Gurwinder Singh Alias Gobinda v. State Of Punjab
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH Decided on: 13.05.2025 Gurwinder Singh alias Gobinda
...Petitioner
Versus
State of Punjab
...Respondent
CORAM:
HON'BLE MR. JUSTICE ANOOP CHITKARA
Present:
Mr. Munish Bhardwaj, Advocate for the petitioner.
Mr. Akshay Kumar, AAG, Punjab.
**** ANOOP CHITKARA, J.
FIR No.
Dated Police Station Sections 06.02.2023 Model Town, 22 (Section 29, 61, 85 added District Hoshiarpur later on) 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 8 of the bail petition, custody certificate dated 10.05.2025 as well as para 13 of the status report, the accused has the following criminal antecedents: Sr. No.
FIR No.
Date Offenses Police Station 452, 506, 148, 149 IPC Bullowal, Distt.
Hoshiarpur 08.08.2012 392, 411, 120B IPC and 25/54/59 of Arms Act Talwara.
Distt.
Hoshiarpur 27.10.2012 392, 395, 411, 145 IPC Bhogpur, Distt.
Jalandhar 21.05.2014 15/18/21/22 of NDPS Act Tanda, Distt.
Hoshiarpur 25.08.2014 326, 324, 148, 149 IPC Dasuya, Distt.
Hoshiarpur 06.11.2014 382, 392, 394, 395, 386, 353, 447, 506 IPC and 15/18/21/27 of NDPS Act Gardhiwal, Distt.
Hoshiarpur 06.07.2015 457/380 IPC Gardhiwal, Distt.
Hoshiarpur 24.10.2019 52A of Prisoner Act Hoshiarpur 27.07.2020 379 IPC Talwara, Distt.
Hoshiarpur 06.06.2021 452, 506, 323, 148, 149 IPC Taragarh, Distt.
Pathankot 01.07.2022 379 IPC Division No.6, Distt.
Jalandhar 04.01.2023 379-B IPC Tanda, Distt.
Hoshiarpur 11.01.2023 379-B IPC Tanda, Distt.
Hoshiarpur 28.01.2023 379-B IPC Tanda, Distt.
Hoshiarpur 06.02.2023 379-B IPC Model Town, Distt.
Hoshiarpur 28.10.2022 379-B IPC (411 IPC added later on Model Town, Distt.
Hoshiarpur 06.02.2023 25, 54, 59 of Arms Act Model Town, Distt.
Hoshiarpur 3.
The facts and allegations are taken from the reply filed by the State. On 06.02.2023, based on a chance recovery, the Police seized 1120 intoxicant tablets containing 134.4 grams Alprazolam from the petitioner's possession. The Investigator claims to have complied with all the statutory requirements of the NDPS Act, 1985, and BNSS 2023.
4.
Petitioner's counsel on instructions submits that petitioner would live like a decent human being and would not repeat the offence and would not involve himself in the offence involving commercial or 50% of intermediate quantity and the offence under Sections 19/24/27A of NDPS Act and if he does so he has no objection if this Court cancels the bail. Counsel further submits that petitioner would also not involve himself in the offence where sentence is more than seven years and if he does so he has no objection if State files an application for cancellation of bail. 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 reply. 6.
It would be appropriate to refer to para 11 of the reply filed by the State, which reads as follows:
"Role of petitioner That it is submitted that the present FIR was registered against the petitioner and his co-accused Harwinder Singh @ Binder on recovery of 1120 intoxicated tablets. As per FSL report, 1120 intoxicated tablets contains salt Alprazolam. As per notification of Central Government Under NDPS Act, Alprazolam weighing 100 grams specified as commercial quantity. The weight of recovery of 1120 intoxicated substance
effected from the envelope hanging with the handle of the motor cycle of the petitioner and his co-accused containing Alprazolam is 134.4 grams, therefore, the recovery effected from the possession of petitioner and his co-accused falls within the definition of commercial quantity. The recovery of commercial quantity of Alprazolam attracts section 37 of NDPS Act. In the present case prima facie evidence exists showing the involvement of the petitioner in the present case and as such, as per section 37 (1) (b) of NDPS Act bail cannot be granted to the petitioner. Commercial quantity offences are serious offences and drug related crimes have a significant impact on society and youth. The petitioner is a flight risk and may abscond if released on bail. Therefore, the present petition is liable to be dismissed."
7.
As per FSL report, the average weight of intoxicant tablets is 134.4 grams and it contained Alprazolam.
REASONING:
8.
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. 9.
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.
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.
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.
12.
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.
13.
Per the custody certificate dated 10.05.2025 the petitioner's custody in this FIR is of 02 years 02 months & 21 days. 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. 14.
Given this, the criminal antecedents are also not legal grounds for denying the rigors of S. 37 of the NDPS Act at this stage. 15.
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.
CONDITIONS:
1 Supreme Court of India, in Rabi Prakash v. The State of Odisha, SLP (Crl) 4169-2023, Para 4, decided on 13 July 2023
16.
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. 17.
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) 18.
This order is subject to the petitioner's complying with the following terms. 19.
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.
20.
Given the background of allegations against the petitioner, it becomes paramount to protect the members of society, detection squad 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. 21.
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." 22.
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."
23.
This bail is conditional, and the foundational condition is that if the petitioner repeats the offence or indulges in the offence where quantity is commercial or 50% of intermediate quantity and the offence u/s 19/24/24 A of NDPS Act, this Court shall cancel the bail. It is also the condition that if petitioner indulges in the offence where sentence is more than seven years, the State may file an application for cancellation of this bail before the Trial Court, which shall be at liberty to cancel this bail. 24.
Any observation made hereinabove is neither an expression of opinion on the case's merits nor shall the trial Court advert to these comments. 25.
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. 26.
Petition allowed in terms mentioned above. All pending applications, if any, stand disposed of.
(ANOOP CHITKARA) JUDGE 13.05.2025 anju rani Whether speaking/reasoned: Yes Whether reportable:
No.