Punjab-Haryana High Court
Ram Charan vs State Of Punjab on 24 January, 2025
Author: Anoop Chitkara
Bench: Anoop Chitkara
Neutral Citation No:=2025:PHHC:010925
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CRM-M-16304-2024
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CRM-M-16304-2024
Reserved on: 13.01.2025
Pronounced on: 24.01.2025
Ram Charan ...Petitioner
Versus
State of Punjab ...Respondent
CORAM: HON'BLE MR. JUSTICE ANOOP CHITKARA
Present: Mr. Sandeep Arora, Advocate
for the petitioner.
Mr. Akshay Kumar, AAG, Punjab.
****
ANOOP CHITKARA, J.
FIR No. Dated Police Station Sections 15 14.02.2023 Navi Baradari, Distt. Jalandhar 18 of NDPS Act
1. The petitioner incarcerated in the FIR captioned above had come up before this
Court under Section 439 Cr.PC, seeking regular bail.
2. In paragraph 9 of the bail petition, the accused declares no criminal
antecedents. The reply and the custody certificate do not contradict it.
3. The facts and allegations are taken from the reply filed by the State. On Feb 14,
2023, based on chance recovery, the Police seized 8 kg of opium from the petitioner’s
possession. 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 reply.
6. The petitioner seeks bail on prolonged pre-trial custody.
7. Dealing in 8 kg opium is a punishable offense under the NDPS Act in the
following terms:
Substance Name "Opium" Quantity detained 8 Kg 1 1 of 9 ::: Downloaded on - 25-01-2025 18:45:15 ::: Neutral Citation No:=2025:PHHC:010925 2 CRM-M-16304-2024 Quantity type Commercial Drug Quantity in % to upper limit 320.00% of Intermediate
Specified as small & Commercial in S.2(viia) & 2(xxiiia) NDPS Act, 1985
Notification No S.O.1055(E)
dated 10/19/2001
Sr. No. 92
Common Name
(Name of Narcotic Drug and
Psychotropic Substance Opium
(International non-proprietary
name (INN)
Other non-proprietary name ******
Chemical Name And any preparation containing opium
Small Quantity 25 Gram (i.e. equivalent to 0.025 Kg)
Commercial Quantity 2500 Gram (i.e. equivalent to 2.5 Kg)
0
Declared as punishable under NDPS Act and as per schedule defined in S.2(xi) & 2(xxiii)
NDPS Act, 1985
Notification No S.18 & S.2(xv) NDPS Act, S.O.821(E)
dated 11/14/1985
Sr. No. S.2(xv)
Common Name
(Name of Narcotic Drug and
Psychotropic Substance ******
(International non-proprietary
name (INN)
Other non-proprietary name ******
S.2(xv) “opium” means–
(a) the coagulated juice of the opium poppy; and
(b) any mixture, with or without any neutral material,
of the coagulated juice of the opium poppy,
but does not include any preparation containing not
more than 0.2 per cent. of morphine; S.2 (xvii)
“opium poppy” means–
(a) the plant of the species Papaver somniferum L;
and
(b) the plant of any other species of Papaver from
which opium or any phenanthrene alkaloid can be
extracted and which the Central Government may, by
Chemical Name notification in the Official Gazette, declare to be
opium poppy for the purposes of this Act;
Explanation.– For the purposes of clauses (v) (vi), (xv)
and (xvi) the
percentages in the case of liquid preparations shall be
calculated on the basis that
a preparation containing one per cent. of a substance
means a preparation in
which one gram of substance, if solid, or one mililitre
of substance, if liquid, is
contained in every one hundred mililitre of the
preparation and so on in
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proportion for any greater or less percentage:
Provided that the Central Government may, having
regard to the
developments in the field of methods of calculating
percentages in liquid
preparations prescribed, by rules, any other basis
which it may deem appropriate
for such calculation.
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 Dheeraj Kumar Shukla v. The State of Uttar Pradesh, decided on 25 Jan
2023, SLP (Crl) 6690-2022, Hon’ble Supreme Court holds,
[1]. The petitioner seeks enlargement on regular bail in FIR
No.325/2020, dated 23.06.2020, under Sections 8 and 20 of the
Narcotic Drugs and Psychotropic Substances Act, 1985 (for short,
`the Act’) registered at Police Station Jhunsi, District Pryagraj,
Uttar Pradesh.
[2]. The allegations are that on a secret information, the police
authorities intercepted two vehicles on 23.06.2020 i.e. one `Gray’
coloured `Honda City’ Car and the second `White’ coloured `Swift
Dzire’ Car. On an interrogation at the spot, Praveen Maurya @
Puneet Maurya, Rishab Kumar Maurya and Dheeraj Kumar Shukla
were found to be occupants of the `Honda City’ Car whereas the
petitioner was driving the `Swife Dzire’ Car. On taking a search,
more than 92 kgs. Ganja was allegedly recovered from `Honda
City’ Car whereas more than 65 kgs. Ganja was recovered from
`Swift Dzire’ Car. The accused were arrested at the spot. The
petitioner is, thus, in custody since 24.06.2020.
