Punjab-Haryana High Court
Hanish Verma vs State Of Punjab on 29 October, 2024
Author: Anoop Chitkara
Bench: Anoop Chitkara
Neutral Citation No:=2024:PHHC:142413
CRM-M-30066-2024
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CRM-M-30066-2024
Reserved on: 16.10.2024
Pronounced on: 29.10.2024
Hanish Verma @ Jimmy ...Pe oner
Versus
State of Punjab ...Respondent
CORAM: HON'BLE MR. JUSTICE ANOOP CHITKARA
Present: Mr. R.S. Waraich (Rana), Advocate,
for the pe oner.
Mr. Jasjit Singh, DAG, Punjab.
****
ANOOP CHITKARA, J.
FIR No. Dated Police Sta0on Sec0ons
252 02.12.2023 Sadar Nabha, Dis0. Pa ala 21 and 22 of NDPS Act
1. The pe oner incarcerated in the FIR cap oned above had come up before this
Court under Sec on 439 CrPC, seeking regular bail.
2. As per paragraph 12 of the bail applica on, the pe oner is not involved in any
other case. However, as per para 12 of reply dated 09.09.2024, the pe oner has the
following criminal antecedents:
Sr. No. FIR No. Dated Offense Police Sta0on
1. 45 06.05.2019 22 of NDPS Act Kotwali Nabha, Dis0. Pa ala
3. The facts and allega ons are taken from the reply dated 03.10.2024, filed by the
concerned Deputy Superintendent of Police, on Dec 02, 2023, based on a chance
recovery, the Police seized 1200 tablets containing Tramadol, total intoxicants 3000
tablets, 100 grams of heroin, and Rs.7 lacs, termed as drug money from the car driven
by the pe oner. The Inves gator claims to have complied with all the statutory
requirements of the NDPS Act, 1985, and CrPC, 1973.
4. The pe oner's counsel referred to the bail pe on and the allega ons of false
implica on. The State's counsel denied all such allega ons and stated that a high-level
inquiry found no substance in the allega on and truth in the pe oner's claim. Be that
as it may, leaving that point open, this Court thinks it more appropriate to decide this
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bail pe on on prolonged custody, considering the quan ty and nature of drugs and the
drug money.
5. The pe oner's counsel prays for bail by imposing any stringent condi ons and
contends that further pre-trial incarcera on would cause an irreversible injus ce to the
pe oner and his family.
6. The State's counsel opposes bail and refers to the reply.
7. The quan ty of Tramadol and Alprazolam falls in the commercial category,
whereas the quan ty of heroin falls under intermediate. Given this, the rigors of S. 37 of
the NDPS Act apply in the present case qua recovery of Tramadol tablets, Alprazolam
tablets, and Rs.7,00,000/. The pe oner must sa sfy the twin condi ons put in place by
the Legislature under Sec on 37 of the NDPS Act.
8. 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 pe on 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 submi0ed that a huge quan ty 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."
9. In Nandalal Mondal @ Abhay Mondal vs The State of West Bengal,
MANU/SCOR/00327/2024, Hon'ble Supreme Court held as under:-
[2]. The allega ons are that the pe oner along with other
accused persons were found in possession of two plas c
bags a cough containing a total of 10,000 ml. Of codeine
phosphate narco c substance. It further syrup, which is
no fied as a narco c substance. It further appears from the
contents of the FIR that the pe oner, who was found in
conscious possession of two white plas c 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
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though the inves ga on is complete and the chargesheet
has been filed, however, the charges are yet to be framed.
The prosecu on proposes to examine 10 witnesses. The
conclusion of trial will, thus, take considerable me. The
pe oner 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 narco c substance allegedly recovered
from the pe oner's possession is of commercial quan ty'
and, as such, the rigors of Sec on 37 of the NDPS Act are
a0racted. We have considered the submission.
[5]. Taking into considera on the period already undergone
by the pe oner in custody; the fact that he does not have
any criminal antecedents and also keeping in view that the
prolonged incarcera on will not serve the cause of
substan al jus ce, however, without expressing any views
on the merits of the case, we are inclined to release the
pe oner on bail at this state. The pe oner is, accordingly,
directed to be released on bail subject to the following
direc ons:
(i) The pe oner shall furnish bail bonds to the
sa sfac on of the Trial Court.
(ii) The pe oner shall appear before the Trial Court
regularly on each and every date of hearing.
(iii) In case the pe oner is found involved in any other
case under the NDPS Act, in that event, the bail granted
to him shall stand cancelled automa cally and he shall
be liable to surrender immediately.
6. The accordingly. Special Leave Pe on stands disposed of
accordingly."
10. 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 me. It is also submi0ed
that the appellant does not have any criminal antecedents. It
is also brought to our no ce that the High Court while
rejec ng the regular bail applica on 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 men oned in the
FIR."
