Krishna Saw v. State of Haryana

ANOOP CHITKARA, J. FIR No. Dated Police Sta1on Sec1ons 44 30.01.2024 Shamalkha, Dis,. Panipat 18, 27 and 29 of the NDPS Act

¶1The pe!!oner incarcerated in the FIR cap!oned above had come up before this Court under Sec!on 439 CrPC, seeking regular bail.

¶2In paragraph 10 of the bail pe!!on, the accused declares that he has no criminal antecedents. However, as per the status report/custody cer!ficate, the accused has the following criminal antecedents: Sr. No. FIR No. Year Offenses Police Sta1on

¶150 201 302, 24 IPC Bashisth Nagar, Chatra, 5 Jharkhand

¶239 201 147, 148, 149, 452, 354, 379 Bashisth Nagar, Chatra, 0 IPC and 3/4 SC/ST Act Jharkhand

¶3The facts and allega!ons are taken from the status report filed by the State. On Jan 30, 2024, based on secret informa!on, the Police seized 5 kgs and 140 grams of opium from the possession of the main accused, Surender Prashad Verma. The Inves!gator claims to have complied with all the statutory requirements of the NDPS JYOTI Act, 1985, and CrPC, 1973. order/judgment. 1

¶4During the custodial interroga!on of the accused, Surender Prashad, he disclosed that the pe!!oner, Krishna Saw, and another person named Deepak were the sellers and suppliers of the drugs. Based on the disclosure statement, the police arraigned the pe!!oner as an accused by incorpora!ng S. 29 of the NDPS Act.

¶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 shall be appropriate to refer to para 2(iv) of the status report, which reads as follows: "2 (iv) That on 02/02/2024 case property parcels were deposited with FSL Madhuban vide RC No. 13 dated 02.02.2024 for examina)on. FSL report has been received in this case with the opinion that sample was iden)fied as opium containing 5.6% (w/w) Morphine. FSL report is annexed as R-3."

¶8Dealing in 5.140 kg of opium is a punishable offense under the NDPS Act in the following terms: Substance Name "Opium" Quan!ty detained 5.14 Kg Quan!ty type Commercial Drug Quan)ty in % to upper limit

205.60% 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. 92 Common Name (Name of Narco!c Drug and Psychotropic Substance Opium (Interna!onal non-proprietary name (INN) Other non-proprietary name ****** Chemical Name And any prepara!on containing opium Small Quan!ty 25 Gram (i.e. equivalent to 0.025 Kg) Commercial Quan!ty 2500 Gram (i.e. equivalent to 2.5 Kg) 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.18 & S.2(xv) NDPS Act, S.O.821(E) Dated 11/14/1985 Sr. No. S.2(xv) order/judgment. 2 Common Name (Name of Narco!c Drug and Psychotropic Substance ****** (Interna!onal non-proprietary name (INN) Other non-proprietary name ****** S.2(xv) "opium" means—

(a) the coagulated juice of the opium poppy; and

(b) any mixture, with or without any neutral material, of the coagulated juice of the opium poppy, but does not include any prepara!on containing not more than 0.2 per cent. of morphine; S.2 (xvii) "opium poppy" means—

(a) the plant of the species Papaver somniferum L; and

(b) the plant of any other species of Papaver from which opium or any phenanthrene alkaloid can be extracted and which the Central Government may, by no!fica!on in the Official Gaze,e, declare to be opium poppy for the purposes of this Act; Explana!on.-- For the purposes of clauses (v) (vi), (xv) and (xvi) the Chemical Name percentages in the case of liquid prepara!ons shall be calculated on the basis that a prepara!on containing one per cent. of a substance means a prepara!on in which one gram of substance, if solid, or one mililitre of substance, if liquid, is contained in every one hundred mililitre of the prepara!on and so on in propor!on for any greater or less percentage: Provided that the Central Government may, having regard to the developments in the field of methods of calcula!ng percentages in liquid prepara!ons prescribed, by rules, any other basis which it may deem appropriate for such calcula!on.

¶9The quan!ty allegedly involved in this case is commercial. Given this, the rigors of S. 37 of the NDPS Act apply in the present case. The pe!!oner must sa!sfy the twin condi!ons put in place by the Legislature under Sec!on 37 of the NDPS Act.

¶10In Abida v. State of Haryana, 2022:PHHC:058722, [Para 10], CRM-M-5077-2022, decided on 13-05-2022, this court observed as follows: [10]. Thus, both the twin condi!ons need to be sa!sfied before a person accused of possessing a commercial quan!ty of drugs or psychotropic substance is to be released on bail. The first condi!on is to provide an opportunity to the Public Prosecutor, enabling to take a stand on the bail applica!on. The second s!pula!on is that the CourtJYOTI order/judgment. 3 must be sa!sfied that reasonable grounds exist for believing that the accused is not guilty of such offence, and is not likely to commit any offence while on bail. If either of these two condi!ons is not met, the ban on gran!ng bail operates. The expression "reasonable grounds" means something more than prima facie grounds. It contemplates substan!al probable causes for believing that the accused is not guilty of the alleged offence. Even on fulfilling one of the condi!ons, the reasonable grounds for believing that the accused is not guilty of such an offence, the Court s!ll cannot give a finding on assurance that the accused is not likely to commit any such crime again. Thus, the grant of bail or denial of bail for possessing commercial quan!ty would vary from case to case, depending upon its facts. [31]. Sa!sfying the fe,ers of S. 37 of the NDPS Act is candling the infer!le eggs. The stringent condi!ons of sec!on 37 placed in the statute by the legislature do not create a bar for bail for specified categories, including the commercial quan!ty; however, it creates hurdles by placing a reverse burden on the accused, and once crossed, the rigors no more subsist, and the factors for bail become similar to the bail pe!!ons under general penal statutes like IPC.

