Rakesh Alias Raka v. State of Haryana

ANOOP CHITKARA, J. FIR No. Dated Police Sta1on Sec1ons

28.06.2023 Sector

13/17, District Panipat 20 of NDPS Act (Sec on 29 of NDPS Act added later on)

¶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 14 of the bail applica on and para 7 of the status report dated

06.01.2025, the accused has the following criminal antecedents: Sr. No. FIR No. Date Offenses Police Sta on

1.

27.01.2022 20, 25 of NDPS Act Ganaur

2.

18.10.2022 323, 365, 384, 506, 201, 34 IPC Ganaur

3.

10.07.2016 20 of NDPS Act Ganaur

4.

21.12.2013 20 of NDPS Act Bhuntar, Kullu, Himachal Pradesh

¶3The facts and allega ons are taken from the reply filed by the State. On June 28, 2023, based on prior informa on, the Police seized 1.524 kg of charas from a car in which the pe

oner and two other persons were present. The pe

oner was the car's driver, and the recovery was from under the driver's seat. 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 refers to the bail pe

on and seeks bail on the ground of parity with co-accused Harpreet Singh, who was granted bail by a co-ordinate Bench of order/judgment. this Court on 29.09.2023 in CRM-M-48644-2023. He also seeks bail on the ground of parity with co-accused Sunny MiGal, who had granted bail by a co-ordinate Bench of this Court on 09.05.2024 passed in CRM-M-891 of 2024.

¶5However, it was explicitly argued by counsel for co-accused Harpreet Singh that he was not involved in any other case and recovery of charas was effected from Harpreet Singh, which is not in commercial quan!ty. Thus the pe!!oner is not en!tled to bail on the ground of parity with co-accused Harpreet Singh and arguments is mis-conceived.

¶6A perusal of the bail order of Sunny MiGal reveals that he was arrested based on the disclosure statement of co-accused -Gurtej Singh @ Guri and recovery was not effected from him, thus, pe!!oner is not en!tled to bail on the ground of parity with co-accused Sunny MiGal.

¶7The pe!!oner's counsel further 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.

¶8The State's counsel opposes bail and refers to the reply.

¶9Dealing in 1.524 kg of charas is a punishable offense under the NDPS Act in the following terms: Substance Name Charas Quan!ty detained 1.524 Kg Quan!ty type Commercial Drug Quantty in % to upper limit

152.40% 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 (i.e. equivalent to 0.1 Kg) Commercial Quan!ty 1000 Gram (i.e. equivalent to 1 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.20 & S.2(iii) NDPS Act, S.O.821(E) order/judgment. 2 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 ****** 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; Chemical Name (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, 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;

¶10The 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.

¶111Sec!on 37 of the NDPS Act mandates under sub-sec!on (1) (b) of sec!on 37 that no person accused of an offense punishable for offenses involving commercial

¶137Offences to be cognizable and non-bailable.—(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974),—

(a) every offence punishable under this Act shall be cognizable;

(b) no person accused of an offence punishable for offences under section 19 or section 24 or section 27A and also for offences involving commercial quantity shall be released on bail or on his own bond unless—

(i) the Public Prosecutor has been given an opportunity to oppose the application for such release, and (ii) where the Public Prosecutor opposes the application, the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail.

(2) The limitations on granting of bail specified in clause (b) of sub-section (1) are in addition to the limitations under the Code of Criminal Procedure, 1973 (2 of 1974) or any other law for the time being in order/judgment. 3 quan ty shall be released on bail unless- (i) the Public Prosecutor has been given an opportunity to oppose the applica on of release, and (ii) where the Public Prosecutor opposes the applica on, the Court is sa sfied that there are reasonable grounds for believing that accused is not guilty of such offense and is not likely to commit any offense while on bail. Thus, the rigors of S. 37 of the NDPS Act apply in the present case, and the burden is on the pe

oner to sa sfy the twin condi ons put in place by the Legislature under Sec on 37 of the NDPS Act. Given the legisla ve mandate of S. 37 of the NDPS Act, the Court can release a person accused of an offense punishable under the NDPS Act for possessing a commercial quan ty of contraband only aWer recording reasonable sa sfac on of its rigors.

¶12The State's Counsel argues that a plain reading of Sec on 37 reveals that the legislature intends to make the law stringent to curb the drug menace. It is further to be ced that the provisions are couched in nega ve language, meaning that to grant bail, the Court needs to record a finding that there are reasonable grounds for believing that the pe

oner is not guilty of the offense. The burden of proof is also on the pe

oner to sa sfy the Court about his non-involvement in the case. While interpre ng the provisions of Sec on 37 of the NDPS Act, the Court must be guided by the objec ve sought to be achieved by puYng these stringent condi ons.