11. However, the police claim that in addi on to the aforesaid drugs, the police had
also recovered rupees seven lacs from the car driven by the pe oner. To understand
the facts that led to the recovery of money, it shall be relevant to read FIR, whose
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translated copy is annexed with the bail pe on as Annexure P-3, and the applicable
por on reads as follows:
"SHO PS Sadar Nabha, Jai Hind, Today I, SI along with H.C. Kulveer Singh
No.1737/Pa#, Sepoy Amanpreet Singh No.3470/Pa#, Sepoy Gurpinder
Singh No.2714/Pa#, were present at Galwa, Chownk. The #me would be
around 07.10 PM. I, SI in order to search suspected vehicles have laid
Check Naga at village Sua Pulli near Galwa, on Nabha to Malerkotla
road. Whereupon, suspected vehicles were being checked at Naqa then, it
would be around 07.40 PM when one white Honda City car was seen
coming from Malerkotla side. Which was being signaled to stop by torch.
Which halted in high speed at barricade of Naka. Number of the car upon
hal#ng was read as HR26 CT5375. Abovesaid car was being driven by one
non turban youngster. One big polybag in open form was lying at the
conductor (co-driver) seat of the car in which, boxes of intoxicant tablets
Tramadol were being seen. Whereby, I. SI asked his name and address
who has informed his name as Hanish Verma alias Jimmy son of Ratan Lal
resident of House No.360 Heera Enclave (PUDA) Nabha. Who was
apprised by I, SI that I am SI Harvinder Singh No.1941/Sang: Incharge
Chownki Galwa,. I am wearing my uniform and name plate is also
aAached. I suspect that there is some intoxicant material in the polybag
which is lying at front seat of the car. I want to search you, your car and
the polybag which is lying there. But you are having right under sec#on 50
of NDPS Act to get search of you, your car and the polybag lying in the car
from some GazeAed officer or Magistrate. They can be requested to reach
at the spot or else you along with car and polybag kept there can be taken
to them. Who aEer thinking for some #me has told that I am having full
faith upon you. You yourself can search me and my car. Who was handed
over no#ce under sec#on 50 NDPS Act aEer being typed and print. Who
aEer reading and understanding no#ce under sec#on 50 NDPS Act has
shown his concurrence and has affixed his signature upon no#ce under
sec#on 50 NDPS Act. ThereaEer, document qua acceptance was prepared
separately. Document qua acceptance was aAested and abovesaid Hanish
Verma alias Jimmy has affixed signature upon it. Then I, SI checked
polybag which was lying at car's conductor seat in which, 06 bags of
TRAMADOL HYDROCHLORIDE TABLETS 100 MG were there. Each box was
having 20 strips and each strip was having 10/10 intoxicant tablets. Total
1200 intoxicant tablets were there. Each box's batch No.MGF. Date, Exp
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Date were cut. There license No. is 43/UA/2007 but strips were having
MGF. DATE AUG./2023 EXP. Jul 2025 and 5 box of intoxicant tablets Mark
Alprazolam Tablets IP NOFPRA Tablets were there. Each box was having
12 strips and each strip was having 50/50 intoxicant tablets. Total 3000
tablets were got recovered. Each strip and box was having batch no.
V23100408 MFG. Date OCT/23 Expiry Date Sep/25, Licence Number
13/UA/2012. The said polybag was having 14 bundles of 500/500 Rupees
wherein, one bundle was having an amount of Rs.50,000/- thus total
amount of Rs.7 Lakh in Indian currency has been recovered. Then, I, SI
searched abovemen#oned Haneesh Verma's car wherein in the dashboard
of the car, one transparent polybag which was containing Heroine was
got recovered. Also one mobile type black colored weighing scale was
recovered. Then, recovered Heroine along with polybag and recovered
mobile type weighing scale was measured which upon measuring comes
to 100 grams Heroine. Then I, SI kept recovered 1200 intoxicant tablets
Mark TRAMADOL HYDROCHLORIDE Tablets 100 Mg Recovered 3000
intoxicant tablets Mark Alprazolam Tablets IP NOFPRA, 07 Lakhs Indian
currency notes and recovered 100 gram Heroine, in different-different
plas#c box and aEer pu,ng the same in white color cloth bags, 4
different-different parcels were prepared. All the parcels were stamped by
I, SI with word stamp as HS. Sample of stamp was prepared separately.
Stamp aEer usage was given in the custody of HC Kulvir Singh
No.1737/Pa#. Then I, SI has taken in custody all the 4 parcels through
recover document. Witness was made on the document. Since Hanish
Verma alias Jimmy aforesaid has kept in his possession Heroine, intoxicant
tablets thereby commiAal of offence under sec#ons 21, 22/61/85 of NDPS
is made out. Thereby Ruqa aEer typing on laptop and print is being sent to
police sta#on by hand Sepoy Gurpinder Singh No.2714/Pa# for
registra#on of FIR against Hanish Verma alias Jimmy son Ratan Lal
resident of House No.360, Heera Enclave (Puda) Nabha."