¶11It would be appropriate to refer to the evidence collected against the pe!!on, which is taken from the reply, which reads as follows: "2. (v) That on 05/02/2024, the pe))oner was arrested by IO/ASI Randeep No. 158 and on interroga)on he suffered a disclosure statement admi<ng therein the manner in which he remain involved in the crime and in pursuance thereof he has got effected the recovery of Rs.5,600/- gained by him by selling recovered narco)c substance Accordingly, Sec)on 29 of NDPS Act was added in the present case as per the nature of crime. vi. That the role of the pe))oner in the crime is that the pe))oner is involved in the work of sale of opium as the opium is available on cheap rate in his residen)al area The pe))oner know co-accused Surender Prasad Verma and he used to buy opium from the pe))oner at the rate of Rs. 70,000/- per KG Some days ago, co-accused Surender Prasad Verma has purchased 2 KG opium in Rs. 1,40,000/- by paying Rs. 25,000/- cash to the pe))oner and remaining amount had to be paid by co-accused Surender Prasad Sharma by selling opium and the pe))oner used to meet to him at Bijnore UP. His disclosure statement is annexed R-4."

¶12Thus, the evidence collected so far consists of disclosure statements without any discovery of fact.

¶13In Tofan Singh v. State of Tamil Nadu, (2021) 4 SCC 1, the majority view of a three-member bench holds as follows: We answer the reference by sta!ng: order/judgment. 4

(i) That the officers who are invested with powers under sec!on 53 of the NDPS Act are "police officers" within the meaning of sec!on 25 of the Evidence Act, as a result of which any confessional statement made to them would be barred under the provisions of sec!on 25 of the Evidence Act, and cannot be taken into account in order to convict an accused under the NDPS Act.

(ii) That a statement recorded under sec!on 67 of the NDPS Act cannot be used as a confessional statement in the trial of an offence under the NDPS Act.

¶14The 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. Consequently, the pe!!oner has sa!sfied the first rider of sec!on 37 of the NDPS Act. Regarding the second rider of S. 37, this court will put very stringent condi!ons in this order to ensure that the pe!!oner does not repeat the offense.

¶15For now, the pe!!oner has prima facie sa!sfied the first condi!on of sec!on 37 of the NDPS Act to make a case for bail. Regarding the second rider of S. 37, this court will put very stringent condi!ons in this order to ensure that the pe!!oner does not repeat the offense.

¶16As per paragraph 7 of the bail pe!!on, the pe!!oner has been in custody since

06.02.2024. As per the custody cer!ficate dated 29.11.2024, the pe!!oner's total custody in this FIR is ten months. 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.

¶17The inves!ga!on indicates that the pe!!oner is not the main accused, so the pe!!oner's bail shall not be treated as a precedent for gran!ng bail to the other co-accused with a higher role.

¶18Without 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 this Court's official webpage.

¶19Given 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 anyJYOTI order/judgment. 5 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.

¶20While 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 a,es!ng officer/court considers it appropriate or considers the accused a flight risk.

¶3Mobile number (If available)

¶4E-Mail id (If available)

¶21This order is subject to the pe!!oner's complying with the following terms.

¶22The 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.

¶23Given 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 acqui,al. 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, and ammuni!on, if any, along with the arms license to the concerned authority within fiVeen 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 acqui,al 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 offense.

¶24The condi!ons men!oned above imposed by this court are to endeavor to reform and ensure the accused does not repeat the offense and also to block the order/judgment. 6 menace of drug abuse. In Mohammed Zubair v. State of NCT of Delhi, 2022:INSC:735 [Para 28], Writ Pe!!on (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 condi!ons imposed by the Court must not only have a nexus to the purpose that they seek to serve but must also be propor!onal to the purpose of imposing them. The courts, while imposing bail condi!ons must balance the liberty of the accused and the necessity of a fair trial. While doing so, condi!ons that would result in the depriva!on of rights and liber!es must be eschewed."

¶25In 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."

¶26This bail is condi!onal, and the founda!onal condi!on is that if the pe!!oner 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.

¶27Any observa!on made hereinabove is neither an expression of opinion on the case's merits nor shall the trial Court advert to these comments.

¶28A 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 a,est it to be a true copy. If the a,es!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 a,es!ng bonds.

¶29Pe11on allowed in terms men!oned above. All pending applica!ons, if any, stand disposed of. (ANOOP CHITKARA) JUDGE

17.12.2024 Jyo1-II Whether reportable: No. order/judgment. 7

IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Reserved on: 02.12.2024 Pronounced on: 17.12.2024 Krishna Saw ...Pe!!oner Versus State of Haryana …Respondent CORAM: HON'BLE MR. JUSTICE ANOOP CHITKARA Present: Mr. Akshay Kumar Dahiya, Advocate and Mr. Deepak Dahiya, Advocate, for the pe!!oner. Mr. Rajat Gautam, Addl. A.G. Haryana. ****