Akash Sharma v. State of Haryana

ANOOP CHITKARA, J. FIR No. Dated Police Sta2on Sec2ons 41 05.02.2022 Asauda, Dis*. Jhajjar 20 of NDPS Act (Sectons 419, 420 IPC added later on)

¶1The pettoner incarcerated in the FIR captoned above had come second tme before this Court under Secton 439 of CrPC, seeking regular bail.

¶2In paragraph 15 of the bail petton, the accused declares that he has no criminal antecedents.

¶3The facts and allegatons are taken from the status report filed by the State. On

05.02.2022, based on secret informaton, the Police seized 13 kg 510 grams of Sulfa (Charas) from the pettoner's possession. Initally, the pettoner disclosed his name as Akhtar Alam, however, on 10.02.2022 pettoner disclosed his original name Akash Sharma and offence under Secton 419, 420 IPC was added. The Investgator claims to have complied with all the statutory requirements of the NDPS Act, 1985, and CrPC, 1973.

¶4The pettoner seeks bail on the ground of pre-trial custody of more than three years. The pettoner's counsel prays for bail by imposing any stringent conditons and contends that further pre-trial incarceraton would cause an irreversible injustce to the pettoner and his family.

¶5The State's counsel opposes bail and refers to the status report. order/judgment. 1

¶6It would be appropriate to refer to the following portons of the status report, which read as follows: "18. That the present pettoner was actvely involved in the present offence and was also found in conscious possession of contraband (Charas) weighing 13 kg 510 grams which is a commercial quantty as per the NDPS Act and hence the pettoner is not enttled to bail as per Secton 37 of NDPS Act.

¶19That keeping in view the fact that recovery of commercial quantty of contraband (Charas) from the conscious possession of the pettoner and further in view of peculiar circumstances of the case, there are no circumstances that may warrant the grant of regular bail to him. The present petton is devoid of any merits and hence is liable to be dismissed." REASONING:

¶7The quantty allegedly involved in this case is commercial. Given this, the rigors of S. 37 of the NDPS Act apply in the present case. The pettoner must satsfy the twin conditons put in place by the Legislature under Secton 37 of the NDPS Act.

¶8As per para 6 of the status report, the pettoner is in custody since 06.02.2022 in this FIR. As per the custody certficate dated 04.12.2024, the pettoner's custody in this FIR is two years, nine months and twenty four days.

¶9The prolonged incarceraton, generally militates against the most precious fundamental right guaranteed under Artcle 21 of the Consttuton and in such a situaton, the conditonal liberty must override the statutory embargo created under 1Secton 37(1)(b)(ii) of the NDPS Act .

¶10The pettoner is enttled to bail based on Dheeraj Kumar Shukla v. The State of U*ar Pradesh [SLP (Crl) 6690-2022], decided on 25 Jan 2023. Dheeraj Shukla would be a*racted when the three conditons are fulfilled,

(a). The custody of more than two years and six months and the delay was not a*ributable to the accused.

(b). The trial is at an inital stage.

(c) The pettoner is the first offender. 1 Supreme Court of India, in Rabi Prakash v. The State of Odisha, SLP (Crl) 4169-2023, Para 4, decided on 13 July 2023 order/judgment. 2

¶11Given the penal provisions invoked viz-a-viz pre-trial custody, coupled with the primafacie analysis of the nature of allegatons and the other factors peculiar to this case, there would be no justfiability for further pre-trial incarceraton at this stage.

¶12Without commentng on the case's merits, in the facts and circumstances peculiar to this case, and for the reasons mentoned above, the pettoner makes a case for bail. CONDITIONS:

¶13Given above, provided the pettoner is not required in any other case, the pettoner shall be released on bail in the FIR captoned above subject to furnishing bonds to the satsfacton of the concerned Court and due to unavailability before any nearest Ilaqa Magistrate/duty Magistrate. Before acceptng the surety, the concerned Court must be satsfied that if the accused fails to appear, such surety can produce the accused.

¶14While furnishing a personal bond, the pettoner shall menton the following personal identficaton details:

¶1AADHAR number

¶2Passport number (If available) and when the a*estng 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 pettoner's complying with the following terms.

¶16The pettoner shall abide by all statutory bond conditons and appear before the concerned Court(s) on all dates. The pettoner 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.

¶17Given the background of allegatons against the pettoner, it becomes paramount to protect the members of society, detecton staff and incapacitatng the accused would be one of the primary optons untl the filing of the closure report or discharge, or acqui*al. Consequently, it would be appropriate to restrict the possession of firearms. [This restricton 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 sancton]. Given the nature of order/judgment. 3 the allegatons and the other circumstances peculiar to this case, the pettoner shall surrender all weapons, firearms, and ammuniton, if any, along with the arms license to the concerned authority within fiPeen days of release from prison and inform the Investgator of the compliance. However, subject to the Indian Arms Act, 1959, the pettoner shall be enttled to renew and reclaim them in case of acqui*al in this case, provided otherwise permissible under the concerned rules. Restrictng firearms would instll confidence in the victm(s), their families, and society; it would also restrain the accused from influencing the witnesses and repeatng the offense.

¶18The conditons mentoned 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 Petton (Criminal) No 279 of 2022, Para 29, decided on July 20, 2022, A Three-Judge bench of Hon'ble Supreme Court holds that "The bail conditons imposed by the Court must not only have a nexus to the purpose that they seek to serve but must also be proportonal to the purpose of imposing them. The courts, while imposing bail conditons must balance the liberty of the accused and the necessity of a fair trial. While doing so, conditons that would result in the deprivaton of rights and libertes must be eschewed."

¶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 pettoner is found involved in such like offence in future, the concession of bail granted to him today will liable to be withdrawn and the pettoner is bound to face the necessary consequences."

¶20This bail is condi#onal, and the founda#onal condi#on is that if the pe##oner indulges in any non-bailable offense, the State shall file an applica#on for cancella#on of this bail before the Trial Court, which shall be at liberty to cancel this bail.

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

¶22The concerned trial court is authorized to delete, modify, or relax any of the above conditons and shall be competent to do so in accordance with the law.

¶23A certfied copy of this order would not be needed for furnishing bonds, and any Advocate for the Pettoner can download this order along with case status from the official web page of this Court and a*est it to be a true copy. If the a*estng officer wants to verify its authentcity, such an officer can also verify its authentcity and may order/judgment. 4 download and use the downloaded copy for a*estng bonds.

¶24Pe22on allowed in terms mentoned above. All pending applicatons, if any, stand disposed of. (ANOOP CHITKARA) JUDGE

28.02.2025 Jyot-II Whether reportable: No. order/judgment. 5

IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Reserved on: 19.02.2025 Pronounced on: 28.02.2025 Akash Sharma ...Pettoner Versus State of Haryana …Respondent CORAM: HON'BLE MR. JUSTICE ANOOP CHITKARA Present: Mr. Gaurav Sharma, Advocate, for the pettoner. Mr. Naveen Kumar Sheoran, DAG, Haryana. ****