Allowed

Tausif Malik v. State of Punjab

Punjab & Haryana HC8 Nov 2024CRM-M/46125/2024

Case brief

AI extract

What is this about?

The High Court of Punjab and Haryana allowed the bail petition of the petitioner charged under the NDPS Act for possessing a commercial quantity of drugs. The court observed that the prima facie twin conditions under Section 37 were met as the evidence was primarily based on a disclosure statement. Bail was granted with stringent conditions including furnishing a personal bond, surrendering firear

What did the court decide?

Petitioner released on bail subject to furnishing a bond of a collective amount to the satisfaction of the Court and strict compliance with conditions regarding appearance, behavior, and possession of

Tausif Malik Vs State of Punjab — Narcotics (NDPS) | Punjab & Haryana HC (2024)

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CRM-M-46125-2024

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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

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CRM-M-46125-2024 Reserved on: 05.11.2024 Pronounced on: 08.11.2024

Tausif Malik

...Pe��oner

Versus

State of Punjab

…Respondent

CORAM: HON'BLE MR. JUSTICE ANOOP CHITKARA

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Present: Mr. Sarfraj Hussain, Advocate for the pe��oner.

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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 Sta0on	Sec0ons
101	17.07.2024	Anaj Mandi,	22, 27, 29, 61 and 85 of NDPS Act
		District Pa�ala

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

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In paragraph 11 of the bail pe��on, the accused declares that he has no criminal antecedents.

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The facts and allega�ons are taken from the reply filed by the State. On July 17, 2024, based on a chance recovery, the Police seized 1110 tablets containing Alprazolam from a packet thrown by co-accused Tek Chand, in the presence of the Inves�gator and other members of the police patrol. The Inves�gator claims to have complied with all the statutory requirements of the NDPS Act, 1985, and CrPC, 1973. During the custodial interroga�on of the accused Tek Chand, he named the pe��oner Tausif Malik as the seller of the tablets. Based on the disclosure statement, the police arraigned the pe��oner as an accused by incorpora�ng S. 29 of the NDPS Act and arrested him on 1907-2024.

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The pe��oner's counsel prays for bail by imposing any stringent condi�ons and contends that further pre-trial incarcera�on would cause an irreversible injus�ce to the pe��oner and their family.

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JYOTI 2024.11.08 16:47 I attest to the accuracy and integrity of this order/judgment.

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CRM-M-46125-2024

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

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The quan�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��oner must sa�sfy the twin condi�ons put in place by the Legislature under Sec�on 37 of the NDPS Act.

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In Abida v. State of Haryana, 2022:PHHC:058722, [Para 10], CRM-M-5077-2022, decided on 13-05-2022, this court observed as follows:

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[10]. Thus, both the twin condi�ons need to be sa�sfied before a person accused of possessing a commercial quan�ty of drugs or psychotropic substance is to be released on bail. The first condi�on is to provide an opportunity to the Public Prosecutor, enabling to take a stand on the bail applica�on. The second s�pula�on is that the Court must be sa�sfied that reasonable grounds exist for believing that the accused is not guilty of such offence, and is not likely to commit any offence while on bail. If either of these two condi�ons is not met, the ban on gran�ng bail operates. The expression “reasonable grounds” means something more than prima facie grounds. It contemplates substan�al probable causes for believing that the accused is not guilty of the alleged offence. Even on fulfilling one of the condi�ons, the reasonable grounds for believing that the accused is not guilty of such an offence, the Court s�ll cannot give a finding on assurance that the accused is not likely to commit any such crime again. Thus, the grant of bail or denial of bail for possessing commercial quan�ty would vary from case to case, depending upon its facts.

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[31]. Sa�sfying the feHers of S. 37 of the NDPS Act is candling the infer�le eggs. The stringent condi�ons of sec�on 37 placed in the statute by the legislature do not create a bar for bail for specified categories, including the commercial quan�ty; however, it creates hurdles by placing a reverse burden on the accused, and once crossed, the rigors no more subsist, and the factors for bail become similar to the bail pe��ons under general penal statutes like IPC.

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It would be appropriate to refer to para No. 11 and 12 of the reply, which read as follows:

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“11. ROLE OF PETITIONER:

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The intoxicant tablets recovered from the co-accused Tek Chand were sold to him by the present pe��oner. That as per the disclosure statement of co-accused Tek Chand, from the 7/8 months, he used to visit the pe��oner 3/4 �mes every month and bring 1800 intoxicant tablets for Rs. 9000/- in every visit and further sell the same for Rs. 18,000/-. Furthermore, the pe��oner also admi)ed that he along with other co-accused Sahil were involved in the business of supplying intoxicant tablets.

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JYOTI 2024.11.08 16:47 I attest to the accuracy and integrity of this order/judgment.

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CRM-M-46125-2024

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12. EVIDENCE AGAINST THE PETITIONER

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The pe��oner was nominated as accused in the present case/FIR on

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the disclosure statement dated 18.07.2024 of co-accused Tek Chand.”

