Punjab-Haryana High Court
Narender vs State Of Haryana on 30 January, 2025
Author: Anoop Chitkara
Bench: Anoop Chitkara
CRM-M-54845-2024
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CRM-M-54845-2024
Reserved on: 09.01.2025
Pronounced on: 30.01.2025
Narender Kumar ...Petitioner
Versus
State of Haryana ...Respondent
CORAM: HON'BLE MR. JUSTICE ANOOP CHITKARA
Present: Mr. Sanjeev Sharma, Advocate
for the petitioner.
Ms. Harpreet Kaur, A.A.G., Haryana.
****
ANOOP CHITKARA, J.
FIR No. Dated Police Station Sections
0057 16.02.2024 Hodal, District 20 (b) (ii) (C) of NDPS Act
Palwal
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 10 of the status report, the accused has no criminal antecedents.
3. The facts and allegations are taken from the status report filed by the State, which
reads as follows:
“2. That brief facts of the case are that on 15.2.2024, ASI Rajbir
alongwith other police officials was present at Ghari turn, Hodal
on crime detection duty, where a secret informer happened to
meet him and provided specific inputs to the effect that Vicky son
of Gangadhar and Narender son of Jagdish, both resident of
Deshal Mohalla, Hodal, sale and supply SULFA in Deshal
Mohalla. Today also, they have brought SULFA in huge quantity
from somewhere and they are still selling the same at Ramlila
Ground, Deshal Mohalla. If a raid is conducted immediately,
they can be overpowered with their SULFA. The information was
provided by a trustworthy informer. The accompanying police
officials were apprised of the circumstances and facts and a
notice under section 42 of NDPS was went to CIA Staff Hodal
through Constable Praveen 415/Palwal and ASI Rajbir
alongwith other accompanying police officials reached at Deshal
Mohalla, Ram Lila Ground, where two persons were noticed
sitting on a bench, one of them was seen holding a white
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polythene in his hands and the other was noticed taking some
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CRM-M-54845-2024substance out of it. On noticing the police coming to them, he
had put the substance back into the polythene. ASI Rajbir with
the help of accompanying persons overpowered both of them
alongwith their polythene. On being asked about their names and
parentage, the person who was taking substance out from the
polythene disclosed his name as Virky son of Gangadhar,
resident of Deshal Mohalla, Hodal and the other person
disclosed his name as Narender son of Jagdish, resident of
Deshal Mohalla, Hodal. ASI told both of them that he had
suspicion over them to possess some narcotic substance in their
polythene; therefore, they are required to be searched and they
had a right to get searched their polythene either by a Gazetted
Officer or a Magistrate. The Gazetted Officer or the Magistrate
may be called to the spot or else they could be taken to them. ASI
Rajbir served both of them individually with notices under
section 50 of NDPS Act. To which, both of them replied in
writing that they wanted to be searched by the Gazetted Officer.
Resultantly, ASI Rajbir made a call from his mobile number
9991xxxxx to the Nodal Officer Sh. Naresh Kumar, HPS, DSP,
HQ Palwal on his mobile number 89303xxxxx who responded to
reach shortly. After a while, Constable Praveen no. 415/Palwal
reached back and produced a copy of RAPAT no. 42 to ASI
Rajbir. Further Sh Naresh Kumar, HPS, DSP HQ Palwal
reached at the spot and he was apprised of the notice u/s 50 of
NPDS Act and the overpowered persons were introduced to him.
The Nodal Officer Sh. Naresh Kumar, HPS, DSP HQ Palwal
returned the notice under section 42 cf NDPS Act after certifying
it. The persons and polythene were searched into. ASI Rajbir
searched both of them one after other and also checked into the
polythene, wherein a bale of SUFLA was found. An electronic
weighing machine was arranged for and it was measured
alongwith the polythene and it weighed to be 1 kg 200 gms. The
SULFA alongwith polythene was converted into a parcel and
sealed with the seal of MN and the Nodal officer also put his seal
impression MS on the same. ASI Rajbir handed over his seal to
Constable Kuldeep after using it and the Nodal Officer had kept
his seal with him. The recovered SULFA was taken into police
possession as evidence and it was signed by the accused and
witnesses. In this way, the accused Vicky and Narender have
committed a crime punishable under section 20(b)(ii) (C) of
NDPS Act.”
