Ajay Kumar v. State of Haryana

ANOOP CHITKARA, J.

FIR No. Dated Police Station Sections

27.11.2024 Sadar Sirsa, District Sirsa 21-B of NDPS Act

¶1The petitioner apprehending arrest in the FIR captioned above has come up before this Court under Section 482 of Bharatiya Nagarik Suraksha Sanhita, 2023, [BNSS], seeking anticipatory bail.

¶2As per paragraph 13 of the bail petition as well as para 12 of the reply, the accused has the following criminal antecedents:

Sr. No. FIR No. Date Offenses Police Station 2019 204, 506 IPC --

17.08.2019 21/61/85 of NDPS Act Sadar Sirsa

14.06.2021 21/61/85 of NDPS Act Sadar /sursa

29.03.2024 21B/61/85 of NDPS Act Sadar Sirsa

02.01.2019 21/61/85 of NDPS Act Bahadurgarh

02.12.2021 21/61/85 of NDPS Act Civil Lines, Sirsa

19.10.2022 25/54/59 of Arms Act Civil Lines Sirsa

31.03.2023 25/54/59 of Arms Act Sadar Sirsa

21.08.2021 160 IPC Civil Lines, Sirsa

25.06.2021 504/506 IPC Sadar Sirsa

¶3The facts and allegations are taken from the reply filed by the State. On Nov 27, 2024, based on chance recovery, the Police seized 6.47 grams of heroin from the personal possession of co-accused Rahul. Another co-accused named Pritam, who was with Rahul on the bike, was also arrested. The Investigator claims to have complied with all the statutory requirements of the NDPS Act, 1985, and CrPC, 1973.

¶4During custodial interrogation, the main accused, Rahul, and the co-accused, Pritam, confessed before the Police officer that they had purchased the drugs from the petitioner. Based on such confessions before the police, the petitioner was arraigned as an accused. Apprehending his arrest, he filed for anticipatory bail from the Sessions Court, which denied him bail. Feeling aggrieved, he has invoked the concurrent jurisdiction of this Court under S. 482 BNSS, 2023.

¶5The petitioner's counsel prays for bail by imposing any stringent conditions and contends that further pre-trial incarceration would cause an irreversible injustice to the petitioner and their family.

¶6The State's counsel opposes bail and refers to the reply.

¶7It would be appropriate to refer to the following portions of the reply, which read as follows: "8.That during the course of investigation, Bank statement of Account ID no. 112100700036378 in the name of Suman wife of Rahul (accused in this case) was obtained and from the perusal of statement of Suman wife of Accused-Rahul, an amount of Rs.5500/- also found transferred through UPI transactions at the mobile No.85291-61129(in the name of present petitioner-Ajay).Copy of account statement of "Suman wife of Rahul is attached as Annexure R-1.

¶9That it is also submitted that the statement of Account no.38559048446 maintained with State Bank of India, Branch at Sadar Bazar, Sirsa in the name of the petitioner(Ajay) was also obtained and from the perusal of account statement of present petitioner, found and confirm the transfer/entry of Rs.5500/- from the account of Suman wife of Rahulin the account of the petitioner. As such the petitioner is found connected with the principal accused Rahul & Prtiam and he is involved as supplier of the contraband recovered in this case. Copy of the Bank account statement of the petitioner is attached as Annexure R-2."

¶8Dealing in 6.47 grams of heroin is a punishable offense under the NDPS Act in the following terms: Substance Name Heroin/ Chitta/ Smack/ Brown Sugar Quantity detained

6.47 Gram Quantity type Intermediate Drug Quantity in % to upper limit of Intermediate

2.59% Specified as small & Commercial in S.2(viia) & 2(xxiiia) NDPS Act, 1985 Notification No S.O.1055(E) dated 10/19/2001

Sr. No. Common Name (Name of Narcotic Drug and Psychotropic Substance (International non-proprietary name (INN) Heroin Other non-proprietary name ****** Chemical Name Diacetylmorphine Small Quantity 5 Gram Commercial Quantity 250 Gram Declared as punishable under NDPS Act and as per schedule defined in S.2(xi) & 2(xxiii) NDPS Act, 1985 Notification No S.(xvi)(d) NDPS Act, 1985 (61 of 1985), S.O. 821 (E) dated 11/14/1985 Sr. No. 2(xvi)(d) Common Name (Name of Narcotic Drug and Psychotropic Substance (International non-proprietary name (INN) ****** Other non-proprietary name ****** Chemical Name 2(xvi)(d) diacetylmorphine, that is, the alkaloid also known as dia-morphine or heroin and its salts;

Explanation.-- For the purposes of clauses (v) (vi), (xv) and (xvi) the percentages in the case of liquid preparations shall be calculated on the basis that a preparation containing one per cent. of a substance means a preparation in which one gram of substance, if solid, or one mililitre of substance, if liquid, is contained in every one hundred mililitre of the preparation and so on in proportion for any greater or less percentage:

Provided that the Central Government may, having regard to the developments in the field of methods of calculating percentages in liquid preparations prescribed, by rules, any other basis which it may deem appropriate for such calculation.

¶9Given this, the rigors of S. 37 of the NDPS Act do not apply in the present case.

