Joginder v. State of Haryana

ANOOP CHITKARA, J. FIR No. Dated Police Sta#on Sec#ons

02.12.2024 HTM, District Hisar 20 (b) of NDPS Act

¶1The pe

oner apprehending arrest in the FIR cap oned above has come up before this Court under Sec on 482 of Bhara ya Nagarik Suraksha Sanhita, 2023, [BNSS], seeking an cipatory bail.

¶2Per paragraph 11 of the bail applica on and para 6 of the status report dated

11.01.2025, the accused has the following criminal antecedents: Sr. No. FIR No. Date Offenses Police Sta on

1.

15.04.2021 21 B of NDPS Act Ding Sirsa

2.

30.04.2020 61/1/14 of Excise Act HTM, Hisar

3.

05.03.2022 25 of Arms Act Pallu, District Hanu-mannagar, Rajasthan

4.

22.07.2020 21-B of NDPS Act HTM, Hisar

¶51149

17.12.2021 20-B NDPS Act Sadar HIsar

¶3The facts and allega ons are taken from the reply filed by the State. On Nov 30, 2024, the Police seized 12.266 KG of Ganja from co-accused Phool Singh's possession. The Inves gator claims to have complied with all the statutory requirements of the NDPS Act, 1985, and BNSS, 2023.

¶4During custodial interroga on, co-accused, Phool Singh, confessed before the Police officer that the Ganja belonged to his son, who had asked him to pick it up from a person from a designated place. Based on such confession before the police, the pe

oner was arraigned as an accused. Apprehending arrest, he filed for an cipatory bail from the Sessions Court, which denied him bail. Feeling aggrieved, he has invoked the concurrent jurisdic!on of this Court under S. 482 BNSS, 2023.

¶5The 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 their family.

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

¶7It would be appropriate to refer to the following por!ons of the reply, which read as follows: "4. That a+er registraton of the FIR, a fair and impartal investgaton was carried out by the local police and during investgaton the place of occurrence was inspected and a map was prepared and statements of witnesses were recorded and the co-accused was arrested. In custody, the accused suffered a disclosure statement mentoning that recovered Ganja had been brought by him on the asking of his son (pettoner/accused). He stated in his disclosure statement that he has 6 children, two sons and four daughters. The eldest son Jogender (pettoner/accused) and two daughters are married. He is from a poor family and his son Jogender (pettoner/accused) has been selling ganja for many days. On 01.12.24, his son Jogender (pettoner/accused) sent him to Kashmiri Gate, Delhi and told me that he will meet a man there, he will give you ganja, bring it. His son Jogender (pettoner/accused) handles the money transactons, he does not know how much this ganja is worth. He went to Kashmiri Gate, Delhi, a+er some tme a man came there and gave him this 12.266 kg ganja and he took the ganja back to Hisar Can3 by bus. From there he was going to his home in Mirzapur road, Kaushik Nagar by a three wheeler. When he got down from the three wheeler and was walking home, the police caught him near the bypass with the ganja. He also demarcated the place from where he had brought the ganja from an unknown person. Copy of the disclosure statement of the co-accused is annexed as Annexure R-1."

¶8Dealing in 12.266 kg of ganja is a punishable offense under the NDPS Act in the following terms: Substance Name Ganja Quan!ty detained 12.266 Kg Quan!ty type Intermediate Drug Quantty in % to upper limit

61.33% order/judgment. 2 Specified as small & Commercial in S.2(viia) & 2(xxiiia) NDPS Act, 1985 fica on No S.O.1055(E) dated 10/19/2001 Sr. No. Common Name (Name of Narco c Drug and Psychotropic Substance (Interna onal non-proprietary name (INN) Ganja Other non-proprietary name ****** Chemical Name ****** Small Quan ty 1000 Gram (i.e. equivalent to 1 Kg) Commercial Quan ty 20000 Gram (i.e. equivalent to 20 Kg) Declared as punishable under NDPS Act and as per schedule defined in S.2(xi) & 2(xxiii) NDPS Act, 1985 fica on No 2(iii)(b) NDPS Act, 1985, S.O.821(E) dated 11/14/1985 Sr. No. 2(iii)(b) Common Name (Name of Narco c Drug and Psychotropic Substance (Interna onal non-proprietary name (INN) ****** Other non-proprietary name ****** Chemical Name S.2(iii)(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; 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;