12. Money was not even recovered along with the contraband but from the
pe oner. The police had no evidence to term such money as drug money, and
forgeQng the statutory mandate of S. 23 (1) and (2) of BSA, 2023, invoked the stringent
penal provision of S. 27-A just to trigger the legisla ve restric ons placed on bail through
S. 37 of NDPS Act. In such a background, S. 37 of the NDPS Act shall neither a0ract in law
nor through its inclusion in the FIR.
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13. S. 27A of the NDPS Act reads as follows:
27A. Punishment for financing illicit traffic and harbouring
offenders.--Whoever indulges in financing, directly or indirectly,
any, of the ac vi es specified in sub-clauses (i) to (v) of 3[clause
(viiib) of sec on 2] or harbours any person engaged in any of the
aforemen oned ac vi es, shall be punishable with rigorous
imprisonment for a term which shall not be less than ten years
but which may extend to twenty years and shall also be liable to
fine which shall not be less than one lakh rupees but which may
extend to two lakh rupees:
Provided that the court may, for reasons to be recorded in the
judgment, impose a fine exceeding two lakh rupees.
14. At the stage of invoca on of S. 27A, there was no primafacie evidence of
financing, directly or indirectly. Thus, the rigors of S. 37 of the NDPS Act shall also not
a0ract.
15. Given this, the criminal antecedents are also not legal grounds for denying the
rigors of S. 37 of the NDPS Act at this stage.
16. As per para 14 of the bail pe on, the pe oner is in custody since 02.12.2023.
His custody in this FIR is more than six months. Given the drugs were medicines that
a0racted viola on of S. 22 of NDPS Act, viz-a-viz pre-trial custody, coupled with the
primafacie analysis of the nature of allega ons and the other factors peculiar to this
case, there would be no jus fiability for further pre-trial incarcera on at this stage.
17. Without commen ng on the case's merits, in the facts and circumstances
peculiar to this case, and for the reasons men oned above, the pe oner makes a case
for bail. This order shall come into force from the me it is uploaded on this Court's
official webpage.
18. Given above, provided the pe oner is not required in any other case, the
pe oner shall be released on bail in the FIR cap oned above subject to furnishing
bonds to the sa sfac on of the concerned Court and due to unavailability before any
nearest Ilaqa Magistrate/duty Magistrate. Before accep ng the surety, the concerned
Court must be sa sfied that if the accused fails to appear, such surety can produce the
accused.
19. While furnishing a personal bond, the pe oner shall men on the following
personal iden fica on details:
1. AADHAR number
2. Passport number (If available) and when the
a0es ng 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)
20. This order is subject to the pe oner's complying with the following terms.
21. The pe oner shall abide by all statutory bond condi ons and appear before the
concerned Court(s) on all dates. The pe oner 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.
22. Given the background of allega ons against the pe oner, it becomes
paramount to protect the drug detec on squad, their family members, as well as the
members of society, and incapacita ng the accused would be one of the primary op ons
un l the filing of the closure report or discharge, or acqui0al. Consequently, it would be
appropriate to restrict the possession of firearm(s). [This restric on 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
sanc on]. Given the nature of the allega ons and the other circumstances peculiar to
this case, the pe oner shall surrender all weapons, firearms, and ammuni on, if any,
along with the arms license to the concerned authority within fiUeen days from release
from prison and inform the Inves gator about the compliance. However, subject to the
Indian Arms Act, 1959, the pe oner shall be en tled to renew and take it back in case
of acqui0al in this case, provided otherwise permissible in the concerned rules.
Restric ng firearms would ins ll confidence in the vic m(s), their families, and society; it
would also restrain the accused from influencing the witnesses and repea ng the
offense.
23. The condi ons men oned 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 Pe on (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 condi ons imposed
by the Court must not only have a nexus to the purpose that they seek to serve but must
also be propor onal to the purpose of imposing them. The courts, while imposing bail
condi ons must balance the liberty of the accused and the necessity of a fair trial. While
doing so, condi ons that would result in the depriva on of rights and liber es must be
eschewed."
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24. Any observa on made hereinabove is neither an expression of opinion on the
case's merits nor shall the trial Court advert to these comments.
25. A cer fied copy of this order would not be needed for furnishing bonds, and any
Advocate for the Pe oner can download this order along with case status from the
official web page of this Court and a0est it to be a true copy. If the a0es ng officer
wants to verify its authen city, such an officer can also verify its authen city and may
download and use the downloaded copy for a0es ng bonds.
26. Pe00on allowed in terms men oned above. All pending applica ons, if any,
stand disposed of.
(ANOOP CHITKARA)
JUDGE
29.10.2024
Jyo0-II
Whether speaking/reasoned: Yes
Whether reportable: No.
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