Santosh Alias Pagla v. State of Haryana

ANOOP CHITKARA, J. FIR No. Dated Police Sta.on Sec.ons 003 01.01.2024 Chandimandir, 20 & 29 of NDPS Act District Panchkula

¶1The pettoner incarcerated in the FIR captoned above had come up before this Court under Secton 483 of Bharatya Nagarik Suraksha Sanhita, 2023, [BNSS], seeking regular bail.

¶2In the bail applicaton, the pettoner is silent about criminal antecedents. However, as per para 9 of the status report, the accused has the following criminal antecedents: Sr. No. FIR No. Year Offenses Police Sta.on

¶1375 2019 20 of NDPS Act Derabassi, Mohali, Pb.

¶263 2022 20 of NDPS Act Derabassi, Mohali, Pb.

¶3568 2022 20 of NDPS Act Derabassi, Mohali, Pb.

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

01.01.2024, based on prior informaton, the Police seized 21 Kg 300 grams ganja from the pettoner's possession. The Investgator claims to have complied with all the statutory requirements of the NDPS Act, 1985, and CrPC, 1973.

¶4The pettoner's counsel refers to the bail petton. It would be relevant to refer to para 5 of the bail petton, which reads as follows: "5. That the pettoner has been falsely implicated in the present case on secret informaton and as per the instructons of the pettoner the JYOTI recovered ganja along with the plastc bag having the total weight of order/judgment. 1 which was 21 Kg 300 Grams recovery has been a#ributed towards the present pettoner and the pettoner has been falsely implicated by the police officials as the reasons be#er known to them."

¶5The 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.

¶6The State's counsel opposes bail and refers to the status report. It would be appropriate to refer para 10 of the status report, which reads as follows: "10. That the recovered Ganja weighing 21 Kg 300 Gm which was recovered from the possession of the pettoner on 01.01.2024 without any permit or license to keep the same in his possession. As per the Notficaton dated 19.10.2001, the small quantty of Ganja is 01 Kg and the commercial quantty is 20 Kg. In other words, the applicant/accused Santosh Kumar @Pagla was found in possession of Ganja exceeding the commercial quantty without any permit or license to keep the same." 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.

¶18Secton 37 of the NDPS Act mandates under sub-secton (1) (b) of secton 37 that no person accused of an offense punishable for offenses involving commercial quantty shall be released on bail unless- (i) the Public Prosecutor has been given an opportunity to oppose the applicaton of release, and (ii) where the Public Prosecutor opposes the applicaton, the Court is satsfied 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 pettoner to satsfy the twin conditons put in place by the Legislature under Secton 37 of the NDPS Act. Given the legislatve mandate of S. 37 of 1 37. Offences 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. 2 the NDPS Act, the Court can release a person accused of an offense punishable under the NDPS Act for possessing a commercial quantty of contraband only aHer recording reasonable satsfacton of its rigors.

¶9The State's Counsel argues that a plain reading of Secton 37 reveals that the legislature intends to make the law stringent to curb the drug menace. It is further to be notced that the provisions are couched in negatve language, meaning that to grant bail, the Court needs to record a finding that there are reasonable grounds for believing that the pettoner is not guilty of the offense. The burden of proof is also on the pettoner to satsfy the Court about his non-involvement in the case. While interpretng the provisions of Secton 37 of the NDPS Act, the Court must be guided by the objectve sought to be achieved by puJng these stringent conditons.

¶10Satsfying the feKers of S. 37 of the NDPS Act is candling the infertle eggs. The stringent conditons of secton 37 placed in the statute by the legislature do not create a bar for bail for specified categories, including the commercial quantty; 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 pettons under general penal statutes like IPC. Thus, both the twin conditons need to be satsfied before a person accused of possessing a commercial quantty of drugs or psychotropic substance is to be released on bail. The first conditon is to provide an opportunity to the Public Prosecutor, enabling them to take a stand on the bail applicaton. The second stpulaton is that the Court must be satsfied 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 conditons is not met, the ban on grantng bail operates. The expression "reasonable grounds" means something more than prima facie grounds. It contemplates substantal probable causes for believing the accused is not guilty of the alleged offense. Even on fulfilling one of the conditons, the reasonable grounds for believing that the accused is not guilty of such an offense, the Court stll cannot give a finding on the assurance that the accused is not likely to commit any such crime again.

