The court ruled that anticipatory bail should not be denied solely based on prior criminal history when the current offense involves a small quantity of drugs, emphasizing the need for judicial discretion.

JUDGMENT :

Anoop Chitkara, J.

1. The petitioner apprehending arrest in the FIR captioned above has come up before this Court under Section 482 of Bharatiya Nagarik Suraksha Sanhita, 2023, [BNSS], seeking anticipatory bail.

2. In paragraph 11 of the bail petition, the petitioner declares as follows:

“11. That as per the instructions of the petitioner she was involved in three criminal cases, one under NDPS act and 2 under Exise Act, all the three cases have been disposed of and no other criminal case is pending, against the petitioner, the details of all the three cases is not available with the petitioner.”

3. Para 9 of the reply mentions the petitioner’s following criminal antecedents:

4. The facts and allegations are taken from the reply filed by the State. On Jan 09, 2024, based on secret information, the Police seized 2.28 grams of heroin from one Fateh Singh’s possession. The Investigator claims to have complied with all the statutory requirements of the NDPS Act, 1985, and CrPC, 1973.

5. During custodial interrogation, the main accused, Fateh Singh, confessed before the Police officer that they had purchased the drugs from one Heena. Based on such confession before the police, Heena was arraigned as an accused and arrested. Heena was searched, which led to the recovery of 1.17 grams of Smack (heroin) and Rs 800/- in cash.

6. During custodial interrogation, Henna confessed before the Police officer that they had purchased the drugs from the petitioner, Jogindra Bai. Based on such confession before the police, the petitioner was arraigned as an accused. Apprehending arrest, she filed for anticipatory bail from the Sessions Court, which most surprisingly and strangely denied her the bail. Feeling aggrieved, she has invoked the concurrent jurisdiction of this Court under S.482 BNSS, 2023. Ld. Additional Sessions Judge denied her bail on the following reasoning:

“6. After hearing both the sides and considering their arguments and the material available on record, as per allegations levelled, the applicant-accused is involved in the sale of Narcotic drugs. The applicant- accused is involved in three more criminal cases, one case under NDPS Act and two cases under Excise Act. The offence alleged against applicant-accused is serious in nature and the custodial interrogation of applicant-accused may be required by police regarding her role in the allegations against her and the interrogation of applicant-accused clothed with protective shield of anticipatory bail would not be much effective. Hence, without commenting on the merits of the case and in the facts and circumstances of the case, no extraordinary circumstances exist to exercise the discretionary relief of pre-arrest bail in favour of applicant- accused. Hence, application of applicant-accused is hereby dismissed.”

7. 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.

8. The State’s counsel opposes bail and refers to the reply.

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

“[5] That the accused Fateh Singh was arrested apon receipt of appropriate incriminating evidence against him for having committed offence punishable under Section 21 of the NDPS Act. He was informed of the grounds of his arrest but he refused to sign the arrest memo. That the arrested a