Punjab-Haryana High Court
Harjinder Singh Alias Honey vs State Of Punjab on 24 October, 2024
Author: Anoop Chitkara
Bench: Anoop Chitkara
CRM-M-28169-2024
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CRM-M-28169-2024
Reserved on: 16.10.2024
Pronounced on: 24.10.2024
Harjinder Singh @ Honey ...Petitioners
Versus
State of Punjab ...Respondent
CRM-M-42809-2024
Harinder Singh @ Happy ...Petitioners
Versus
State of Punjab ...Respondent
CORAM: HON'BLE MR. JUSTICE ANOOP CHITKARA
Present: Mr. Sandeep Verma, Advocate
for the petitioner (s).
Mr. Jasjit Singh, DAG, Punjab.
****
ANOOP CHITKARA, J.
FIR No. Dated Police Station Sections
286 24.12.2023 City Moga, District 22 (c) of the NDPS Act, 1985
Moga
1. The petitioners incarcerated in the FIR captioned above had come up before this
Court under Section 439 CrPC, 1973, seeking regular bail.
2. Per paragraph 13 (2) (viii) of the bail application and per paragraph 10 of the
reply dated 26.07.2024, petitioner Harjinder @ Honey has the following criminal
antecedents:-
Sr. FIR Date Offenses Police Sta-
No. No. tion
1 22 27.06.2020 20 of the NDPS Act, 1985 -
2 162 08.10.2016 379-B-34 IPC Sadar
Jagraon
3 65 15.06.2017 30/506/34 IPC Sadar
Barnala
4 188 27.11.2017 379-B/379/411/34 IPC Nihal Singh
Wala
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5 2 03.01.2018 379/411/420/482/473/120-B IPC Rahon
6 228 28.10.2018 22 of the NDPS Act City Moga
7 57 22.02.2024 42/52-A of the Jail Manual Act City Faridkot
8 131 23.11.2022 21 of the NDPS Act Mehna
9 131 23.11.2022 21 of the NDPS Act Badhni
Kalan
10 353 31.10.2021 52-A of the Jail Act City Faridkot
11 336 14.10.2017 379/411 IPC City Barnala
3. Similarly, per paragraph 9 of the reply dated 12.09.2024, filed by the concerned
DySP, petitioner Harinder Singh @ Happy has the following criminal antecedents:-
Sr. No. FIR No. Dated Offences Police Sta-
tion
1 345 26.06.2018 365/34 IPC Tallewal
4. The facts and allegations are taken from the reply filed by the State in
CRM-M-28169-2024. On Dec 24, 2023, based on prior information, the Police seized
145 tablets containing Etizolam from Harjinder's possession and 105 tablets containing
Etizolam from Harinder's possession. The Investigator claims to have complied with all
the statutory requirements of the NDPS Act, 1985, and CrPC, 1973.
5. The Investigator claims to have complied with all the statutory requirements of
the NDPS Act, 1985, and CrPC, 1973.
6. The petitioners' 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.
7. The State's counsel opposes bail and refers to the reply.
8. It would be appropriate to refer to para 3 of the reply dated 02-10-2024, filed by
the concerned DySP, in CRM-M-28169-2024, which reads as follows:-
"3. That in compliance of said order it is submitted that in
the present case two parcels i.e. one containing 145 loose tablets
(recovered from the polythene thrown by Harjinder Singh @
Honey) and another parcel containing 105 loose tablets (recovered
from the polythene thrown by Harinder Singh @Happy), were sent
to FSL for analysis.
