Punjab-Haryana High Court
Rajwinder Singh @ Gandhi vs State Of Punjab on 14 January, 2025
Author: Anoop Chitkara
Bench: Anoop Chitkara
Neutral Citation No:=2025:PHHC:007101
CRM-M-57238-2024
237 IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CRM-M-57238-2024
Date of Decision: 14.01.2025
Rajwinder Singh @ Gandhi ...Pe oner
Versus
State of Punjab ...Respondent
CORAM: HON'BLE MR. JUSTICE ANOOP CHITKARA
Present: Mr. Vivek Salathia, Advocate,
for the pe oner.
Mr. Jasjit Singh, DAG, Punjab.
****
ANOOP CHITKARA, J.
FIR No. Dated Police Sta/on Sec/ons 0032 29.04.2024 Raja Sansi, District 21/29-A/61/85 of NDPS Act Amritsar Rural
1. The pe oner apprehending arrest in the FIR cap oned above has come up
before this Court under Sec on 482 of Bhara ya Nagarik Suraksha Sanhita, 2023, [BNSS],
seeking an cipatory bail.
2. As per paragraph 14 of the bail pe on, the accused has the following criminal
antecedents:
Sr. No. FIR No. Year Offenses Police Sta/on 1. 180 2019 21/61/85 of NDPS Act Sadar Amritsar 2. 70 2018 22/61/85 of NDPS Act Jhander Amritsar (R)
3. The facts and allega ons are taken from the reply filed by the State. On
29.04.2024, based on chance recovery, the Police seized 265 grams of heroin from the
possession of main accused Mandeep Singh @ Love. The Inves gator claims to have
complied with all the statutory requirements of the NDPS Act, 1985, and BNSS, 2023.
4. During the custodial interroga on, the co-accused named the pe oner as the
seller of the drugs and based on this confession, the inves gator arraigned him as an
accused. The pe oner approached the Sessions Court for an cipatory bail, which was
surprisingly denied.
5. The pe oner’s counsel prays for bail by imposing any stringent condi ons and
contends that further pre-trial incarcera on would cause an irreversible injus ce to the
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pe oner and his family.
6. The State’s counsel opposes bail and refers to the reply.
7. The quan ty allegedly involved in this case is commercial. Given this, the rigors
of S. 37 of the NDPS Act apply in the present case. The pe oner must sa sfy the twin
condi ons put in place by the Legislature under Sec on 37 of the NDPS Act.
8. It would be appropriate to refer to the following por ons of the reply, which read
as follows:
“3. That during his custodial interroga on, co-accused Mandeep Singh
alias Love disclosed that he had purchased the aforesaid recovered 265
grams heroin from Rajwinder Singh alias Gandhi (pe oner) at the rate of
Rs.1700/- per gram and he used to purchase heroin from the pe oner in
the past. He further disclosed that he used to sell heroin at the rate of
Rs.3000/- per gram. On the basis of the aforesaid statement, the
pe oner was nominated in the present case and sec on 29-A NDPS Act
was added vide G.D No.19 dated 02.05.2024. The true transla on of the
disclosure statement of the co- accused Mandeep Singh is a4ached
herewith for the kind perusal of this Hon’ble Court as ANNEXURE R-1/T.
Role of the pe oner
4. That as per the prosecu on version, the pe oner is ac vely involve in
selling heroin and the heroin which was recovered from the c accused
Mandeep Singh alias Love falls within the ambit commercial category.
Evidence against the pe oner
5. That it is humbly submi4ed that at present except the disclosure
statement of the co-accused Mandeep Singh alias Love, there is no other
evidence against the pe oner but the evidence rela ng to the
involvement of the pe oner in selling heroin will be collected a=er the
arrest of the pe oner.”
9. There is no other evidence against the pe oner except the disclosure
statements, which are hit by Ss 25 and 26 of the Indian Evidence Act [Analogous to Ss.
23(1) and (2) of BSA, 202].
10. For now, the pe oner has prima facie sa sfied the first condi on of sec on 37
of the NDPS Act to make a case for bail. Regarding the second rider of S. 37, this court
will put very stringent condi ons in this order to ensure that the pe oner does not
repeat the offense.
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11. 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 condi ons need to be sa sfied before a
person accused of possessing a commercial quan ty of drugs or
psychotropic substance is to be released on bail. The first condi on is
to provide an opportunity to the Public Prosecutor, enabling to take a
stand on the bail applica on. The second s pula on is that the Court
must be sa sfied 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 condi ons is not met, the
ban on gran ng bail operates. The expression “reasonable grounds”
means something more than prima facie grounds. It contemplates
substan al probable causes for believing that the accused is not guilty
of the alleged offence. Even on fulfilling one of the condi ons, the
reasonable grounds for believing that the accused is not guilty of such
an offence, the Court s ll 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 quan ty would vary
from case to case, depending upon its facts.