4. The Investigator claims to have complied with all the statutory requirements of
the NDPS Act, 1985, and CrPC, 1973.
5. The petitioner’s counsel refers to the bail petition.
6. 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.
7. The State’s counsel opposes bail and refers to the status report.
8. Counsel for the petitioner submits that no independent witness was joined despite
place of recovery being public place which creates doubt in the entire investigation.
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Section 42 and 50 of NDPS Act were not complied with and the petitioner is in custody
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CRM-M-54845-2024
from 16.02.2024 and is 45% disabled and unable to walk without support and has
referred to disability certificate Annexure P-2. Counsel for the petitioner further submits
that the petitioner seeks bail on parity with co-accused Vicky who has been granted bail
by the Additional Sessions Judge.
9. Regarding non-association of independent witness, it is a matter of trial.
Regarding arguments of non-compliance of Section 50 of NDPS Act, the recovery was
not from person and the same would not apply. Regarding the bail on parity with co-
accused, it has come in evidence that petitioner was holding the packet and co-accused
was taking the substance from it. On this ground, the petitioner is not on parity with co-
accused Vicky.
10. The police had sent 50 grams of contraband for testing to the laboratory. As per
laboratory report, the tests were positive for the presence of Tetrahydrocannabinol,
Cannabinol and Cannabidiol in the sample. Characteristics trichomes of Charas were
present in the sample. The tests were positive for the presence of Charas in the sample.
Thus prima facie the contraband is charas and the total weight of the contraband was 1 kg
200 gms.
11. Dealing in 1.2 kg of charas is a punishable offense under the NDPS Act in the
following terms:
Cannabis and cannabis resin/ Charas/ Hashish/
Substance Name
Sulpha
Quan ty detained 1.2 Kg
Quan ty type Commercial
Drug Quan ty in % to upper limit
120.00%
of IntermediateSpecified as small & Commercial in S.2(viia) & 2(xxiiia) NDPS Act, 1985
No fica on No S.O.1055(E)
dated 10/19/2001
Sr. No. 23
Common Name
(Name of Narco c Drug and
Psychotropic Substance Cannabis and cannabis resin
(Interna onal non-proprietary
name (INN)
Other non-proprietary name CHARAS, HASHISH
Chemical Name EXTRACTS and TINCTURES OF CANNABIS
Small Quan ty 100 Gram (i.e. equivalent to 0.1 Kg)
Commercial Quan ty 1000 Gram (i.e. equivalent to 1 Kg)
0
Declared as punishable under NDPS Act and as per schedule defined in S.2(xi) & 2(xxiii)
NDPS Act, 1985
No fica on No S.20 & S.2(iii) NDPS Act, S.O.821(E)
dated 11/14/1985
Jyoti Sharma
Sr. No. S.2(iii)
2025.01.30 15:08
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CRM-M-54845-2024Common Name
(Name of Narco c Drug and
Psychotropic Substance ******
(Interna onal non-proprietary
name (INN)
Other non-proprietary name ******
S.2(iii) “cannabis (hemp)” means–
(a) charas, that is, the separated resin, in whatever
form, whether crude or purified, obtained from the
cannabis plant and also includes concentrated
prepara on and resin known as hashish oil or liquid
hashish;
(b) ganja, that is, the flowering or frui ng 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; and
(c) any mixture, with or without any neutral material,
of any of the above forms of cannabis or any drink
prepared therefrom;
Chemical Name (iv) “cannabis plant” means any plant of the genus
cannabis; S. 2(viiib)] “illicit traffic”, in rela on to
narco c drugs and psychotropic substances, means–
(i) cul va ng any coca plant or gathering any por on
of coca plant;
(ii) cul va ng the opium poppy or any cannabis plant;
(iii) engaging in the produc on, manufacture,
possession, sale, purchase, transporta on,
warehousing, concealment, use or consump on,
import inter-State, export inter-State, import into
India, export from India or transhipment, of narco c
drugs or psychotropic substances;
12. 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.