As per FSL report following tablets were recovered:
From the first parcel of total 145 tablets:
i) 120 Dark peach coloured tablets average weight 131mg/table
containing Olanzapine salt, (total weight 15.72 grams)
ii) 25 light peach coloured loose tablets, average weight
126mg/tab, containing Etizolam salt (total weight 3.15 grams)
From Second Parcel of total 105 tablets:
i) 81 Dark peach-coloured tablets average weight 133mg/table
containing Olanzapine salt, (total weight 10.773 grams)
ii) 24 light peach coloured loose tablets, average weight
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125mg/tab, containing Etizolam salt (total weight 3.00 grams)
Were recovered. Copy of FSL report is attached herewith as
Annexure R-1. As per NDPS Act, the recovery of 2.5 grams of
Etizolam falls within ambit of commercial quantity. So, in this way
recovery effected in the present case, falls within ambit of
commercial quantity and provisions of section 37 of NDPS Act are
applicable in the present case."
9. Dealing in Etizolam is a punishable offense under the NDPS Act in the following
terms:
Substance Name E zolam
Quan ty type Commercial
Specified as small & Commercial in S.2(viia) & 2(xxiiia) NDPS Act, 1985
No fica on No S.O.1276(E)
dated 3/23/2021
Sr. No. 238ZZC
Common Name
(Name of Narco c Drug and
Psychotropic Substance E zolam
(Interna onal non-proprietary
name (INN)
Other non-proprietary name ******
4-(2-Chlorophenyl)-2-ethyl-9-methyl-6H-thieno[3,2-f]
Chemical Name
[1,2,4]triazolo[4,3a][1,4]diazepine
Small Quan ty 0.05 Gram
Commercial Quan ty 2.5 Gram
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.O.1275(E)
dated 3/23/2021
Sr. No. 110ZN
Common Name
(Name of Narco c Drug and
Psychotropic Substance E zolam
(Interna onal non-proprietary
name (INN)
Other non-proprietary name ******
4-(2-Chlorophenyl)-2-ethyl-9-
Chemical Name methyl-6H-thieno[3,2-
f][1,2,4]triazolo[4,3a][1,4]diazepine
10. 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.
11. 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:-
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"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 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."
12. 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.
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(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."
13. 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."
14. Given this, the criminal antecedents are also not legal grounds for denying the
rigors of S. 37 of the NDPS Act at this stage.
15. The petitioner, in para 6 of the bail petition in CRM-M-28169-2024 (At page 7),
has leveled serious allegations of false implication, and thus, it would be relevant to refer
to para 6, which reads as follows:
"6. That it is apposite to mention here that the allegations
against the petitioner and his co-accused namely Harinder Singh
@ Happy are totally false in view of the fact, that the petitioner has
been picked up from his residence on 23.12.2023 along-with his
swift car bearing registration no. PB-45A-6200, the same is
reflected from the CCTV Footage installed in the house of the
petitioner, in the video the petitioner was seen being taken by the
police officials along-with his car from the resident and
subsequently the present FIR has been registered. A copy of the
Compact Disc containing the video is being appended herewith as
ANNEXURE P-2."
16. To understand the primafacie credibility of the evidence, it shall be appropriate to
refer to paras 4 and 5 of the reply dated 26-07-2024, in CRM-M-28169-2024 filed by the
concerned DySP, which read as follows:
"4. That brief facts of the case are on 24.02.2023 a police
party headed by ASI Gurdeep Singh was present under the bridge
situated at Akalsar Chowk, Moga then special informer came there
and informed that Harjinder Singh @ Honey son of Rashpinder
Singh @ Bhinder resident of Bhangu Patti Bilaspur and Harinder
Singh @ Happy son of Gurcharan Singh resident of Basti Rama,
Bilaspuir are coming from Dusanjh to Moga on swift Dezire car no.
PB45A-6200 of white colour for selling the intoxicant tablets, and
in case barricading is held at some suitable place then they can be
Jyoti Sharma apprehended red handed and from their possession huge quantity of
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intoxicant tablets can be recovered. On the basis of said
information ASI Gurdeep Singh sent ruqa to the police station and
got registered the present case.
