CRM-M-48341-2024 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CRM-M-48341-2024 Reserved on: 03.02.2025 Pronounced on: 07.02.2025 Ishwar @ Billa ...Peoner Versus State of Haryana …Respondent CORAM: HON'BLE MR. JUSTICE ANOOP CHITKARA Present: Mr. Harjinder Singh, Advocate for the peoner. Mr. Aashish Bishnoi, D.A.G., Haryana. **** ANOOP CHITKARA, J. FIR No. Dated Police Sta1on Sec1ons 649 14.07.2023 Samalkha, District Panipat 22-C & 29 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 14 of the bail applicaon, 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 14.07.2023, based on prior informaon, the Police seized 350 injecons, i.e. 200 vials of injecons branded Buprenorphine IP and 150 vials of injecons branded Pheniramine Maleate Avil from the peoner’s possession. In his disclosure statement peoner stated that he had purchased the recovered injecons from Shahnu @ Anup @ Shahanavaj in exchange of Rs. 25,000/-. The Invesgator claims to have complied with all the statutory requirements of the NDPS Act, 1985, and BNSS, 2023. 4. The peoner's counsel submits that as per the provisions of NDPS Act, no offer was made to the peoner to get the search conducted through GazeFed Officer or from any Magistrate and no independent witness was joined during the search of the peoner. He further submits that the alleged contraband was not recovered from the conscious possession of the peoner. As per the FIR, the alleged recovery was effected from the ground. Moreover, the peoner is not involved in any other case under the 1 JYOTI 2025.02.07 15:14 I attest to the accuracy and integrity of this order/judgment. CRM-M-48341-2024 NDPS Act. 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. 7. It would be appropriate to refer to paras 5 and 6 of the status report, which reads as follows: “5. That the role of the peoner Ishwar @ Billa is that he was found to be in conscious possession of total of 350 injecons, i.e. two hundreds vials of injecons branded Buprenorphine IP (2 ml each) and one hundred fi&y vials of injecons branded Pheniramine Maleate Avil (10 ml each). He brought it from co-accused Shahnawaj @ Sahnu @ Anup for Rs.25,000/-. The peoner has also confessed to his role in crime in his disclosure statement Annexure R-1. 6. That the recovered substance 400 ml of buprenorphine falls under the category of commercial quanty as per item No.169 of schedule a7ached with NDPS Act. It is pernent to menon here that as per item No.169 commercial quanty of Buprenorphine is 20 g i.e. 20 ml. Hence, Secon 37 of NDPS Act is also a7racted in this case.” 8. As per FSL report, the average weight of Buprenorphine is 420 ml and it contained Buprenorphine and Pheniramine. REASONING: 9. 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. 10. Given this, the criminal antecedents are also not legal grounds for denying the rigors of S. 37 of the NDPS Act at this stage. 11. However, the peoner is entled to bail because Hon’ble Supreme Court had granted bail on prolonged custody in the following judicial precedents: 1) In Junaid Alam v. State of UFarakhand, decided on 12 Aug 2024, SLP(Crl.) 7708-2024, Hon’ble Supreme Court holds, [2]. It is pointed out that the peoner has been in custody for last more than 18 months since he was arrested on 25.01.2023. It 2 JYOTI 2025.02.07 15:14 I attest to the accuracy and integrity of this order/judgment. CRM-M-48341-2024 is then submiFed that only 3 out of the 10 cited prosecuon witnesses have been examined and they have not said anything to connect the peoner with the crime. [3]. The learned counsel for the State would submit that the concerned Contraband are medicinal drugs but they are sold for profit. Moreover, it is of commercial quanty. [4]. We have perused the nature of the Contraband i.e., the prohibited medicines (SYP Codectus 100 BoFles (100 Ml each), Cap Pyeevon Spas Plus 720 Cap Parvion Spas 800 Capsules, Spasonof NF 960 capsules, Capsules Spasmoproxyvon Plus 144, Proxywell Spas 2568 Capsules, Alprasafe Table 600 Tablets, Pyeevon Spas Plus 32 Capsules). [5]. Having considered the above and the fact that the trial is unlikely to conclude on a near date, we are of the view that the peoner – Junaid Alam deserves to be granted bail. It is ordered accordingly. Appropriate bail condions be imposed by the trial court. 12. The prolonged incarceraon, generally militates against the most precious fundamental right guaranteed under Arcle 21 of the Constuon and in such a situaon, the condional liberty must override the statutory embargo created under Secon 37(1)(b)(ii) of the NDPS Act1. 13. In Tajmul SK v. The State of West Bengal, decided on 23 Jul 2024, CrA 3047-2024, Hon’ble Supreme Court holds, [5]. We are inclined to set aside the impugned order only on the premise that right to speedy trial is a fundamental right. Despite the fact that the appellant has been under incarceraon for more than one and a half years, the trial is yet to start, though, it is submiFed by learned counsel appearing for the State that charges have been framed. Suffice it is to state that trial would take considerable length of me. There is no antecedent involving the appellant. [6]. Accordingly, the impugned order is set aside and the appellant is granted bail, subject to the condions that may be imposed by the Trial Court. 