Sarvesh Alias Dhillu v. State Of Haryana

IN THE HIGH COURT OF PUNJAB AND HARYANA

AT CHANDIGARH

Reserved on: 01.03.2025

Pronounced on: 11.03.2025 Sarvesh alias Dhillu

...Petitioner

Versus

State of Haryana

...Respondent

CORAM:

HON'BLE MR. JUSTICE ANOOP CHITKARA

Present:

Mr. Lovish Arora, Advocate for the petitioner(s).

Mr. Aashish Bishnoi, DAG, Haryana.

**** ANOOP CHITKARA, J.

FIR No.

Dated Police Station Sections 04.08.2023 Urban Estate, 22C, 27A & 29 of NDPS Act District Hisar 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 18 of the bail petition, the accused declares that he has no criminal antecedents.

3.

The facts and allegations are taken from the reply filed by the State. On 04.08.2023, the investigator received a secret information that one Ram Lal and Sarvesh @ Dhillu (present petitioner) are selling prohibited drugs under NDPS Act and was informed about their location and informed that if they are nabbed immediately, massive quantity of drugs can be seized. After that the investigator allegedly complied with the mandatory provisions of Section 42 of NDPS Act and proceed towards the spot where he noticed two boys sitting on a bike. The pillion rider was holding a bag on his waist and when they noticed the police party, the rider started bike, but in between the police party was able to apprehend them. The driver of the bike told his name as Sarvesh Kumar (petitioner herein) and pillion rider told his name Ram Lal.

TRIPROLIDINEHYDROCHLORIDGE, CODEINE PHOSPHATE COUGH SYRUP, 30 bottles (100 ml each) containing total 3000 ml CODISTAR-T COUGH SYRUP, 24 strips (8 capsules each) of SPASMO PROXYVON PLUS, DICYCLOMINE HYDROCHLORIDE TRAMADOL HYDROCHOLORIDE AND ACETAMINOPHEN CAPSULES and 55 strips (each strip contains 15 tables, in total 825 tablets) of ALPRAX-0.5 ALPRAZOLAM TABLETS. Thus, the medicines which were prohibited and recovered individually, falls under commercial category and Section 37 of NDPS Act would come into force. On testing, the laboratory found presence of CODEINE PHOSPHATE, TRAMADOL and ALPRAZOLAM, in the respective medicines. Needless to say that prima facie quantities are commercial. 4.

The petitioner's counsel seeks bail on the grounds that he was the driver and recovery was from bag of pillion rider. State counsel opposes such ground and submits that on seeing the police, petitioner had tried to start the bike which points towards his knowledge and participation with the pillion rider carrying drugs and as such, it is a joint possession.

5.

An analysis of these arguments points towards the fact that on noticing the police party, driver of the bike started the bike with a view to escape would certainly point towards his knowledge about the contents of the bag, as such petitioner is not entitled to bail. However the petitioner was arrested on 04.08.2023 and his custody is now more than 01 year & 06 months, therefore on the ground of custody, petitioner is entitled to bail.

REASONING:

6.

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. 7.

However, the petitioner is entitled to bail because Hon'ble Supreme Court had granted bail on prolonged custody in the following judicial precedents:

1) In Junaid Alam v. State of Uttarakhand, decided on 12 Aug 2024, SLP(Crl.) 7708-2024, Hon'ble Supreme Court holds, [2]. It is pointed out that the petitioner has been in custody for last more than 18 months since he was arrested on 25.01.2023. It is then submitted that only 3 out of the 10 cited prosecution witnesses have been examined and they have not said anything to connect the petitioner with the crime.

[3]. The learned counsel for the State would submit that the concerned Contraband are medicinal drugs but they are sold for profit. Moreover, it is of commercial quantity. [4]. We have perused the nature of the Contraband i.e., the prohibited medicines (SYP Codectus 100 Bottles (100 Ml each), Cap Pyeevon Spas Plus 720 Cap Parvion Spas 800 Capsules,

Spasonof NF 960 capsules, Capsules Spasmoproxyvon Plus 144, Proxywell Spas 2568 Capsules, Alprasafe Table 600 Tablets, Pyeevon Spas Plus 32 Capsules).

[5]. Having considered the above and the fact that the trial is unlikely to conclude on a near date, we are of the view that the petitioner - Junaid Alam deserves to be granted bail. It is ordered accordingly. Appropriate bail conditions be imposed by the trial court.

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.

In Tajmul SK v. The State of West Bengal, decided on 23 Jul 2024, CrA 30472024, Hon'ble Supreme Court holds, [5]. We are inclined to set aside the impugned order only on the premise that right to speedy trial is a fundamental right. Despite the fact that the appellant has been under incarceration for more than one and a half years, the trial is yet to start, though, it is submitted by learned counsel appearing for the State that charges have been framed. Suffice it is to state that trial would take considerable length of time. There is no antecedent involving the appellant. [6]. Accordingly, the impugned order is set aside and the appellant is granted bail, subject to the conditions that may be imposed by the Trial Court.

10.

Given the above, the petitioner's pretrial custody is more than some of the judicial precedents mentioned above; the petitioner is entitled to bail under Article 14 of the Constitution of India. As per para 13 of the petition, petitioner is in custody since 04.08.2023.

11.

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 for further pre-trial incarceration at this stage. 12.

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. CONDITIONS:

13.

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 1 Supreme Court of India, in Rabi Prakash v. The State of Odisha, SLP (Crl) 4169-2023, Para 4, decided on 13 July 2023

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. 14.

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) 15.

This order is subject to the petitioner's complying with the following terms. 16.

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.

17.

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. 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. 18.

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." 19.

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."

20.

This bail is conditional, and the foundational condition is that if the petitioner indulges in any non-bailable offense, the State shall file an application for cancellation of this bail before the Trial Court, which shall be at liberty to cancel this bail. 21.

Any observation made hereinabove is neither an expression of opinion on the case's merits nor shall the trial Court advert to these comments. 22.

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. 23.

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

(ANOOP CHITKARA) JUDGE 11.03.2025 anju rani Whether speaking/reasoned: Yes Whether reportable:

No.