Mindu @ Pooja v. State of Punjab

ANOOP CHITKARA, J.

FIR No. Dated Police Station Sections

18.09.2024 Salem Tabri, District Ludhiana 21, 29, 61 and 85 of NDPS Act, 1985

¶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.

¶2In paragraph 9 of the bail petition, the accused declares that he has no criminal antecedents.

¶3The facts and allegations are taken from the reply filed by the State. On Sep 18, 2024, based on chance recovery, the Police seized 10 grams of heroin from two packets thrown by co-accused Deepak and Sandeep, each packet containing 5 grams of heroin. 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, Deepak and Sandeep, confessed before the Police officer that they had purchased the heroin from the petitioner. Based on such confession before the police, the petitioner was arraigned as an accused. Apprehending arrest, he filed for anticipatory bail from the Sessions Court, which denied him bail. Feeling aggrieved, he 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 further pre-trial incarceration would cause an irreversible injustice to the petitioner and their family.

¶6The State's counsel opposes bail and refers to the reply.

¶7It would be appropriate to refer to the following portions of the reply, which read as follows: " That in compliance to the above noted order of this Hon'ble Court, it is respectfully submitted that on 18.09.2024 SI Kashmir Singh alongwith other police officials were going from main Gali of Mohalla Peeru Banda towards Balmiki Chowk in connection with patrolling duty. However, when the police party reached near Street No.14, then two youngsters were going on feet from the said Street No.14 but on seeing the police party ahead, the said youngsters threw small polythene pouches from their hands in the garbage in a vacant plot and started moving back fast but they were apprehended by the police party who disclosed their names as Deepak and Sandeep Kumar.

After completion of provisions of section 50 of NDPS Act, the said small polythene pouches were got picked-up from the said persons and were checked during which 05 grams Heroine from each pouch (total 10 grams) was recovered. Videography of the said recovery of Heroine was also made by the said SI Kashmir Singh and during the query from the said Deepak and Sandeep Kumar, they disclosed that the said Heroine was given to them by the present petitioner and Ashok Kumar for selling it to their customers. Accordingly FIR No.159 dated 18.09.2024, u/s 21, 29 of NDPS Act, P.S. Salem Tabri, Ludhiana was (Annexure P-1) registered gainst the present petitioner and her co-accused Deepak, Sandeep Kumar and Ashok Ghora."

¶8Dealing with 10 grams of heroin is a punishable offense under the NDPS Act, and it falls in the intermediate category. Given this, the rigors of S. 37 of the NDPS Act do not apply in the present case.

¶9Section 2 (vii-a) of the NDPS Act defines commercial quantity as 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.

¶10In Sami Ullaha v Superintendent Narcotic Control Bureau, (2008) 16 SCC 471, the Hon'ble Supreme Court holds that in intermediate quantity, the rigors of the provisions of Section 37 may not be justified.

¶11Pre-trial incarceration should not be a replica of post-conviction sentencing. The evidence might be prima facie sufficient to launch prosecution or to frame charges, but this Court is not considering the evidence at that stage but is analyzing it for the stage of anticipatory bail. An analysis of the above does not justify custodial interrogation or pre-trial incarceration.

¶12Given the above, the penal provisions invoked coupled with the primafacie analysis of the nature of allegations and the other factors peculiar to this case, there would be no justifiability for custodial interrogation or the pre-trial incarceration at this stage, subject to the compliance of terms and conditions mentioned in this order. Without commenting on the case's merits, in the facts and circumstances peculiar to this case, and for the reasons mentioned above, the petitioner makes a case for anticipatory bail. This order shall come into force from the time it is uploaded on this Court's official webpage.

¶13Given 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 Arresting Officer, and if the matter is before a Court, then the concerned Court and due to unavailability before any nearest Ilaqa Magistrate/duty Magistrate. Before accepting the surety, the concerned Officer/Court must be satisfied that if the accused fails to appear, such surety can produce the accused.

¶14While 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)

¶15The bail order is subject to the petitioner's complying with the following terms.

¶16The petitioner is directed to join the investigation 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 Investigator. The petitioner shall be in deemed custody for Section 27 of the Indian Evidence Act, 1872/ Section 23 of BSA, 2023. The petitioner shall join the investigation as and when called by the Investigating Officer or any Superior Officer and shall cooperate with the investigation at all further stages as required. In the event of failure to do so, the prosecution will be open to seeking cancellation of the bail. During the investigation, the petitioner shall not be subjected to third-degree, indecent language, inhuman treatment, etc.

¶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.

¶18In case the Investigator/Officer-In-Charge of the concerned Police Station arraigns another section of any penal offense in this FIR, and if the new section prescribes a maximum sentence that is not greater than the sections mentioned above, then this bail order shall be deemed to have also been passed for the newly added section(s). However, suppose the newly inserted sections prescribe a sentence exceeding the maximum sentence prescribed in the sections mentioned above; then, in that case, the Investigator/Officer-In-Charge shall give the petitioner notice of a minimum of seven days, providing an opportunity to avail the remedies available in law.

¶19In 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 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."

¶20This bail is conditional, and the foundational condition is that if the petitioner indulges in any non-bailable offense, the State may file an application for cancellation of this bail before the Sessions Court, which shall be at liberty to cancel this bail.

¶21Any observation made hereinabove is neither an expression of opinion on the case's merits nor shall the trial Court advert to these comments.

¶22A certified copy of this order would not be needed for furnishing bonds, and any Advocate for the Petitioner can download this order along with case status from the official web page of this Court and attest it to be a true copy. If the attesting officer

wants to verify its authenticity, such an officer can also verify its authenticity and may download and use the downloaded copy for attesting bonds.

¶23Petition allowed in terms mentioned above. All pending applications, if any, stand disposed of.

(ANOOP CHITKARA)

JUDGE

29.11.2024

No.

IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CRM-M No.51243 of 2024 Reserved on: 21.11.2024 Pronounced on: 29.11.2024 Mindu @ Pooja ...Petitioner Versus State of Punjab …Respondent CORAM: HON'BLE MR. JUSTICE ANOOP CHITKARA Present: Mr. Arvind K. Sharma, Advocate for the petitioner(s). Mr. Sukhdev Singh, A.A.G., Punjab. ****