HARISH KUMAR @ HONEY v. STATE OF PUNJAB

Neutral Citation No:=2024:PHHC:124945 CRM-M-29388-2024 1

IN THE HIGH COURT OF PUNJAB AND HARYANA

AT CHANDIGARH

CRM-M-29388-2024 Reserved on: 05.09.2024 Pronounced on: 20.09.2024 Harish Kumar @ Honey ...Petitioner Versus

State of Punjab …Respondent

CORAM: HON'BLE MR. JUSTICE ANOOP CHITKARA Present: Mr. Sarju Puri, Advocate for the petitioner. Mr. Sukhdev Singh, AAG, Punjab.

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ANOOP CHITKARA, J.

1. The petitioner apprehending arrest in the FIR captioned above has come up before this Court under Section 438 CrPC, 1973, seeking anticipatory bail.

2. The accused declares his past criminal antecedents in paragraph 9 of the bail petition.

3. Vide order dated 05.06.2024, petitioner was granted interim protection by Coordinate Bench of this Court and the said order is continuing till date.

4. The facts and allegations are taken from the reply filed by the State. On May 16, 2024, based on chance recovery, the Police seized 25 grams of heroin from the petitioner's father's possession, who disclosed during interrogation that the petitioner had procured the heroin. The Investigator claims to have complied with all the statutory requirements of the NDPS Act, 1985, and CrPC, 1973.

5. 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.

6. The State's counsel opposes bail and refers to the reply.

7. It would be appropriate to refer to the following portions of the reply, which read as follows:

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"Role of the petitioner

It is respectfully submitted that the father of the petitioner, namely Rakesh Kumar has been found in possession of 25 Gram Diacetylmorphine (Heroin) and sale proceed Rs.4900/- of Heroin and during his interrogation, Rakesh Kumar has disclosed to the investigating officer, vide Annexure-R-1/T, that the said 25 Gram Diacetylmorphine (Heroin) was supplied to him by petitioner-Harish Kumar @ Honey for selling the same to customers. It has also been disclosed Rakesh Kumar (father of the petitioner) that it is the petitioner-Harish Kumar @ Honey only, who brings the Heroin from somewhere and only he has knowledge about the sources of the same, therefore, to find out the sources of the contraband, the custodial interrogation of the petitioner-Harish Kumar @ Honey is required."

8. Dealing in 25 grams of heroin is a punishable offense under the NDPS Act in the following terms:

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Other non-proprietary name ****** 2(xvi)(d) diacetylmorphine, that is, the alkaloid also known as dia-morphine or heroin and its salts; 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

Chemical Name

contained in every one hundred mililitre of the preparation and so on in

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.

9. Given this, the rigors of S. 37 of the NDPS Act do not apply in the present case.

10. Section 2 (vii-a) of the NDPS Act defines commercial quantity as greater than the quantity specified in the schedule. Section 2 (xxiii-a) defines a small quantity as a quantity less than the quantity specified in the table of the NDPS Act. The remaining quantity falls in an undefined category, generally called an intermediate quantity. All sections in the NDPS Act specify an offence and mention the minimum and maximum sentence, depending upon the quantity of the substance. The commercial quantity mandates a minimum sentence of ten years of imprisonment and a minimum fine of Rupees One hundred thousand, and bail is subject to the riders mandated in S. 37 of the NDPS Act. When the quantity is less than commercial, the restrictions of Section 37 of the NDPS Act will not attract, and the factors for bail become similar to the offence regular statutes.

11. In Sami Ullaha v Superintendent Narcotic Control Bureau, (2008) 16 SCC 471, the Hon'ble Supreme Court holds that in intermediate quantity, the rigors of the provisions of Section 37 may not be justified.

12. There is sufficient primafacie evidence connecting the petitioner with the alleged offense; still, it is neither a case for custodial interrogation nor pre-trial incarceration. Although the evidence might be prima facie sufficient to launch prosecution or to frame charges, this Court is not considering the evidence at that stage but is analyzing it for the

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bail stage.

13. Given the above, the penal provisions invoked coupled with the primafacie analysis of the nature of allegations and the other factors peculiar to this case, there would be no justifiability for custodial interrogation or the pre-trial incarceration at this stage. 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 anticipatory bail.

14. The petitioner is directed to join the investigation as and when called by the Investigator. The petitioner shall be in deemed custody for Section 27 of the Indian Evidence Act. The petitioner shall join the investigation as and when called by the Investigating Officer or any Superior Officer and shall cooperate with the investigation at all further stages as required. In the event of failure to do so, the prosecution will be open to seeking cancellation of the bail. During the investigation, the petitioner shall not be subjected to third-degree, indecent language, inhuman treatment, etc.

15. 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.

16. Any observation made hereinabove is neither an expression of opinion on the case's merits nor shall the trial Court advert to these comments.

17. A certified copy of this order would not be needed 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.

18. Petition allowed in terms mentioned above. Interim order dated 05.06.2024 is made absolute. All pending applications, if any, stand disposed of.

(ANOOP CHITKARA)

JUDGE

20.09.2024

anju rani Whether speaking/reasoned: Yes Whether reportable: No.

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