CRM-M-47526-2024 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CRM-M-47526-2024 Reserved on: 10.01.2025 Pronounced on: 30.01.2025 Charanjeet Singh @ Channi @ Charan Singh ...Peoner Versus State of Punjab …Respondent CORAM: HON'BLE MR. JUSTICE ANOOP CHITKARA Present: Mr. Kuldip Singh, Advocate, for the peoner. Mr. Akshay Kumar, AAG, Punjab. **** ANOOP CHITKARA, J. FIR No. Dated Police Sta1on Sec1ons 56 22.06.2024 Sadar Jalalabad, District Fazilka 21(c), 23 of NDPS Act and Secons 10, 11 & 12 of Aircra7 Act, 1934 1. The peoner apprehending arrest in the FIR caponed above has come up before this Court under Secon 438 CrPC, seeking ancipatory bail. 2. In paragraph 13 of the bail applicaon and para 6 of the status report, the accused has the following criminal antecedents: Sr. No. FIR No. Dated Offenses Police Sta1on 1. 57 23.09.2024 21 (c)/61/85 of NDPS Act Sadar Fazilka 3. The facts and allegaons are taken from para 4 of the status report filed by the State. “4. That precisely the facts of the case are as under:- a) That the present FIR was registered as per leer of AC Coy Commander 'B' Coy 52 BN BSF BOP Jodha Bhaini wherein it was stated that on 22.06.2024 during search opera-on carried out by the B.S.F. officials in the area of BOP Jodha Wala, recovery of a drone and 01 packet containing heroin weighing 520 grams heroin was effected. Said recovered drone and contraband was handed over to police authori-es of PS Sadar, Jalalabad. In the said leer, names of four persons were men-oned as suspected persons involved in the drone ac-vity. Copy of said leer of BSF is appended 1 JYOTI 2025.01.30 14:47 I attest to the accuracy and integrity of this order/judgment. CRM-M-47526-2024 herewith as Annexure R-1 for the kind considera-on of this Hon'ble Court. b) As per leer supra, FIR no.56 dated 22.06.2024 was registered under sec-on 21(c), 23 of NDPS Act and sec-ons 10, 11, 12 of Aircra; Act at police sta-on, Sadar, Jalalabad against the present pe--oner Charanjeet Singh @ Channi, Gurmail Singh son of Bhagwan Singh, Kulwinder Singh son of Sona Singh residents of Hazara Ram Singh Wala and Baldev Singh son of Balbir Singh resident of village Jodha Bhaini. c) That a;er registra-on of said FIR, recovered contraband and drone were taken into police custody as per law.” 4. 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 his family. 5. The State’s counsel opposes bail and refers to the status report. 6. It would be appropriate to refer to the following porons of the status report, which read as follows: “ROLE OF PETITIONER: 5. That as per inves-ga-on carried out so far, role of the pe--oner has been established to the effect the pe--oner and his accomplice are ac-vely indulged in cross border trafficking of contraband. Therefore, the pe--oner cannot shirk his criminal liability.” 7. The substance tested posive for Diacetylmorphine by the laboratory. Dealing in 520 grams of heroin is a punishable offence under the NDPS Act in the following terms: Substance Name Heroin/ ChiEa/ Smack/ Brown Sugar Quanty detained 520 Gram Quanty type Commercial Drug Quan-ty in % to upper limit of Intermediate 208.00% 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 2 JYOTI 2025.01.30 14:47 I attest to the accuracy and integrity of this order/judgment. CRM-M-47526-2024 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) 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. 