CRM-M-16676-2025 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CRM-M-16676-2025 Reserved on: 02.05.2025 Pronounced on: 13.05.2025 Sandeep ...Petitioner Versus State of Haryana …Respondent CORAM: HON'BLE MR. JUSTICE ANOOP CHITKARA Present: Mr. Rohit Kumar, Advocate, for the petitioner. Ms. Harpreet Kaur, AAG, Haryana. **** ANOOP CHITKARA, J. FIR No. Dated Police Station Sections 226 22.11.2024 Lakhan Majra, District Rohtak 20(b) (ii) (c) of NDPS Act (Section 29 of NDPS Act added later on) 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. In paragraph 13 of the bail petition, the accused declares that he has no criminal antecedents. However, as per paragraph 12 of the status report, the accused has the following criminal antecedents: Sr. No. FIR No. Dated Offenses Police Station 1. 148 27.07.2018 363, 366, 376 IPC & Section 8 of POCSO Act Lakhan Majra 3. The facts and allegations are taken from the status report filed by the State. On 22.11.2024, the investigator SI Jitender Kumar along with his team were patrolling in the official vehicle. During such patrolling, the investigator received a secret information that one Suresh deals in narcotics and even now he is possessing charas. The secret informer also gave the colours of the said Suresh’ clothes etc. Based on such information, the investigator complied with the provisions of NDPS Act and laid down a naka. The person was apprehended, who disclosed his name as Suresh @ Shashi and the police recovered 1.34 kg of charas. It is needless to say that the quantity greater than 1 kg falls in the commercial category and the provisions of Section 37 of NDPS Act would apply in such cases. The Investigator claims to have complied with all the statutory requirements of the NDPS Act, 1985, and BNSS, 2023. After the arrest, said Suresh @ Shashi was 1 JYOTI 2025.05.14 09:31 I attest to the accuracy and integrity of this order/judgment. CRM-M-16676-2025 interrogated and he disclosed that he had purchased the charas from the petitioner. Bases on such disclosure statement, the petitioner was arraigned as an accused. 4. The petitioner’s counsel submits that the petitioner has been implicated in the present case on the basis of disclosure statement of co-accused; he is not connected with the crime; the quantity involved is marginally above the commercial quantity; there is no evidence of any money transactions and the petitioner has no other criminal case under the NDPS Act and no recovery was effected from the petitioner. 5. The petitioner's counsel prays for bail by imposing any stringent conditions and contends that pre-trial incarceration would cause an irreversible injustice to the petitioner and his family. 6. The State’s counsel opposes bail and refers to the status report. REASONING: 7. I have heard counsel for the parties and gone through the record. 8. Needless to say that the prima facie disclosure statement is meaningless as an evidence, unless it leads to some discovery, however, there is also no doubt that based on such disclosure, the police can conduct further investigation/enquiry to get the leads and to collect evidence. Thus, in the present case, the disclosure statement was used to collect further evidence, which is referred in para 5 of the status report, which reads as follows: “5. That on checking of whatsapp call detail record of mobile of Suresh @ Shashi it has been revealed that Suresh @ Shashi from his mobile No.90533xxxx has continuously contacted with petitioner on his mobile No.90516xxxx and he has saved the mobile number of petitioner in his phone with the same “Staff Staff”. As per screenshot record the accused Suresh @ Shashi has contacted petitioner on 30.10.2024, 09.11.2024, 10.11.2024, 11.10.2024, 12.10.2024 and 18.10.2024 and also gave missed call on 11.11.2024, 12.11.2024 and 17.11.2024.” 9. There is sufficient prima facie evidence to connect the petitioner with the main accused and crime through call details, which have not been explained by the petitioner in the present petition, as such, the petitioner is not entitled to bail. 10. The quantity allegedly involved in this case is commercial. Given this, the rigors of S. 37 of the NDPS Act apply and the petitioner must satisfy the twin conditions put in place by the Legislature under Section 37 of the NDPS Act. 11. In State of Haryana v. Samarth Kumar, 2022(3) R.C.R.(Criminal) 991, wherein the Hon’ble Supreme Court holds, 2 JYOTI 2025.05.14 09:31 I attest to the accuracy and integrity of this order/judgment. CRM-M-16676-2025 [8]. In cases of this nature, the respondents may be able to take advantage of the decision in Tofan Singh v. State of Tamil Nadu (supra), perhaps at the time of arguing the regular bail application or at the time of final hearing after conclusion of the trial. [9]. To grant anticipatory bail in a case of this nature is not really warranted. Therefore, we are of the view that the High Court fell into an error in granting anticipatory bail to the respondents. 12. The quantity of charas that was seized falls in the commercial category. Section 371 of the NDPS Act mandates under sub-section (1) (b) of section 37, that no person accused of an offence punishable for offences involving commercial quantity shall be released on bail unless- (i) the Public Prosecutor has been given an opportunity to oppose the application of release, and (ii) where the Public Prosecutor opposes the application, the Court is satisfied that there are reasonable grounds for believing that accused is not guilty of such offence and is not likely to commit any offence while on bail. Thus, the rigors of S. 37 of the NDPS Act apply in the present case, and the burden is on the petitioner to satisfy the twin conditions put in place by the Legislature under Section 37 of the NDPS Act. Given the legislative mandate of S. 37 of the NDPS Act, the Court can release a person accused of an offence punishable under the NDPS Act for possessing a commercial quantity of contraband only after recording reasonable satisfaction of its rigors. 