13. Section 371 of the NDPS Act mandates under sub-section (1) (b) of section 37 that
no person accused of an offense punishable for offenses involving commercial quantity
shall be released on bail unless- (i) the Public Prosecutor has been given an opportunity
to oppose the application of release, and (ii) where the Public Prosecutor opposes the
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37. Offences to be cognizable and non-bailable.–(1) Notwithstanding anything contained in the Code
of Criminal Procedure, 1973 (2 of 1974),–
(a) every offence punishable under this Act shall be cognizable;
(b) no person accused of an offence punishable for offences under section 19 or section 24 or section 27A
and also for offences involving commercial quantity shall be released on bail or on his own bond unless–
(i) the Public Prosecutor has been given an opportunity to oppose the application for such release, and (ii)
where the Public Prosecutor opposes the application, the court is satisfied that there are reasonable grounds
for believing that he is not guilty of such offence and that he is not likely to commit any offence while on
bail.
(2) The limitations on granting of bail specified in clause (b) of sub-section (1) are in addition to the
limitations under the Code of Criminal Procedure, 1973 (2 of 1974) or any other law for the time being in
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CRM-M-54845-2024
application, the Court is satisfied that there are reasonable grounds for believing that
accused is not guilty of such offense and is not likely to commit any offense while on
bail. Thus, the rigors of S. 37 of the NDPS Act apply in the present case, and the burden
is on the petitioner to satisfy the twin conditions put in place by the Legislature under
Section 37 of the NDPS Act. Given the legislative mandate of S. 37 of the NDPS Act, the
Court can release a person accused of an offense punishable under the NDPS Act for
possessing a commercial quantity of contraband only after recording reasonable
satisfaction of its rigors.
14. The State’s Counsel argues that a plain reading of Section 37 reveals that the
legislature intends to make the law stringent to curb the drug menace. It is further to be
noticed that the provisions are couched in negative language, meaning that to grant bail,
the Court needs to record a finding that there are reasonable grounds for believing that
the petitioner is not guilty of the offense. The burden of proof is also on the petitioner to
satisfy the Court about his non-involvement in the case. While interpreting the provisions
of Section 37 of the NDPS Act, the Court must be guided by the objective sought to be
achieved by putting these stringent conditions.
15. 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 exist, and the factors for bail become similar to the bail petitions under general
penal statutes like IPC. 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 them 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 an offense and is not likely to commit any offense while on
bail. If either of these 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 the accused is not guilty of the
alleged offense. Even on fulfilling one of the conditions, the reasonable grounds for
believing that the accused is not guilty of such an offense, the Court still cannot give a
finding on the assurance that the accused is not likely to commit any such crime again.
16. The submissions made above and the grounds in the bail petition do not shift the
burden the legislature places on the accused under S. 37 of the NDPS Act. The petitioner
has not stated anything in the bail petition to discharge the burden put by the stringent
conditions placed in the statute by the legislature under section 37 of the NDPS Act. The
investigation reveals sufficient prima facie evidence to connect the petitioner with the
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CRM-M-54845-2024
crime; thus, the petitioner fails to make out a case for bail. Any detailed discussions about
the evidence may prejudice the case of the petitioner, the State, or the other accused.
17. Per the custody certificate, the petitioner’s custody is around 11 months, which
cannot be considered prolonged.
