Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2022 Supreme(P&H) 311

IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
Anoop Chitkara, J.
Ravinder Singh @ Ravi – Appellant
Versus
State Of Punjab – Respondent
CRM-M-21013-2022
Decided On : 26-08-2022

Advocates Appeared:
Mr. R.P. Dhir, Advocate, for the Appellant; Mr. Harsimar Singh Sitta, DAG, Punjab, for the Respondent

In narcotics cases, if the quantity is below the commercial threshold, stringent bail conditions of the NDPS Act do not apply, allowing for bail under standard criteria.

Headnote:(A) Narcotics Drugs and Psychotropic Substances Act, 1985 - Sections 18(b), 27(a) - Bail application - Accused sought bail on grounds that the contraband quantity was less than commercial and rigors of Section 37 NDPS Act did not apply - Previous criminal history considered but not strictly - Bail granted reflecting judicial discretion and reasonableness - Quantity involved was 150 grams of opium, below the commercial threshold. (Paras 2, 8, 9, 12)

(B) Criminal Procedure Code, 1973 - Section 439 - Bail considerations - Previous convictions and likelihood of re-offending weighed heavily in decision-making for bail applications - Time in custody and age also considered as mitigating factors. (Paras 5, 7, 14)

Facts of the case:
The petitioner was arrested for possession of contraband under the NDPS Act, with past criminal cases including drug-related offences. The bail application contested the applicability of stringent bail conditions under the NDPS due to the quantity involved.

Findings of Court:
The court found ample rationale for granting bail, given the nature of the quantity involved and the absence of evidence linking the accused to ongoing criminality.

Issues: Whether the quantity of contraband was sufficient to invoke the rigors of Section 37 of the NDPS Act and the weight of the accused's criminal history in determining bail.

Ratio Decidendi: The court determined that the quantity of 150 grams of opium did not meet the criteria for a commercial quantity, thus lessening the stringent bail conditions typically applied under the NDPS Act. The possibility of re-offending based solely on past history was not sufficient to deny bail without a prima facie case established.

Result: Petition allowed.

Table of Content
1. definition of commercial vs small quantity under ndps act. (Para 1 , 8 , 9)
2. arguments regarding the irreversible injustice of pre-trial incarceration. (Para 3 , 4)
3. judicial responsibility in assessing criminal history and bail considerations. (Para 5 , 6 , 7 , 10 , 14)
4. balance between accused's rights and conditions for bail. (Para 13 , 29)
5. conditions for bail and procedures for release. (Para 17 , 18 , 20 , 26)

JUDGMENT

Anoop Chitkara, J.

FIR No.	Dated	Police Station	Sections
16	01.04.2022	Kahnuwal, District Gurdaspur	18(b), 27(a) of the NDPS Act, 1985

1. The petitioner under arrest for violating the provisions as mentioned above of Narcotics Drugs and Psychotropic Substances Act, 1985 (NDPS Act), per the FIR captioned above, has come up before this Court under Section 439 CrPC seeking bail on the ground that the quantity of contraband is less than commercial and rigours of S. 37 of NDPS Act do not apply.

2. In paragraph 7 of the bail application, the accused declares the following criminal antecedents:

Sr. No.	FIR No.	Date	Offences	Police Station
1.	93	11.06.2017	15 of NDPS Act	Division No.2, Distt. Pathankot
2.	74	22.06.2021	323, 324, 325, 326, 427, 34 IPC	Bengowal, Distt, Kapurthala
3.	130	27.10.2021	15 of NDPS and Sections 420, 482, 467, 468, 471 IPC	Bhogpur, Distt. Jalandhar

3. Ld. Counsel for the petitioner contends that the pre-trial incarceration would cause an irreversible injustice to the petitioner and family.

4. While opposing the bail, Ld. counsel representing the State contends that given the criminal past, the accused is likely to indulge in crime once released on bail.

REASONING:

5. In Maulana Mohd Amir Rashadi v. State of U.P., (2012) 3 SCC 382, Hon'ble Supreme Court holds,

[10] It is not in dispute and highlighted that the second respondent is a sitting Member of Parliament facing several criminal cases. It is also not in dispute that most of the cases ended in acquittal for want of proper witnesses or pending trial. As observed by the High Court, merely on the basis of criminal antecedents, the claim of the second respondent cannot be rejected. In other words, it is the duty of the Court to find out the role of the accused in the case in which he has been charged and other circumstances such as possibility of fleeing away from the jurisdiction of the Court etc.

6. In Paramjeet Singh v. State of Punjab, CRM-M 50243 of 2021, this court observed, While considering each bail petition of the accused with a criminal history, it throws an onerous responsibility upon the Courts to act judiciously with reasonableness because arbitrariness is the antithesis of law. The criminal history must be of cases where the accused was convicted, including the suspended sentences and all pending First Information Reports, wherein the bail petitioner stands arraigned as an accused. In reckoning the number of cases as criminal history, the prosecutions resulting in acquittal or discharge, or when Courts quashed the FIR; the prosecution stands withdrawn, or prosecution filed a closure report; cannot be included. Although crime is to be despised and not the criminal, yet for a recidivist, the contours of a playing field are marshy, and graver the criminal history, slushier the puddles.

7. The petitioner is in custody since 1-4-2022, i.e., slightly less than five months. Given the accused's age and other factors and circumstances peculiar to this case, it may be appropriate to afford the petitioner a final opportunity to course-correct. Thus, the previous criminal history of the petitioner is not being considered strictly at this stage as a factor for denying bail. Furthermore, a prima facie perusal of paragraph 4 to 6 of the bail petition reveals sufficient grounds for granting bail.

8. The quantity allegedly involved from co-accused was 150 grams of opium and from the petitioner it was Rs. 30,000/- which the police claim to be the proceeds of sale of drugs.The substance involved in the present case is opium, and weighs 150 grams. Entry no. 92