Punjab-Haryana High Court
Darshan Singh Alias Raju vs State Of Punjab on 12 November, 2024
Author: Anoop Chitkara
Bench: Anoop Chitkara
CRM-M-16992-2024
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CRM-M-16992-2024
Reserved on: 04.11.2024
Pronounced on: 12.11.2024
Darshan Singh @ Raju ...Petitioner
Versus
State of Punjab ...Respondent
CORAM: HON'BLE MR. JUSTICE ANOOP CHITKARA
Present: Mr. Prabhdeep Singh Toor, Advocate
for the petitioner.
Mr. Sukhdev Singh, AAG, Punjab.
****
ANOOP CHITKARA, J.
FIR No. Dated Police Station Sections
127 28.11.2022 Payal, Khanna, 15/25/61/85 of NDPS Act
District Ludhiana
1. The petitioner incarcerated in the FIR captioned above had come up before this Court under Section 439 CrPC, 1973, seeking regular bail.
2. In paragraph 8 of the bail petition, the accused declares that he has no criminal antecedents.
3. The facts and allegations are taken from the reply filed by the State. On Nov 28, 2022, based on a chance recovery, the Police seized 7 kgs of poppy straw from the petitioner's possession. The Investigator claims to have complied with all the statutory requirements of the NDPS Act, 1985, and CrPC, 1973.
4. On Nov 29, 2022, during the custodial interrogation, the petitioner made a disclosure statement about concealing more poppy straw, which led to the discovery of 93 kg of poppy straw in his house.
5. The petitioner's counsel prays for bail by imposing any stringent conditions and contends that further pre-trial incarceration would cause an irreversible injustice to the petitioner and their family.
6. The State's counsel opposes bail and submits that the trial is at the stage of 313 CrPC and assures that the State shall not delay the trial.
Jyoti Sharma 2024.11.12 17:37 I attest to the accuracy andauthenticity of this order/judgment High Court, Sector 1, Chandigarh 1 CRM-M-16992-2024
7. The petitioner's arguments did not point toward any material contradictions. It was a case of chance recovery. As such, S. 42 would not apply initially, and recovery was not from the person. As such, S. 50 would also not attract. Non-examination of independent witnesses is not illegal, and its outcome depends upon the nature of evidence tendered in the examination in chief and its cross-examination.
8. Dealing in 100 kgs of poppy straw is a punishable offense under the NDPS Act in the following terms:
Substance Name Poppy straw
Quan ty detained 100 Kg
Quan ty type Commercial
Drug Quan ty in % to upper limit
200.00%
of Intermediate
Specified as small & Commercial in S.2(viia) & 2(xxiiia) NDPS Act, 1985 No fica on No S.O.1055(E) dated 10/19/2001 Sr. No. 110 Common Name (Name of Narco c Drug and Psychotropic Substance Poppy straw (Interna onal non-proprietary name (INN) Other non-proprietary name ****** Chemical Name ****** Small Quan ty 1000 Gram (i.e. equivalent to 1 Kg) Commercial Quan ty 50000 Gram (i.e. equivalent to 50 Kg) 0 Declared as punishable under NDPS Act and as per schedule defined in S.2(xi) & 2(xxiii) NDPS Act, 1985 No fica on No S.15 & S.2(xviii) NDPS Act, S.O.821(E) dated 11/14/1985 Sr. No. S.2(xviii) Common Name (Name of Narco c Drug and Psychotropic Substance ****** (Interna onal non-proprietary name (INN) Other non-proprietary name ****** Chemical Name S.2(xviii) "poppy straw" means all parts (except the seeds) of the opium poppy a er harves ng whether in their original form or cut, crushed or powdered and whether or not juice has been extracted therefrom; S. 2(viiib)] "illicit traffic", in rela on to narco c drugs and psychotropic substances, means--
(i) cul va ng any coca plant or gathering any por on of coca plant;
(ii) cul va ng the opium poppy or any cannabis plant;
Jyoti Sharma (iii) engaging in the produc on, manufacture, 2024.11.12 17:37 I attest to the accuracy and authenticity of this order/judgment High Court, Sector 1, Chandigarh 2 CRM-M-16992-2024 possession, sale, purchase, transporta on, warehousing, concealment, use or consump on, import inter-State, export inter-State, import into India, export from India or transhipment, of narco c drugs or psychotropic substances; S.2 (xvii) "opium poppy" means--
(a) the plant of the species Papaver somniferum L;
and
(b) the plant of any other species of Papaver from which opium or any phenanthrene alkaloid can be extracted and which the Central Government may, by no fica on in the Official Gaze e, declare to be opium poppy for the purposes of this Act;
S2. (xviii) "poppy straw" means all parts (except the seeds) of the opium poppy a er harves ng whether in their original form or cut, crushed or powdered and whether or not juice has been extracted therefrom;
9. The quantity allegedly involved in this case is commercial. Given this, the rigors of S. 37 of the NDPS Act apply in the present case. The petitioner must satisfy the twin conditions put in place by the Legislature under Section 37 of the NDPS Act.
10. Section 371 of the NDPS Act mandates under sub-section (1) (b) of section 37 that no person accused of an offense punishable for offenses 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 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 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 offense punishable under the NDPS Act for possessing a commercial quantity of contraband only after recording reasonable satisfaction of its rigors.
11. 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 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 Jyoti Sharma 2024.11.12 17:37 force on granting of bail.
I attest to the accuracy andauthenticity of this order/judgment High Court, Sector 1, Chandigarh 3 CRM-M-16992-2024 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.
12. 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 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.
13. The submissions made above and 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. The investigation reveals sufficient prima facie evidence to connect the petitioner with the crime; thus, the petitioner fails to make out a case for bail. Any detailed discussions about the evidence may prejudice the case of the petitioner, the State, or the other accused.
14. The prosecution's evidence is recorded, and the trial is at the stage of 313 CrPC. The trial is in advance stage, and any observation by this court at this stage might prejudice the prosecution or the accused.
15. Given the above, the petitioner fails to make a case for bail.
16. Any observation made hereinabove is neither an expression of opinion on the case's merits nor shall the trial Court advert to these comments.
Jyoti Sharma 2024.11.12 17:37 I attest to the accuracy andauthenticity of this order/judgment High Court, Sector 1, Chandigarh 4 CRM-M-16992-2024
17. Petition dismissed. All pending applications, if any, are disposed of.
(ANOOP CHITKARA) JUDGE 12.11.2024 Jyoti Sharma Whether speaking/reasoned: Yes Whether reportable: No. Jyoti Sharma 2024.11.12 17:37 I attest to the accuracy and authenticity of this order/judgment High Court, Sector 1, Chandigarh 5