18. In Union of India (NCB) v. Khalil Uddin, decided on 21 Oct 2022, 2022 SCC
OnLine SC 2109, Hon’ble Supreme Court holds,
[4]. According to the prosecution, contraband material weighing
about 13 kgs. of morphine was found in a motor vehicle which was
driven by co-accused named Md. Jakir Hussain. During the course
of investigation, it was found that the motor vehicle was recorded
in the name of Md. Nizam Uddin who had executed a sale letter
and handed over the custody of the vehicle to accused Md. Abdul
Hai and that accused Md. Jakir Hussain was the driver employed
by accused Md. Abdul Hai and that contraband material in
question was to be handed over to accused-Khalil Uddin, an owner
of a tea shop.
[5]. The High Court by its order which is presently under
challenge, directed release of both the accused as stated above on
bail after they had undergone custody to the tune of about a year.
Questioning grant of relief to said accused, the instant appeals have
been preferred.
[7]. What emerges from the record is that large quantity of
contraband weighing about 13 kgs of morphine was found in a car
which was driven by Md. Jakir Hussain. Whether the role played
by said Md. Jakir Hussain could get connected with both the
accused is a question.
[8]. The answer to said question could be the statement recorded of
Md. Nizam Uddin. The statement of Md. Jakir Hussain recorded
under Section 67 of the Act has also named his owner accused
Abdul Hai. We are conscious of the fact that the validity and scope
of such statements under Section 67 has been pronounced upon by
this Court in Tofan Singh v. State of Tamil Nadu . In State by
(NCB) Bengaluru v. Pallulabid Ahmad Arimutta , the rigour of law
lay down by this Court in Tofan Singh was held to be applicable
even at the stage of grant of bail.
[9]. However, going by the circumstances on record, at this stage,
on the strength of the statement of Md. Nizam Uddin, though
allegedly retracted later, the matter stands on a different footing. In
our considered view, in the face of the mandate of Section 37 of
the Act, the High Court could not and ought not to have released
the accused on bail. We, therefore, allow these appeals, set aside
the view taken by the High Court and direct that both the
appellants be taken in custody forthwith.
[10]. We have been given to understand that the charge-sheet has
been filed. In the circumstances, we direct the Trial Court to take
up the matter and conclude the proceedings as early as possible
and preferably within six months from the receipt of this order.
19. In Narayan Takri v. State of Odisha, decided on 10 Sep 2024, SLP (Crl.) 8198-
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CRM-M-54845-2024
2024, Hon’ble Supreme Court holds,
The petitioners are in custody since 28th May, 2022 for alleged
commission of alleged offence under Section 20(b)(ii)(c) of the
Narcotic Drugs and Psychotropic Substances Act, 1985. As per the
FIR allegation, 125.3 kg. of “Ganja” was recovered from the
petitioners.
[3]. It is not in dispute that the trial has commenced and that three
prosecution witnesses have been examined till date.
[4]. Learned counsel for the petitioners submits that the third
prosecution witness was examined as far back as on 28th January,
2024 and since then, no other prosecution witness has been
examined. There is, however, no such averment in the petition.
[5]. Learned counsel appearing for the respondent submits that
every endeavor shall be made on behalf of the prosecution to have
all the witnesses examined by the end of this year.
[6]. The trial court is encouraged to expedite the trial and give its
decision as early as possible, in accordance with law.
[7]. We, however, do not see any reason to interfere the impugned
judgment and order at this stage; however, it is clarified that in the
event the trial is not completed by the end of this year, the
petitioners shall be at liberty to renew their prayer for bail before
the trial court.
20. A perusal of the bail petition and the documents attached primafacie points
towards the petitioner’s involvement and does not make out a case for bail. The impact of
crime would also not justify bail. Any further discussions will likely prejudice the
petitioner; this court refrains from doing so.
21. The petitioner’s custody of around 11 months cannot be termed prolonged, given
the minimum sentence prescribed for the offense, which is 10 years.
22. Any observation made hereinabove is neither an expression of opinion on the
case’s merits nor shall the trial Court advert to these comments.
23. Petition dismissed. All pending applications, if any, stand disposed of.
(ANOOP CHITKARA)
JUDGE
30.01.2025
Jyoti Sharma
Whether speaking/reasoned: Yes
Whether reportable: No.
Jyoti Sharma
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