Om Parkash vs State Of Haryana
2024 Latest Caselaw 20297 P&H

Punjab-Haryana High Court

Om Parkash vs State Of Haryana on 18 November, 2024

Author: Anoop Chitkara

Bench: Anoop Chitkara

                                            Neutral Citation No:=2024:PHHC:149894



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CRM-M-45942-2024
                   IN THE HIGH COURT OF PUNJAB AND HARYANA
                                AT CHANDIGARH

                                                       CRM-M-45942-2024
                                                       Reserved on: 06.11.2024
                                                       Pronounced on: 18.11.2024


Om Parkash                                             ...Petitioner

                                        Versus

State of Haryana                                       ...Respondent


CORAM:          HON'BLE MR. JUSTICE ANOOP CHITKARA

Present:        Ms. Rosi, Advocate
                for the petitioner.

                Mr. Aashish Bishnoi, DAG, Haryana.

                                        ****
ANOOP CHITKARA, J.

 FIR No.         Dated                Police Station        Sections
 139             19.05.2024           City Nuh, District 21(C)-61-85 of NDPS Act
                                      Nuh

1. The petitioner incarcerated in the FIR captioned above had come up before this Court under Section 483 of Bharatiya Nagarik Suraksha Sanhita, 2023, [BNSS], seeking regular bail.

2. In paragraph 20 of the bail petition, the accused declares that he has no criminal antecedents, however as per custody certificate dated 05.11.2024, the accused has the following criminal antecedents:

 Sr. No.    FIR No.           Date Offenses                      Police Station
 1          1600              2024 61-4-20 of Excise Act         Enforcement      Bureau,
                                                                 Rewari

3. The facts and allegations are taken from the reply filed by the State. On May 19, 2024, based on prior information, the Police seized 14 injections of Buprenorphine 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 argued that 14 injections of Buprenorphine IP 12 ML were allegedly found from plastic bag which was in his pocket. He further submitted that challan is already presented on 11.07.2024 and there are total 11 official witnesses and none has been examined till date and the next date in the present case is 20.11.2024. It is also submitted that no any independent witness was associated by the investigating

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CRM-M-45942-2024 officer at the time petitioner's arrest, so there is violation of Section 100 CrPC. Counsel further submitted that in the present case, petitioner is behind bars since 19.05.2024 and is in custody for the last five months and four days. As per the story of the prosecution, the petitioner was found in possession of 14 injections of Buprenorphine 02 ML Bupine and it has been wrongly shown that the quantity of contraband fall within the ambit of "commercial quantity". As per learned counsel, according to the first proviso to Rule 66(ii) of the "Act", a person is legally authorizing to keep/possess upto 100 doses of the above injection. Learned counsel further submits that the alleged recovery was effected from the petitioner in the open place/bus stand, but no private person was joined as a witness in the present case. He further contends that even the police had violated the mandatory provisions of Section 42 and 50 of the Act, while.

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 para 10 of the reply, which reads as follows:

"10. That in reply to para No. 10 of the present petition it is submitted that all the mandatory provisions of NDPS Act have been complied with by the investigating officer during the course of investigation. Believing the information to be reliable the information notice under Section 42 of the NDPS Act was prepared and sent to senior officer. Raiding party was constituted. The passersby were requested to join the investigation but they expressed their inability. The police party reached near the mosque on 8 Jagipur-Khedla Road and overpowered a young man standing there on asking he told his name as Om Prakash son of Sita Ram. Notice under section 50 of the NDPS Act was served upon him for his search. The accused desired that search be conducted in the presence of Gazetted Officer. Duty Magistrate Sh. Narender Singh Tehsildar Nuh, was requested to come to the spot. After the arrival of Duty Magistrate, search was conducted in his presence. On search of the pocket 14 injections of Buprenorphine IP 2ml/BUPINE were found. The Drug Inspector, Nuh Amandeep was informed and photos of injections were sent to him through Whatsapp and after checking he stated that the offence under the NDPS Act is made out. The injections were taken into the possession of the police and they were sealed as the accused could not produce any permit or license. He committed the offence punishable under Section 22-C of the NDPS Act by keeping the banned narcotic injections in his possession without any license or permit."

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7. The quantity of 14 ampules of 2 ml each, a total weighing 28 ml of buprenorphine, falls in the commercial category. 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.

8. 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.

9. 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 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.

10. 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

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.

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CRM-M-45942-2024 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.

11. 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.

12. As per the custody certificate dated 05.11.2024, the petitioner's custody is 05 months & 15 days, which cannot be considered prolonged.

13. 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 prosecution, 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 investigation, it was found that the motor vehicle was recorded in the name of Md. Nizam Uddin who had executed a sale letter 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 question 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 after they had undergone custody to the tune of about a year. Questioning grant of relief to said accused, the instant appeals have been preferred.

[7]. What emerges from the record is that large quantity 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 question.

[8]. The answer to said question could be the statement recorded of Md. Nizam Uddin. The statement of Md. Jakir Hussain recorded under Section 67 of the Act has also named his owner accused

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CRM-M-45942-2024 Abdul Hai. We are conscious of the fact that the validity and scope of such statements under Section 67 has been pronounced upon by this Court in Tofan Singh v. State of Tamil Nadu . In State by (NCB) Bengaluru v. Pallulabid Ahmad Arimutta , 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 matter stands on a different footing. In our considered view, in the face of the mandate of Section 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 matter and conclude the proceedings as early as possible and preferably within six months from the receipt of this order.

14. In Narayan Takri v. State of Odisha, decided on 10 Sep 2024, SLP (Crl.) 8198- 2024, Hon'ble Supreme Court holds, The petitioners are in custody since 28th May, 2022 for alleged commission of alleged offence under Section 20(b)(ii)(c) of the Narcotic Drugs and Psychotropic Substances Act, 1985. As per the FIR allegation, 125.3 kg. of "Ganja" was recovered from the petitioners.

[3]. It is not in dispute that the trial has commenced and that three prosecution witnesses have been examined till date.

[4]. Learned counsel for the petitioners submits that the third prosecution witness was examined as far back as on 28th January, 2024 and since then, no other prosecution witness has been examined. There is, however, no such averment in the petition.

[5]. Learned counsel appearing for the respondent submits that every endeavor shall be made on behalf of the prosecution 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 this year, the petitioners shall be at liberty to renew their prayer for bail before the trial court.

15. A perusal of the bail petition and the documents attached primafacie points towards the petitioner's involvement and does not make out a case for bail. The impact of crime would also not justify bail. Any further discussions will likely prejudice the petitioner; this court refrains from doing so.

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.

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17. Petition dismissed. All pending applications, if any, stand disposed of.

(ANOOP CHITKARA) JUDGE 18.11.2024 anju rani

Whether speaking/reasoned: Yes Whether reportable: No.

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