Punjab-Haryana High Court
Balwant Singh Alias Sonu vs State Of Punjab on 12 November, 2024
Author: Anoop Chitkara
Bench: Anoop Chitkara
Neutral Citation No:=2024:PHHC:149108
CRM-M-45645-2024 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CRM-M No.45645 of 2024
Reserved on: 04.11.2024
Pronounced on: 12.11.2024
Balwant Singh @ Sonu ...Petitioner
Versus
State of Punjab ...Respondent
CORAM: HON'BLE MR. JUSTICE ANOOP CHITKARA
Present: Mr. Subhash Kumar, Advocate
for the petitioner.
Mr. Jasjit Singh, DAG, Punjab.
****
ANOOP CHITKARA, J.
FIR No. Dated Police Station Sections
94 28.07.2014 Bhogpur, District 22, 61, 85 of NDPS Act and
Jalandhar 379, 382, 411, IPC
1. The petitioner incarcerated in the FIR captioned above had come up before this
Court second time under Section 439 CrPC, 1973, seeking regular bail.
2. As per paragraph 12 of the bail petition and para 19 of reply, the accused has the
following criminal antecedents:
Sr. FIR No. Date Offenses Police Station
No.
1. 107 31.08.2012 Under sections 379, 411, 482 IPC City Hoshiarpur
2. 108 08.06.2012 Under section 379 IPC Model Town,
Hoshiarpur
3. 42 22.02.2013 Under sections 392, 411 IPC Tanda, District
Hoshiarpur
4. 28 07.05.2015 Under section 379-B of IPC Begowal, District
Kapurthala
5. 28 07.05.2015 Under sections 382, 379-B IPC Hargobindpur,
District Batala
6. 40 22.02.2013 Under sections 394, 34 IPC Tanda, District
Hoshiarpur
7. 17 11.01.2019 Under sections 15, 18, 20, 61, 85 Baddi, Himachal
of NDPS Act Pradesh
3. The facts and allegations are taken from the reply filed by the State. On July 28,
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2014, based on prior information, the Police seized 100 grams of Diphenoxylate
Hydrochloride 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. The petitioner's counsel made the following submission:
a) After registration of FIR the petitioner approached the Ld. Trial Court for getting
the concession of bail, which was considered and allowed by the Ld. Trial Court
vide its order dated 28.01.2015 (Annexure P-2). Thereafter the petitioner
continuously kept on appearing before Ld Trial Court. However, since the year
2016 due to some family problem the petitioner remained in problem and due
to miscommunication with the counsel before Ld. Trial Court, ultimately the
petitioner missed few dates and finally the petitioner was declared proclaimed
person vide order dated 23.09.2016 Annexure P-3.
b) As a matter of fact the petitioner was having family dispute with his wife and
due to which he went under depression as his wife had left away his company
leaving behind two children and the petitioner remained tensed and disturbed
badly and ultimately he got disconnected from the proceedings of Ld. Trial
Court. As a matter of fact in the month of July 2023, the pendency of the
petition came in the notice of the petitioner and he went to police station in
order to know about the status of case and finally surrendered himself and since
25.07.2023 he is behind the bar. The petitioner applied his regular bail before
Ld. Trial Court which was finally dismissed vide order dated 03.08.2023.
c) The petitioner is having two small school going children namely Amarjit Singh
son age 10 year studying in 8th standard and daughter namely Nurpreet Kaur
age 8 years studying in 5th standard, both are studying in Govt. Elementary
Middle School, Village Mirzapur Kadiala, Teshil Dasuya, District Hoshiarpur, now
they are burdened on the old age mother of petitioner and widow sister, who
are now facing dire hardships to maintain these children as there is no earning
member in the family of petitioner except him. The father of petitioner already
expired, the mother is 75 years old lady and she is bed ridden, brother of
petitioner also expired.
d) The condition of petitioner is pathetic and there is no other able bodied
member available in the family of petitioner to look after and take care to these
minor children except the petitioner. The petitioner went through long mental
depression as his wife left the company of petitioner and also left away both
minor children with the petitioner. The non-appearance of petitioner before Ld.
Trial Court is absolutely unintentional and it was only a bonafide and
inadvertent mistake, for which the petitioner is seeking apology and giving
undertaking to take more care and caution in future.
e) As a matter of fact the petitioner also came to know that the another co-
accused namely Avtar Singh was also declared Proclaimed offender in this case
and the other third accused namely Balwant Singh Bant was convicted vide
judgment and order of quantum of sentence dated 09.01.2018 to undergo R.I.
of 3 years only under Section 411 IPC only.
f) Now the petitioner is behind bar since 25.07.2023 and as on today he has
undergone custody of 1 year 1 months and 10 days, earlier also the petitioner
remained in custody of 6 months and obtained regular bail. In this way as on
today the petitioner has undergone custody of 1 year and 7 months and thus is
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seeking kind indulgence of this Hon'ble Court that keeping into consideration
the custody period of petitioner, he may kindly be admitted on regular bail.
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 refers to the reply.