[30]. From the summary of the law rela ng to rigors of S.37 of NDPS
Act, while gran ng bail involving commercial quan es, the following
fundamental principles emerge:
(a). In case of inconsistency, S. 37 of the NDPS Act prevails
over S. 439 CrPC. [Narco cs Control Bureau v Kishan Lal, 1991
(1) SCC 705, Para 6].
(b). The limita ons on gran ng of bail come in only when the
ques on of gran ng bail arises on merits. [Customs, New Delhi
v. AhmadalievaNodira, (2004) 3 SCC 549, Para 7].
(c). The provisions of Sec on 37 of the NDPS Act provide the
legal norms which have to be applied in determining whether a
case for grant of bail has been made out. [UOI v. Prateek Shukla,
2021:INSC:165 [Para 11], (2021) 5 SCC 430, Para 12].
(d). In case the Court proposes to grant bail, two condi ons
are to be mandatorily sa sfied in addi on to the standard
requirements under the provisions of the CrPC or any other
enactment. [Union of India v. Niyazuddin SK &Anr,
2017:INSC:686 [Para 7], (2018) 13 SCC 738, Para 7].
(e). Apart from gran ng opportunity to the Public Prosecutor,
the other twin condi ons which really have relevance are the
Court’s sa sfac on that there are reasonable grounds for
believing that the accused is not guilty of the alleged offence.
[N.R. Mon v. Md. Nasimuddin, (2008) 6 SCC 721, Para 9].
(f). The sa sfac on contemplated regarding the accused
being not guilty has to be more than prima facie grounds,
considering substan al probable causes for believing and
jus fying that the accused is not guilty of the alleged offence.
[Customs, New Delhi v. Ahmadalieva Nodira, (2004) 3 SCC 549,
Para 7].
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(g). The reasonable belief contemplated in the provision
requires existence of such facts and circumstances as are
sufficient in themselves to jus fy sa sfac on that the accused is
not guilty of the alleged offence. [State of Kerala v. Rajesh,
2020:INSC:88 [Para 21], AIR 2020 SC 721, Para 21].
(h). Twin condi ons of S. 37 are cumula ve and not
alterna ve. [Customs, New Delhi v. Ahmadalieva Nodira, (2004)
3 SCC 549, Para 7].
(i). At the bail stage, it is neither necessary nor desirable to
weigh the evidence me culously to arrive at a posi ve finding as
to whether or not the accused has commiPed an offence under
the NDPS Act and further that he is not likely to commit an
offence under the said Act while on bail. [Union of India v.
RaPan Mallik @ Habul, (2009) 2 SCC 624, Para 14].
(j). If the statements of the prosecu on witnesses are
believed, then they would not result in a convic on. [Babua v.
State of Orissa, (2001) 2 SCC 566, Para 3].
(k). Merely recording the submissions of the par es does not
amount to an indica on of a judicial mind or a judicious
applica on of mind. [UOI v. Prateek Shukla, 2021:INSC:165
[Para 11], (2021) 5 SCC 430, Para 12].
(l). Sec on 37 departs from the long-established principle of
presump on of innocence in favour of an accused person un l
proved otherwise. [Union of India v. Sanjeev v. Deshpande,
(2014) 13 SCC 1, Para 5].
(m). While considering the applica on for bail concerning
Sec on 37, the Court is not called upon to record a finding of
not guilty. [Union of India v. Shiv Shanker Kesari, (2007) 7 SCC
798, Para 11].
(n). The confessional statement recorded under Sec on 67 of
the NDPS Act is inadmissible in the trial of an offence under the
NDPS Act. [Tofan Singh v. State of Tamil Nadu, 2020:INSC:620,
(2021) 4 SCC 1]
(o). In the absence of clarity on the quan ta ve analysis of the
samples from the laboratory, the prosecu on cannot be heard
to state at this preliminary stage that the accused possessed a
commercial quan ty of psychotropic substances as
contemplated under the NDPS Act. [Bharat Chaudhary v. Union
of India 2021:INSC:877 [Para 11], 2021 SCC OnLine SC 1235,
Para 10].
(p). When there is evidence of conscious possession of
commercial quan ty of psychotropic substances, such accused is
not en tled to bail given Sec on 37 of the Act as contemplated
under the NDPS Act. [State by (NCB) Bengaluru v. Pallulabid
Ahmad ArimuPa, 2022:INSC:26 [Para 11], 2022 SCC OnLine SC
47, Para 12].
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(p). Bail must be subject to stringent condi ons. [Sujit Tiwari v.
State of Gujarat, 2020:INSC:101 [Para 12], 2020 SCC Online SC
84, Para 12].
[31]. Sa sfying the fePers of S. 37 of the NDPS Act is candling the
infer le eggs. The stringent condi ons of sec on 37 placed in the
statute by the legislature do not create a bar for bail for specified
categories, including the commercial quan ty; 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 pe ons under general penal statutes like IPC.
