Lakhvir Alias Kaka v. State Of Punjab
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Reserved on: 05.12.2024
Pronounced on: 19.12.2024 Lakhvir @ Kaka
...Petitioner
Versus
State of Punjab
...Respondent
CORAM:
HON'BLE MR. JUSTICE ANOOP CHITKARA
Present:
Ms. Divya Sharma, Advocate for the petitioner.
Mr. Jasjit Singh, D.A.G., Punjab.
**** ANOOP CHITKARA, J.
FIR No.
Dated Police Station Sections 09.05.2024 Sadar Kapurthala 21(c), 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.
Per paragraph 11 of the bail application and 5 of the status report, the accused has the following criminal antecedents:- Sr. No.
FIR No.
Date Offenses Police Station 1.
10.04.2017 22 of NDPS Act Sadar Nakodar 2.
01.10.2017 22 of NDPS Act Sadar Nakodar 3.
04.07.2019 22 of NDPS Act Sadar Nakodar 4.
08.05.2022 21 (b) of NDPS Act Lambra 5.
27.05.2016 22 of NDPS Act Sadar Kapurthala 6.
251/2018 - 52-A of Prison Act Kotwali Kapurthala 7.
27.02.2020 52-A of Prison Act Kotwali Kapurthala 8.
18.04.2023 21 of NDPS Act City Kapurthala 3.
The facts and allegations are taken from the status report filed by the State which reads as follows:- "6. That the answering respondent refrains from repeating the facts of the FIR here. But however, some basics short facts are being narrate here. As per the facts of the case, it is found that in the vicinity of T-point Village Lakhan-Kalan, on May 9, 2024, accused Sarban Singh, Gurpreet Singh, and Vishal Singh were arrested by keeping in possession of 260 grams of Heroin along-with an
electric weighing scale, 17 empty plastic bags as well as a vehicle bearing registration number PB-08-EP-2555. The petitioner/Lakvir Singh @ Kaka, has been nominated in the present case upon the disclosure statement of aforementioned accused, along with the insertion of section 29 of the NDPS Act, via DDR no 031 dated 1105- 2024, during the investigation process." 4.
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.
5.
The State's counsel opposes bail and refers to the status report. 6.
It would be appropriate to refer to the evidence collected against the petitioner, which is taken from the status report, which reads as follows:- "7. That the petitioner had been arrested in the present case on 07.06.2024 with recovery of 05 grams of Heroin. So, in view of recovery of contraband involved in this case, of being commercial quantity as well as previous record of the petitioner the petitioner is not entitled for the concession of bail. Hence as a commercial quantity of narcotics had been recovered, which attract the rigour of Section 37 of the NDPS Act.
2. That upon recovery of 260 grams Heroin from accomplices of petitioner namely, Sarban Singh, Gurpreet Singh and Vishal Singh (who have been apprehended with one electric weighing scale and 17 empty plastic pouch along-with one vehicle bearing registration No.PB-08-EP-2555) the present FIR No.59 of 09.05.2024, U/s 21(c)/29/61/85 NDPS Act at P.S. Sadar Kapurthala, District Kapurthala has been registered.
3. That though the recovery of 5 grams of Heroin has been effected from the petitioner in this case. But the role of the petitioner cannot be viewed in isolation, as the petitioner is the person, who sold 260 gms Heroin to the arrested supra accused at the rate of 2800/per gram. Hence as a commercial quantity of narcotics had been recovered, which attract the rigour of Section 37 of the NDPS Act." 7.
The allegations against the petitioner are selling 260 grams of heroin to the main accused Sarban Singh, Gurpreet Singh, and Vishal Singh, from whose possession it was recovered. During the custodial interrogation of the accused Sarban Singh, Gurpreet Singh, and Vishal Singh, they disclosed the petitioner as the supplier of the drugs; based on the disclosure statement, the police arraigned the petitioner as an accused by incorporating S. 29 of the NDPS Act. In addition to this, the police, after the arrest of the petitioner, recovered 5 grams of heroin from him. 8.
Dealing in 265 grams of heroin is a punishable offense under the NDPS Act in the following terms:
Substance Name Heroin/ Chitta/ Smack/ Brown Sugar Quantity detained 265 Gram Quantity type Commercial Drug Quantity in % to upper limit of Intermediate 106.00%
Specified as small & Commercial in S.2(viia) & 2(xxiiia) NDPS Act, 1985 Notification No S.O.1055(E) dated 10/19/2001 Sr. No.
Common Name (Name of Narcotic Drug and Psychotropic Substance (International non-proprietary name (INN) Heroin Other non-proprietary name ****** Chemical Name Diacetylmorphine Small Quantity 5 Gram Commercial Quantity 250 Gram Declared as punishable under NDPS Act and as per schedule defined in S.2(xi) & 2(xxiii) NDPS Act, 1985 Notification No S.(xvi)(d) NDPS Act, 1985 (61 of 1985), S.O. 821 (E) dated 11/14/1985 Sr. No.
2(xvi)(d) Common Name (Name of Narcotic Drug and Psychotropic Substance (International non-proprietary name (INN) ****** Other non-proprietary name ****** 2(xvi)(d) diacetylmorphine, that is, the alkaloid also known as dia-morphine or heroin and its salts; Explanation.-- For the purposes of clauses (v) (vi), (xv) and (xvi) the percentages in the case of liquid preparations shall be calculated on the basis that a preparation containing one per cent. of a substance means a preparation in which one gram of substance, if solid, or one mililitre of substance, if liquid, is contained in every one hundred mililitre of the preparation and so on in proportion for any greater or less percentage: Chemical Name Provided that the Central Government may, having regard to the developments in the field of methods of calculating percentages in liquid preparations prescribed, by rules, any other basis which it may deem appropriate for such calculation.
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-5077-
2022, 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.
The evidence collected against the petitioner consists of disclosure statements without any discovery of fact, except 5 grams of heroin, which is the lowest intermediate quantity.
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.
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, subject to the compliance of terms and conditions mentioned in this order. 16.
The investigation indicates that the petitioner is not the main accused, so the petitioner's bail shall not be treated as a precedent for granting bail to the other coaccused with a higher role. 17.
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. This order shall come into force from the time it is uploaded on this Court's official webpage.
18.
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. 19.
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) 20.
This order is subject to the petitioner's complying with the following terms. 21.
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.
22.
Given the background of allegations against the petitioner, it becomes paramount to protect the drug detection squad, their family members, as well as 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 firearm(s). [This restriction 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 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 from release from prison and inform the Investigator about the compliance.
However, subject to the Indian Arms Act, 1959, the petitioner shall be entitled to renew and take it back in case of acquittal in this case, provided otherwise permissible in 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. 23.
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." 24.
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."
25.
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 be at liberty to cancel this bail. 26.
Any observation made hereinabove is neither an expression of opinion on the case's merits nor shall the trial Court advert to these comments. 27.
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.
28.
Petition allowed in terms mentioned above. All pending applications, if any, stand disposed of.
(ANOOP CHITKARA) JUDGE 19.12.2024 Whether speaking/reasoned: Yes Whether reportable:
No.