Punjab-Haryana High Court
Harjinder Kaur vs State Of Punjab on 25 October, 2024
Author: Anoop Chitkara
Bench: Anoop Chitkara
CRM-M-22015-2024
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CRM-M-22015-2024
Reserved on: 16.10.2024
Pronounced on: 25.10.2024
Harjinder Kaur ...Petitioner
Versus
State of Punjab ...Respondent
CORAM: HON'BLE MR. JUSTICE ANOOP CHITKARA
Present: Mr. Zorawar Singh Chauhan, Advocate
for the petitioner.
Mr. Jasjit Singh, DAG, Punjab.
****
ANOOP CHITKARA, J.
FIR No. Dated Police Station Sections
0298 22.11.2022 Special Task Force, 21 of the NDPS Act, 1985 (27
District SAS Nagar and 29 of the NDPS Act, 1985
added later on)
1. The petitioner incarcerated in the FIR captioned above had come up before this
Court under Section 439 CrPC, 1973, seeking regular bail.
2. Per paragraph 7 of the bail application and per paragraph 8 of the status report, the
accused has the following criminal antecedents:
Sr. No. FIR Date Offenses Police Station
No.
1 198 Under the NDPS Act Phillaur
2 245 2017 15 of the NDPS Act Phillaur, Jalandhar
Rural
3 92 2020 188/269/270 IPC and Section 51-B Phillaur, Jalandhar
of the Disaster Management Act, Rural
4 27 2022 21-A of the NDPS Act Phillaur, Jalandhar
Rural
3. The facts and allegations are taken from the reply filed by the State. Initially, on
Nov 22, 2022, based on secret information, the police recovered 16 grams of heroin from
co-accused Sub Inspector Harjinder Kumar. During his interrogation, he named the
petitioner Harjinder Kaur and Rohit Kumar the suppliers. Based on such information, on
Nov 23, 2022, the petitioner and Rohit Kumar were arrested. During the petitioner's
authenticity of this order/judgment
CRM-M-22015-2024
search, conducted in the presence of a DySP from her purse, the police recovered 830
grams of heroin. The Investigator claims to have complied with all the statutory
requirements of the NDPS Act, 1985, and CrPC, 1973.FSL tested heroin to have
contained Diacetyl morphine.
4. The petitioner's counsel refers to bail petition and specifically to para 2, which
reads as follows:-
"2. That the petitioner humbly submits that the facts
emerging out of FIR are that on the basis of Secret Information,
the Police has apprehended one Sub Inspector Harjinder Kumar,
who is in Punjab Police and is allegedly involved in selling Drugs
in the Ludhiana area. From the person of SI Harjinder Kumar, 16
Grams of Heroin was recovered.
While in custody, Disclosure Statement of the Main
Accused SI Harjinder Kumar was got recorded and in the same
the Name of the Petitioner and Rohit was mentioned. Thereafter a
recovery of 830 Grams of Heroin was planted upon the petitioner.
It has been alleged that the contraband was recovered from the
Purse of the petitioner."
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 5 of the status report, which
reads as follows:
"5. That the present petitioner and co-accused Rohit Kumar
were arrayed as accused on the basis of disclosure statement of
accused Harjinder Kumar. That in his disclosure statement dated
23.11.2022 co-accused Harjinder Kumar stated that he had been
purchasing Heroin at the rate of Rs.2800 per gram for the past
one year from present petitioner and co-accused Rohit Kumar.
The co-accused Harjinder Kumar further stated that the 16
grams Heroin which had been recovered from him on 22.11.2022
had also been bought by him from the petitioner and co-accused
Rohit Kumar who had supplied the same to him on the black
coloured Splendor motorcycle bearing No. PB-08-BK-8133 near
Laddowal Toll Plaza Ludhiana.
Thereupon, the present petitioner and co-accused Rohit Kumar
were arrested on 23.11.2022 and 830 grams Heroin was
recovered from the purse of the petitioner during search
conducted in the presence of Mr. Devinder Kumar, the then
Deputy Superintendent of Police, STF Ludhiana Range."
7. The petitioner's arguments did not point toward any material contradictions. The
search was conducted in the presence of DySP, which, primafacie, would reduce the
chances of false implication. As such, S. 42 would not apply initially, and recovery was
not from the person, but from the purse; as such, S. 50 of NDPS Act would also not
Jyoti Sharma attract. Non-examination of independent witnesses is not illegal, and its outcome depends
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upon the nature of evidence tendered in the examination in chief and its cross-
examination.
8. Dealing in 830 grams of heroin is a punishable offense under the NDPS Act in the
following terms:
Substance Name Heroin/ Chi a/ Smack/ Brown Sugar
Quan ty detained 830 Gram
Quan ty type Commercial
Drug Quan ty in % to upper limit
320.00%
of Intermediate
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
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
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.
authenticity of this order/judgment
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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. Per the custody certificate, the petitioner's custody is one year and ten months,
which cannot be considered prolonged, and the ratio of Dheeraj Shukla does not apply.
15. 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.
16. 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
authenticity of this order/judgment
CRM-M-22015-2024
crime would also not justify bail. Any further discussions will likely prejudice the
petitioner; this court refrains from doing so.
17. Any observation made hereinabove is neither an expression of opinion on the
case's merits nor shall the trial Court advert to these comments.
18. Petition dismissed. All pending applications, if any, stand disposed of.
(ANOOP CHITKARA)
JUDGE
25.10.2024
Jyoti Sharma
Whether speaking/reasoned: Yes
Whether reportable: No.
authenticity of this order/judgment
