Biru v. State of Haryana

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

03.07.2019 Narnaund, District Hansi 20 and 27-A of NDPS Act

¶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.

¶2In para 14 of the bail applica on and as per para 7 of the status report, the accused has the following criminal antecedents: Sr. No. FIR No. Dated Offenses Police Sta1on

1.

23.06.2019 20/61/85 of NDPS Act Sadar Hansi

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

02.07.2019, based on secret informa on, the Police seized 20 kg 500 gram ganja from the possession of main accused Kehar Singh. The said co-accused disclosed in his disclosure statement that pe oner had supplied ganja to him. The Inves gator claims to have complied with all the statutory requirements of the NDPS Act, 1985, and CrPC 1973.

¶4The pe oner seeks bail on pre-trial custody of more than two years and six months. He 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 his family.

¶5The State's counsel opposes bail and refers to the status report. "8. That in this regard, it is most humbly submied before this Hon'ble High Court that the present pe

oner supplied 20.500 Kg. Ganja to co-accused Kehar Singh, who was apprehended by the police officials. It is specifically submied that alleged contraband which is more than the commercial quan ty. Therefore, the pe

oner/accused is not en tled to any relief of regular bail and the applica on under Sec on 483 of BNSS is liable to be out rightly rejected being devoid of any merits therein." REASONING:

¶6The 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.

¶7As per the custody cer ficate dated 03.02.2025, the pe oner is in custody for 02 years, 07 months and 02 days in this FIR.

¶8The prolonged incarcera on, generally militates against the most precious fundamental right guaranteed under Ar cle 21 of the Cons tu on and in such a situa on, the condi onal liberty must override the statutory embargo created under Sec on 37(1)(b)(ii) of the NDPS Act1.

¶9The pe oner is en tled to bail based on Dheeraj Kumar Shukla v. The State of UIar Pradesh [SLP (Crl) 6690-2022], decided on 25 Jan 2023. Dheeraj Shukla would be aIracted when the three condi ons are fulfilled,

(a). The custody of more than two years and six months and the delay was not aIributable to the accused.

(b). The trial is at an ini al stage.

(c) The pe oner is the first offender.

¶10Considering the quan ty involved and the pre-trial custody, Sec on 37 of the NDPS Act would not be aIracted. Given this, the criminal antecedents are also not a legal ground for denying the rigors of S. 37 of the NDPS Act at this stage.

¶11Given 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 of further pre-trial incarcera on at this stage.

¶12Without 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. CONDITIONS: 1 Supreme Court of India, in Rabi Prakash v. The State of Odisha, SLP (Crl) 4169-2023, Para 4, decided on 13 July 2023

¶13Given 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 any 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.

¶14While 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 aIes ng officer/court considers it appropriate or considers the accused a flight risk.

¶3Mobile number (If available)

¶4E-Mail id (If available)

¶15This order is subject to the pe oner's complying with the following terms.

¶16The 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.

¶17Given the background of allega ons against the pe oner, it becomes paramount to protect the detec on staff, 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 acquiIal. Consequently, it would be appropriate to restrict the possession of firearms. [This restric on 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 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 fiPeen days of release from prison and inform the Inves gator of the compliance. However, subject to the Indian Arms Act, 1959, the pe oner shall be en tled to renew and reclaim them in case of acquiIal in this case, provided otherwise permissible under 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.

¶18The 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 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."

¶19In 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."

¶20This bail is condi onal, and the founda onal condi on is that if the pe

oner

indulges in any non-bailable offense, the State shall file an applica on for cancella on of this bail before the Trial Court, which shall be at liberty to cancel this bail.

¶21Any observa on made hereinabove is neither an expression of opinion on the case's merits nor shall the trial Court advert to these comments.

¶22The concerned trial court is authorized to delete, modify, or relax any of the above condi ons and shall be competent to do so in accordance with the law.

¶23A 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 aIest it to be a true copy. If the aIes 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 aIes ng bonds.

¶24Pe11on allowed in terms men oned above. All pending applica ons, if any, stand disposed of. (ANOOP CHITKARA) JUDGE

15.02.2025 Jyo -II

IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Reserved on: 05.02.2025 Pronounced on: 15.02.2025 Biru ...Pe oner Versus State of Haryana …Respondent CORAM: HON'BLE MR. JUSTICE ANOOP CHITKARA Present: Mr. Japjit Singh Johal, Advocate for the pe oner. Mr. Aashish Bishnoi, DAG, Haryana. ****