8. The quanty allegedly involved in this case is commercial. Given this, the rigors of S. 37 of the NDPS Act and the peoner must sasfy the twin condions put in place by the Legislature under Secon 37 of the NDPS Act. 9. The relevant poron of the order dated 23-09-2024 passed by a co-ordinate bench of this Court reads as follows: “xxx xxx In the mean-me arrest of present pe--oner is stayed -ll the next date of hearing, subject to joining of inves-ga-on.” 10. Para 4(i) of the status report filed by the DYSP Jalalabad, reads as follows: “i) That despite passing of the order dated 23.09.2024 by this Hon’ble 3 JYOTI 2025.01.30 14:47 I attest to the accuracy and integrity of this order/judgment. CRM-M-47526-2024 Court, the present pe--oner has failed to join the inves-ga-on in the present case.” 11. Despite the quanty being commercial, the peoner flouted the orders passed by this Court while obtaining interim relief of stay of arrest. The peoner’s conduct in not joining the invesgaon was tantamount to not meeng the standards of the first rider of the twin condions of S. 37 of the NDPS Act, 1985, inserted by the Execuve, passed by the Legislature, and upheld in judicial scruny. 12. Given the above, the peoner has, prima facie, failed to sasfy the condions of secon 37 of the NDPS Act to make a case for bail. 13. In Abida v. State of Haryana, 2022:PHHC:058722, [Para 10], CRM-M-5077-2022, decided on 13-05-2022, this court observed as follows: [10]. Thus, both the twin condions need to be sasfied before a person accused of possessing a commercial quanty of drugs or psychotropic substance is to be released on bail. The first condion is to provide an opportunity to the Public Prosecutor, enabling to take a stand on the bail applicaon. The second spulaon is that the Court must be sasfied that reasonable grounds exist for believing that the accused is not guilty of such offence, and is not likely to commit any offence while on bail. If either of these two condions is not met, the ban on granng bail operates. The expression “reasonable grounds” means something more than prima facie grounds. It contemplates substanal probable causes for believing that the accused is not guilty of the alleged offence. Even on fulfilling one of the condions, the reasonable grounds for believing that the accused is not guilty of such an offence, the Court sll cannot give a finding on assurance that the accused is not likely to commit any such crime again. Thus, the grant of bail or denial of bail for possessing commercial quanty would vary from case to case, depending upon its facts. [30]. From the summary of the law relang to rigors of S.37 of NDPS Act, while granng bail involving commercial quanes, the following fundamental principles emerge: (a). In case of inconsistency, S. 37 of the NDPS Act prevails over S. 439 CrPC. [Narcocs Control Bureau v Kishan Lal, 1991 (1) SCC 705, Para 6]. (b). The limitaons on granng of bail come in only when the queson of granng bail arises on merits. [Customs, New Delhi v. AhmadalievaNodira, (2004) 3 SCC 549, Para 7]. (c). The provisions of Secon 37 of the NDPS Act provide the legal norms which have to be applied in determining whether a case for grant of bail has been made out. [UOI v. Prateek Shukla, 2021:INSC:165 [Para 11], (2021) 5 SCC 430, Para 12]. (d). In case the Court proposes to grant bail, two condions are to be mandatorily sasfied in addion to the standard 4 JYOTI 2025.01.30 14:47 I attest to the accuracy and integrity of this order/judgment. CRM-M-47526-2024 requirements under the provisions of the CrPC or any other enactment. [Union of India v. Niyazuddin SK &Anr, 2017:INSC:686 [Para 7], (2018) 13 SCC 738, Para 7]. (e). Apart from granng opportunity to the Public Prosecutor, the other twin condions which really have relevance are the Court's sasfacon that there are reasonable grounds for believing that the accused is not guilty of the alleged offence. [N.R. Mon v. Md. Nasimuddin, (2008) 6 SCC 721, Para 9]. (f). The sasfacon contemplated regarding the accused being not guilty has to be more than prima facie grounds, considering substanal probable causes for believing and jusfying that the accused is not guilty of the alleged offence. [Customs, New Delhi v. Ahmadalieva Nodira, (2004) 3 SCC 549, Para 7]. (g). The reasonable