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In Tofan Singh v. State of Tamil Nadu, (2021) 4 SCC 1, the majority view of a three-member bench holds as follows:

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We answer the reference by sta�ng:

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(i) That the officers who are invested with powers under sec�on 53 of the NDPS Act are “police officers” within the meaning of sec�on 25 of the Evidence Act, as a result of which any confessional statement made to them would be barred under the provisions of sec�on 25 of the Evidence Act, and cannot be taken into account in order to convict an accused under the NDPS Act.

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(ii) That a statement recorded under sec�on 67 of the NDPS Act cannot be used as a confessional statement in the trial of an offence under the NDPS Act.

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The status report filed by the police reveals that the inves�gator arraigned the pe��oner as an accused based on the disclosure statement of the main accused, from whose possession the inves�gator had recovered the contraband. No other evidence is collected at this stage to connect the pe��oner with the main accused. Thus, there is no jus�fica�on to deny bail. Consequently, the pe��oner has sa�sfied the first rider of sec�on 37 of the NDPS Act. Regarding the second rider of S. 37, this court will put very stringent condi�ons in this order to ensure that the pe��oner does not repeat the offense.

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For now, the pe��oner has prima facie sa�sfied the first condi�on of sec�on 37 of the NDPS Act to make a case for bail. Regarding the second rider of S. 37, this court will put very stringent condi�ons in this order to ensure that the pe��oner does not repeat the offense.

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Given the quality of evidence, coupled with the primafacie analysis of the nature of allega�ons, and the other factors peculiar to this case, there would be no jus�fiability further pre-trial incarcera�on at this stage, subject to the compliance of terms and condi�ons men�oned in this order.

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Without commen�ng on the case's merits, in the facts and circumstances peculiar to this case, and for the reasons men�oned above, the pe��oner makes a case for bail. This order shall come into force from the �me it is uploaded on this Court's official webpage.

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Given above, provided the pe��oner is not required in any other case, the JYOTI pe��oner shall be released on bail in the FIR cap�oned above subject to furnishing 2024.11.08 16:47 I attest to the accuracy and integrity of this order/judgment. 3

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CRM-M-46125-2024

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bonds to the sa�sfac�on of the concerned Court and due to unavailability before any nearest Ilaqa Magistrate/duty Magistrate. Before accep�ng the surety, the concerned Court must be sa�sfied that if the accused fails to appear, such surety can produce the accused.

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While furnishing a personal bond, the pe��oner shall men�on the following personal iden�fica�on details:

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1.	AADHAR number
2.	Passport number (If available) and when the
	aHes�ng 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 pe��oner’s complying with the following terms.

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The pe��oner shall abide by all statutory bond condi�ons and appear before the concerned Court(s) on all dates. The pe��oner 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 allega�ons against the pe��oner, it becomes paramount to protect the drug detec�on squad, their family members, as well as the members of society, and incapacita�ng the accused would be one of the primary op�ons un�l the filing of the closure report or discharge, or acquiHal. Consequently, it would be appropriate to restrict the possession of firearm(s). [This restric�on 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 sanc�on]. Given the nature of the allega�ons and the other circumstances peculiar to this case, the pe��oner shall surrender all weapons, firearms, and ammuni�on, if any, along with the arms license to the concerned authority within fiPeen days from release from prison and inform the Inves�gator about the compliance. However, subject to the Indian Arms Act, 1959, the pe��oner shall be en�tled to renew and take it back in case of acquiHal in this case, provided otherwise permissible in the concerned rules. Restric�ng firearms would ins�ll confidence in the vic�m(s), their families, and society; it would also restrain the accused from influencing the witnesses and repea�ng the offense.

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The condi�ons men�oned above imposed by this court are to endeavor to

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JYOTI 2024.11.08 16:47 I attest to the accuracy and integrity of this order/judgment.

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CRM-M-46125-2024

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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 Pe��on (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 condi�ons imposed by the Court must not only have a nexus to the purpose that they seek to serve but must also be propor�onal to the purpose of imposing them. The courts, while imposing bail condi�ons must balance the liberty of the accused and the necessity of a fair trial. While doing so, condi�ons that would result in the depriva�on of rights and liber�es must be eschewed.”

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Any observa�on 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 cer�fied copy of this order would not be needed for furnishing bonds, and any Advocate for the Pe��oner can download this order along with case status from the official web page of this Court and aHest it to be a true copy. If the aHes�ng officer wants to verify its authen�city, such an officer can also verify its authen�city and may download and use the downloaded copy for aHes�ng bonds.

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Pe00on allowed in terms men�oned above. All pending applica�ons, if any, stand disposed of.

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(ANOOP CHITKARA) JUDGE 08.11.2024 Jyo�-II Whether speaking/reasoned: Yes Whether reportable: No.

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JYOTI 2024.11.08 16:47 I attest to the accuracy and integrity of this order/judgment.

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Tausif Malik v. State of Punjab

Case brief

What is this about?

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Tausif Malik v. State of Punjab

Case brief

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