¶13Sa sfying the feGers 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 exist, and the factors for bail become similar to the bail pe

ons under general penal statutes like IPC. 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 them 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 an offense and is not likely to commit any offense while on bail. If either of these 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 the accused is not guilty of the alleged offense. Even on fulfilling one of the condi ons, the reasonable grounds for believing that the accused is not guilty of such an offense, the Court s ll cannot give a finding on the assurance that the accused is not likely to commit any such crime again.

¶14The pe

oner's difficulty is the criminal antecedents of cases under the NDPS order/judgment. Act and similar offences.

¶15In Maulana Mohd Amir Rashadi v. State of U.P., (2012) 3 SCC 382, Hon'ble Supreme Court holds, [10] It is not in dispute and highlighted that the second respondent is a siYng Member of Parliament facing several criminal cases. It is also not in dispute that most of the cases ended in acquiGal for want of proper witnesses or pending trial. As observed by the High Court, merely on the basis of criminal antecedents, the claim of the second respondent cannot be rejected. In other words, it is the duty of the Court to find out the role of the accused in the case in which he has been charged and other circumstances such as possibility of fleeing away from the jurisdic!on of the Court etc.

¶16In Jogindro Bai v. State of Haryana, CRM-M-51218-2024, decided on 29.11.2024, Neutral Cita!on No. 2024:PHHC:162096, this Court observed, [17].Adjudica!ng a bail pe!!on of an accused with a prior criminal record places a significant and exac!ng responsibility on courts to exercise judicial discre!on in amanner that is both reasoned balanced to consider the countervailing impacts on thefreedom of an accused and that of society and free from arbitrariness, as arbitrariness isan!the!cal to the rule of law. As a natural corollary, considera!on of an accused'scriminal history should be limited to cases where convic!ons have been secured, including those resul!ng in suspended sentences, and all pending First Informa!on Reports (FIRs) in which the pe!!oner is formally arraigned as an accused. However, cases that culminated in acquiGals, discharges, quashed FIRs, withdrawals of prosecu!on, or the filing of closure reports by the inves!ga!ve authori!es must be excluded. [18]. Although the legal system upholds the principle that crime, not the individual, should be condemned, the contours of a playing field are marshy, and the graver the criminal history, the slushier the puddles, and a recidivist oWen operates on precarious ground, where the weight of a significant criminal record creates an increasingly challenging terrain. Nonetheless, where the offense for which bail is sought is minor, such that arrest is generally unwarranted, or bail would ordinarily be inevitable, courts must not deny bail solely as a puni!ve measure intended to serve as a pre-trial deterrent. Such an approach contravenes the judiciary's obliga!on to uphold the founda!onal principles of jus!ce and equity in bail proceedings. Another reason that dis-en!tles for bail is the criminal antecedents. Considering the bail pe!!on of an accused with a criminal history throws an onerous responsibility upon the courts to act judiciously and reasonably because arbitrariness is the an!thesis of law. The criminal history must be of cases where the accused was convicted, including the suspended sentences and all pending First Informa!on Reports, wherein the bail pe!!oner stands arraigned as an accused. In reckoning the number of cases as criminal history, the prosecu!on resul!ng in acquiGal or discharge, or when Courts quashed the FIR, the prosecu!on stands withdrawn, or the prosecu!on filed a closure report, cannot be included. Although crime is to be JYOTI despised and not criminal, for a recidivist, the contours of a playing order/judgment. 5 field are marshy, and the graver the criminal history, the slushier the puddles. If the pe!!oner is granted bail, he will likely re-indulge in the crime.

¶17In the light of the above, the pe!!oner's massive criminal history dis en!tles him from bail at this stage.

¶18The submissions made above and the grounds in the bail pe!!on do not shiW the burden the legislature places on the accused under S. 37 of the NDPS Act. The pe!!oner has not stated anything in the bail pe!!on to discharge the burden put by the stringent condi!ons placed in the statute by the legislature under sec!on 37 of the NDPS Act. The inves!ga!on reveals sufficient prima facie evidence to connect the pe!!oner with the crime; thus, the pe!!oner fails to make out a case for bail. Any detailed discussions about the evidence may prejudice the case of the pe!!oner, the State, or the other accused.

¶19Per the custody cer!ficate dated 10.01.2025, the pe!!oner's custody is 01 year, 06 months and 13 days, which cannot be considered prolonged.

