Jagir @ Jangir v. State of Haryana

ANOOP CHITKARA, J. FIR No. Dated Police Sta1on Sec1ons 465 23.08.2024 Bhiwani Sadar, 20 (B) (II) (C) and 29 of NDPS Act Dis.. Bhiwani

¶1The pe!!oner apprehending arrest in the FIR cap!oned above has come up before this Court under Sec!on 482 of Bhara!ya Nagarik Suraksha Sanhita, 2023, [BNSS], seeking an!cipatory bail.

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

¶3The facts and allega!ons are taken from the status report filed by the State, which reads as follows: "2. That brief facts of the case are that on 23.08.2024 SI Rajesh Kumar alongwith other police officials was present at bus stand Mundhal on Rohtak-Hisar highway for crime preven)on, at that )me they received a secret informa)on that a pickup vehicle no.HR-67D-6785 and dezire car no. HR-51BP-5796 are parked near highway king dhaba and 8-10 persons are in those vehicle. Those persons are talking about Ganja in huge quan)ty in that pickup vehicle. There can be ganja in those two vehicles and if raid is conducted they can be apprehended with ganja pa6. No)ce under sec)on 42 NDPS was prepared and sent through CT Rakesh 1004 for JYOTI informa)on to higher officers and for registra)on of rapat in police sta)on order/judgment. 1 Sadar Bhiwani. When SI Rajesh Kumar reached at highway king dhaba alongwith other police officials, then 5-6 persons fled away from spot by taking benefit of dense dark from those two vehicles. SI Rajesh Kumar apprehended a person who was sea)ng on driver seat of pickup vehicle and HC Bijender Singh apprehended that person who was sea)ng on side seat of driver seat. HC Narender Kumar apprehended that person who was standing in back body of pickup vehicle. ASI Sunil Kumar apprehended that person who was sea)ng on conductor seat of dezire vehicle. That person who was apprehended by SI Rajesh Kumar disclosed his name Sandeep Kumar @ Sonu son of Prem Singh resident of Dhani Raipur, District Hisar, that person who was apprehended by HC Bijender Singh disclosed his name Anirudh son of Ombir, that person who was apprehended by HC Narender Kumar disclosed his name Sumit son of Pawan Kumar and that person who was apprehended by ASI Sunil Kumar disclosed his name Sonu son of Billu, then no)ce under sec)on 50 of NDPS act served upon them for their personal search and search of those two vehicles by gaze?ed officer. Naresh Kumar AEE/SDO TL HVPNL BHIWANI was contacted and he assured that he will arrive at the spot. ASI Sunil Kumar was directed to make the video. Sarpanch Harbir @Harshu son of Sher Singh resident of Mundhal Khurd was requested to join the inves)ga)on and as per request he joined the inves)ga)on. At about 3:15 AM above men)oned gaze?ed officer came at the spot and personal search of apprehended accused persons was conducted, nothing was recovered from their personal search, then search of pickup vehicle no. HR-67D-6785 was conducted and during search, bags of clothes, plas)c carats, plas)c bags and toys of children were found in pickup vehicle. The 121 packets of plas)c were found in plas)c carats, bags and bag of cloths and those plas)c packets were cut with the help of knife and ganja pa6 was recovered from those plas)c packets. During search three mobile phones were recovered from a bag which was kept in pickup vehicle, mobile phone marka VIVO of sky blue color belongs to accused Sandeep, mobile phone marka I phone of white color is belongs to accused Sonu and mobile phone marka Realme of blue colour is belongs to accused Sumit. One more phone of black color was recovered from cloth bag which was broken from rear side. All four phones were taken in possession vide memo. When measurement done of recovered contraband then weight of said contraband was found 442 Kg 890 Grams. All four accused persons could not produce any license or permit. The pickup vehicle number HR-67D-6785 was taken in possession. AEer this search of swiE desire vehicle no. HR-51BP-5796 was conducted and nothing was recovered from this vehicle. All apprehended accused persons disclosed at the spot that they procured recovered contraband from Ramesh son Hukam, present pe))oner, Dharmbir son of Nagraj and from their friends from Sampla area. Ramesh was sea)ng with them in pickup vehicle and Jangir was sea)ng in swiE vehicle alongwith his friends. They were in contact with each other through mobile phones. The present pe))oner informed about police barricading near Munahal and because of this informa)on they stayed there at highway king dhaba. The swiE vehicle was taken in possession vide memo. Copy of FIR is already annexed as Annexure P-1."

¶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 his family.

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

¶6It would be appropriate to refer to the following por!ons of the status report, which read as follows: "14. That during inves)ga)on on 07.10.2024, call details and CAF ID of mobile numbers 72065xxxxx of accused Sumit, 98125xxxxx of accused Sandeep, 98021xxxxx, 81685xxxxx of accused Shekhar and 8708xxxxx of accused Sonu were received.

