Happy Alias Bholla v. State of Punjab

ANOOP CHITKARA, J. FIR No. Dated Police Sta1on Sec1ons 168 07.08.2024 City Jagraon, Dis3. 22, 25 of NDPS Act Ludhiana Rural

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

¶2As per paragraph 10 of the bail pe!!on and as per paragraph 8 of the status report, the accused has the following criminal antecedents: Sr. No. FIR No. Dated Offenses Police Sta1on

¶15 08.01.2024 21, 61, 85 of NDPS Act Dakha

¶3The facts and allega!ons are taken from the reply filed by the State. On Aug 07, 2024, based on a chance recovery, the Police seized 220 tablets of Alprazolam and 120 loose capsules of Pregabalin from the possession of co-accused Akash and Sunil. The Inves!gator claims to have complied with all the statutory requirements of the NDPS Act, 1985, and BNSS, 2023.

¶4During custodial interroga!on, the main accused, Akash and Sunil, confessed before the Police officer that they were selling the drugs on the pe!!oner's behalf. Based on such confession before the police, the pe!!oner was arraigned as an accused. Apprehending arrest, he filed for an!cipatory bail from the Sessions Court, which denied order/judgment. 1 him bail. Feeling aggrieved, he has invoked the concurrent jurisdic!on of this Court under S. 482 BNSS, 2023.

¶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 his 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: "3. That then ASI Dharminder Singh counted the tablets and capsules which were in the envelope of these accused persons. There were 120 loose capsules. There were 22 strips of tablets of Alprazolam 05 but batch number was deleted on the strips. There were 10 tablets in each strip. So total 220 tablets of Alprazolam were recovered from that envelope. ASI Dharminder Singh prepared one parcel of the tablets and capsules and sealed the same with his seal bearing impression DS and taken into possession. Then the I.O. sent ruqa to the police sta&on and got registered FIR No. 168 dated 07-08-2024 u/s 22/25/61/85 NDPS Act, PS City Jagraon against accused Akash @ Ladoo, Sunil and pe&&oner Happy @ Bhola. Accused Akash @ Ladoo and Sunil were arrested at the spot.

¶6That parcel of intoxicant tablets and capsules was deposited in Regional Tes&ng FSL Ludhiana on 13-08-2024 for report. A:er analysis the FSL has issued report No. 1333/2024/Toxi/RTFSL/LSH/Pb dated 26-09-2024. The report reveals that salt Alprazolam was detected in the tablets and average weight of one tablet was 133 mg. and salt Pregabalin was detected in the contents of capsules and average weight of one capsule was 921 mg.

¶9That head wise reply of the orders passed by this Hon'ble Court is as under:-

(i) That the role of the pe&&oner is that he has employed the above men&oned accused persons to sell his intoxicant tablets and capsules to the people.

(ii) That the evidence against the pe&&oner in this case is that on interroga&on of accused Akash @ Ladoo and Sunil Kumar, they told that pe&&oner Happy @ Bhola has le: them at the place of recovery on his car to sell his intoxicant tablets and capsules." order/judgment. 2

¶8Thus, the evidence collected so far consists of disclosure statements without any discovery of fact.

¶9The status report filed by the police reveals that the inves!gator arraigned the pe!!oner as an accused based on the disclosure statement of the main accused, from whose possession the inves!gator had recovered the contraband. No other evidence is collected at this stage to connect the pe!!oner with the main accused. Thus, there is no jus!fica!on to deny bail.