¶20In Union of India (NCB) v. Khalil Uddin, decided on 21 Oct 2022, 2022 SCC OnLine SC 2109, Hon'ble Supreme Court holds, [4]. According to the prosecu!on, contraband material weighing about 13 kgs. of morphine was found in a motor vehicle which was driven by co-accused named Md. Jakir Hussain. During the course of inves!ga!on, it was found that the motor vehicle was recorded in the name of Md. Nizam Uddin who had executed a sale leGer and handed over the custody of the vehicle to accused Md. Abdul Hai and that accused Md. Jakir Hussain was the driver employed by accused Md. Abdul Hai and that contraband material in ques!on was to be handed over to accused-Khalil Uddin, an owner of a tea shop. [5]. The High Court by its order which is presently under challenge, directed release of both the accused as stated above on bail aWer they had undergone custody to the tune of about a year. Ques!oning grant of relief to said accused, the instant appeals have been preferred. [7]. What emerges from the record is that large quan!ty of contraband weighing about 13 kgs of morphine was found in a car which was driven by Md. Jakir Hussain. Whether the role played by said Md. Jakir Hussain could get connected with both the accused is a ques!on. [8]. The answer to said ques!on could be the statement recorded of Md. Nizam Uddin. The statement of Md. Jakir Hussain recorded under Sec!on 67 of the Act has also named his owner accused Abdul Hai. We are conscious of the fact that the validity and scope of such statements under Sec!on 67 has been pronounced upon JYOTI by this Court in Tofan Singh v. State of Tamil Nadu . In State by order/judgment. 6

(NCB) Bengaluru v. Pallulabid Ahmad Arimu/a , the rigour of law lay down by this Court in Tofan Singh was held to be applicable even at the stage of grant of bail. [9]. However, going by the circumstances on record, at this stage, on the strength of the statement of Md. Nizam Uddin, though allegedly retracted later, the maGer stands on a different foo!ng. In our considered view, in the face of the mandate of Sec!on 37 of the Act, the High Court could not and ought not to have released the accused on bail. We, therefore, allow these appeals, set aside the view taken by the High Court and direct that both the appellants be taken in custody forthwith. [10]. We have been given to understand that the charge-sheet has been filed. In the circumstances, we direct the Trial Court to take up the maGer and conclude the proceedings as early as possible and preferably within six months from the receipt of this order.

¶21In Narayan Takri v. State of Odisha, decided on 10 Sep 2024, SLP (Crl.) 8198-2024, Hon'ble Supreme Court holds, The pe!!oners are in custody since 28th May, 2022 for alleged commission of alleged offence under Sec!on 20(b)(ii)(c) of the Narco!c Drugs and Psychotropic Substances Act, 1985. As per the FIR allega!on, 125.3 kg. of "Ganja" was recovered from the pe!!oners. [3]. It is not in dispute that the trial has commenced and that three prosecu!on witnesses have been examined !ll date. [4]. Learned counsel for the pe!!oners submits that the third prosecu!on witness was examined as far back as on 28th January, 2024 and since then, no other prosecu!on witness has been examined. There is, however, no such averment in the pe!!on. [5]. Learned counsel appearing for the respondent submits that every endeavor shall be made on behalf of the prosecu!on to have all the witnesses examined by the end of this year. [6]. The trial court is encouraged to expedite the trial and give its decision as early as possible, in accordance with law. [7]. We, however, do not see any reason to interfere the impugned judgment and order at this stage; however, it is clarified that in the event the trial is not completed by the end of this year, the pe!!oners shall be at liberty to renew their prayer for bail before the trial court.

¶22A perusal of the bail pe!!on and the documents aGached 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.

¶23The pe!!oner's custody of around 01 year, 07 months cannot be termed prolonged, given the minimum sentence prescribed for the offense, which is ten years. JYOTI order/judgment. 7

¶24Any observa on made hereinabove is neither an expression of opinion on the case's merits nor shall the trial Court advert to these comments.

¶25Pe

on dismissed. All pending applica ons, if any, stand disposed of. (ANOOP CHITKARA) JUDGE

30.01.2025 Jyo -II order/judgment.

IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Reserved on: 13.01.2025 Pronounced on: 30.01.2025 Rakesh @ Raka ...Pe oner Versus State of Haryana …Respondent CORAM: HON'BLE MR. JUSTICE ANOOP CHITKARA Present: Mr. Vikas Gulia, Advocate for the pe oner. Mr. Aashish Bishnoi, D.A.G., Haryana. ****