¶18That during inves)ga)on 25.10.2024, call details and CAF ID alongwith cer)ficate under 63(4)C of BSA was received of mobile number 94164xxxx of accused Anirudh. On same day a le?er was sent to office of Superintendent of Police, Bhiwani for providing call detail, tower loca)on and CAF ID of mobile number 89305xxxxx of accused Ramesh from

15.09.2024 )ll that day.

¶21That during inves)ga)on on 15.11.2024, observa)on memo of call details of accused persons and the present pe))oner was prepared. According to call details mobile number 99960xxxxx is in name of present pe))oner. Mobile number 87089xxxxx is in name of accused Sonu. On

21.08.2024, the present pe))oner and accused Sonu contacted each other 23 )mes and on 22.08.2024 they contacted each other 10 )mes. On

22.08.2024 loca)on of mobile number of the present pe))oner and accused Sonu was at Rohtak from 6 AM to 7 AM and loca)on of their order/judgment. 3 mobile numbers was at Sampla from 9:31 PM to 9:50 PM, at that )me they were talking with each other through mobile phones. On 22.08.2024, loca)on of mobile number of the present pe))oner and accused Sonu was at Mundhal from 11:12 pm to 11:13 pm. The place of occurrence is also situated at Mundhal. Mobile number 70822xxxx is in name of accused Dharambir. According to record, on 21.08.2024 present pe))oner and accused Dharambir contacted each other 26 )mes and on 22.08.2024 present pe))oner and accused Dharambir contacted each other 9 )mes. On 22.08.2024, loca)on of mobile number of the present pe))oner and accused Dharambir was at Sector-6, Rohtak in morning and at Sampla from 7:31 pm to 9:35 pm, at that )me they were talking with each other on phone. Mobile number 70169xxxxx is in name of accused Ramesh. On

21.08.2024 present pe))oner and accused Ramesh contacted each other 21 )mes and on 22.08.2024 present pe))oner and accused Ramesh contracted each other 12 )mes. On 22.08.2024 loca)on of mobile numbers of the present pe))oner and accused Ramesh was at Rohtak in morning, at Sampla from 9:17 pm to 9:56 pm and at 11:05 pm at Singhwa Khas near Mundhal. Place of occurrence is also situated in Mundhal."

¶7The weight of the ganja recovered from the vehicle, where the pe!!oner was found present and in conversa!on with the other accused, was 442 kg and 890 grams.

¶8During inves!ga!on on 20.09.2024, report from RFSL Sunaria, Rohtak has been received and ganja was detected aDer examina!on of samples.

¶9Report is annexed herewith as Annexure R-2.

¶10Dealing in 442.890 kgs of ganja is a punishable offence under the NDPS Act in the following terms: Substance Name Ganja/ Bhang PaH Quan!ty detained 442.89 Kg Quan!ty type Commercial Drug Quan)ty in % to upper limit 2214.45% 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. 55 order/judgment. 4 Common Name (Name of Narco c Drug and Psychotropic Substance (Interna onal non-proprietary name (INN) Ganja Other non-proprietary name ****** Chemical Name ****** Small Quan ty 1000 Gram (i.e. equivalent to 1 Kg) Commercial Quan ty 20000 Gram (i.e. equivalent to 20 Kg) Declared as punishable under NDPS Act and as per schedule defined in S.2(xi) & 2(xxiii) NDPS Act, 1985 fica on No 2(iii)(b) NDPS Act, 1985, S.O.821(E) dated 11/14/1985 Sr. No. 2(iii)(b) 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)(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; 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, 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;

¶11The quan ty allegedly involved in this case is commercial. Given this, the rigors of S. 37 of the NDPS Act and the pe

oner must sa sfy the twin condi ons put in place by the Legislature under Sec on 37 of the NDPS Act.

¶12Given the above, the pe

oner has, prima facie, failed to sa sfy the condi ons of sec on 37 of the NDPS Act to make a case for bail.

¶13In 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 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 Court 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. [30]. From the summary of the law rela ng to rigors of S.37 of NDPS Act, while gran ng bail involving commercial quan

es, the following fundamental principles emerge:

(a). In case of inconsistency, S. 37 of the NDPS Act prevails over S. 439 CrPC. [Narco cs Control Bureau v Kishan Lal, 1991

(1) SCC 705, Para 6].

(b). The limita ons on gran ng of bail come in only when the ques on of gran ng bail arises on merits. [Customs, New Delhi v. AhmadalievaNodira, (2004) 3 SCC 549, Para 7].

(c). The provisions of Sec on 37 of the NDPS Act provide the legal norms which have to be applied in determining whether a case for grant of bail has been made out. [UOI v. Prateek Shukla, 2021:INSC:165 [Para 11], (2021) 5 SCC 430, Para 12].