¶10Section 2 (vii-a) of the NDPS Act defines commercial quantity as greater than the quantity specified in the schedule. Section 2 (xxiii-a) defines a small quantity as a quantity less than the quantity specified in the table of the NDPS Act. The remaining quantity falls in an undefined category, generally called an intermediate quantity. All sections in the NDPS Act specify an offence and mention the minimum and maximum

sentence, depending upon the quantity of the substance. The commercial quantity mandates a minimum sentence of ten years of imprisonment and a minimum fine of Rupees One hundred thousand, and bail is subject to the riders mandated in S. 37 of the NDPS Act. When the quantity is less than commercial, the restrictions of Section 37 of the NDPS Act will not attract, and the factors for bail become similar to the offence regular statutes.

¶11Given the quantity involved and the quality of evidence, even the petitioner's criminal history will be a reason to deny him bail; however, it is subject to the condition that if the petitioner is again found dealing in drugs, then the present bail might be recalled.

¶12Pre-trial incarceration should not be a replica of post-conviction sentencing. The evidence might be prima facie sufficient to launch prosecution or to frame charges, but this Court is not considering the evidence at that stage but is analyzing it for the stage of anticipatory bail. An analysis of the above does not justify custodial interrogation or pre-trial incarceration.

¶13Given the above, the penal provisions invoked coupled with the primafacie analysis of the nature of allegations and the other factors peculiar to this case, there would be no justifiability for custodial interrogation or the pre-trial incarceration at this stage. Without commenting on the case's merits, in the facts and circumstances peculiar to this case, and for the reasons mentioned above, the petitioner makes a case for anticipatory bail.

¶14Given above, provided the petitioner is not required in any other case, the petitioner shall be released on bail in the FIR captioned above subject to furnishing bonds to the satisfaction of the Arresting Officer, and if the matter is before a Court, then the concerned Court and due to unavailability before any nearest Ilaqa Magistrate/duty Magistrate. Before accepting the surety, the concerned Officer/Court must be satisfied that if the accused fails to appear, such surety can produce the accused.

¶15While furnishing a personal bond, the petitioner shall mention the following personal identification details:

¶1AADHAR number

¶2Passport number (If available) and when the attesting officer/court considers it appropriate or considers the accused a flight risk.

¶3Mobile number (If available)

¶4E-Mail id (If available)

¶16The petitioner is directed to join the investigation within seven days of uploading this order on the official webpage of the High Court of Punjab and Haryana and as and when called by the Investigator. The petitioner shall be in deemed custody for Section 27

of the Indian Evidence Act, 1872/ Section 23 of BSA, 2023. The petitioner shall join the investigation as and when called by the Investigating Officer or any Superior Officer and shall cooperate with the investigation at all further stages as required. In the event of failure to do so, the prosecution will be open to seeking cancellation of the bail. During the investigation, the petitioner shall not be subjected to third-degree, indecent language, inhuman treatment, etc.

¶17The petitioner shall abide by all statutory bond conditions and appear before the concerned Court(s) on all dates. The petitioner 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.

¶18Given the background of allegations against the petitioner, it becomes paramount to protect the members of society, and incapacitating the accused would be one of the primary options until the filing of the closure report or discharge, or acquittal. Consequently, it would be appropriate to restrict the possession of firearms. [This restriction 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 sanction]. Given the nature of the allegations and the other circumstances peculiar to this case, the petitioner shall surrender all weapons, firearms, and ammunition, if any, along with the arms license to the concerned authority within fifteen days of release from prison and inform the Investigator of the compliance. However, subject to the Indian Arms Act, 1959, the petitioner shall be entitled to renew and reclaim them in case of acquittal in this case, provided otherwise permissible under the concerned rules. Restricting firearms would instill confidence in the victim(s), their families, and society; it would also restrain the accused from influencing the witnesses and repeating the offense.

¶19In case the Investigator/Officer-In-Charge of the concerned Police Station arraigns another section of any penal offense in this FIR, and if the new section prescribes a maximum sentence that is not greater than the sections mentioned above, then this bail order shall be deemed to have also been passed for the newly added section(s). However, suppose the newly inserted sections prescribe a sentence exceeding the maximum sentence prescribed in the sections mentioned above; then, in that case, the Investigator/Officer-In-Charge shall give the petitioner notice of a minimum of seven days, providing an opportunity to avail the remedies available in law.

¶20In 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 petitioner is found involved in such like offence in future, the concession of bail

granted to him today will liable to be withdrawn and the petitioner is bound to face the necessary consequences."

¶21This bail is conditional, and the foundational condition is that if the petitioner indulges in any non-bailable offense, the State may file an application for cancellation of this bail before the Sessions Court, which shall be at liberty to cancel this bail.

¶22Any observation made hereinabove is neither an expression of opinion on the case's merits nor shall the trial Court advert to these comments.

¶23A certified copy of this order would not be needed for furnishing bonds, and any Advocate for the Petitioner can download this order along with case status from the official web page of this Court and attest it to be a true copy. If the attesting officer wants to verify its authenticity, such an officer can also verify its authenticity and may download and use the downloaded copy for attesting bonds.

¶24Petition allowed in terms mentioned above. All pending applications, if any, stand disposed of.

(ANOOP CHITKARA)

JUDGE

24.01.2025 anju rani

No.

IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Reserved on: 13.01.2025 Pronounced on: 24.01.2025 Ajay Kumar ...Petitioner Versus State of Haryana …Respondent CORAM: HON'BLE MR. JUSTICE ANOOP CHITKARA Present: Mr. Arpandeep Narula, Advocate for the petitioner. Mr. Naveen K. Sheoran, DAG, Haryana. ****