IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Reserved on: 03.02.2025 Pronounced on: 07.02.2025 Ishwar @ Billa ...Pe(cid:15)(cid:15)oner Versus State of Haryana …Respondent CORAM: HON'BLE MR. JUSTICE ANOOP CHITKARA Present: Mr. Harjinder Singh, Advocate for the pe(cid:15)(cid:15)oner.

Mr. Aashish Bishnoi, D.A.G., Haryana.

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ANOOP CHITKARA, J.

FIR No. Dated Police Sta1on Sec1ons

649 14.07.2023 Samalkha, District Panipat 22-C & 29 of NDPS Act

1. The pe(cid:15)(cid:15)oner incarcerated in the FIR cap(cid:15)oned above had come up before this Court under Sec(cid:15)on 483 of Bhara(cid:15)ya Nagarik Suraksha Sanhita, 2023, [BNSS], seeking regular bail.

2. In paragraph 14 of the bail applica(cid:15)on, the accused declares that he has no criminal antecedents.

3. The facts and allega(cid:15)ons are taken from the status report filed by the State. On 14.07.2023, based on prior informa(cid:15)on, the Police seized 350 injec(cid:15)ons, i.e. 200 vials of injec(cid:15)ons branded Buprenorphine IP and 150 vials of injec(cid:15)ons branded Pheniramine Maleate Avil from the pe(cid:15)(cid:15)oner’s possession. In his disclosure statement pe(cid:15)(cid:15)oner stated that he had purchased the recovered injec(cid:15)ons from Shahnu @ Anup @ Shahanavaj in exchange of Rs. 25,000/-. The Inves(cid:15)gator claims to have complied with all the statutory requirements of the NDPS Act, 1985, and BNSS, 2023.

4. The pe(cid:15)(cid:15)oner's counsel submits that as per the provisions of NDPS Act, no offer was made to the pe(cid:15)(cid:15)oner to get the search conducted through GazeFed Officer or from any Magistrate and no independent witness was joined during the search of the pe(cid:15)(cid:15)oner. He further submits that the alleged contraband was not recovered from the conscious possession of the pe(cid:15)(cid:15)oner. As per the FIR, the alleged recovery was effected from the ground. Moreover, the pe(cid:15)(cid:15)oner is not involved in any other case under the NDPS Act.

5. The pe(cid:15)(cid:15)oner's counsel prays for bail by imposing any stringent condi(cid:15)ons and contends that further pre-trial incarcera(cid:15)on would cause an irreversible injus(cid:15)ce to the pe(cid:15)(cid:15)oner and his family.

6. The State’s counsel opposes bail and refers to the status report.

7. It would be appropriate to refer to paras 5 and 6 of the status report, which reads as follows:

“5. That the role of the pe(cid:15)(cid:15)oner Ishwar @ Billa is that he was found to be in conscious possession of total of 350 injec(cid:15)ons, i.e. two hundreds vials of injec(cid:15)ons branded Buprenorphine IP (2 ml each) and one hundred fi&y vials of injec(cid:15)ons branded Pheniramine Maleate Avil (10 ml each). He brought it from co-accused Shahnawaj @ Sahnu @ Anup for Rs.25,000/-. The pe(cid:15)(cid:15)oner has also confessed to his role in crime in his disclosure statement Annexure R-1.

6. That the recovered substance 400 ml of buprenorphine falls under the category of commercial quan(cid:15)ty as per item No.169 of schedule a7ached with NDPS Act. It is per(cid:15)nent to men(cid:15)on here that as per item No.169 commercial quan(cid:15)ty of Buprenorphine is 20 g i.e. 20 ml. Hence, Sec(cid:15)on 37 of NDPS Act is also a7racted in this case.”

8. As per FSL report, the average weight of Buprenorphine is 420 ml and it contained Buprenorphine and Pheniramine.

REASONING:

9. The quan(cid:15)ty allegedly involved in this case is commercial. Given this, the rigors of S. 37 of the NDPS Act apply in the present case. The pe(cid:15)(cid:15)oner must sa(cid:15)sfy the twin condi(cid:15)ons put in place by the Legislature under Sec(cid:15)on 37 of the NDPS Act.

10. Given this, the criminal antecedents are also not legal grounds for denying the rigors of S. 37 of the NDPS Act at this stage.

11. However, the pe(cid:15)(cid:15)oner is en(cid:15)tled to bail because Hon’ble Supreme Court had granted bail on prolonged custody in the following judicial precedents:

1) In Junaid Alam v. S