14. Given the above, the peoner’s pretrial custody is more than some of the judicial precedents menoned above; the peoner is entled to bail under Arcle 14 of the Constuon of India. 15. As per the custody cerficate dated 31.01.2025, the peoner's custody in this FIR is of one year, four months and seventeen days. Given the drugs were medicines that aFracted violaon of S. 22 of NDPS Act, viz-a-viz pre-trial custody, coupled with the 1 Supreme Court of India, in Rabi Prakash v. The State of Odisha, SLP (Crl) 4169-2023, Para 4, decided on 13 July 2023 3 JYOTI 2025.02.07 15:14 I attest to the accuracy and integrity of this order/judgment. CRM-M-48341-2024 primafacie analysis of the nature of allegaons and the other factors peculiar to this case, there would be no jusfiability of further pre-trial incarceraon at this stage. 16. Without commenng on the case's merits, in the facts and circumstances peculiar to this case, and for the reasons menoned above, the peoner makes a case for bail. This order shall come into force from the me it is uploaded on this Court's official webpage. CONDITIONS: 17. Given above, provided the peoner is not required in any other case, the peoner shall be released on bail in the FIR caponed above subject to furnishing bonds to the sasfacon of the concerned Court and due to unavailability before any nearest Ilaqa Magistrate/duty Magistrate. Before accepng the surety, the concerned Court must be sasfied that if the accused fails to appear, such surety can produce the accused. 18. While furnishing a personal bond, the peoner shall menon the following personal idenficaon details: 1. AADHAR number 2. Passport number (If available) and when the aFesng officer/court considers it appropriate or considers the accused a flight risk. 3. Mobile number (If available) 4. E-Mail id (If available) 19. This order is subject to the peoner’s complying with the following terms. 20. The peoner shall abide by all statutory bond condions and appear before the concerned Court(s) on all dates. The peoner 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. 21. Given the background of allegaons against the peoner, it becomes paramount to protect the members of society, and incapacitang the accused would be one of the primary opons unl the filing of the closure report or discharge, or acquiFal. Consequently, it would be appropriate to restrict the possession of firearms. [This restricon 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 sancon]. Given the nature of the allegaons and the 4 JYOTI 2025.02.07 15:14 I attest to the accuracy and integrity of this order/judgment. CRM-M-48341-2024 other circumstances peculiar to this case, the peoner shall surrender all weapons, firearms, and ammunion, if any, along with the arms license to the concerned authority within fiTeen days of release from prison and inform the Invesgator of the compliance. However, subject to the Indian Arms Act, 1959, the peoner shall be entled to renew and reclaim them in case of acquiFal in this case, provided otherwise permissible under the concerned rules. Restricng firearms would insll confidence in the vicm(s), their families, and society; it would also restrain the accused from influencing the witnesses and repeang the offense. 22. The condions menoned 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 Peon (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 condions imposed by the Court must not only have a nexus to the purpose that they seek to serve but must also be proporonal to the purpose of imposing them. The courts, while imposing bail condions must balance the liberty of the accused and the necessity of a fair trial. While doing so, condions that would result in the deprivaon of rights and liberes must be eschewed.” 23. 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 peoner is found involved in such like offence in future, the concession of bail granted to him today will liable to be withdrawn and the peoner is bound to face the necessary consequences.” 24. 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. 25. The concerned trial court is authorized to delete, modify, or relax any of the above condions and shall be competent to do so in accordance with the law. 26. Any observaon made hereinabove is neither an expression of opinion on the case's merits nor shall the trial Court advert to these comments. 27. A cerfied copy of this order would not be needed for furnishing bonds, and any Advocate for the Peoner can download this order along with case status from the official web page of this Court and aFest it to be a true copy. If the aFesng officer wants to verify its authencity, such an officer can also verify its authencity and may 5 JYOTI 2025.02.07 15:14 I attest to the accuracy and integrity of this order/judgment. CRM-M-48341-2024 download and use the downloaded copy for aFesng bonds. 28. Pe11on allowed in terms menoned above. 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.