Allowed

Kulwant Singh @ Vadda @ Kulwant Singh Wada v. State of Punjab

Punjab & Haryana HC13 Sept 2024CRM-M/10664/2024

Case brief

AI extract

What is this about?

The High Court of Punjab and Haryana granted regular bail to the petitioner charged under the NDPS Act for possession of commercial quantities of Tramadol and Etizolam relying on Supreme Court precedents suggesting liberal bail standards even in commercial quantity cases, subject to stringent conditions.

What did the court decide?

Petitioner to be released on bail furnishing bonds and abiding by conditions including surrendering firearms and ammunition within 15 days.

Kulwant Singh @ Vadda @ Kulwant Singh Wada Vs… — Narcotics (NDPS) | Punjab & Haryana HC (2024)

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CRM-M-10664-2024

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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

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CRM-M-10664-2024 Reserved on: 02.09.2024 Pronounced on: 13.09.2024

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Kulwant Singh @ Vadda @ Kulwant Singh Wada ...Petitioner

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Versus

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State of Punjab …Respondent

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CORAM: HON'BLE MR. JUSTICE ANOOP CHITKARA

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Present: Mr. G.S.Aulakh, Advocate for the petitioner.

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Mr. Sukhdev Singh, A.A.G., Punjab.

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ANOOP CHITKARA, J.

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FIR No.	Dated	Police Station	Sections
0121	29.08.2023	Kot Ise Khan,	22 of the NDPS Act
		District Moga

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The petitioner incarcerated in the FIR captioned above had come up before this Court under Section 439 CrPC, seeking regular bail.

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Per paragraph 16 of the bail application and the reply/custody certificate, the accused has the following criminal antecedents:

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Sr.	FIR No.	Dated	Offences	Police Station
No.
1	4	16.03.2009	302/120-B, IPC and Sections	Zirakpur
			25/54/59 of theArmsAct,1959

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The facts and allegations are taken from the reply filed by the State. On 29^th August 2023, based on a chance recovery, the Police seized 100 tablets containing Tramadol and 25 tablets containing Etizolam from the petitioner’s possession. The Investigator claims to have complied with all the statutory requirements of the NDPS Act, 1985, and CrPC, 1973.

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The petitioner's counsel referred to Para 7 of the bail petition which reads as follows:

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“7. That as per the prosecu�on version/alleged story and FIR (P-1) no

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Jyoti Sharma 2024.09.17 15:13 I attest to the accuracy and authenticity of this order/judgment High Court, Sector 1, Chandigarh

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CRM-M-10664-2024

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offence is made out against the pe��oner and the story is false and concocted one and present pe��oner is having numer of health issues and being not well since year 2021 (Depression, Anxiety/Stress etc. Pe��oner is being pa�ent has no concern with the alleged recovery, which the recovery is affected alleged by prosecu�on in the present FIR (P-1).”

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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.

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

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It would be appropriate to refer to para 7 of the short reply filed to the bail petition, which reads as follows:

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“ 7. That it is also respectfully submitted here that in compliance of above order dated 06.05.2024, passed by this Hon'ble Court, medical assessment of petitioner/in-mate Kulwant Singh @ Vadda @ Kulwant Singh Wada son of Ajit Singh @ Jeet Singh has been got conducted by the Medical Officer, Jail Hospital, Faridkot and said government Medical Officer, vide his medical assessment report dated 22.05.2024 has given the following opinions regarding the health condition/status of petitioner/in-mate Kulwant Singh @ Vadda @ Kulwant Singh Wada: "Subject:-

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Current Me	dical Status Re	port
Inmate’s Name	S/o	Sex	Legal status
Kulwant Singh @ Vadda	Ajit Singh	Male	Convict

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Respected Sir,

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With reference to above cited subject and on the basis of medical assessment, and perusal of his medical record, it is hereby submitted:

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1. That the said inmate is medically assessed today and found to be medically stable and there is nothing to indicate any imminent risk to his health and life.

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2. That he reports history of Opioid dependence and Depression, for which he is currently on OOAT (Oral Opioid assisted treatment)

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and antidepressant treatment, respectively.

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3. That as he reported sub-optimal response to treatment for depression, so his treatment is revised by the Jail Psychiatrist dated today 22/05/2024".

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As per reply the weight of 100 tablets containing Tramadol is 39.7 grams, and weight of 25 tablets containing Etizolam is 3.15 grams.