(d). In case the Court proposes to grant bail, two condi ons are to be mandatorily sa sfied in addi on to the standard requirements under the provisions of the CrPC or any other enactment. [Union of India v. Niyazuddin SK &Anr, 2017:INSC:686 [Para 7], (2018) 13 SCC 738, Para 7].

(e). Apart from gran ng opportunity to the Public Prosecutor, the other twin condi ons which really have relevance are the Court's sa sfac on that there are reasonable grounds for believing that the accused is not guilty of the alleged offence. [N.R. Mon v. Md. Nasimuddin, (2008) 6 SCC 721, Para 9].

(f). The sa sfac on contemplated regarding the accused being not guilty has to be more than prima facie grounds, considering substan al probable causes for believing and jus fying that the accused is not guilty of the alleged offence. [Customs, New Delhi v. Ahmadalieva Nodira, (2004) 3 SCC 549, Para 7].

(g). The reasonable belief contemplated in the provision requires existence of such facts and circumstances as are sufficient in themselves to jus fy sa sfac on that the accused is not guilty of the alleged offence. [State of Kerala v. Rajesh, 2020:INSC:88 [Para 21], AIR 2020 SC 721, Para 21].

(h). Twin condi ons of S. 37 are cumula ve and not alterna ve. [Customs, New Delhi v. Ahmadalieva Nodira, (2004) 3 SCC 549, Para 7].

(i). At the bail stage, it is neither necessary nor desirable to weigh the evidence me culously to arrive at a posi ve finding as to whether or not the accused has commi.ed an offence under the NDPS Act and further that he is not likely to commit an offence under the said Act while on bail. [Union of India v. Ra.an Mallik @ Habul, (2009) 2 SCC 624, Para 14].

(j). If the statements of the prosecu on witnesses are believed, then they would not result in a convic on. [Babua v. State of Orissa, (2001) 2 SCC 566, Para 3].

(k). Merely recording the submissions of the par es does not amount to an indica on of a judicial mind or a judicious applica on of mind. [UOI v. Prateek Shukla, 2021:INSC:165 [Para 11], (2021) 5 SCC 430, Para 12].

(l). Sec on 37 departs from the long-established principle of presump on of innocence in favour of an accused person un l proved otherwise. [Union of India v. Sanjeev v. Deshpande,

(2014) 13 SCC 1, Para 5].

(m). While considering the applica on for bail concerning Sec on 37, the Court is not called upon to record a finding of not guilty. [Union of India v. Shiv Shanker Kesari, (2007) 7 SCC 798, Para 11].

(n). The confessional statement recorded under Sec on 67 of the NDPS Act is inadmissible in the trial of an offence under the NDPS Act. [Tofan Singh v. State of Tamil Nadu, 2020:INSC:620,

(2021) 4 SCC 1]

(o). In the absence of clarity on the quan ta ve analysis of the samples from the laboratory, the prosecu on cannot be heard to state at this preliminary stage that the accused possessed a commercial quan ty of psychotropic substances as contemplated under the NDPS Act. [Bharat Chaudhary v. Union of India 2021:INSC:877 [Para 11], 2021 SCC OnLine SC 1235, Para 10].

(p). When there is evidence of conscious possession of commercial quan ty of psychotropic substances, such accused is not en tled to bail given Sec on 37 of the Act as contemplated under the NDPS Act. [State by (NCB) Bengaluru v. Pallulabid Ahmad Arimu.a, 2022:INSC:26 [Para 11], 2022 SCC OnLine SC 47, Para 12].

(p). Bail must be subject to stringent condi ons. [Sujit Tiwari v. State of Gujarat, 2020:INSC:101 [Para 12], 2020 SCC Online SC 84, Para 12]. [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.

¶14There is sufficient digital evidence indica!ng the pe!!oner's presence with the co-accused near the vehicle from which the massive quan!ty of ganja was recovered.

¶15A perusal of the bail pe!!on and the documents a.ached primafacie points towards the pe!!oner's involvement and does not make out a case for bail. The impact of crime would also not jus!fy bail. Any further discussions will likely prejudice the pe!!oner; this court refrains from doing so.

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

¶17Pe11on dismissed. All pending applica!ons, if any, are disposed of. (ANOOP CHITKARA) JUDGE

19.12.2024 Jyo!-II Whether reportable: No. order/judgment. 8

IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Reserved on: 12.12.2024 Pronounced on: 19.12.2024 Jagir @ Jangir ...Pe!!oner Versus State of Haryana …Respondent CORAM: HON'BLE MR. JUSTICE ANOOP CHITKARA Present: Mr. P.S. Sekhon, Advocate, for the pe!!oner. Mr. Aashish Bishnoi, DAG, Haryana. ****