belief contemplated in the provision requires existence of such facts and circumstances as are sufficient in themselves to jusfy sasfacon that the accused is not guilty of the alleged offence. [State of Kerala v. Rajesh, 2020:INSC:88 [Para 21], AIR 2020 SC 721, Para 21]. (h). Twin condions of S. 37 are cumulave and not alternave. [Customs, New Delhi v. Ahmadalieva Nodira, (2004) 3 SCC 549, Para 7]. (i). At the bail stage, it is neither necessary nor desirable to weigh the evidence meculously to arrive at a posive finding as to whether or not the accused has commiEed an offence under the NDPS Act and further that he is not likely to commit an offence under the said Act while on bail. [Union of India v. RaEan Mallik @ Habul, (2009) 2 SCC 624, Para 14]. (j). If the statements of the prosecuon witnesses are believed, then they would not result in a convicon. [Babua v. State of Orissa, (2001) 2 SCC 566, Para 3]. (k). Merely recording the submissions of the pares does not amount to an indicaon of a judicial mind or a judicious applicaon of mind. [UOI v. Prateek Shukla, 2021:INSC:165 [Para 11], (2021) 5 SCC 430, Para 12]. (l). Secon 37 departs from the long-established principle of presumpon of innocence in favour of an accused person unl proved otherwise. [Union of India v. Sanjeev v. Deshpande, (2014) 13 SCC 1, Para 5]. (m). While considering the applicaon for bail concerning Secon 37, the Court is not called upon to record a finding of not guilty. [Union of India v. Shiv Shanker Kesari, (2007) 7 SCC 798, Para 11]. (n). The confessional statement recorded under Secon 67 of the NDPS Act is inadmissible in the trial of an offence under the NDPS Act. [Tofan Singh v. State of Tamil Nadu, 2020:INSC:620, (2021) 4 SCC 1] 5 JYOTI 2025.01.30 14:47 I attest to the accuracy and integrity of this order/judgment. CRM-M-47526-2024 (o). In the absence of clarity on the quantave analysis of the samples from the laboratory, the prosecuon cannot be heard to state at this preliminary stage that the accused possessed a commercial quanty of psychotropic substances as contemplated under the NDPS Act. [Bharat Chaudhary v. Union of India 2021:INSC:877 [Para 11], 2021 SCC OnLine SC 1235, Para 10]. (p). When there is evidence of conscious possession of commercial quanty of psychotropic substances, such accused is not entled to bail given Secon 37 of the Act as contemplated under the NDPS Act. [State by (NCB) Bengaluru v. Pallulabid Ahmad ArimuEa, 2022:INSC:26 [Para 11], 2022 SCC OnLine SC 47, Para 12]. (p). Bail must be subject to stringent condions. [Sujit Tiwari v. State of Gujarat, 2020:INSC:101 [Para 12], 2020 SCC Online SC 84, Para 12]. [31]. Sasfying the feEers of S. 37 of the NDPS Act is candling the inferle eggs. The stringent condions of secon 37 placed in the statute by the legislature do not create a bar for bail for specified categories, including the commercial quanty; however, it creates hurdles by placing a reverse burden on the accused, and once crossed, the rigors no more subsist, and the factors for bail become similar to the bail peons under general penal statutes like IPC. 14. A perusal of the bail peon and the documents aEached primafacie points towards the peoner’s involvement and does not make out a case for bail. The impact of crime would also not jusfy bail. Any further discussions will likely prejudice the peoner; this court refrains from doing so. 15. Any observaon made hereinabove is neither an expression of opinion on the case's merits nor shall the trial Court advert to these comments. 16. Pe11on dismissed. Interim orders, if any, are recalled with immediate effect. All pending applicaons, if any, are disposed of. (ANOOP CHITKARA) JUDGE 30.01.2025 Jyo-II Whether speaking/reasoned: Yes Whether reportable: YES. 6 JYOTI 2025.01.30 14:47 I attest to the accuracy and integrity of this order/judgment.