CRM-M-2341-2025 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CRM-M-2341-2025 Reserved on: 17.01.2025 Pronounced on: 28.01.2025 Ajaib Singh ...Petitioner Versus State of Haryana …Respondent CORAM: HON'BLE MR. JUSTICE ANOOP CHITKARA Present: Mr. Jagraj Singh Khiva, Advocate for the petitioner. Ms. Trishanjali Sharma, DAG, Haryana. **** ANOOP CHITKARA, J. FIR No. Dated Police Station Sections 403 28.11.2024 Kalanwali, District Dabwali 21 (b) of NDPS Act 1. The 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. 2. Per paragraph 8 (v) of the bail application, the accused has the following criminal antecedents: Sr. No. FIR No. Date Offenses Police Station 1 96 2021 147/148/307 IPC Kalanwali 2 125 2023 18/61/85 of NDPS Act Rori 3. The facts and allegations are taken from the FIR and the order of rejection of bail by the Sessions Court. On 28-11-2024, based on chance recovery, the Police seized 10 grams of heroin from the possession of co-accused Gursehember Singh. The Investigator claims to have complied with all the statutory requirements of the NDPS Act, 1985, and CrPC, 1973. 4. During custodial interrogation, the main accused, Gursehember Singh, confessed before the Police officer that they had purchased the drugs from the petitioner. Based on such confession before the police, the petitioner was arraigned as an accused. Apprehending 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. 1 Jyoti Sharma 2025.01.28 17:09 I attest to the accuracy and authenticity of this order/judgment High Court, Sector 1, Chandigarh CRM-M-2341-2025 5. The 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. 6. The State’s counsel opposes bail. 7. Dealing in 10 grams of heroin is a punishable offense under the NDPS Act in the following terms: Substance Name Heroin/ ChiƩa/ Smack/ Brown Sugar QuanƟty detained 10 Gram QuanƟty type Intermediate Drug QuanƟty in % to upper limit of Intermediate 4.00% Specified as small & Commercial in S.2(viia) & 2(xxiiia) NDPS Act, 1985 NoƟficaƟon No S.O.1055(E) dated 10/19/2001 Sr. No. 56 Common Name (Name of NarcoƟc Drug and Psychotropic Substance (InternaƟonal non-proprietary name (INN) Heroin Other non-proprietary name ****** Chemical Name Diacetylmorphine Small QuanƟty 5 Gram Commercial QuanƟty 250 Gram 0 Declared as punishable under NDPS Act and as per schedule defined in S.2(xi) & 2(xxiii) NDPS Act, 1985 NoƟficaƟon 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 NarcoƟc Drug and Psychotropic Substance (InternaƟonal 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; ExplanaƟon.-- For the purposes of clauses (v) (vi), (xv) and (xvi) the percentages in the case of liquid preparaƟons shall be calculated on the basis that a preparaƟon containing one per cent. of a substance means a preparaƟon in which one gram of substance, if solid, or one mililitre of substance, if liquid, is contained in every one hundred mililitre of the 2 Jyoti Sharma 2025.01.28 17:09 I attest to the accuracy and authenticity of this order/judgment High Court, Sector 1, Chandigarh CRM-M-2341-2025 preparaƟon and so on in proporƟon for any greater or less percentage: Provided that the Central Government may, having regard to the developments in the field of methods of calculaƟng percentages in liquid preparaƟons prescribed, by rules, any other basis which it may deem appropriate for such calculaƟon. 8. Given this, the rigors of S. 37 of the NDPS Act do not apply in the present case. 9. Section 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. 10. Pre-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. 11. Given 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. This order shall come into force from the time it is uploaded on this Court's official webpage. 12. Given 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 3 Jyoti Sharma 2025.01.28 17:09 I attest to the accuracy and authenticity of this order/judgment High Court, Sector 1, Chandigarh CRM-M-2341-2025 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. 13. While furnishing a personal bond, the petitioner shall mention the following personal identification details: 1. AADHAR number 2. Passport number (If available) and when the attesting officer/court considers it appropriate or considers the accused a flight risk. 3. Mobile number (If available) 4. E-Mail id (If available) 14. The bail order is subject to the petitioner’s complying with the following terms. 15. The 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. 16. The 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. 17. In 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. 18. 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 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 4 Jyoti Sharma 2025.01.28 17:09 I attest to the accuracy and authenticity of this order/judgment High Court, Sector 1, Chandigarh CRM-M-2341-2025 necessary consequences.” 19. This 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. 20. Any observation made hereinabove is neither an expression of opinion on the case's merits nor shall the trial Court advert to these comments. 21. A 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. 22. Petition allowed in terms mentioned above. All pending applications, if any, stand disposed of. (ANOOP CHITKARA) JUDGE 28.01.2025 Jyoti Sharma Whether speaking/reasoned: Yes Whether reportable: No. 5 Jyoti Sharma 2025.01.28 17:09 I attest to the accuracy and authenticity of this order/judgment High Court, Sector 1, Chandigarh