7. It would be appropriate to refer to para 19 of the reply filed to the bail petition,
which reads as follows:
"ROLE OF THE PETITIONER:
(i) A total of 100 grams of contraband namely Diphenoxylate Hydrochloride was
recovered from conscious possession of the petitioner.
(ii) Three mobile phones sets make OKTEL blue, SAMSUNG colour black, and
NOKIA were recovered from the possession of the petitioner.
(iii) One stolen motor-cycle make Hero Passion bearing registration number
PB08-BA-6524 was recovered from the possession of the petitioner.
EVIDENCE AGAINST THE PETITIONER:
(i) That the petitioner was found in conscious possession of 100 grams of
contraband namely Diphenoxylate Hydrochloride and at the spot, three
mobile phones sets make OKTEL blue, SAMSUNG colour black and NOΚΙΑ
were also recovered from him.
(ii) One stolen motorcycle make Hero Passion bearing registration number
PB08-BA-6524 was recovered which was the petitioner along with co-accused
namely Avtar Singh and Balwant Singh @ Bant had stolen on 24.07.2014
from vicinity of Kapoor Hospital, Jalandhar."
8. Dealing in 100 grams of Diphenoxylate is a punishable offense under the NDPS
Act in the following terms:
Substance Name Diphenoxylate
Quantity detained 100 Gram
Quantity type Commercial
Drug Quantity in % to upper limit
200.00%
of Intermediate
Specified as small & Commercial in S.2(viia) & 2(xxiiia) NDPS Act, 1985
Notification No S.O.1055(E)
dated 10/19/2001
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Common Name
(Name of Narcotic Drug and
Psychotropic Substance Diphenoxylate
(International non-proprietary
name (INN)
Other non-proprietary name ******
1-(3-cyano-3,3-diphenyIpropyI)-4-phenylpiperidine-4-
Chemical Name
carboxylic acid ethyl ester
Small Quantity 2 Gram
Commercial Quantity 50 Gram
Declared as punishable under NDPS Act and as per schedule defined in S.2(xi) & 2(xxiii)
NDPS Act, 1985
Notification No S.O.826(E)
dated 11/14/1985
Common Name
(Name of Narcotic Drug and
Psychotropic Substance DIPHENOXYLATE
(International non-proprietary
name (INN)
Other non-proprietary name ******
Ethyl 1-(3-Cyano-3, 3-diphenyIpropyl)-4-
phenylpiperidine-4-carboxylic acid ethyl
ester (the international non-proprietary name
of which is Diphenoxylate), and its salts,
preparations, admixtures, extracts and other
Chemical Name substances containing any of these drugs,
except preparations of diphnoxylate containing,
per dosage unit, not more than 2.5 mg.
of diphenoxylate calculated as base, and a
quantity of atrophine sulphate equivalent to
at least one per cent of the dose of diphenoxylate.
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. In Md. Aliul Islam @ Aliul Islam @ Aliul vs The State of West Bengal, Criminal
Appeal No.1202/2024, the Hon'ble Supreme Court held as under:-
"Heard learned counsel for the appellant in support of
the petition and learned counsel for the State and perused
the material on record. The appellant is in custody for
approximately 1 year 4 months.
During the course of submission it was pointed out by
the learned counsel for the appellant that in another case
the appellant has been granted bail and therefore, similar
relief may be granted by this Court in this case.
The said submission is in response to the submission
made by the learned counsel for the respondent-State that
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this is not the only case in which the appellant has been
apprehended. She further submitted that a huge quantity of
codeine cough syrup was recovered from the premises
(Godown) which has been tenanted by the appellant herein.
Considering the facts on record, in our view, the case for bail
is made out."
11. In Nandalal Mondal @ Abhay Mondal vs The State of West Bengal,
MANU/SCOR/00327/2024, Hon'ble Supreme Court held as under:-
[2]. The allegations are that the petitioner along with other
accused persons were found in possession of two plastic
bags a cough containing a total of 10,000 ml. Of codeine
phosphate narcotic substance. It further syrup, which is
notified as a narcotic substance. It further appears from the
contents of the FIR that the petitioner, who was found in
conscious possession of two white plastic containers both of
which contained 5,000 ml. each of the said liquid. He was
apprehended at the spot and is in custody since then.
[3]. The respondent State of West Bengal has filed its
counter affidavit, in which it is candidly acknowledged that
though the investigation is complete and the chargesheet
has been filed, however, the charges are yet to be framed.
The prosecution proposes to examine 10 witnesses. The
conclusion of trial will, thus, take considerable time. The
petitioner is in custody for the last more than one and a half
years.. He does not have any criminal antecedents.
[4]. According to learned counsel appearing on behalf of
respondent State, the narcotic substance allegedly recovered
from the petitioner's possession is of commercial quantity'
and, as such, the rigors of Section 37 of the NDPS Act are
attracted. We have considered the submission.