5. That on receiving the information another police party
headed by ASI Charanjit Kaur reached at the spot and started
barricading at Dusanjh Road Katcha Dusanjh Road, Moga. In the
meantime, one Swift Dezire car No. PB-45-6200 was supported
which was coming from Dusanjh side from which two person
having haircut were travelling. ASI Charanjit Kaur signalled to
stop the car, then instead of stopping the car, said persons tried to
take U-turn, but suddenly engine of car was stopped, due to which
both the persons opened the doors of the car and thrown plastic
polythenes on the ground after taking the same from the pockets
from their pants. ASI Charanjit Kaur with the help of police party
apprehended them and on enquiry the driver of the car disclosed
his name as Harjinder Singh @ Honey son of Rashpinder Singh
resident of Bhangu Patti, Bilaspur and second person disclosed his
name as Harinder Singh @ Happy son of Gurcharan Singh resident
of Bilaspur. Police party tried to join public witness, but no body
found present there, due to darkness and fog. Then ASI Charanjit
Kaur introduced herself to Harinder Singh @Happy and Harjinder
Singh @ Honey and told them that she has doubt that there is some
intoxicant substance in their possession, so their search is to be
conducted, but they have legal right to get conduct the search in
presence of any gazetted officer or any magistrate. But both of them
replied that they have faith upon ASI Charanjit Kaur and she can
conduct the search. In this regard ASI Charanjit Kaur issued notice
u/s 50 of NDPS Act to them. Then Harjinder Singh @ Honey picked
up the plastic polythene thrown by him on the ground and produced
the same before ASI Charanjit Kaur, during checking of same 145
loose peach colour tablets were recovered. Then Harinder Singh @
Happy picked up the plastic polythene thrown by him on the ground
and produced the same before ASI Charanjit Kaur, during checking
of same 105 loose peach colour tablets were recovered. Two
separate parcel of recovered tablets were prepared and same were
sealed by ASI Charanjit Kaur with her seal CK and sample seal
was prepared separately."
17. The story of the car's engine suddenly stopping and the absence of details about
how it restarted and how it was brought to the police station primafacie indicate some
element of truth in the petitioners' allegations. On this ground, coupled with the quantity
involved, custody of more than nine months, and other factors peculiar to this case alone,
the petitioner creates a dent in the allegations.
18. Per the custody certificate dated 15.10.2024, the petitioner Harjinder's custody in
this FIR is of 9 months and 20 days and similar is that of Harinder Singh. Given the drugs
were medicines that attracted violation of S. 22 of NDPS Act, viz-a-viz pre-trial custody,
coupled with the primafacie analysis of the nature of allegations and the other factors
peculiar to this case, there would be no justifiability further pre-trial incarceration at this
stage.
19. Without commenting on the case's merits, in the facts and circumstances peculiar
to this case, and for the reasons mentioned above, the petitioners make a case for bail.
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This order shall come into force from the time it is uploaded on this Court's official
webpage.
20. Given above, provided the petitioners are not required in any other case, the
petitioners 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.
21. While furnishing a personal bond, the petitioners 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.
3. Mobile number (If available)
4. E-Mail id (If available)
22. This order is subject to the petitioners complying with the following terms.
23. The petitioners shall abide by all statutory bond conditions and appear before the
concerned Court(s) on all dates. The petitioners 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.
24. Given the background of allegations against the petitioners, 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 petitioners 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.
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25. The conditions mentioned above imposed by this court are to endeavor to reform
and ensure the accused do 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."
26. Any observation made hereinabove is neither an expression of opinion on the
case's merits nor shall the trial Court advert to these comments.
27. A certified copy of this order would not be needed for furnishing bonds, and any
Advocate for the Petitioners 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.
28. Petitions allowed in terms mentioned above. All pending applications, if any,
stand disposed of.
(ANOOP CHITKARA)
JUDGE
24.10.2024
Jyoti Sharma
Whether speaking/reasoned: Yes
Whether reportable: No.
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