13. The State’s counsel argues that a plain reading of Section 37 reveals that the legislature intends to make the law stringent to curb the drug menace. It is further to be noticed that the provisions are couched in negative language, meaning that to grant bail, the Court needs to record a finding that there are reasonable grounds for believing that the petitioner is not guilty of the offense. The burden of proof is also on the petitioner to satisfy the Court about his non-involvement in the case. While interpreting the provisions of Section 37 of the NDPS Act, the Court must be guided by the objective sought to be achieved by putting these stringent conditions. 14. Satisfying the fetters of S. 37 of the NDPS Act is candling the infertile eggs. The stringent conditions of section 37 placed in the statute by the legislature do not create a bar for bail for specified categories, including the commercial quantity; however, it creates hurdles by placing a reverse burden on the accused, and once crossed, the rigors no more exist, and the factors for bail become similar to the bail petitions under general 1 37. Offences to be cognizable and non-bailable.—(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974),— (a) every offence punishable under this Act shall be cognizable; (b) no person accused of an offence punishable for offences under sec)on 19 or sec)on 24 or sec)on 27A and also for offences involving commercial quan)ty shall be released on bail or on his own bond unless— (i) the Public Prosecutor has been given an opportunity to oppose the applica)on for such release, and (ii) where the Public Prosecutor opposes the applica)on, the court is sa)sfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail. (2) The limita)ons on gran)ng of bail specified in clause (b) of sub-sec)on (1) are in addi)on to the limita)ons under the Code of Criminal Procedure, 1973 (2 of 1974) or any other law for the )me being in force on gran)ng of bail. 3 JYOTI 2025.05.14 09:31 I attest to the accuracy and integrity of this order/judgment. CRM-M-16676-2025 penal statutes like IPC. Thus, both the twin conditions need to be satisfied before a person accused of possessing a commercial quantity of drugs or psychotropic substance is to be released on bail. The first condition is to provide an opportunity to the Public Prosecutor, enabling them to take a stand on the bail application. The second stipulation is that the Court must be satisfied that reasonable grounds exist for believing that the accused is not guilty of such an offense and is not likely to commit any offense while on bail. If either of these conditions is not met, the ban on granting bail operates. The expression “reasonable grounds” means something more than prima facie grounds. It contemplates substantial probable causes for believing the accused is not guilty of the alleged offense. Even on fulfilling one of the conditions, the reasonable grounds for believing that the accused is not guilty of such an offense, the Court still cannot give a finding on the assurance that the accused is not likely to commit any such crime again. Thus, the grant or denial of bail for possessing commercial quantity would vary from case to case, depending upon its facts, and the parameters for anticipatory bail are stringent compared to the regular bail when the accused is in judicial custody. 15. The quantity involved is commercial, and the burden to satisfy the rigor of condition of Section 37 of the NDPS Act was on the petitioner, which he did not discharge to the satisfaction of the statutory requirements. The investigation reveals sufficient prima facie evidence to connect the petitioner with the crime; thus, the petitioner fails to make out a case for anticipatory bail. Any detailed discussions about the evidence may prejudice the case of the petitioner, the State, or the other accused. 16. The learned Special Judge, while dismissing the anticipatory bail of the petitioner, has given elaborative reasons and considered almost every aspect. 17. The grounds in the bail petition do not shift the burden the legislature places on the accused under S. 37 of the NDPS Act. The petitioner has not stated anything in the bail petition to discharge the burden put by the stringent conditions placed in the statute by the legislature under section 37 of the NDPS Act. 18. In Jai Prakash Singh v. State of Bihar and another (2012) 4 SCC 379, Hon’ble Supreme Court holds, [19]. Parameters for grant of anticipatory bail in a serious offence are required to be satisfied and further while granting such relief, the court must record the reasons therefor. Anticipatory bail can be granted only in exceptional circumstances where the court is prima facie of the view that the applicant has falsely been enroped in the crime and would not misuse his liberty. [See D.K. Ganesh Babu v. P.T. Manokaran (2007) 4 SCC 434, State of Maharashtra v. Mohd. Sajid Husain Mohd. S. Husain (2008) 1 SCC 213 and Union of India v. Padam Narain Aggarwal (2008) 13 SCC 305]. 19. A perusal of the bail petition and the documents attached primafacie points towards 4 JYOTI 2025.05.14 09:31 I attest to the accuracy and integrity of this order/judgment. CRM-M-16676-2025 the petitioner’s involvement and does not make out a case for bail. The impact of crime would also not justify bail. Any further discussions will likely prejudice the petitioner; this court refrains from doing so. 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. Petition dismissed. Interim order dated 27.03.2025 is recalled with immediate effect. All pending applications, if any, are disposed of. (ANOOP CHITKARA) JUDGE 13.05.2025 Jyoti-II Whether speaking/reasoned: Yes Whether reportable: No. 5 JYOTI 2025.05.14 09:31 I attest to the accuracy and integrity of this order/judgment.