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2024 Supreme(P&H) 1730
PUNJAB AND HARYANA HIGH COURT AT CHANDIGARH
ANOOP CHITKARA, J.
Harish Kumar @ Honey – Appellant
Versus
State of Punjab
CRM-M-29388-2024
Decided on : 20-09-2024
For the Appellant :Mr. Sarju Puri, Advocate
For the Respondent: Mr. Sukhdev Singh, AAG, Punjab
JUDGMENT :
Anoop Chitkara, J.
FIR No. | Dated | Police Station | Sections |
24 | 16.05.2024 | City Banga, District SBS Nagar | 21 of NDPS Act |
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:
"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:
Substance Name | Heroin/ Chitta/ Smack/ Brown Sugar |
Quantity detained | 25 Gram |
Quantity type | Intermediate |
Drug Quantity in % to upper limit of Intermediate | 10.00% |
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. | 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 | 5 Gram |
Commercial Quantity | 250 Gram |
Declared as punishable under NDPS Act and as per schedule defined in S.2(xi) & 2(xxiii) NDPS Act, 1985 | |
Notification No | S.(xvi)(d) NDPS Act, 1985 (61 of 1985), S.O. 821 (E) |
Dated | 11/14/1985 |
Sr. No. | 2(xvi)(d) |
Common Name (Name of Narcotic Drug and Psychotropic Substance (International non-proprietary name (INN) | ****** |
Other non-proprietary name | ****** |
Chemical 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 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
