Hoshiyar Singh @ Hoshyar Singh @ Ramlu v. State of Haryana

ANOOP CHITKARA, J.

FIR No. Dated Police Station Sections

08.04.2024 Samalkha, Panipat 22(c) 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.

¶2As per custody certificate dated 05.11.2024, the accused has the following criminal antecedents:

Sr. No. FIR No. Date Offenses Police Station

06.11.2018 186, 332, 341, 353, 427, 506, 34 IPC Samalkha, Panipat

23.10.2012 323, 325, 341, 34 IPC Samalkha, Panipat

¶3The facts and allegations are taken from the reply filed by the State. On April 08, 2024, based on prior information, the Police seized 11 injections of Buprenorphine from the 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 refers to bail petition and specifically to paras 6 to 8, which read as follows: "6. That even the call detalls of the petitioner as well as the police officials have not been attached with the final report to establish the truthness of the prosecution story.

¶7That in the present case, there are serious defects in the prosecution

story, no mandatory provision under the act have been followed regarding sampling and joining of witnesses and total violation of section 42,50,55 of the NDPS act.

¶8That the petitioner is in custody since 08.04.2024. in the present case and hence no more required by the police and all the investigations have already been completed and the trial of the case will take long time."

¶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 State's counsel opposes bail and refers to para 3 and 4 of the reply, which reads as follows: "3. That the role of the petitioner is that he is specifically named as accused in the FIR of present case. He used to purchase to intoxicant injection from co-accused Manoj Kumar for Rs. 100 each and resold the same to addicts for Rs. 200 each. Similarly, on 01.04.2024, he purchased 50 injections from co-accused Manoj for Rs. 5,000/-. He sold some of these injections before being apprehended by the police with the remaining ones in his possession. The call detail record of mobile number of accused persons revealed that they had talked with each other 173 times from

08.04.2024 to 29.04.2024 and the bank account statement of petitioner account revealed 19 instances of fund transfers to the account of Manoj Kumar's wife through UPI transactions on different dates.

¶4That the recovered substance (22 ml of buprenorphine) falls under the category of commercial quantity as per item 169 of schedule attached with NDPS Act. It is pertinent to mention here that as per Item 169 commercial quantity of Buprenorphine is 20 g i.e. 20 ml. Hence, Section 37 of NDPS is also attracted in this case."

¶7The petitioner's arguments did not point toward any material contradictions. It was a case of chance recovery. As such, S. 42 would not apply initially, and recovery was not from the person. As such, S. 50 would also not attract. Non-examination of independent witnesses is not illegal, and its outcome depends upon the nature of evidence tendered in the examination in chief and its cross-examination.

¶8Dealing with 11 injections of buprenorphine, which, as per the FSL, contains 2ml liquid, which weighs 2.08 grams. Even if the weight of one ampule is taken as 2 grams then the weight of 11 ampules is 22 grams, which is a punishable offense under the NDPS Act in the following terms:

Substance Name BUPRENORPHINE Quantity detained 22 Gram Quantity type Commercial Drug Quantity in % to upper limit of Intermediate

110.00% Specified as small & Commercial in S.2(viia) & 2(xxiiia) NDPS Act, 1985 Notification No S.O.1055(E) dated 10/19/2001 Sr. No. Common Name (Name of Narcotic Drug and Psychotropic Substance (International non-proprietary name (INN) BUPRENORPHINE Other non-proprietary name ****** Chemical Name 21-cyclopropyl-7-alpha-[(S)-1-hydroxy-1,2,2-trimethylpropyl]-6,14,endo-ethano-6,7,8,14-tetrahydrooripavine Small Quantity 1 Gram Commercial Quantity 20 Gram Declared as punishable under NDPS Act and as per schedule defined in S.2(xi) & 2(xxiii) NDPS Act, 1985 Notification No S.O.785(E) dated 10/26/1992 Sr. No. Common Name (Name of Narcotic Drug and Psychotropic Substance (International non-proprietary name (INN) BUPRENORPHINE Other non-proprietary name ****** Chemical Name 21, cyclopropyl-7-μ-[(S)-1-hydroxy-1-2, 2-trimethylpropyl]-6, 14-endo-ethano-6,7,8,14-tetrahydrooripavine

¶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.

¶10Section 371 of the NDPS Act mandates under sub-section (1) (b) of section 37 that

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 section 19 or section 24 or section 27A and also for offences involving commercial quantity shall be released on bail or on his own bond unless—

(i) the Public Prosecutor has been given an opportunity to oppose the application for such release, and (ii) where the Public Prosecutor opposes the application, the court is satisfied 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

no person accused of an offense punishable for offenses 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 offense and is not likely to commit any offense 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 offense punishable under the NDPS Act for possessing a commercial quantity of contraband only after recording reasonable satisfaction of its rigors.

¶11The 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.

¶12Satisfying 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 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.

(2) The limitations on granting of bail specified in clause (b) of sub-section (1) are in addition to the limitations under the Code of Criminal Procedure, 1973 (2 of 1974) or any other law for the time being in

¶13The submissions made above and the 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. The investigation reveals sufficient prima facie evidence to connect the petitioner with the crime; thus, the petitioner fails to make out a case for bail. Any detailed discussions about the evidence may prejudice the case of the petitioner, the State, or the other accused.

¶14As per the custody certificate dated 05.11.2024, the petitioner's custody is 06 months & 25 days, which cannot be considered prolonged.

¶15A 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.

¶16Any observation made hereinabove is neither an expression of opinion on the case's merits nor shall the trial Court advert to these comments.

¶17Petition dismissed. All pending applications, if any, stand disposed of.

(ANOOP CHITKARA)

JUDGE

18.11.2024 anju rani

No.

IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Reserved on: 06.11.2024 Pronounced on: 18.11.2024 Hoshyar Singh @ Hoshiyar Singh @ Ramlu ...Petitioner Versus State of Haryana …Respondent CORAM: HON'BLE MR. JUSTICE ANOOP CHITKARA Present: Mr. Sandeep Kotla, Advocate for the petitioner. Mr. Aashish Bishnoi, DAG, Haryana. ****