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

¶10Sec on 2 (vii-a) of the NDPS Act defines commercial quan ty as greater than the quan ty specified in the schedule. Sec on 2 (xxiii-a) defines a small quan ty as a quan ty less than the quan ty specified in the table of the NDPS Act. The remaining quan ty falls in an undefined category, generally called an intermediate quan ty. All sec ons in the NDPS Act specify an offence and men on the minimum and maximum sentence, depending upon the quan ty of the substance. The commercial quan 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 quan!ty is less than commercial, the restric!ons of Sec!on 37 of the NDPS Act will not aSract, and the factors for bail become similar to the offence regular statutes.

¶11Pre-trial incarcera!on should not be a replica of post-convic!on sentencing. The evidence might be prima facie sufficient to launch prosecu!on or to frame charges, but this Court is not considering the evidence at that stage but is analyzing it for the stage of an!cipatory bail. An analysis of the above does not jus!fy custodial interroga!on or pre-trial incarcera!on.

¶12The evidence collected might be prima facie sufficient to launch prosecu!on or even to frame the charges; however, for the purpose of bail, the evidence is insufficient. Given the penal provisions invoked, the quality of evidence, coupled with the prima facie analysis of the nature of allega!ons and the other factors peculiar to this case, pre-trial incarcera!on at this stage would be unjus!fiable.

¶13Given the above, without 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 an!cipatory bail.

¶14Given 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 Arres!ng Officer, and if the maSer is before a Court, then the concerned Court and due to unavailability before any nearest Ilaqa Magistrate/duty Magistrate. Before accep!ng the surety, the concerned Officer/Court must be sa!sfied that if the accused fails to appear, such surety can produce the accused.

¶15While 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 aSes!ng officer/court considers it appropriate or considers the accused a flight risk.

¶3Mobile number (If available)

¶4E-Mail id (If available)

¶16The bail order is subject to the pe!!oner's complying with the following terms.

¶17The pettoner is directed to join the investgaton within seven days of uploading order/judgment. 4 this order on the official webpage of the High Court of Punjab and Haryana and as and when called by the Invesgator. The pe

oner shall be in deemed custody for Sec on 27 of the Indian Evidence Act, 1872/ Sec on 23 of BSA, 2023. The pe

oner shall join the inves ga on as and when called by the Inves ga ng Officer or any Superior Officer and shall cooperate with the inves ga on at all further stages as required. In the event of failure to do so, the prosecu on will be open to seeking cancella on of the bail. During the inves ga on, the pe

oner shall not be subjected to third-degree, indecent language, inhuman treatment, etc.

¶18The 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.

¶19Given the background of allega ons against the pe

oner, it becomes paramount to protect the 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 acquiSal. 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 fiTeen 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 acquiSal 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.

¶20In case the Inves gator/Officer-In-Charge of the concerned Police Sta on arraigns another sec on of any penal offense in this FIR, and if the new sec on prescribes a maximum sentence that is not greater than the sec ons men oned above, then this bail order shall be deemed to have also been passed for the newly added sec on(s). However, suppose the newly inserted sec ons prescribe a sentence exceeding the maximum sentence prescribed in the sec ons men oned above; then, in that case, the Inves gator/Officer-In-Charge shall give the pe

oner no minimum of seven days, providing an opportunity to avail the remedies available in law.

¶21In 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."

¶22This 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 Sessions Court, which shall have the liberty to cancel this bail.

¶23Any observa on made hereinabove is neither an expression of opinion on the case's merits nor shall the trial Court advert to these comments.

¶24A 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 aSest it to be a true copy. If the aSes 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 aSes ng bonds.

¶25Pe##on allowed in terms men oned above. All pending applica ons, if any, stand disposed of. (ANOOP CHITKARA) JUDGE

29.01.2025 Jyo#-II

IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Reserved on: 16.01.2025 Pronounced on: 29.01.2025 Joginder ...Pe oner Versus State of Haryana …Respondent CORAM: HON'BLE MR. JUSTICE ANOOP CHITKARA Present: Mr. Raman Chawla, Advocate for the pe oner. Mr. Naveen Kumar Sheoran, D.A.G., Haryana. ****