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Punjab-Haryana High Court
Rakesh Kumar Alias Bhero vs State Of Punjab on 21 April, 2025
Author: Anoop Chitkara
Bench: Anoop Chitkara
Neutral Citation No:=2025:PHHC:051537
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CRM-M-58519-2024
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CRM-M-58519-2024
Reserved on: 02.04.2025
Pronounced on: 21.04.2025
Rakesh Kumar alias Bhero ...Petitioner
Versus
State of Punjab ...Respondent
CORAM: HON'BLE MR. JUSTICE ANOOP CHITKARA
Present: Mr. Sunil Agnihotri, Advocate
for the petitioner.
Mr. Sukhdev Singh, AAG, Punjab.
****
ANOOP CHITKARA, J.
FIR No. Dated Police Station Sections 0010 23.01.2024 Mehtiana, District 22/61/85 of NDPS Act Hoshiarpur
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 reply as well as custody certificate dated 01.04.2025, the
accused has the following criminal antecedents:
Sr. No. FIR No. Date Offenses Police Station 1 61 16.06.2024 22/61/85 of NDPS Act Mehtiana, Distt. Hoshiarpur 2 176 07.12.2021 22/61/85 of NDPS Act Mehtiana, Distt. Hoshiarpur 3 137 19.12.2019 22 of NDPS Act Mehtiana, Distt. Hoshiarpur 4 54 10.05.2017 22/61/85 of NDPS Act Bullowal, Distt. Hoshiarpur 5 12 20.01.2018 22/61/85 of NDPS Act Chabbewal, Distt. Hoshiarpur 6 147 31.10.2007 452, 323, 506, 324, 427, Bhogpur, Distt. 148, 149 IPC Jalandhar 7 130 30.11.2014 22/61/85 of NDPS Act Mehtiana, Distt. Hoshiarpur
3. The facts and allegations are taken from the reply filed by the State. Based on
chance recovery, the Police seized 110 grams intoxicant powder containing Alprazolam
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salt from possession of co-accused Sandeep. The Investigator claims to have complied
with all the statutory requirements of the NDPS Act, 1985, and CrPC, 1973. During the
custodial interrogation of the accused Sandeep, he 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.
4. The petitioner’s counsel submits that recovery was not affected from the petitioner
and he has been falsely implicated. He further 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.
REASONING:
6. 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.
7. 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.
8. It would be appropriate to refer to the evidence collected against the petition,
which is taken from the reply, which reads as follows:
“That it is submitted that the present FIR was registered at P.S. Mehtiana,
District Hoshiarpur against the co-accused Sandeep Singh on recovery of2
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CRM-M-58519-2024
110 grams intoxicant from him. As per FSL report, recovery effected from
the co-accused Sandeep Singh contains Alprazolam salt and as such
recovery effected from the co-accused Sandeep Singh falls within the
category of commercial quantity. The co-accused Sandeep Singh used to
purchase intoxicants from the petitioner. The petitioner is spoiling the life
of the youth by supplying intoxicants. Therefore, the present petition is
liable to be dismissed.”
9. Thus, the evidence collected so far consists of disclosure statements and the
petitioner’s confession without discovering any facts. Such statements can be proven
subject to the mandatory restrictions imposed in S. 25 & 26 of the Indian Evidence Act,
1872/ S. 23 of BSA, 2023.
10. 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.
11. 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.
12. 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.
13. As per paragraph 2 of the bail petition, the petitioner has been in custody since
09.10.2024. Per the custody certificate dated 01.04.2025, the petitioner’s total custody in
this FIR is 05 months & 21 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
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incarceration at this stage.
14. 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 co-
accused with a higher role.
15. The evidence collected might be prima facie sufficient to launch prosecution or
even to frame the charges; however, it is insufficient to deny bail.
16. Given the penal provisions invoked, the legal admissibility of evidence collected
against the petition, coupled with the prima facie 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.
17. Without commenting on the case’s merits, in the facts and circumstances unique
and 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:
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. 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.
21. Given the background of allegations against the petitioner, it becomes paramount
to protect 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.
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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.
22. 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.”
23. 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.”
24. This bail is conditional, and the foundational condition is that if the petitioner
indulges in similar type of offence or the offence under Section 19/24/27A of NDPS
Act, the State shall file an application for cancellation of this bail before the Trial
Court, which shall be at liberty to cancel this bail.
25. Any observation made hereinabove is neither an expression of opinion on the
case’s merits nor shall the trial Court advert to these comments.
26. 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.
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27. Petition allowed in terms mentioned above. All pending applications, if any,
stand disposed of.
(ANOOP CHITKARA)
JUDGE
21.04.2025
anju rani
Whether speaking/reasoned: Yes
Whether reportable: No.
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