Ajay v. State of Haryana

ANOOP CHITKARA, J. FIR No. Dated Police Sta/on Sec/ons

24.07.2024 Mohana, District Sonipat 20 of NDPS Act

¶1The pe oner incarcerated in the FIR cap oned above had come up before this Court under Sec on 483 of Bhara ya Nagarik Suraksha Sanhita, 2023, [BNSS], seeking regular bail.

¶2Per paragraph 9 of the bail applica on and the custody cer ficate dated

29.11.2024, the accused has the following criminal antecedents: Sr. No. FIR No. Date Offenses Police Sta/on

1.

05.12.2023 20 of NDPS Act Mohana, Sonipat

¶3The facts and allega ons are taken from the reply filed by the State. On July 24, 2024, based on secret informa on, the Police seized 450 grams of charas from the pe oner's possession. The Inves gator claims to have complied with all the statutory requirements of the NDPS Act, 1985, and CrPC, 1973.

¶4The 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.

¶5The State's counsel opposes bail and refers to the reply.

¶6Dealing in Charas is a punishable offense under the NDPS Act in the following terms: Substance Name Charas Quan!ty detained 450 Gram Quan!ty type Intermediate Drug Quan-ty in % to upper limit

45.00% 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. 23 Common Name (Name of Narco!c Drug and Psychotropic Substance Cannabis and cannabis resin (Interna!onal non-proprietary name (INN) Other non-proprietary name CHARAS, HASHISH Chemical Name EXTRACTS and TINCTURES OF CANNABIS Small Quan!ty 100 Gram Commercial Quan!ty 1000 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 S.20 & S.2(iii) NDPS Act, S.O.821(E) dated 11/14/1985 Sr. No. S.2(iii) Common Name (Name of Narco!c Drug and Psychotropic Substance ****** (Interna!onal non-proprietary name (INN) Other non-proprietary name ****** Chemical Name S.2(iii) "cannabis (hemp)" means—

(a) charas, that is, the separated resin, in whatever form, whether crude or purified, obtained from the cannabis plant and also includes concentrated prepara!on and resin known as hashish oil or liquid hashish;

(b) ganja, that is, the flowering or frui!ng 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; and

(c) any mixture, with or without any neutral material, of any of the above forms of cannabis or any drink prepared therefrom;

(iv) "cannabis plant" means any plant of the genus cannabis; S. 2(viiib)] "illicit traffic", in rela!on to narco!c drugs and psychotropic substances, means—

(i) cul!va!ng any coca plant or gathering any por!on of coca plant;

(ii) cul!va!ng the opium poppy or any cannabis plant;

(iii) engaging in the produc!on, manufacture, possession, sale, purchase, transporta!on, order/judgment. 2 warehousing, concealment, use or consump on, import inter-State, export inter-State, import into India, export from India or transhipment, of narco c drugs or psychotropic substances;

¶7Given this, the rigors of S. 37 of the NDPS Act do not apply in the present case.

¶8Sec on 2 (vii-a) of the NDPS Act defines commercial quan ty as the quan ty 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 aTract, and the factors for bail become similar to the offence regular statutes.

¶9In 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.

¶10The prolonged incarcera on, generally militates against the most precious fundamental right guaranteed under Ar cle 21 of the Cons tu on and in such a situa on, the condi onal liberty must override the statutory embargo created under Sec on 37(1)(b)(ii) of the NDPS Act1.

¶11The pre-trial incarcera on should not be a replica of post-convic on sentencing. There is sufficient primafacie evidence connec ng the pe oner with the alleged crime. However, per paragraph 4 of the bail pe on, the pe oner has been in custody since

24.07.2024. Per the custody cer ficate dated 29.11.2024, the pe oner's total custody in this FIR is 04 months and 06 days. Given the penal provisions invoked viz-a-viz pre-trial custody, 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 further pre-trial incarcera on at this stage.

¶12Without 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 bail. This order shall come into force from the me it is uploaded on the official webpage of this Court.

¶13Given 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 concerned Court and due to unavailability before any nearest Ilaqa Magistrate/duty Magistrate. Before accep ng the surety, the concerned Court must be sa sfied that if the accused fails to appear, such surety can produce the accused.

¶14While 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 aTes ng officer/court considers it appropriate or considers the accused a flight risk.

¶3Mobile number (If available)

¶4E-Mail id (If available)

¶15This order is subject to the pe oner's complying with the following terms.

¶16The 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.

¶17The possibility of the accused influencing the inves ga on, tampering with evidence, in mida ng witnesses, and the likelihood of fleeing jus ce can be taken care of by imposing elabora ve and stringent condi ons. In Sushila Aggarwal v. State (NCT of Delhi), 2020:INSC:106 [Para 92], (2020) 5 SCC 1, Para 92, the Cons tu onal Bench held that unusually, subject to the evidence produced, the Courts can impose restric ve condi ons.

¶18Given 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 acquiTal. Consequently, it would be 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, ammuni on, if any, along with the arms license to the concerned authority within fiUeen 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 acquiTal 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 offence.

¶19This bail is condi onal, and the founda onal condi on is that if the pe oner repeats the 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.

¶20Any observa on made hereinabove is neither an expression of opinion on the case's merits nor shall the trial Court advert to these comments.

¶21A 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 aTest it to be a true copy. If the aTes 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 aTes ng bonds.

¶22Pe//on allowed in terms men oned above. All pending applica ons, if any, stand disposed of. (ANOOP CHITKARA) JUDGE

19.12.2024 Jyo -II

IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Reserved on: 02.12.2024 Pronounced on: 19.12.2024 Ajay ...Pe oner Versus State of Haryana …Respondent CORAM: HON'BLE MR. JUSTICE ANOOP CHITKARA Present: Mr. Harsh Mehla, Advocate for the pe oner. Mr. Rajat Gautam, Addl. A.G. Haryana. ****