Punjab-Haryana High Court
Navdeep Rai vs State Of Punjab on 24 October, 2024
Author: Anoop Chitkara
Bench: Anoop Chitkara
CRM-M-34227-2024
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CRM-M-34227-2024
Reserved on: 16.10.2024
Pronounced on: 24.10.2024
Navdeep Rai ...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
116 06.10.2023 Nakodar City, District 22 of the NDPS Act
Jalandhar City
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, but as per paragraph 11 of the status report filed by the State, the accused
has the following criminal antecedents:
Sr. No. FIR No. Date Offenses Police Station
1 20 17.02.2007 307/326/323/324 IPC Goraya, Jalandhar
2 133 26.09.2009 382/34/323 IPC Nurmehal
3. The facts and allegations are taken from the reply filed by the State. On October
06, 2023, based on prior information, the Police seized 150 tablets containing Etizolam
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 refers to bail petition and specifically to paras 4 & 5,
which read as follows:
"4. That as a matter of fact the petitioner was arrested on
authenticity of this order/judgment
CRM-M-34227-2024
06.10.2023 and remained in custody for a period of 1 month 24
days and he was released on bail u/s 439 Cr.P.C. The petitioner
applied his regular bail before Ld. Trial Court and it was allowed
in the light of judgment of Inderjit Singh Laddi with the condition
that till the receipt of chemical examiner he released on regular
bail. Thereafter the petitioner was regularly appearing before Ld.
Trial Court on each and every date of hearing. The copy of the
order dated 30.11.2023 vide which the petitioner has granted
regular bail u/s 439 Cr.P.C is annexed herewith as Annexure P-2.
5. That as per report the alleged recovery from petitioner
was 150 intoxicant tablets found containing Etizolam. The weight
of each tablet was 99 mg, so total quantity of the contraband
comes to 14.85, which falls in the category of commercial quantity.
Therefore keeping into consideration the quantity of Etizolam the
interim bail granted to the petitioner is cancelled and he is taken
back in custody. Challan filed and charges already framed."
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 status report, which
reads as follows:
"10. That in compliance of the above-said order dated
24.07.2024 passed by this Hon'ble Court, the response to
the specific 03 queries put in by this Hon'ble Court are as
follows:-
A) THE ROLE OF THE PETITIONER:- The petitioner
was apprehended by the Police on 06.10.2023 and 150
intoxicant tablets were recovered from his possession and
as per the FSL Report, salt "Etizolam" was found present
in the said tablets.
B) THE EVIDENCE AGAINST THE PETITIONER:-
The recovery of 150 loose intoxicant tablets from the
petitioner clearly shows that he was indulged in the drug
trafficking."
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. 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.
9. Section 371 of the NDPS Act mandates under sub-section (1) (b) of section 37 that
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;
authenticity of this order/judgment
CRM-M-34227-2024
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.
10. 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.
11. 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
(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-34227-2024
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.
12. 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.
13. Per the custody certificate dated 15.10.2024, the petitioner's custody is 7 months
and 24 days, which cannot be considered prolonged, and the ratio of Dheeraj Shukla does
not apply.
14. The petitioner is not entitled to bail based on Dheeraj Kumar Shukla v. The State
of Uttar Pradesh [SLP (Crl) 6690-2022], decided on 25 Jan 2023. Dheeraj Shukla would
be attracted when the three conditions are fulfilled,
(a). The custody of more than two years and six months and the delay was not
attributable to the accused.
(b). The trial is at an initial stage.
(c) The petitioner is the first offender.
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.
17. Petition dismissed. All pending applications, if any, stand disposed of.
(ANOOP CHITKARA)
JUDGE
24.10.2024
Jyoti Sharma
Whether speaking/reasoned: Yes
Whether reportable: No.
authenticity of this order/judgment
