Shahrukh v. State Of Haryana
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Reserved on: 18.02.2025
Pronounced on: 28.02.2025 Shahrukh
...Petitioner
Versus
State of Haryana
...Respondent
CORAM:
HON'BLE MR. JUSTICE ANOOP CHITKARA
Present:
Mr. Sandeep Singh Jattan, Advocate for the petitioner.
Mr. Aashish Bishnoi, DAG, Haryana.
**** ANOOP CHITKARA, J.
FIR No.
Dated Police Station Sections 07.01.2025 Ambala Cantt, 21 & 29 (Added lateron) of District Ambala 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.
As per paragraph 9 of the bail petition as well as custody certificate dated 17.02.2025, the accused has the following criminal antecedents: Sr. No.
FIR No.
Date Offenses Police Station 15.06.2023 21/29/61/85 of NDPS Act Ambala Cantt, Ambala 21/29 of NDPS Act Naraingarh, Ambala 148/149, 302, 307, 323, 341, 324, 506 IPC and 25 of Arms Act Parao, Ambala 3.
The facts and allegations are taken from translated copy of FIR. On 07.01.2025, based on secret information, the Police seized 14 grams of heroin from petitioner's possession. The Investigator claims to have complied with all the statutory requirements of the NDPS Act, 1985, and BNSS 2023.
4.
The petitioner's counsel seeks bail on parity with co-accused/Ashwani, who has been granted bail by this Court vide order dated 14.02.2025 passed in CRM-M-53162025. He further 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.
5.
The State's counsel opposes bail and submits that petitioner is main accused and he is not entitled for bail on parity as the recovery is from the petitioner. REASONING:
6.
Given the quantity the rigors of S. 37 of the NDPS Act do not apply in the present case.
7.
Section 2 (vii-a) of the NDPS Act defines commercial quantity as the quantity greater than the quantity specified in the schedule. Section 2 (xxiii-a) defines a small quantity as a quantity less than the quantity specified in the table of the NDPS Act. The remaining quantity falls in an undefined category, generally called an intermediate quantity. All sections in the NDPS Act specify an offence and mention the minimum and maximum sentence, depending upon the quantity of the substance. The commercial quantity mandates a minimum sentence of ten years of imprisonment and a minimum fine of Rupees One hundred thousand, and bail is subject to the riders mandated in S. 37 of the NDPS Act. When the quantity is less than commercial, the restrictions of Section 37 of the NDPS Act will not attract, and the factors for bail become similar to the offence regular statutes.
8.
The prolonged incarceration, generally militates against the most precious fundamental right guaranteed under Article 21 of the Constitution and in such a situation, the conditional liberty must override the statutory embargo created under Section 37(1)(b)(ii) of the NDPS Act1.
9.
Petitioner is main accused from whose possession contraband was recovered and he is not entitled for bail on parity, however, pre-trial incarceration should not be a replica of post-conviction sentencing. There is sufficient primafacie evidence connecting the petitioner with the alleged crime. However, as per paragraph 7 of the bail petition, the petitioner has been in custody since 07.01.2025. Per the custody certificate dated 17.02.2025 the petitioner's total custody in this FIR is 01 month & 10 days. 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 further pre-trial incarceration at this stage. 10.
Without commenting on the case's merits, in the facts and circumstances peculiar to this case, and for the reasons mentioned above, the petitioner makes a case for bail. 1 Supreme Court of India, in Rabi Prakash v. The State of Odisha, SLP (Crl) 4169-2023, Para 4, decided on 13 July 2023
CONDITIONS:
11.
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. 12.
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) 13.
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.
14.
The possibility of the accused influencing the investigation, tampering with evidence, intimidating witnesses, and the likelihood of fleeing justice can be taken care of by imposing elaborative and stringent conditions. In Sushila Aggarwal v. State (NCT of Delhi), 2020:INSC:106 [Para 92], (2020) 5 SCC 1, Para 92, the Constitutional Bench held that unusually, subject to the evidence produced, the Courts can impose restrictive conditions.
15.
Given the background of allegations against the petitioner, it becomes paramount to protect the detection squad, 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.
the victim(s), their families, and society; it would also restrain the accused from influencing the witnesses and repeating the offense. 16.
This bail is conditional, and the foundational condition is that if the petitioner indulges in any non-bailable offense, the State may file an application for cancellation of this bail before the Sessions Court, which shall have the liberty to cancel this bail. 17.
The concerned trial court is authorized to delete, modify, or relax any of the above conditions and shall be competent to do so in accordance with the law. 18.
Any observation made hereinabove is neither an expression of opinion on the case's merits nor shall the trial Court advert to these comments. 19.
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. 20.
Petition allowed in terms mentioned above. All pending applications, if any, stand disposed of.
(ANOOP CHITKARA) JUDGE 28.02.2025 anju rani Whether speaking/reasoned: Yes Whether reportable:
No.