Baljinder Kaur v. State Of Punjab

IN THE HIGH COURT OF PUNJAB AND HARYANA

AT CHANDIGARH

Reserved on: 05.05.2025

Pronounced on: 19.05.2025 Baljinder Kaur

...Petitioner

Versus

State of Punjab

...Respondent

CORAM:

HON'BLE MR. JUSTICE ANOOP CHITKARA

Present:

Ms. Simsi Dhir Malhotra, Advocate, for the petitioner.

Mr. Akshay Kumar, AAG, Punjab.

**** ANOOP CHITKARA, J.

FIR No.

Dated Police Station Sections 18.06.2024 Division No.8, Distt. Jalandhar 21(C), 25, 27-A, 29 of NDPS Act 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 16 of the bail petition, the accused declares that she has no criminal antecedents.

3.

The facts and allegations are taken from the status report filed by the State. On 18.06.2024, based on chance recovery, the Police seized 1 kg of heroin from Satish Suman's possession. The Investigator claims to have complied with all the statutory requirements of the NDPS Act, 1985, and CrPC, 1973. During the custodial interrogation of the accused Satish Suman, he disclosed the name of Lucky, Balkar Singh and Kulwant Ram. Thereafter, Balkar Singh was arrested and police recovered 720 grams of heroin along with Rs.12,00,000/- drug money and electronic weighing scale from him. Kulwant Ram was arrested with 280 grams of heroin. Balkar Singh is the husband of petitionerBaljinder Kaur and suffered a disclosure statement that he along with his wife Baljinder Kaur petitioner was used to supply heroin. Based on the disclosure statement, the police arraigned the petitioner as an accused by incorporating S. 29 of the NDPS Act. 4.

The petitioner's counsel submits that the name of the petitioner has been surfaced on the basis of disclosure statement of co-accused; no recovery has been effected from her; she has clean antecedents and petitioner's custody in the present case is four months.

She on instructions submits that the petitioner shall not indulge herself in the offence involving the commercial or intermediate quantity or the offence which falls under Sections 19/24/27-A of the NDPS Act. He further submits that if the petitioner involves herself in the said offence, she has no objection if the State files an application for cancellation of bail.

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 her family.

6.

The State's counsel opposes bail and refers to the status report. 7.

It would be appropriate to refer following portions of the status report, which reads as follows:

"4. The evidence against the petitioner - That one kothi purchased in the name of Baljinder Kaur petitioner at Akash Colony, Hoshiarpur amounting to Rs.32,00,000/- all the accused confession that they have purchased heroin from Balkar Singh along with Baljinder Kaur.

5. The role of the petitioner - That she is actively involved in selling heroin. Balkar Singh husband of Baljinder Kaur was arrested by the Delhi police in FIR No.9 in 2016 with 1 kg heroin. Later on, he got the interim bail on the basis of illness of Baljinder Kaur but he did not turn back and ultimately the learned Judge under NDPS Act of Delhi Court declared Balkar Singh P.O. on 20.09.2019. After coming back from jail. Balkar Singh along with his Baljinder Kaur jointly selling heroin in Car I-20 No.PB-36-J-9289 so that nobody can suspicion against them. Whereas, from all the drug money Balkar Singh purchased the property on the name of Baljinder Kaur. Hence, Baljinder Kaur is actively involved in selling heroin while packing 50 gm in each packet."

REASONING:

8.

The petitioner is a woman, her name has been surfaced on the basis of disclosure statement of co-accused, who is her husband, no recovery has been effected from her, and given the undertaking by counsel for the petitioner that the petitioner shall not indulge herself in the offence involving the commercial or intermediate quantity or the offence which falls under Sections 19/24/27-A of the NDPS Act and if the petitioner involves herself in the said offence, she has no objection if the State files an application for cancellation of bail, as such, she is entitled to bail. 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.

In Abida v. State of Haryana, 2022:PHHC:058722, [Para 10], CRM-M-50772022, decided on 13-05-2022, this court observed as follows: [10]. 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 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 offence, and is not likely to commit any offence while on bail. If either of these two 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 that the accused is not guilty of the alleged offence. Even on fulfilling one of the conditions, the reasonable grounds for believing that the accused is not guilty of such an offence, the Court still cannot give a finding on assurance that the accused is not likely to commit any such crime again. Thus, the grant of bail or denial of bail for possessing commercial quantity would vary from case to case, depending upon its facts.