[5]. Taking into consideration the period already undergone
by the petitioner in custody; the fact that he does not have
any criminal antecedents and also keeping in view that the
prolonged incarceration will not serve the cause of
substantial justice, however, without expressing any views
on the merits of the case, we are inclined to release the
petitioner on bail at this state. The petitioner is, accordingly,
directed to be released on bail subject to the following
directions:
(i) The petitioner shall furnish bail bonds to the
satisfaction of the Trial Court.
(ii) The petitioner shall appear before the Trial Court
regularly on each and every date of hearing.
(iii) In case the petitioner is found involved in any other
case under the NDPS Act, in that event, the bail granted
to him shall stand cancelled automatically and he shall
be liable to surrender immediately.
6. The accordingly. Special Leave Petition stands disposed of
accordingly."
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12. In SK. Nasiruddin @ Nasirddin SK. Vs State of West Bengal, Criminal Appeal
No.1415 of 2024, the Hon'ble Supreme Court held as under:-
[5]. We note the submission of the learned counsel for the
appellant that the appellant was arrested on 12.04.2022 and
since then he has been in custody as an under trial prisoner.
Even though charges have been framed, trial is yet to begin
but there is no likelihood of the trial being taken up and
completed within a short period of time. It is also submitted
that the appellant does not have any criminal antecedents. It
is also brought to our notice that the High Court while
rejecting the regular bail application had erroneously
recorded that 50 ltrs. of codeine phosphate was recovered
from the appellant. This is perhaps a mistake as recovery of
only 5 ltrs of codeine phosphate which was mentioned in the
FIR."
13. Given this, the criminal antecedents are also not legal grounds for denying the
rigors of S. 37 of the NDPS Act at this stage.
14. Before the first bail granted under S. 167(II) of CrPC, the petitioner had
undergone custody of more than 6 months. After that, on re-arrest, he claims to be in
custody from 25-07-2023. Thus, his total pretrial custody would be around one year and
9 months. Given that if the petitioner had not jumped the bail, he would have not been
re-arrested, except subject to the outcome of the judgment, and the other factors
peculiar to this case, there would be no justifiability for further pre-trial incarceration at
this stage, subject to the compliance of terms and conditions mentioned in this order.
15. Without commenting on the case's merits, in the facts and circumstances
peculiar to this case, and for the reasons mentioned above, the petitioner makes a case
for bail. This order shall come into force from the time it is uploaded on this Court's
official webpage.
16. Given above, provided the petitioner is not required in any other case, the
petitioner shall be released on bail in the FIR captioned above subject to furnishing
bonds to the satisfaction of the concerned Court and due to unavailability before any
nearest Ilaqa Magistrate/duty Magistrate. Before accepting the surety, the concerned
Court must be satisfied that if the accused fails to appear, such surety can produce the
accused.
17. While furnishing a personal bond, the petitioner shall mention the
following personal identification details:
1. AADHAR number
2. Passport number (If available) and when the
attesting officer/court considers it appropriate or
considers the accused a flight risk.
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3. Mobile number (If available)
4. E-Mail id (If available)
18. This order is subject to the petitioner's complying with the following terms.
19. The petitioner shall abide by all statutory bond conditions and appear before the
concerned Court(s) on all dates. The petitioner 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.
20. Given the background of allegations against the petitioner, it becomes
paramount to protect the drug detection squad, their family members, as well as the
members of society, and incapacitating the accused would be one of the primary options
until the filing of the closure report or discharge, or acquittal. Consequently, it would be
appropriate to restrict the possession of firearm(s). [This restriction is being imposed
based on the preponderance of evidence of probability and not of evidence of certainty,
i.e., beyond reasonable doubt; and as such, it is not to be construed as an intermediate
sanction]. Given the nature of the allegations and the other circumstances peculiar to
this case, the petitioner shall surrender all weapons, firearms, and ammunition, if any,
along with the arms license to the concerned authority within fifteen days from release
from prison and inform the Investigator about the compliance. However, subject to the
Indian Arms Act, 1959, the petitioner shall be entitled to renew and take it back in case
of acquittal in this case, provided otherwise permissible in the concerned rules.
Restricting firearms would instill confidence in the victim(s), their families, and society; it
would also restrain the accused from influencing the witnesses and repeating the
offense.
21. The conditions mentioned 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 Petition (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 conditions imposed
by the Court must not only have a nexus to the purpose that they seek to serve but must
also be proportional to the purpose of imposing them. The courts, while imposing bail
conditions must balance the liberty of the accused and the necessity of a fair trial. While
doing so, conditions that would result in the deprivation of rights and liberties must be
eschewed."
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22. Any observation made hereinabove is neither an expression of opinion on the
case's merits nor shall the trial Court advert to these comments.
23. A certified copy of this order would not be needed for furnishing bonds, and any
Advocate for the Petitioner can download this order along with case status from the
official web page of this Court and attest it to be a true copy. If the attesting officer
wants to verify its authenticity, such an officer can also verify its authenticity and may
download and use the downloaded copy for attesting bonds.
24. Petition allowed in terms mentioned above. All pending applications, if any, stand
disposed of.
(ANOOP CHITKARA)
JUDGE
12.11.2024
Sonia Puri
Whether speaking/reasoned: Yes
Whether reportable: No.
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