[3]. It appears that some of the occupants of the `Honda City’ Car
including Praveen Maurya @ Puneet Maurya have since been
released on regular bail. It is true that the quantity recovered from
the petitioner is commercial in nature and the provisions of Section
37 of the Act may ordinarily be attracted. However, in the absence
of criminal antecedents and the fact that the petitioner is in custody
for the last two and a half years, we are satisfied that the conditions
of Section 37 of the Act can be dispensed with at this stage, more
so when the trial is yet to commence though the charges have been
framed.
[4]. For the reasons stated above but without expressing any views
on the merits of the case, the petitioner is directed to be released on
bail subject to his furnishing bail bonds to the satisfaction of the
Trial Court.
2) In Shince Babu v. The State of Kerala, decided on 21 Feb 2024,
MANU/SCOR/27340/2024, Hon’ble Supreme Court holds,
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[2]. The prosecution case is that Accused No.1 (Liju) was found
travelling in a private bus from Cherthala to Arookutty and
contraband MDMA, weighing 138.750 gms, was recovered from
his conscious possession. The said contraband was procured by
Accused No.1 with the help of Accused No.2 from Bangalore. The
petitioner is nominated as Accused No.4 in the crime. He was
arrested on 11.04.2022. The petitioner was granted bail by the
Trial Court on 20.09.2022 but on a petition filed by the State of
Kerala, challenging the bail order, the High Court cancelled the
petitioner’s bail on 13.06.2023. However, liberty was granted to the
petitioner to apply afresh before the Sessions Court. The petitioner
again applied for bail but his prayer was declined by the Trial
Court on 07.07.2023. The petitioner approached the High Court
but his first bail application was dismissed on 14.08.2023. His
second bail application was turned down by the High Court on
09.10.2023. Meanwhile, Accused No.2 was granted bail by the
High Court on 11.10.2023. Seeking parity with the co-accused, the
petitioner moved third bail application, which has been rejected by
the High Court vide the impugned order dated 09.11.2023.
[3]. We have heard learned counsel for the parties and carefully
perused the material placed on record.
[4]. It may be seen from para 6 of the impugned order that the
High Court, while declining bail to the petitioner, was largely
influenced by the fact that a huge quantity of contraband, which
falls in the category of ‘commercial’, was recovered and as such,
the rigors of Section 37 of the NDPS Act are attracted. On a
specific query, it is not disputed by learned State counsel that no
contraband was recovered from the conscious possession of the
petitioner. In such circumstances, it is difficult for us to apply the
twin test of Section 37 of the NDPS Act while considering the
petitioner’s prayer for bail.
[5]. Be that as it may, the petitioner is in custody since 11.04.2022
except for the period from 20.09.2022 to 27.06.2023 when he
remained on bail pursuant to the order passed by the Trial
Court/Sessions Court.
[6]. It seems that the investigation is complete and the conclusion
of trial will take some reasonable time. The petitioner’s co-accused
are already on regular bail/default bail. As per the record, there are
no criminal antecedents of the petitioner.
[7]. Taking into consideration all the attending circumstances but
without expressing any views on the merits of the case, we are
inclined to grant bail to the petitioner.
[8]. The petitioner is, accordingly, directed to be enlarged on bail
subject to his furnishing bail bonds to the satisfaction of the Trial
Court.
[9]. The petitioner shall remain present before the Trial Court on
each and every date of hearing, failing which it shall be taken as a
misuse of concession of bail granted to him today by this Court.
3) In Sohrab Khan v. The State of Madhya Pradesh, decided on 13 Aug 2024,
SLP (Crl.) 7115-2024, Hon’ble Supreme Cort holds,
The petitioner is an accused for the alleged offences punishable
under Sections 8/22 and 29 of the Narcotic Drugs and Psychotropic
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Substances Act. His bail application was dismissed by the High
Court. He has already undergone about one year and four months
in jail. The petitioner and coaccused were found in possession of
80 grams of MD powder each of which commercial quantity is 50
grams.
Considering the fact that the petitioner has no criminal antecedents
and the entire facts and circumstances of this case, we are of the
opinion that a case of bail is made out for the petitioner and
therefore, the prayer of the petitioner is allowed.
Accordingly, the petitioner is directed to be released on bail
forthwith on the usual terms and conditions to be decided by the
concerned Court.