[31]. 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 subsist, and the factors for bail become similar to the bail petitions under general penal statutes like IPC. 11.

Thus, the evidence collected so far consists of disclosure statements and the petitioner's confession without discovering any facts. Such statements can be proven subject to the mandatory restrictions imposed in S. 25 & 26 of the Indian Evidence Act, 1872/ S. 23 of BSA, 2023.

12.

In Tofan Singh v. State of Tamil Nadu, (2021) 4 SCC 1, the majority view of a three-member bench holds as follows:

We answer the reference by stating:

(i) That the officers who are invested with powers under section 53 of the NDPS Act are "police officers" within the meaning of section 25 of the Evidence Act, as a result of which any confessional statement made to them would be barred under the provisions of section 25 of the Evidence Act, and cannot be taken into account in order to convict an accused under the NDPS Act. (ii) That a statement recorded under section 67 of the NDPS Act cannot be used as a confessional statement in the trial of an offence under the NDPS Act.

13.

The status report filed by the police reveals that the investigator arraigned the petitioner as an accused based on the disclosure statement of the main accused, from whose possession the investigator had recovered the contraband. No other evidence is

collected at this stage to connect the petitioner with the main accused. Thus, there is no justification to deny bail. Consequently, the petitioner has satisfied the first rider of section 37 of the NDPS Act. Regarding the second rider of S. 37, this court will put very stringent conditions in this order to ensure that the petitioner does not repeat the offense. 14.

For now, the petitioner has prima facie satisfied the first condition of section 37 of the NDPS Act to make a case for bail. Regarding the second rider of S. 37, this court will put very stringent conditions in this order to ensure that the petitioner does not repeat the offense.

15.

As per paragraph 2 of the status report, the petitioner has been in custody since 07.11.2024. As per the same, the petitioner's total custody in this FIR is around 06 months. Given the penal provisions invoked 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 for further pre-trial incarceration at this stage. 16.

The evidence collected might be prima facie sufficient to launch prosecution or even to frame the charges; however, it is insufficient for denying bail. 17.

Given the penal provisions invoked, the legal admissibility of evidence collected against the petition, coupled with the prima facie analysis of the nature of allegations, and the other factors peculiar to this case, there would be no justifiability for further pre-trial incarceration at this stage.

18.

Without commenting on the case's merits, in the facts and circumstances unique and peculiar to this case, and for the reasons mentioned above, the petitioner makes a case for bail.

CONDITIONS:

19.

Given above, provided the petitioner is not required in any other case, the petitioner 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. 20.

While furnishing a personal bond, the petitioner 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)

21.

This order is subject to the petitioner's complying with the following terms. 22.

The petitioner shall abide by all statutory bond conditions and appear before the concerned Court(s) on all dates. The petitioner 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.

23.

Given the background of allegations against the petitioner, it becomes paramount to protect 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 firearms. [This restriction is being imposed based on the preponderance of the evidence of probability and not of evidence of certainty, i.e., beyond a 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 petitioner shall surrender all weapons, firearms, and ammunition, if any, along with the arms license to the concerned authority within fifteen days of release from prison and inform the Investigator of the compliance. However, subject to the Indian Arms Act, 1959, the petitioner shall be entitled to renew and reclaim them in case of acquittal in this case, provided otherwise permissible under 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.

24.

The conditions mentioned 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 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." 25.

In Md. Tajiur Rahaman v. The State of West Bengal, decided on 08-Nov-2024, SLP (Crl) 12225-2024, Hon'ble Supreme Court holds in Para 7, "It goes without saying that if the petitioner is found involved in such like offence in future, the concession of bail granted to him today will liable to be withdrawn and the petitioner is bound to face the necessary consequences."

26.

This bail is conditional, and the foundational condition is that if the petitioner

indulges in any non-bailable offense, the State may an application for cancellation of this bail before the Trial Court, which shall be at liberty to cancel this bail. 27.

Any observation made hereinabove is neither an expression of opinion on the case's merits nor shall the trial Court advert to these comments. 28.

A certified copy of this order would not be needed for furnishing bonds, and any Advocate for the Petitioner 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. 29.

Petition allowed in terms mentioned above. All pending applications, if any, stand disposed of.

(ANOOP CHITKARA) JUDGE 19.05.2025 Jyoti-II Whether speaking/reasoned:

Yes Whether reportable:

No.