CRM-M-54613-2024 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CRM-M-54613-2024 Reserved on: 19.02.2025 Pronounced on: 28.02.2025 Akash Sharma ...Pe oner Versus State of Haryana …Respondent CORAM: HON'BLE MR. JUSTICE ANOOP CHITKARA Present: Mr. Gaurav Sharma, Advocate, for the pe oner. Mr. Naveen Kumar Sheoran, DAG, Haryana. **** ANOOP CHITKARA, J. FIR No. Dated Police Sta2on Sec2ons 41 05.02.2022 Asauda, Dis*. Jhajjar 20 of NDPS Act (Sec ons 419, 420 IPC added later on) 1. The pe oner incarcerated in the FIR cap oned above had come second me before this Court under Sec on 439 of CrPC, seeking regular bail. 2. In paragraph 15 of the bail pe on, the accused declares that he has no criminal antecedents. 3. The facts and allega ons are taken from the status report filed by the State. On 05.02.2022, based on secret informa on, the Police seized 13 kg 510 grams of Sulfa (Charas) from the pe oner’s possession. Ini ally, the pe oner disclosed his name as Akhtar Alam, however, on 10.02.2022 pe oner disclosed his original name Akash Sharma and offence under Sec on 419, 420 IPC was added. The Inves gator claims to have complied with all the statutory requirements of the NDPS Act, 1985, and CrPC, 1973. 4. The pe oner seeks bail on the ground of pre-trial custody of more than three years. 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. 5. The State’s counsel opposes bail and refers to the status report. 1 JYOTI 2025.03.01 12:53 I attest to the accuracy and integrity of this order/judgment. CRM-M-54613-2024 6. It would be appropriate to refer to the following por ons of the status report, which read as follows: “18. That the present peoner was acvely involved in the present offence and was also found in conscious possession of contraband (Charas) weighing 13 kg 510 grams which is a commercial quanty as per the NDPS Act and hence the peoner is not entled to bail as per Secon 37 of NDPS Act. 19. That keeping in view the fact that recovery of commercial quanty of contraband (Charas) from the conscious possession of the peoner and further in view of peculiar circumstances of the case, there are no circumstances that may warrant the grant of regular bail to him. The present peon is devoid of any merits and hence is liable to be dismissed.” REASONING: 7. The 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. 8. As per para 6 of the status report, the pe oner is in custody since 06.02.2022 in this FIR. As per the custody cer ficate dated 04.12.2024, the pe oner’s custody in this FIR is two years, nine months and twenty four days. 9. The 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. 10. The pe oner is en tled to bail based on Dheeraj Kumar Shukla v. The State of U*ar Pradesh [SLP (Crl) 6690-2022], decided on 25 Jan 2023. Dheeraj Shukla would be a*racted when the three condi ons are fulfilled, (a). The custody of more than two years and six months and the delay was not a*ributable to the accused. (b). The trial is at an ini al stage. (c) The pe oner is the first offender. 1 Supreme Court of India, in Rabi Prakash v. The State of Odisha, SLP (Crl) 4169-2023, Para 4, decided on 13 July 2023 2 JYOTI 2025.03.01 12:53 I attest to the accuracy and integrity of this order/judgment. CRM-M-54613-2024 11. 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. 12. 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 bail. CONDITIONS: 13. Given 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. 14. While furnishing a personal bond, the pe oner shall men on the following personal iden fica on details: 1. AADHAR number 2. Passport number (If available) and when the a*es ng officer/court considers it appropriate or considers the accused a flight risk. 3. Mobile number (If available) 4. E-Mail id (If available) 15. This order is subject to the pe oner’s complying with the following terms. 16. The 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. 17. Given the background of allega ons against the pe oner, it becomes paramount to protect the members of society, detec on staff and incapacita ng the accused would be one of the primary op ons un l the filing of the closure report or discharge, or acqui*al. 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 3 JYOTI 2025.03.01 12:53 I attest to the accuracy and integrity of this order/judgment. CRM-M-54613-2024 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 acqui*al 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. 18. The 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.” 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 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.” 20. This 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. 21. Any observa on made hereinabove is neither an expression of opinion on the case's merits nor shall the trial Court advert to these comments. 22. The 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. 23. A 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 a*est it to be a true copy. If the a*es ng officer wants to verify its authen city, such an officer can also verify its authen city and may 4 JYOTI 2025.03.01 12:53 I attest to the accuracy and integrity of this order/judgment. CRM-M-54613-2024 download and use the downloaded copy for a*es ng bonds. 24. Pe22on allowed in terms men oned above. All pending applica ons, if any, stand disposed of. (ANOOP CHITKARA) JUDGE 28.02.2025 Jyo -II Whether speaking/reasoned: Yes Whether reportable: No. 5 JYOTI 2025.03.01 12:53 I attest to the accuracy and integrity of this order/judgment.