CRM-M-63938-2024 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CRM-M-63938-2024 Reserved on: 16.01.2025 Pronounced on: 27.01.2025 Sukhwinder Singh@ Sukhvinder Singh ...Peoner Versus State of Haryana …Respondent CORAM: HON'BLE MR. JUSTICE ANOOP CHITKARA Present: Mr. S.K. Sirsa, Advocate for the peoner. Mr. Naveen Kumar Sheoran, D.A.G., Haryana. **** ANOOP CHITKARA, J. FIR No. Dated Police Staon Secons 549 07.12.2024 Sadar, Fatehabad 21(B), 29 of NDPS Act and (Secon 61/85 of NDPS Act added later on) 1. The peoner apprehending arrest in the FIR caponed above has come up before this Court under Secon 482 of Bharaya Nagarik Suraksha Sanhita, 2023, [BNSS], seeking ancipatory bail. 2. In paragraph 14 of the bail peon, the accused declares that he has no criminal antecedents. 3. The facts and allegaons are taken from the reply filed by the State. On Dec 07, 2024, based on secret informaon, the Police seized 12.19 grams of heroin from the possession of Rajender whereas Sukhwinder Singh, the peoner fled away. The Invesgator claims to have complied with all the statutory requirements of the NDPS Act, 1985, and CrPC, 1973. 4. During custodial interrogaon, the main accused, Rajinder confirmed that the person who had absconded was the peoner. Based on such confession before the police, the peoner was arraigned as an accused. Apprehending arrest, he filed for ancipatory bail from the Sessions Court, which denied him bail. Feeling aggrieved, he has invoked the concurrent jurisdicon of this Court under S. 482 BNSS, 2023. 1 JYOTI 2025.01.28 09:24 I attest to the accuracy and integrity of this order/judgment. CRM-M-63938-2024 5. The peoner's counsel prays for bail by imposing any stringent condions and contends that further pre-trial incarceraon would cause an irreversible injusce to the peoner and their family. 6. The State’s counsel opposes bail and refers to the reply. 7. It would be appropriate to refer to the following porons of the status report, which read as follows: “6. That during further invesgaon of the case on 08.12.2024 disclosure statement of the accused Rajender @ Aman was recorded and in furtherance of which the accused Rajender @ Aman demarcated the place from where he alongwith peoner/accused purchased recovered contraband from Sandeep @ CP i.e. 13 gram heroin in furtherance of an amount of Rs.19,500/-. Copy of disclosure statement of accused Rajender @ Aman is appended herewith as Annexure R-1.” 8. Dealing in 12.19 grams of heroin is a punishable offense under the NDPS Act in the following terms: Substance Name Heroin Quanty detained 12.19 Gram Quanty type Intermediate Drug Quanty in % to upper limit of Intermediate 4.88% Specified as small & Commercial in S.2(viia) & 2(xxiiia) NDPS Act, 1985 Noficaon No S.O.1055(E) dated 10/19/2001 Sr. No. 56 Common Name (Name of Narcoc Drug and Psychotropic Substance (Internaonal non-proprietary name (INN) Heroin Other non-proprietary name ****** Chemical Name Diacetylmorphine Small Quanty 5 Gram Commercial Quanty 250 Gram 0 Declared as punishable under NDPS Act and as per schedule defined in S.2(xi) & 2(xxiii) NDPS Act, 1985 Noficaon No S.(xvi)(d) NDPS Act, 1985 (61 of 1985), S.O. 821 (E) dated 11/14/1985 Sr. No. 2(xvi)(d) 2 JYOTI 2025.01.28 09:24 I attest to the accuracy and integrity of this order/judgment. CRM-M-63938-2024 Common Name (Name of Narcoc Drug and Psychotropic Substance (Internaonal 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; Explanaon.-- For the purposes of clauses (v) (vi), (xv) and (xvi) the percentages in the case of liquid preparaons shall be calculated on the basis that a preparaon containing one per cent. of a substance means a preparaon in which one gram of substance, if solid, or one mililitre of substance, if liquid, is contained in every one hundred mililitre of the preparaon and so on in proporon for any greater or less percentage: Provided that the Central Government may, having regard to the developments in the field of methods of calculang percentages in liquid preparaons prescribed, by rules, any other basis which it may deem appropriate for such calculaon. 9. Given this, the rigors of S. 37 of the NDPS Act do not apply in the present case. 10. Secon 2 (vii-a) of the NDPS Act defines commercial quanty as greater than the quanty specified in the schedule. Secon 2 (xxiii-a) defines a small quanty as a quanty less than the quanty specified in the table of the NDPS Act. The remaining quanty falls in an undefined category, generally called an intermediate quanty. All secons in the NDPS Act specify an offence and menon the minimum and maximum sentence, depending upon the quanty of the substance. The commercial quanty 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 quanty is less than commercial, the restricons of Secon 37 of the NDPS Act will not aPract, and the factors for bail become similar to the offence regular statutes. 