025 [in CRA-D-123-2020, decided on 05.08.2025], a Division Bench of Punjab and Haryana High Court in paragraph 13, holds that "To ensure that every person in judicial custody who has been granted bail or whose sentence has been suspended gets back their liberty without any delay, it is appropriate that whenever the bail order or the orders of suspension of sentence are not immediately sent by the Registry, computer systems, or Public Prosecutor, then in such a situation, to facilitate the immediate restoration of the liberty granted by any Court, the downloaded copies of all such orders, subject to verification, must be accepted by the Court before whom the bail bonds are furnished."

¶25Petition allowed in terms mentioned above. All pending applications, if any, are disposed of. (ANOOP CHITKARA) JUDGE

21.08.2025

IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Date of Decision: 21.08.2025 Ishant ...Petitioner Versus State of Haryana …Respondent CORAM: HON'BLE MR. JUSTICE ANOOP CHITKARA Present: Mr. Sushil Sheoran, Advocate for the petitioner. Ms. Jasmine Gill, A.A.G., Haryana. ****