Davinder Singh vs State of Punjab - 2023 Supreme(P&H) 2514

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2023 Supreme(P&H) 2514

IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
ANOOP CHITKARA, J.
Davinder Singh – Petitioner
Versus
State of Punjab – Respondent
CRM-M-3981 of 2023
Decided On : 22-02-2023

Subject

Criminal Law - Bail

Act Referred

CRIMINAL PROCEDURE CODE: S.437(a), S.438, S.446
NARCOTIC DRUGS AND PSYCHOTROPIC SUBSTANCES ACT: S.2, S.22, S.37

Headnote

(A) Narcotic Drugs and Psychotropic Substances Act, 1985 - Sections 21 and 37 - Criminal Procedure Code, 1973 - Section 438 - Anticipatory bail application - Petitioner apprehending arrest for selling narcotic substances - Quantity involved is 50 grams heroin, deemed an intermediate quantity - Rigours of Section 37 do not apply, allowing for bail subject to conditions - Previous criminal history not determinative - Court emphasizes balanced approach in bail considerations, allowing release on bail for specific terms - Petitioner required to join investigation and comply with conditions to ensure not repeat offenses. (Paras 10-23)

(B) Bail Considerations - Courts must consider individual circumstances and ensure that bail conditions are reasonable and not excessively restrictive - Historical precedents guide the court's discretion to grant bail, emphasizing not only the rights of the accused but also the interests of justice. (Paras 11-24)

Advocates Appeared:
Mr. B.S. Bhalla, Advocate; For the Petitioner
For the Respondent: Mr. Virat Rana, AAG, Punjab.

Table of Content
1. petitioner seeking anticipatory bail due to criminal charges (Para 1 , 2)
2. arguments for and against the bail application (Para 3 , 4)
3. definition of narcotics quantities and bail considerations (Para 5 , 6 , 10)
4. judicial precedents regarding bail for accused with criminal history (Para 7 , 8 , 9 , 11)
5. conditions imposed on bail to prevent tampering and ensure fair trial (Para 12 , 15 , 18 , 22)
6. final order and obligations placed upon the petitioner (Para 19 , 21 , 23 , 29)

JUDGMENT

Anoop Chitkara, J.

FIR No.	Dated	Police Station	Sections
131	23.11.2022	Badhni Kalan, District Moga	21 of NDPS Act (Section 29 of NDPS Act added later on)

The petitioner, apprehending arrest for selling violating the above-mentioned provisions of Narcotics Drugs and Psychotropic Substances Act, 1985 (NDPS Act) per the FIR captioned above, has come up before this Court under Section 438 CrPC seeking anticipatory bail.

2. In paragraph 9 of the bail application, the accused declares the following criminal antecedents:

Sr. No.	FIR No.	Dated	Offences Police	Station
1.	56	27.05.2014	15, 18, 20, 21, 22 of NDPS Act	Sadar Moga
2.	213	03.10.2017	22 of NDPS Act	Baghapurana
3.	37	12.02.2018	457, 380, 427, 506, 511, 365, 354, 447 IPC and 25, 27 of Arms Act	City South, Moga
4.	452	23.10.2015	399, 402 IPC, 25 & 30 of Arms Act	Rai Singh Nagar (Raj)
5.	133	13.09.2014	22 of NDPS Act	Sagar Moga

3. Petitioner's counsel prays for bail by imposing any stringent conditions. Counsel for the petitioner contends that the custodial investigation would serve no purpose whatsoever, and the pre-trial incarceration would cause an irreversible injustice to the petitioner and family.

4. While opposing the bail, including the interim protection, 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. Section 22 of NDPS Act makes heroin an offence and the necessary description would refer to the following:

Substance Name	Heroin/ Chitta/ Smack
Quantity detained (in Grams)	50
Quantity type	Intermediate
Drug Quantity in % to commercial quantity	20.00%

Specified as small & Commercial in Section 2 (viia) & 2(xxiiia) NDPS Act, 1985
Notification No	S.O.1055(E)
dated	10/19/2001
Sr. No.	56
Common Name (Name of Narcotic Drug and Psychotropic Substance (International non-proprietary name (INN)	Heroin
Other non-proprietary name	******
Chemical Name	Diacetylmorphine
Small Quantity (in gm.)	5
Commercial Quantity (in gm.)	250

6. Thus, the quantity allegedly involved in this case is not commercial. Given this, the rigours of Section 37 of the NDPS Act do apply in the present case. Section 2 (vii-a) of the NDPS Act defines commercial quantity as the quantity greater than the quantity specified in the schedule. Section 2 (xxiii-a) defines 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, which specify an offence, also 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 Section 37 of 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.

7. 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.

8. In Maulana Mohd Amir Rashadi v. St