¶10Dealing in 29.26 Grams of Alprazolam is a punishable offense under the NDPS Act in the following terms: Substance Name ALPRAZOLAM Quan!ty detained 29.26 Gram Quan!ty type Intermediate Drug Quan&ty in % to upper limit

29.26% of Intermediate Specified as small & Commercial in S.2(viia) & 2(xxiiia) NDPS Act, 1985 No!fica!on No S.O.1055(E) Dated 10/19/2001 Sr. No. 178 Common Name (Name of Narco!c Drug and Psychotropic Substance ALPRAZOLAM (Interna!onal non-proprietary name (INN) Other non-proprietary name ****** 8-chloro-1-methyl-6-phenyl-4H-s-triazolo[4,3-a] Chemical Name [1,4]benzodiazepine Small Quan!ty 5 Gram Commercial Quan!ty 100 Gram Declared as punishable under NDPS Act and as per schedule defined in S.2(xi) & 2(xxiii) NDPS Act, 1985 No!fica!on No NDPS Act, 1985 (61 of 1985), S.O. 821(E) Dated 11/14/1985 Sr. No. 30 Common Name (Name of Narco!c Drug and Psychotropic Substance ALPRAZOLAM (Interna!onal non-proprietary name (INN) Other non-proprietary name ****** 8-Chloro-1-methyl-6-phenyl-4H-s-triazolo [4, 3-a] [1, Chemical Name 4] benzodiazepine

¶11Given this, the rigors of S. 37 of the NDPS Act do not apply in the present case. order/judgment. 3

¶12Sec!on 2 (vii-a) of the NDPS Act defines commercial quan!ty as greater than the quan!ty specified in the schedule. Sec!on 2 (xxiii-a) defines a small quan!ty as a quan!ty less than the quan!ty specified in the table of the NDPS Act. The remaining quan!ty falls in an undefined category, generally called an intermediate quan!ty. All sec!ons in the NDPS Act specify an offence and men!on the minimum and maximum sentence, depending upon the quan!ty of the substance. The commercial quan!ty 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 quan!ty is less than commercial, the restric!ons of Sec!on 37 of the NDPS Act will not a3ract, and the factors for bail become similar to the offence regular statutes.

¶13In Sami Ullaha v Superintendent Narco!c Control Bureau, (2008) 16 SCC 471, the Hon'ble Supreme Court holds that in intermediate quan!ty, the rigors of the provisions of Sec!on 37 may not be jus!fied.

¶14Pre-trial incarcera!on should not be a replica of post-convic!on sentencing. The evidence might be prima facie sufficient to launch prosecu!on or to frame charges, but this Court is not considering the evidence at that stage but is analyzing it for the stage of an!cipatory bail. An analysis of the above does not jus!fy custodial interroga!on or pre-trial incarcera!on.

¶15Given the above, the penal provisions invoked coupled with the 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 !me it is uploaded on this Court's official webpage.

¶16Given 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 ma3er 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.

¶17While furnishing a personal bond, the pe!!oner shall men!on the following personal iden!fica!on details: order/judgment. 4

¶1AADHAR number

¶2Passport number (If available) and when the a3es!ng officer/court considers it appropriate or considers the accused a flight risk.

¶3Mobile number (If available)

¶4E-Mail id (If available)

¶18The bail order is subject to the pe!!oner's complying with the following terms.

¶19The 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, 1872/ Sec!on 23 of BSA, 2023. 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.

¶20The 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.

¶21In 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.

¶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 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."

¶23This bail is condi!onal, and the founda!onal condi!on is that if the pe!!oner order/judgment. 5 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.

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

¶25A 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 a3est it to be a true copy. If the a3es!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 a3es!ng bonds.

¶26Pe11on allowed in terms men!oned above. All pending applica!ons, if any, stand disposed of. (ANOOP CHITKARA) JUDGE

29.11.2024 Jyo1-II Whether reportable: No. order/judgment. 6

IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Reserved on: 13.11.2024 Pronounced on: 29.11.2024 Happy @ Bholla ...Pe!!oner Versus State of Punjab …Respondent CORAM: HON'BLE MR. JUSTICE ANOOP CHITKARA Present: Ms. Rashi Verma, Advocate for Mr. Manu Loona, Advocate, for the pe!!oner. Mr. Sukhdev Singh, AAG, Punjab. ****