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Dealing in 39.7 grams of Tramadol is a punishable offense under the NDPS Act in

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Jyoti Sharma 2024.09.17 15:13 I attest to the accuracy and authenticity of this order/judgment High Court, Sector 1, Chandigarh

CRM-M-10664-2024

the following terms:

Substance Name	Tramadol
Quan�tydetained	39.7 Gram
Quan�tytype	Intermediate
Drug Quan�ty in % to upper limit of Intermediate	15.88%

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Specified as small & Commercial i i	i n S.2(viia) & 2(xxiiia) NDPS Act, 1985
No�fica�on No	S.O.1762(E)
dated	4/26/2018
Sr. No.	238 ZH
Common Name
(Name of Narco�c Drug and
Psychotropic Substance	Tramadol
(Interna�onal non-proprietary name (INN)
Other non-proprietaryname	******
Chemical Name	******
SmallQuan�ty	5 Gram
CommercialQuan�ty	250 Gram

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Declared as punishable under NDPS Act and as per schedule defined in S.2(xi) & 2(xxiii)

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i	NDPS Act,1985
No�fica�on No	S.O.1761(E)& S.O. 3448(E)
dated	26-Apr-2018 & 26-Jul-2018
Sr. No.	110Y
Common Name
(Name of Narco�c Drug and
Psychotropic Substance	Tramadol
(Interna�onal non-proprietary name (INN)
Other non-proprietaryname	******
Chemical Name	******

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Thus the quantity of Tramadol is intermediate and rigors of S. 37 shall not apply.

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Dealing in 3.15 grams of Etizolam is a punishable offense under the NDPS Act in the following terms:

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Substance Name	E�zolam
Quan�tydetained	3.15 Gram
Quan�tytype	Commercial
Drug Quan�ty in % to upper limit of Intermediate	126.00%

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Specified as small & Commercial in S.2(viia) & 2(xxiiia) NDPS Act, 1985 i
No�fica�on No S.O.1276(E)
dated 3/23/2021
Sr. No. 238ZZC

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Jyoti Sharma 2024.09.17 15:13 I attest to the accuracy and authenticity of this order/judgment High Court, Sector 1, Chandigarh

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CRM-M-10664-2024

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Common Name
(Name of Narco�c Drug and
Psychotropic Substance	E�zolam
(Interna�onal non-proprietary name (INN)
Other non-proprietaryname	******
Chemical Name	4-(2-Chlorophenyl)-2-ethyl-9-methyl-6H-thieno[3,2-f] [1,2,4]triazolo[4,3a][1,4]diazepine
SmallQuan�ty	0.05 Gram
CommercialQuan�ty	2.5 Gram

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Declared as punishable under NDPS Act and as per schedule defined in S.2(xi) & 2(xxiii) NDPS Act, 1985

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No�fica�on No	S.O.1275(E)
dated	3/23/2021
Sr. No.	110ZN
Common Name
(Name of Narco�c Drug and Psychotropic Substance	E�zolam
(Interna�onal non-proprietary name (INN)
Other non-proprietaryname	******
Chemical Name	4-(2-Chlorophenyl)-2-ethyl-9- methyl-6H-thieno[3,2- f][1,2,4]triazolo[4,3a][1,4]diazepine

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The quantity of Etizolam 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.

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In Md. Aliul Islam @ Aliul Islam @ Aliul vs The State of West Bengal, Criminal Appeal No.1202/2024, the Hon’ble Supreme Court held as under:-

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“Heard learned counsel for the appellant in support of the petition and learned counsel for the State and perused the material on record. The appellant is in custody for approximately 1 year 4 months.

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During the course of submission it was pointed out by the learned counsel for the appellant that in another case the appellant has been granted bail and therefore, similar relief may be granted by this Court in this case.

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The said submission is in response to the submission made by the learned counsel for the respondent-State that this is not the only case in which the appellant has been apprehended. She further submitted that a huge quantity of codeine cough syrup was recovered from the premises (Godown) which has been tenanted by the appellant herein. Considering the facts on record, in our view, the case for bail is made out.”

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Jyoti Sharma 2024.09.17 15:13 I attest to the accuracy and authenticity of this order/judgment High Court, Sector 1, Chandigarh

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CRM-M-10664-2024

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In Nandalal Mondal @ Abhay Mondal vs The State of West Bengal, MANU/SCOR/00327/2024, Hon’ble Supreme Court held as under:-

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[2]. The allegations are that the petitioner along with other accused persons were found in possession of two plastic bags a cough containing a total of 10,000 ml. Of codeine phosphate narcotic substance. It further syrup, which is notified as a narcotic substance. It further appears from the contents of the FIR that the petitioner, who was found in conscious possession of two white plastic containers both of which contained 5,000 ml. each of the said liquid. He was apprehended at the spot and is in custody since then.

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[3]. The respondent State of West Bengal has filed its counter affidavit, in which it is candidly acknowledged that though the investigation is complete and the chargesheet has been filed, however, the charges are yet to be framed. The prosecution proposes to examine 10 witnesses. The conclusion of trial will, thus, take considerable time. The petitioner is in custody for the last more than one and a half years.. He does not have any criminal antecedents.

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[4]. According to learned counsel appearing on behalf of respondent State, the narcotic substance allegedly recovered from the petitioner's possession is of commercial quantity' and, as such, the rigors of Section 37 of the NDPS Act are attracted. We have considered the submission.

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[5]. Taking into consideration the period already undergone by the petitioner in custody; the fact that he does not have any criminal antecedents and also keeping in view that the prolonged incarceration will not serve the cause of substantial justice, however, without expressing any views on the merits of the case, we are inclined to release the petitioner on bail at this state. The petitioner is, accordingly, directed to be released on bail subject to the following directions:

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(i) The petitioner shall furnish bail bonds to the satisfaction of the Trial Court.

