Sandhya Tirke v. State Of Haryana
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Reserved on: 07.01.2025
Pronounced on: 22.01.2025 Sandhya Kashpa
...Petitioner
Versus
State of Haryana
...Respondent
CORAM:
HON'BLE MR. JUSTICE ANOOP CHITKARA
Present:
Mr. Anoop Singh Sheoran, Advocate for the petitioner.
Mr. Aashish Bishnoi, D.A.G., Haryana.
**** ANOOP CHITKARA, J.
FIR No.
Dated Police Station Sections 13.02.2024 Sector 17/18, 20(b) (ii) (c) of NDPS Act District Gurugram 1.
The petitioner incarcerated in the FIR captioned above had come up before this Court under Section 439 CrPC seeking regular bail. 2.
In the bail application, the petitioner is silent about criminal antecedents. 3.
The facts and allegations are taken from the status report filed by the State. On 13-02-2024, based on secret information, the Police seized 24 kg 544 grams of ganja from a vehicle in the possession of two accused, and the petitioner was stated to possess 12.270 kg of ganja. The Investigator claims to have complied with all the statutory requirements of the NDPS Act, 1985, and CrPC, 1973. 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 following portions of the status report, which read as follows:- "13.
That the petitioner was found in the possession of narcotic substance on their way to Gurugram to meet a buyer and the police intercepted their vehicle and found the 12.270 kg ganja
in her possession. Concededly, the petitioner has not been found to be involved in any other case. The custody cetrarate is being appended to alongwith the present affidavit for the kind perusal of the Hon'ble Court as Annexure R2."
7.
Dealing in 12.270 kg of Ganja is a punishable offense under the NDPS Act in the following terms:
Substance Name Ganja/ Bhang Paƫ QuanƟty detained 12.27 Kg QuanƟty type Intermediate Drug QuanƟty in % to upper limit of Intermediate 61.35% Specified as small & Commercial in S.2(viia) & 2(xxiiia) NDPS Act, 1985 NoƟficaƟon No S.O.1055(E) dated 10/19/2001 Sr. No.
Common Name (Name of NarcoƟc Drug and Psychotropic Substance (InternaƟonal non-proprietary name (INN) Ganja Other non-proprietary name ****** Chemical Name ****** Small QuanƟty 1000 Gram (i.e. equivalent to 1 Kg) Commercial QuanƟty 20000 Gram (i.e. equivalent to 20 Kg) Declared as punishable under NDPS Act and as per schedule defined in S.2(xi) & 2(xxiii) NDPS Act, 1985 NoƟficaƟon No 2(iii)(b) NDPS Act, 1985, S.O.821(E) dated 11/14/1985 Sr. No.
2(iii)(b) Common Name (Name of NarcoƟc Drug and Psychotropic Substance (InternaƟonal non-proprietary name (INN) ****** Other non-proprietary name ****** Chemical Name S.2(iii)(b) ganja, that is, the flowering or fruiƟng tops of the cannabis plant (excluding the seeds and leaves when not accompanied by the tops), by whatever name they may be known or designated; S. 2(viiib)] "illicit traffic", in relaƟon to narcoƟc drugs and psychotropic substances, means- (i) culƟvaƟng any coca plant or gathering any porƟon of coca plant;
(ii) culƟvaƟng the opium poppy or any cannabis plant; (iii) engaging in the producƟon, manufacture, possession, sale, purchase, transportaƟon, warehousing, concealment, use or consumpƟon, import inter-State, export inter-State, import into
India, export from India or transhipment, of narcoƟc drugs or psychotropic substances;
8.
Given this, the rigors of S. 37 of the NDPS Act do not apply in the present case. 9.
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.
10.
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.
11.
The 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, per paragraph 9 of the bail petition, the petitioner has been in custody since 13.02.2024. Per the custody certificate dated 17.12.2024, the petitioner's total custody in this FIR is 10 months and 04 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 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. This order shall come into force from the time it is uploaded on the official webpage of this Court.
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.
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.
18.
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, 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 offence.
19.
This bail is conditional, and the foundational condition is that if the petitioner repeats the offense, the State shall file an application for cancellation of this bail before the Sessions Court, which shall be at liberty to cancel this bail. 20.
Any observation made hereinabove is neither an expression of opinion on the case's merits nor shall the trial Court advert to these comments. 21.
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. 22.
Petition allowed in terms mentioned above. All pending applications, if any, stand disposed of.
(ANOOP CHITKARA) JUDGE 22.01.2025 Whether speaking/reasoned: Yes Whether reportable:
No.