4) In Ramlal v. The State of Rajasthan, decided on 17 Sep 2024, SLP (Crl) 9510-
2024, wherein Hon’ble Supreme Court granted bail to a first offender after
one year and six months of custody who was possessing 450 grams of smack
(Heroin), and the holds as follows:
The petitioner and the other accused persons are accused for the
offences punishable under Sections 8/21 & 8/29 of the Narcotic
Drugs and Psychotropic Substances Act and allegation is that 450
gram of smack has been recovered from them. The bail application
of the petitioner was dismissed by the High Court. Hence, he
approached this Court. He has already undergone about 1 year and
6 months in jail.
Heard learned counsel for the petitioner. As per office report dated
13.09.2024, the service is deemed complete on the sole
respondent-State but no one has appeared for the State.
Considering the period of incarceration of the petitioner and the
fact that the petitioner has no criminal antecedents, we are of the
opinion that a case of bail is made out for the petitioner.
5) In Sabat Mehtab Khan v. The State of Maharashtra, decided on 03 Sep 2024,
SLP (Crl) 8557-2024, Hon’ble Supreme Court holds,
The petitioner is an accused for the offences punishable under
Sections 21(c) and 29 of the of the Narcotic Drugs and
Psychotropic Substances Act and allegation is that 275 gms. and
50.01 gms of heroine has been recovered from him. His regular
bail application was dismissed by the High Court. He has already
undergone about 1 year six months in jail.
Heard learned senior counsel/counsel for the parties.
Considering the quantity of the contraband articles and the period
of his incarceration, we are of the opinion that a case of bail is
made out for the petitioner.
6) In Md. Tajiur Rahaman v. The State of West Bengal, decided on 08-Nov-
2024, SLP (Crl) 12225-2024, Hon’ble Supreme Court holds,
[2]. The allegations are that upon receipt of a secret information,
the police conducted a raid in which the petitioner and the co-
accused Rabiul Alam were arrested and 4 kgs., 920 gms of opium
latex was seized.
[4]. It is not in dispute that after filing of chargesheet and framing
of charges, the trial has commenced but only examination-in-chief
of P.W.1 has been completed. However, there are 12 witnesses,
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who are proposed to be examined by the prosecution.
[5]. It may be mentioned that the High Court while declining bail
to the petitioner has directed for conclusion of trial within one
year. But it seems that regardless thereto, the trial has not
been expedited as no effective hearing took place for the last 2/3
dates. That being so, the conclusion of trial is likely to take some
reasonable time. The petitioner does not have any criminal
antecedents. He has already spent one year and six months in
custody. The continued incarceration of the petitioner will not
serve any useful purpose.
[6]. Taking into consideration the period spent by the petitioner in
custody and the fact that the petitioner does not have any criminal
antecedents, we are satisfied that the conditions prescribed under
Section 37 of the NDPS Act can be relaxed at this stage.
7) Bhola Shikari v. The State of Chhattisgarh, decided on 11-Nov-2024, SLP
(Crl) 13236-2024, Hon’ble Supreme Court holds,
In connection with FIR No. 150 of 2024 dated 10.03.2024,
registered at Police Station-Sipat, District Bilaspur, Chhattisgarh
under Section 20(b) of the Narcotic Drugs and Psychotropic
Substances Act, 1985 (for short ‘NDPS Act‘), the petitioner was
arrested on 10.03.2024, as the petitioner along with three others
were found in joint possession of 21 Kgs of Ganja.
Heard learned counsel appearing for the petitioner and also the
learned counsel appearing for the respondent-State.
It is submitted by the learned counsel appearing for the State that
final report was already filed and thereafter, the Court has also
framed the charges against them.
In the said circumstances and taking note of the fact that the
petitioner has been in custody since 10.03.2024, we are of the
considered view that this special leave petition can be disposed of
ordering that the petitioner shall be released on bail, subject to the
stringent terms and conditions to be imposed by the Trial Court.
Ordered accordingly.
10. Per the custody certificate dated 23-10-2024, the petitioner is in custody for 1
year, 8 months, and 2 days in this FIR. Thus, as of this date, the petitioner’s custody
would be around one year and eleven months.
11. 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.
12. In Tajmul SK v. The State of West Bengal, decided on 23 Jul 2024, CrA 3047-
1
Supreme Court of India, in Rabi Prakash v. The State of Odisha, SLP (Crl) 4169-2023, Para 4, decided on
13 July 2023
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2024, 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.
13. 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.
14. Considering the quantity involved and the pre-trial custody, Section 37 of the
NDPS Act would not be attracted. Given this, the criminal antecedents are also not a
legal ground for denying the rigors of S. 37 of the NDPS Act at this stage.
15. 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 further pre-trial incarceration at this stage.
16. 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.
17. 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.
18. 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)
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
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Court.
20. 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.
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
indulges in any non-bailable 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.
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
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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
24.01.2025
anju rani
Whether speaking/reasoned: Yes
Whether reportable: No.
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