CRM-M-48488-2024 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CRM-M-48488-2024 Reserved on: 03.02.2025 Pronounced on: 07.02.2025 Varinder Singh ...Peoner Versus State of Punjab …Respondent CORAM: HON'BLE MR. JUSTICE ANOOP CHITKARA Present: Mr. Gaurav Kalsi, Advocate for the peoner. Mr. Rubal Pawar, A.A.G. Punjab. **** ANOOP CHITKARA, J. FIR No. Dated Police Sta0on Sec0on 197 07.09.2023 Sadar Kharar, District SAS Nagar (Mohali) 22 of NDPS Act 1. The peoner incarcerated in the FIR caponed above had come up before this Court under Secon 483 of Bharaya Nagarik Suraksha Sanhita, 2023, [BNSS], seeking regular bail. 2. In paragraph 10 of the bail peon, the accused declares that he has no criminal antecedents. 3. The facts and allegaons are taken from the status report filed by the State. On 07.09.2023, based on a chance recovery, the Police recovered 15000 tablets of Lomol from the possession of the peoner and 5100 tablets from the possession of co-accused Sunny. The Invesgator claims to have complied with all the statutory requirements of the NDPS Act, 1985, and BNSS, 2023. 4. The peoner's counsel refers to the bail peon. It would be relevant to refer to paras 4 & 5, which reads as follows: “4. That the alleged recovery has been made in contravenon of the provisions of the NDPS Act, no proper offer was given to the peoner before conducng the search. The police party has not even bothered to call the gaze$ed officer on the spot. Such non-compliance on the part of the police cast serious doubt on the story of the prosecuon. It is the 1 JYOTI 2025.02.07 15:14 I attest to the accuracy and integrity of this order/judgment. CRM-M-48488-2024 se$led law that the any incriminang contraband, the possession of which is punishable under the NDPS Act, if recovered in violaon of mandatory provisions of act, the same would be inadmissible and cannot be relied by the prosecuon. 5. That it is relevant to menon here that the peoner and the co- accused belongs to different villages. The peoner didn't even know the co-accused Sunny. There is no possibility of presence of peoner along with the co-accused on the place of occurrence. This also makes the story of the prosecuon highly doub+ul. Whatever have been alleged in the present FIR, the same seems to be manipulated by the prosecuon.” 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 his family. 6. The State’s counsel opposes bail and refers to the status report. It would be appropriate to refer para 6 of the status report, which reads as follows: “6. That there are total three accused in present FIR out of which accused namely Gurpreet Singh son of Bhag Singh was granted regular bail vide order dated 20.10.2023 passed by the Ld. Trial Court, District SAS Nagar. It is pernent to menon that the peoner has commi$ed serious offence and peoner was having possession of 250 strips of ‘Lomol’, each strip contains 60 tablets, which comes in total 15000 tablets and average weight was 63 mg/tablet as per menoned in FSL report (Annexure R-1). The total weight of 15000 tablets is 945000 mg, which converts into gram i.e. 945 grams. The co-accused ‘Sunny’ was in possession of 85 strips of ‘Lomol’, each strip contains 60 tablets, which comes in total 5100 tablets, average weight was 63mg/tablet as menoned in FSL report (Annexure R- 1). The total weight of 5100 tablets is 321300 mg, which converts into gram i.e. 321.3 grams. Thus, the quanty recovered from the peoner is commercial in nature. If he is enlarged on bail, he may try to give threat to prosecuon witnesses or flee from trial.” REASONING: 7. The quanty allegedly involved in this case is commercial. Given this, the rigors of S. 37 of the NDPS Act apply in the present case. The peoner must sasfy the twin condions put in place by the Legislature under Secon 37 of the NDPS Act. 2 JYOTI 2025.02.07 15:14 I attest to the accuracy and integrity of this order/judgment. CRM-M-48488-2024 8. Secon 371 of the NDPS Act mandates under sub-secon (1) (b) of secon 37 that no person accused of an offense punishable for offenses involving commercial quanty shall be released on bail unless- (i) the Public Prosecutor has been given an opportunity to oppose the applicaon of release, and (ii) where the Public Prosecutor opposes the applicaon, the Court is sasfied that there are reasonable grounds for believing that accused is not guilty of such offense and is not likely to commit any offense while on bail. Thus, the rigors of S. 37 of the NDPS Act apply in the present case, and the burden is on the peoner to sasfy the twin condions put in place by the Legislature under Secon 37 of the NDPS Act. Given the legislave mandate of S. 37 of the NDPS Act, the Court can release a person accused of an offense punishable under the NDPS Act for possessing a commercial quanty of contraband only aFer recording reasonable sasfacon of its rigors. 9. The State’s Counsel argues that a plain reading of Secon 37 reveals that the legislature intends to make the law stringent to curb the drug menace. It is further to be noced that the provisions are couched in negave language, meaning that to grant bail, the Court needs to record a finding that there are reasonable grounds for believing that the peoner is not guilty of the offense. The burden of proof is also on the peoner to sasfy the Court about his non-involvement in the case. While interpreng the provisions of Secon 37 of the NDPS Act, the Court must be guided by the objecve sought to be achieved by puHng these stringent condions. 10. Sasfying the feIers 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 exist, and the factors for bail become similar to the bail peons under general penal statutes like IPC. 