11. Pre-trial incarceraon should not be a replica of post-convicon sentencing. The evidence might be prima facie sufficient to launch prosecuon or to frame charges, but this Court is not considering the evidence at that stage but is analyzing it for the stage of ancipatory bail. An analysis of the above does not jusfy custodial interrogaon or pre- 3 JYOTI 2025.01.28 09:24 I attest to the accuracy and integrity of this order/judgment. CRM-M-63938-2024 trial incarceraon. 12. Given the above, the penal provisions invoked coupled with the primafacie analysis of the nature of allegaons and the other factors peculiar to this case, there would be no jusfiability for custodial interrogaon or the pre-trial incarceraon at this stage, subject to the compliance of terms and condions menoned in this order. Without commenng on the case's merits, in the facts and circumstances peculiar to this case, and for the reasons menoned above, the peoner makes a case for ancipatory bail. 13. Given above, provided the peoner is not required in any other case, the peoner shall be released on bail in the FIR caponed above subject to furnishing bonds to the sasfacon of the Arresng Officer, and if the maPer is before a Court, then the concerned Court and due to unavailability before any nearest Ilaqa Magistrate/duty Magistrate. Before accepng the surety, the concerned Officer/Court must be sasfied that if the accused fails to appear, such surety can produce the accused. 14. While furnishing a personal bond, the peoner shall menon the following personal idenficaon details: 1. AADHAR number 2. Passport number (If available) and when the aPesng officer/court considers it appropriate or considers the accused a flight risk. 3. Mobile number (If available) 4. E-Mail id (If available) 15. The bail order is subject to the peoner’s complying with the following terms. 16. The peoner is directed to join the invesgaon 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 Invesgator. The peoner shall be in deemed custody for Secon 27 of the Indian Evidence Act, 1872/ Secon 23 of BSA, 2023. The peoner shall join the invesgaon as and when called by the Invesgang Officer or any Superior Officer and shall cooperate with the invesgaon at all further stages as required. In the event of failure to do so, the prosecuon will be open to seeking cancellaon of the bail. During the invesgaon, the peoner shall not be subjected to third-degree, indecent language, inhuman treatment, etc. 17. The peoner shall abide by all statutory bond condions and appear before the concerned Court(s) on all dates. The peoner shall not tamper with the evidence, influence, browbeat, pressurize, induce, threaten, or promise, directly or indirectly, any 4 JYOTI 2025.01.28 09:24 I attest to the accuracy and integrity of this order/judgment. CRM-M-63938-2024 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. 18. In case the Invesgator/Officer-In-Charge of the concerned Police Staon arraigns another secon of any penal offense in this FIR, and if the new secon prescribes a maximum sentence that is not greater than the secons menoned above, then this bail order shall be deemed to have also been passed for the newly added secon(s). However, suppose the newly inserted secons prescribe a sentence exceeding the maximum sentence prescribed in the secons menoned above; then, in that case, the Invesgator/Officer-In-Charge shall give the peoner noce of a minimum of seven days, providing an opportunity to avail the remedies available in law. 19. In 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 peoner is found involved in such like offence in future, the concession of bail granted to him today will liable to be withdrawn and the peoner is bound to face the necessary consequences.” 20. This bail is condional, and the foundaonal condion is that if the peoner indulges in any non-bailable offense, the State may file an applicaon for cancellaon of this bail before the Sessions Court, which shall be at liberty to cancel this bail. 21. Any observaon made hereinabove is neither an expression of opinion on the case's merits nor shall the trial Court advert to these comments. 22. A cerfied copy of this order would not be needed for furnishing bonds, and any Advocate for the Peoner can download this order along with case status from the official web page of this Court and aPest it to be a true copy. If the aPesng officer wants to verify its authencity, such an officer can also verify its authencity and may download and use the downloaded copy for aPesng bonds. 23. Pe..on allowed in terms menoned above. All pending applicaons, if any, stand disposed of. (ANOOP CHITKARA) JUDGE 27.01.2025 Jyo-II Whether speaking/reasoned: Yes Whether reportable: No. 5 JYOTI 2025.01.28 09:24 I attest to the accuracy and integrity of this order/judgment.