¶11The pettoner's arguments did not point toward any material contradictons and S. 42 was complied with.

¶12The submissions made above and the grounds in the bail petton do not shiH the burden the legislature places on the accused under S. 37 of the NDPS Act. The pettoner has not stated anything in the bail petton to discharge the burden put by the stringent conditons placed in the statute by the legislature under secton 37 of the NDPS Act. The investgaton reveals sufficient prima facie evidence to connect the pettoner with the order/judgment. 3 crime; thus, the pettoner fails to make out a case for bail. Any detailed discussions about the evidence may prejudice the case of the pettoner, the State, or the other accused.

¶13As per the custody certficate dated 10.02.2025, the pettoner's custody is around eleven months, which cannot be considered prolonged.

¶14In Union of India (NCB) v. Khalil Uddin, decided on 21 Oct 2022, 2022 SCC OnLine SC 2019, Hon'ble Supreme Court holds, [4]. According to the prosecuton, 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 investgaton, it was found that the motor vehicle was recorded in the name of Md. Nizam Uddin who had executed a sale leKer 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 queston 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 aHer they had undergone custody to the tune of about a year. Questoning grant of relief to said accused, the instant appeals have been preferred. [7]. What emerges from the record is that large quantty 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 queston. [8]. The answer to said queston could be the statement recorded of Md. Nizam Uddin. The statement of Md. Jakir Hussain recorded under Secton 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 Secton 67 has been pronounced upon by this Court in Tofan Singh v. State of Tamil Nadu . In State by

(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 maKer stands on a different footng. In our considered view, in the face of the mandate of Secton 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 order/judgment. 4 up the maKer and conclude the proceedings as early as possible and preferably within six months from the receipt of this order.

¶15In Narayan Takri v. State of Odisha, decided on 10 Sep 2024, SLP (Crl.) 8198-2024, Hon'ble Supreme Court holds, The pettoners are in custody since 28th May, 2022 for alleged commission of alleged offence under Secton 20(b)(ii)(c) of the Narcotc Drugs and Psychotropic Substances Act, 1985. As per the FIR allegaton, 125.3 kg. of "Ganja" was recovered from the pettoners. [3]. It is not in dispute that the trial has commenced and that three prosecuton witnesses have been examined tll date. [4]. Learned counsel for the pettoners submits that the third prosecuton witness was examined as far back as on 28th January, 2024 and since then, no other prosecuton witness has been examined. There is, however, no such averment in the petton. [5]. Learned counsel appearing for the respondent submits that every endeavor shall be made on behalf of the prosecuton 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 pettoners shall be at liberty to renew their prayer for bail before the trial court.

¶16A perusal of the bail petton and the documents aKached primafacie points towards the pettoner's involvement and does not make out a case for bail. The impact of crime would also not justfy bail. Any further discussions will likely prejudice the pettoner; this court refrains from doing so.

¶17The pettoner's custody of around eleven months cannot be termed prolonged, given the minimum sentence prescribed for the offense

¶18Any observaton made hereinabove is neither an expression of opinion on the case's merits nor shall the trial Court advert to these comments.

¶19Pe..on dismissed. All pending applicatons, if any, stand disposed of. (ANOOP CHITKARA) JUDGE

17.02.2025 Jyot-II Whether reportable: No. order/judgment. 5

246 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Date of Decision: 17.02.2025 Santosh Kumar @ Pagla ...Pettoner Versus State of Haryana …Respondent CORAM: HON'BLE MR. JUSTICE ANOOP CHITKARA Present: Ms. Garima Sharma, Advocate, for the pettoner. Mr. Aashish Bishnoi, DAG, Haryana. ****