12. The inves ga on indicates that the pe oner is not the main accused, so the
pe oner’s bail shall not be treated as a precedent for gran ng bail to the other co-
accused with a higher role.
13. A primafacie analysis of the nature of allega ons and the other factors peculiar
to this case, there would be no jus fiability for custodial interroga on or the pre-trial
incarcera on at this stage. Without commen ng on the case’s merits, in the facts and
circumstances peculiar to this case, and for the reasons men oned above, the pe oner
makes a case for an cipatory bail.
14. Given above, provided the pe oner is not required in any other case, the
pe oner shall be released on bail in the FIR cap oned above subject to furnishing
bonds to the sa sfac on of the Arres ng Officer, and if the maPer is before a Court,
then the concerned Court and due to unavailability before any nearest Ilaqa
Magistrate/duty Magistrate. Before accep ng the surety, the concerned Officer/Court
must be sa sfied that if the accused fails to appear, such surety can produce the
accused.
15. While furnishing a personal bond, the pe oner shall men on the following
personal iden fica on details:
1. AADHAR number
2. Passport number (If available) and when the
aPes ng officer/court considers it appropriate or
considers the accused a flight risk.
3. Mobile number (If available)
4. E-Mail id (If available)
16. This order is subject to the pe oner’s complying with the following terms.
17. The pe oner is directed to join the inves ga on within seven days of uploading
this order on the official webpage of the High Court of Punjab and Haryana and as and
when called by the Inves gator. The pe oner shall be in deemed custody for Sec on
27 of the Indian Evidence Act. The pe oner shall join the inves ga on as and when
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called by the Inves ga ng Officer or any Superior Officer and shall cooperate with the
inves ga on at all further stages as required. In the event of failure to do so, the
prosecu on will be open to seeking cancella on of the bail. During the inves ga on, the
pe oner shall not be subjected to third-degree, indecent language, inhuman
treatment, etc.
18. The pe oner shall abide by all statutory bond condi ons and appear before the
concerned Court(s) on all dates. The pe oner 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.
19. Given the background of allega ons against the pe oner, it becomes
paramount to protect the drug detec on squad, their family members, as well as the
members of society, and incapacita ng the accused would be one of the primary op ons
un l the filing of the closure report or discharge, or acquiPal. Consequently, it would be
appropriate to restrict the possession of firearm(s). [This restric on 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
sanc on]. Given the nature of the allega ons and the other circumstances peculiar to
this case, the pe oner shall surrender all weapons, firearms, and ammuni on, if any,
along with the arms license to the concerned authority within fiTeen days from release
from prison and inform the Inves gator about the compliance. However, subject to the
Indian Arms Act, 1959, the pe oner shall be en tled to renew and take it back in case
of acquiPal in this case, provided otherwise permissible in the concerned rules.
Restric ng firearms would ins ll confidence in the vic m(s), their families, and society; it
would also restrain the accused from influencing the witnesses and repea ng the
offense.
20. The condi ons men oned 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 Pe on (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 condi ons imposed
by the Court must not only have a nexus to the purpose that they seek to serve but must
also be propor onal to the purpose of imposing them. The courts, while imposing bail
condi ons must balance the liberty of the accused and the necessity of a fair trial. While
doing so, condi ons that would result in the depriva on of rights and liber es must be
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eschewed.”
21. In case the Inves gator/Officer-In-Charge of the concerned Police Sta on
arraigns another sec on of any penal offense in this FIR, and if the new sec on
prescribes a maximum sentence that is not greater than the sec ons men oned above,
then this bail order shall be deemed to have also been passed for the newly added
sec on(s). However, suppose the newly inserted sec ons prescribe a sentence
exceeding the maximum sentence prescribed in the sec ons men oned above; then, in
that case, the Inves gator/Officer-In-Charge shall give the pe oner no ce of a
minimum of seven days, providing an opportunity to avail the remedies available in law.
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 pe oner is found involved in such like offence in future, the concession of bail
granted to him today will liable to be withdrawn and the pe oner is bound to face the
necessary consequences.”
23. This bail is condi onal, and the founda onal condi on is that if the pe oner
indulges in any non-bailable offense, the State may file an applica on for cancella on of
this bail before the Sessions Court, which shall be at liberty to cancel this bail.
24. Any observa on made hereinabove is neither an expression of opinion on the
case’s merits nor shall the trial Court advert to these comments.
25. A cer fied copy of this order would not be needed for furnishing bonds, and any
Advocate for the Pe oner can download this order along with case status from the
official web page of this Court and aPest it to be a true copy. If the aPes ng officer
wants to verify its authen city, such an officer can also verify its authen city and may
download and use the downloaded copy for aPes ng bonds.
26. Pe//on allowed in terms men oned above. All pending applica ons, if any,
stand disposed of.
(ANOOP CHITKARA)
14.01.2025 JUDGE
Jyo/-II
Whether speaking/reasoned: Yes
Whether reportable: No.
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