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(ii) The petitioner shall appear before the Trial Court regularly on each and every date of hearing.

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(iii) In case the petitioner is found involved in any other case under the NDPS Act, in that event, the bail granted to him shall stand cancelled automatically and he shall be liable to surrender immediately.

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The accordingly. Special Leave Petition stands disposed of accordingly.”

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In SK. Nasiruddin @ Nasirddin SK. Vs State of West Bengal, Criminal Appeal No.1415 of 2024, the Hon’ble Supreme Court held as under:-

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[5]. We note the submission of the learned counsel for the appellant that the appellant was arrested on 12.04.2022 and since then he has been in custody as an under trial prisoner. Even though charges have been framed, trial is yet to begin but there is no likelihood of the trial being taken up and completed within a short period of time. It is also submitted that the appellant does not have any criminal antecedents. It is also brought to our notice that the High Court while rejecting

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Jyoti Sharma 2024.09.17 15:13 I attest to the accuracy and authenticity of this order/judgment High Court, Sector 1, Chandigarh

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CRM-M-10664-2024

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the regular bail application had erroneously recorded that 50 ltrs. of codeine phosphate was recovered from the appellant. This is perhaps a mistake as recovery of only 5 ltrs of codeine phosphate which was mentioned in the FIR.”

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

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As per the custody certificate, the petitioner has been in custody since 31-08-2023 i.e., for one year and a month. Given the penal provisions invoked viz-a-viz pre-trial custody, coupled with the primafacie analysis of the nature of allegations, and the other factors peculiar to this case, there would be no justifiability further pre-trial incarceration at this stage.

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Without commenting on the case's merits, in the facts and circumstances peculiar to this case, and for the reasons mentioned above, the petitioner makes a case for bail. This order shall come into force from the time it is uploaded on this Court's official webpage.

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Given above, provided the petitioner is not required in any other case, the petitioner shall be released on bail in the FIR captioned above subject to furnishing bonds to the satisfaction of the concerned Court and due to unavailability before any nearest Ilaqa Magistrate/duty Magistrate. Before accepting the surety, the concerned Court must be satisfied that if the accused fails to appear, such surety can produce the accused.

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While furnishing a personal bond, the petitioner shall mention the following personal identification details:

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1.	AADHAR number
2.	Passport number (If available) and when the attesting officer/court considers it appropriate or considers the accused a flight risk.
3.	Mobile number (If available)
4.	E-Mail id (If available)

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This order is subject to the petitioner’s complying with the following terms.

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The petitioner shall abide by all statutory bond conditions and appear before the concerned Court(s) on all dates. The petitioner shall not tamper with the evidence, influence, browbeat, pressurize, induce, threaten, or promise, directly or indirectly, any witnesses, Police officials, or any other person acquainted with the facts and circumstances of the case or dissuade them from disclosing such facts to the Police or the Court.

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Given the background of allegations against the petitioner, it becomes paramount to protect the drug detection squad, their family members, as well as the members of society, and incapacitating the accused would be one of the primary options until the

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Jyoti Sharma 2024.09.17 15:13 I attest to the accuracy and authenticity of this order/judgment High Court, Sector 1, Chandigarh

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CRM-M-10664-2024

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filing of the closure report or discharge, or acquittal. Consequently, it would be appropriate to restrict the possession of firearm(s). [This restriction is being imposed based on the preponderance of evidence of probability and not of evidence of certainty, i.e., beyond reasonable doubt; and as such, it is not to be construed as an intermediate sanction]. Given the nature of the allegations and the other circumstances peculiar to this case, the petitioner shall surrender all weapons, firearms, and ammunition, if any, along with the arms license to the concerned authority within fifteen days from release from prison and inform the Investigator about the compliance. However, subject to the Indian Arms Act, 1959, the petitioner shall be entitled to renew and take it back in case of acquittal in this case, provided otherwise permissible in the concerned rules. Restricting firearms would instill confidence in the victim(s), their families, and society; it would also restrain the accused from influencing the witnesses and repeating the offense.

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The conditions mentioned above imposed by this court are to endeavor to reform and ensure the accused does not repeat the offense and also to block the menace of drug abuse. In Mohammed Zubair v. State of NCT of Delhi, 2022:INSC:735 [Para 28], Writ Petition (Criminal) No 279 of 2022, Para 29, decided on July 20, 2022, A Three-Judge bench of Hon’ble Supreme Court holds that “The bail conditions imposed by the Court must not only have a nexus to the purpose that they seek to serve but must also be proportional to the purpose of imposing them. The courts, while imposing bail conditions must balance the liberty of the accused and the necessity of a fair trial. While doing so, conditions that would result in the deprivation of rights and liberties must be eschewed.”

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Any observation made hereinabove is neither an expression of opinion on the case's merits nor shall the trial Court advert to these comments.

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A certified copy of this order would not be needed for furnishing bonds, and any Advocate for the Petitioner can download this order along with case status from the official web page of this Court and attest it to be a true copy. If the attesting officer wants to verify its authenticity, such an officer can also verify its authenticity and may download and use the downloaded copy for attesting bonds.

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