IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Reserved on: 06.03.2025 Pronounced on: 18.03.2025 Rajwinder Singh @ Labbu ...Petitioner Versus State of Punjab …Respondent CORAM: HON'BLE MR. JUSTICE ANOOP CHITKARA Present: Ms. Anju Sharma Kaushik, Advocate for Mr. Amit Agnihotri, Advocate for the petitioner.

Mr. Akshay Kumar, AAG, Punjab.

****

ANOOP CHITKARA, J.

FIR No. Dated Police Station Sections

399 17.09.2023 Goindwal Sahib, Distt. 21-C, 61, 85 of NDPS Act Tarn Taran and Section 489 IPC

1. The petitioner incarcerated in the FIR captioned above had come up before this Court under Section 483 of Bharatiya Nagarik Suraksha Sanhita, 2023, [BNSS], seeking regular bail.

2. In paragraph 17 of the bail petition, the accused declares that he has no criminal antecedents. However, as per paragraph 9 of the status report, the accused has the following criminal antecedents:

Sr. No. FIR No. Dated Offenses Police Station

1. 27 24.02.2022 365 IPC Sirhali, Distt. Tarn Taran

2. 116 13.04.2022 25/27 of Arms Act Harike and 307/34/506 IPC

3. 240 04.07.2024 22 of NDPS Act and Goindwal Sahib

42 of Prison Act

3. The facts and allegations are taken from the status report filed by the State. On 17.09.2023, based on chance recovery, the Police seized 274 grams of heroin from the petitioner’s possession. The Investigator claims to have complied with all the statutory requirements of the NDPS Act, 1985, and CrPC, 1973.

4. The petitioner's counsel refers to the bail petition. It would be relevant to refer to paras 9 and 10, which reads as follows:

“9. That on the recovery memo of heroin, there is on signature of the present petitioner which clearly proves that the recovery has been falsely shown form the possession of the present petitioner. The copy of recovery memo is annexed herewith as Annexure P-3.

10. That the alleged recovery was effected on 17.09.2023 but the sample was received by the FSL Amritsar on 22.09.2023 which is after the passing of the 72 hours. The copy of FSL is annexed herewith as Annexure P-4.”

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 his family.

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

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

“Role of the petitioner

6. That as far as role of the petitioner is concerned, it is submitted that total 274 grams of heroin has been recovered from the petitioner and the recovery affected in this case falls under the purview of commercial quantity as mentioned in the schedule attached with the NDPS Act and the provision contained in Section 37 of NDPS Act has been attracted and there is complete bar under Section 37 of NDPS Act, to release any person on bail in case the recovery affected falls under the purview of commercial quantity.

Evidence against the petitioner

7. That it is submitted that the heavy quantity of contraband i.e. 274 grams of heroin has been recovered from the possession of the petitioner as well as co-accused and the chemical examiner report pertaining to the said contraband has also been received. As such, there is ample evidence on record against the petitioner. Moreover, the petitioner is at liberty to raise all his please before the Trial Court at an appropriate stage of law.”

REASONING:

8. The quantity allegedly involved in this case is commercial. Given this, the rigors of S. 37 of the NDPS Act apply in the present case. The petitioner must satisfy the twin conditions put in place by the Legislature under Section 37 of the NDPS Act.

9. Section 37¹ of the NDPS Act mandates under sub-section (1) (b) of section 37 that no person accused of an offense punishable for offenses involving commercial quantity

1

37. Offences to be cognizable and non-bailable.—(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974),—

(a) every offence punishable un