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 them 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 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 section 19 or section 24 or section 27A and also for offences involving commercial quantity shall be released on bail or on his own bond unless— (i) the Public Prosecutor has been given an opportunity to oppose the application for such release, and (ii) where the Public Prosecutor opposes the application, the court is satisfied 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 limitations on granting of bail specified in clause (b) of sub-section (1) are in addition to the limitations under the Code of Criminal Procedure, 1973 (2 of 1974) or any other law for the time being in force on granting of bail. 3 JYOTI 2025.02.07 15:14 I attest to the accuracy and integrity of this order/judgment. CRM-M-48488-2024 accused is not guilty of such an offense and is not likely to commit any offense while on bail. If either of these 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 the accused is not guilty of the alleged offense. Even on fulfilling one of the condions, the reasonable grounds for believing that the accused is not guilty of such an offense, the Court sll cannot give a finding on the assurance that the accused is not likely to commit any such crime again. 11. The peoner’s arguments did not point toward any material contradicons. It was a case of chance recovery. As such, S. 42 would not apply inially, and recovery was not from the person. As such, S. 50 would also not aIract. Non-examinaon of independent witnesses is not illegal, and its outcome depends upon the nature of evidence tendered in the examinaon in chief and its cross-examinaon. 12. The submissions made above and the grounds in the bail peon do not shiF the burden the legislature places on the accused under S. 37 of the NDPS Act. The peoner has not stated anything in the bail peon to discharge the burden put by the stringent condions placed in the statute by the legislature under secon 37 of the NDPS Act. The invesgaon reveals sufficient prima facie evidence to connect the peoner with the crime; thus, the peoner fails to make out a case for bail. Any detailed discussions about the evidence may prejudice the case of the peoner, the State, or the other accused. 13. As per the custody cerficate dated 31.01.2025, the peoner's custody is 01 year, 04 months and 22 days, which cannot be considered prolonged. 14. In Union of India (NCB) v. Khalil Uddin, decided on 21 Oct 2022, 2022 SCC OnLine SC 2109, Hon’ble Supreme Court holds, [4]. According to the prosecuon, contraband material weighing about 13 kgs. of morphine was found in a motor vehicle which was driven by co-accused named Md. Jakir Hussain. During the course of invesgaon, it was found that the motor vehicle was recorded in the name of Md. Nizam Uddin who had executed a sale leIer and handed over the custody of the vehicle to accused Md. Abdul Hai and that accused Md. Jakir Hussain was the driver employed by accused Md. Abdul Hai and that contraband material in queson was to be handed over to accused-Khalil Uddin, an owner of a tea shop. [5]. The High Court by its order which is presently under challenge, directed release of both the accused as stated above on bail aFer they had undergone custody to the tune of about a year. Quesoning grant of relief to said accused, the instant appeals have been preferred. 4 JYOTI 2025.02.07 15:14 I attest to the accuracy and integrity of this order/judgment. CRM-M-48488-2024 [7]. What emerges from the record is that large quanty of contraband weighing about 13 kgs of morphine was found in a car which was driven by Md. Jakir Hussain. Whether the role played by said Md. Jakir Hussain could get connected with both the accused is a queson. [8]. The answer to said queson could be the statement recorded of Md. Nizam Uddin. The statement of Md. Jakir Hussain recorded under Secon 67 of the Act has also named his owner accused Abdul Hai. We are conscious of the fact that the validity and scope of such statements under Secon 67 has been pronounced upon by this Court in Tofan Singh v. State of Tamil Nadu . In State by (NCB) Bengaluru v. Pallulabid Ahmad Arimu$a , the rigour of law lay down by this Court in Tofan Singh was held to be applicable even at the stage of grant of bail. [9]. However, going by the circumstances on record, at this stage, on the strength of the statement of Md. Nizam Uddin, though allegedly retracted later, the maIer stands on a different foong. In our considered view, in the face of the mandate of Secon 37 of the Act, the High Court could not and ought not to have released the accused on bail. We, therefore, allow these appeals, set aside the view taken by the High Court and direct that both the appellants be taken in custody forthwith. [10]. We have been given to understand that the charge-sheet has been filed. In the circumstances, we direct the Trial Court to take up the maIer and conclude the proceedings as early as possible and preferably within six months from the receipt of this order. 15. In Narayan Takri v. State of Odisha, decided on 10 Sep 2024, SLP (Crl.) 8198- 2024, Hon’ble Supreme Court holds, The peoners are in custody since 28th May, 2022 for alleged commission of alleged offence under Secon 20(b)(ii)(c) of the Narcoc Drugs and Psychotropic Substances Act, 1985. As per the FIR allegaon, 125.3 kg. of “Ganja” was recovered from the peoners. [3]. It is not in dispute that the trial has commenced and that three prosecuon witnesses have been examined ll date. [4]. Learned counsel for the peoners submits that the third prosecuon witness was examined as far back as on 28th January, 2024 and since then, no other prosecuon witness has been examined. There is, however, no such averment in the peon. [5]. Learned counsel appearing for the respondent submits that every endeavor shall be made on behalf of the prosecuon to have all the witnesses examined by the end of this year. [6]. The trial court is encouraged to expedite the trial and give its decision as early as possible, in accordance with law. [7]. We, however, do not see any reason to interfere the impugned judgment and order at this stage; however, it is clarified that in the event the trial is not completed by the end of 5 JYOTI 2025.02.07 15:14 I attest to the accuracy and integrity of this order/judgment. CRM-M-48488-2024 this year, the peoners shall be at liberty to renew their prayer for bail before the trial court. 16. A perusal of the bail peon and the documents aIached 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. 17. Any observaon made hereinabove is neither an expression of opinion on the case's merits nor shall the trial Court advert to these comments. 18. Pe00on dismissed. All pending applicaons, if any, stand disposed of. (ANOOP CHITKARA) JUDGE 07.02.2025 Jyo-II Whether speaking/reasoned: Yes Whether reportable: No. 6 JYOTI 2025.02.07 15:14 I attest to the accuracy and integrity of this order/judgment.