Azam @ Vakil v. State of Punjab

ANOOP CHITKARA, J. FIR No. Dated Police Station Sections 26 15.03.2024 City 2, Malerkotla, District 21, 61, 85 of NDPS Act Malerkotla

¶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.

¶2As per paragraph 13 of the bail applica!on, the pe!!oner has clean antecedents.

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

15.03.2024, based on secret informa!on, the Police seized 270 grams heroin from a packet, which was with the three accused, namely, Mohd. Azam, Azam (pe!!oner) and Sagu@a @ Bobby. The Inves!gator claims to have complied with all the statutory requirements of the NDPS Act, 1985, and CrPC, 1973.

¶4Counsel for the pe!!oner seeks bail on the grounds of parity with co-accused Sagu@a @ Shagu@a @ Bobby, who was granted bail by this Court vide order dated 29.11.2024 passed in CRM-M-34735-2024. The 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, order/judgment. 1 which read as follows: "12. Role of pettoner and evidence That on 15.03.2024, ASI Maghar Singh along with police party in connecton with patrolling and checking of suspected persons was present at the road going towards Manna Phatak from Badi Eidgah, then he received secret informaton that the present pettoner and his co-accused are indulged in the business of selling Chi-a/Heroin. Considering that informaton to be true and reliable, raid was conducted at the said relevant place and accused/pettoner Ajam @ Vakil and his co-accused were apprehended and from their conscious possession 270 gram Chi-a (heroin) was recovered. As per chemical report, the recovery of 270 gram chi-a (heroin) effected from the conscious possession of the pettoner and his co-accused which falls within the ambit of commercial quantty. So, a specific role is found to be a-ributed to the pettoner in the commission of present offence." REASONING:

¶7The 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.

¶8The co-accused has already been granted bail by this Court in CRM-M-34735-2024 Sagu@a @ Shagu@a @ Bobby v. State of Punjab, decided on 29.11.2024. Thus, the pe!!oner is en!tled to bail on parity.

¶9As per paragraph 12 of the bail pe!!on, the pe!!oner has been in custody since

15.03.2024. As per the custody cer!ficate dated 04.02.2025, the pe!!oner's total custody in this FIR is ten months and seventeen days. Given 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 for further pre-trial incarcera!on at this stage.

¶10Without 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.

¶11Given 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 order/judgment. 2 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.

¶12While 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 aKes!ng officer/court considers it appropriate or considers the accused a flight risk.

¶3Mobile number (If available)

¶4E-Mail id (If available)

¶13This order is subject to the pe!!oner's complying with the following terms.

¶14The 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.

¶15Given 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 acquiKal. 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 fi@een 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 acquiKal 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.

¶16The 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 order/judgment. 3 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."

¶17In 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."

¶18This 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.

¶19The 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.

¶20Any observa!on made hereinabove is neither an expression of opinion on the case's merits nor shall the trial Court advert to these comments.

¶21A 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 aKest it to be a true copy. If the aKes!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 aKes!ng bonds.

¶22Petition allowed in terms men!oned above. All pending applica!ons, if any, stand disposed of. (ANOOP CHITKARA) JUDGE

14.02.2025 Jyo!-II Whether reportable: No. order/judgment. 4

IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Reserved on: 05.02.2025 Pronounced on: 14.02.2025 Azam @ Vakil ...Pe!!oner Versus State of Punjab …Respondent CORAM: HON'BLE MR. JUSTICE ANOOP CHITKARA Present: Mr. Saqib Ali Khan, Advocate for the pe!!oner. Mr. Akshay Kumar, AAG, Punjab. ****