Regular bail under Section 439 CrPC for possession of 140 grams of Alprazolam powder, a commercial quantity under the NDPS Act. The court held the petitioner failed to discharge the reverse burden under Section 37 and distinguished precedents on medicinal drugs. Petition dismissed.
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CRM-M-7461-2024
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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
CRM-M-7461-2024 Reserved on: 05.09.2024 Pronounced on: 20.09.2024
Avtar Singh
...Petitioner
Versus
State of Punjab …Respondent
CORAM: HON'BLE MR. JUSTICE ANOOP CHITKARA
Present: Mr. R.K. Choudhary, Advocate and
Mr. Shubham Rana, Advocate for the petitioner.
Mr. Sukhdev Singh, AAG, Punjab.
ANOOP CHITKARA, J.
| FIR No. | Dated | Police Station | Sections |
|---|---|---|---|
| 95 | 05.10.2023 | Mehtiana, Distt. Hoshiarpur |
22 of NDPS Act |
“Head Munshi, Police Station, Mohtiana, Hoshiarpur Today I, SI along with A.S.I. Sangat Singh No.1500/Hosi, A.S.I. Joginder Singh No.807/Hosi, PHG Abhinav No.13881 together with laptop & printer were going from village Davida-Ahiana to village Fadma in a Government vehicle driven by Sepoy Ravi Kumar No.1490/Hos. for patrolling and in search of suspected persons. When the police party reached 100 yards outside village Davida-Ahiana in the direction of village Fadma side then two hair cut boys seen coming on a motorcycle bearing No.PB-07-BM8732, Marka Honda, colored black; who seeing the vehicle of police party coming from front side, then driver of the motorcycle at once tried to turn the motorcycle towards back side, but due to imbalance the motorcycle fell in the middle of the road. I, SI got stopped our vehicle and controlled them
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with the help of fellow employees and asked their name and addresses. Then driver of motorcycle told his name Dharminder Kumar @ Monoo S/o Ram Saran, resident of searched Dharminder Kumar alias Monco according to rule in the presence of fellow employees; then a heavyweight polythene envelope, black coloured found in the right pocket of his wearing Capry (jacket), which narcotic was opened and checked, substance in the form of then powder was recovered from the envelope; about which Dharminder alias Monoo asked question; then he confirmed that it is narcotic substance. Whereupon recovered narcotic substance was weighed on digital-balance, which was found 210 grams. That was kept in a plastic-dabbi and packed in a cloth bag and prepared a packet. After that Avatar Singh was searched according to rule and then a heavy-weight polythene envelope, black coloured found in the right pocket of his wearing Capry (Jacket), which was opened and checked, then narcotic substance in the form of powder was recovered from it; about which above said Avatar asked the same; then he confirmed that it is narcotic substance. Whereupon recovered narcotic substance was weighed on digital-balance, which was found 140 grams. That was kept in a plasticdabbi and packed in a cloth bag and prepared a Recovered parcel weighing 210 grams packet narcotic substance in the form of powder; and other recovered parcel weighing 140 grams narcotic substance in the form of power; both parcels were sealed by me/the SI with my stamp bearing JS words. Sample stamp was separately prepared. Stamp after used handed over to A.S.I. Joginder Singh No.807/Hosi, Recovered parcel weighing 210 Grams narcotic substance and 140 grams narcotic substance sealed with JS Stamp taken in police possession vide Farad-Bramdgi as Darminder Kumar alias Monoo, Avatar a proof. Singh and witnesses signed their signatures on the fard/list. Dharminder Kumar Monoo keeping 210 grams narcotic substance and Avatar Singh keeping 140 grams narcotic substance in his possession have committed the offence U/s 22-61-85 of NDPS Act. Therefore, after writing a Ruqa i.e. sending to the police station through PHG Abhinav No.13881for lodging a case against Dharminder Kumar alias Monoo S/o Ram Saran, resident of Khera-Kalan (Harmoye), police station Mohtiana (Hoshiarpur) AND Avatar Singh S/o Paramjit Singh, resident of village Falahi, police station Mohtiana (Hoshiarpur). After registering the case, made aware of the case number. Special reports be issued; control room and officer Sahiban be informed. I, SI am busy in further investigation on the spot. Sd/- (in Punjabi dialect) Jagjit Singh SI, S.H.O. police station Mohtiana, District Hoshiarpur. Dated 05.10.2023. Today in the area of village Davida-
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Ahiana, at 08:05 p.m.
Today in police station: According to document received in police station, a case as per above- mentioned offence entered in the register. Original document together with the copy of FIR, is being sending to the SI/S.H.O. on the spot through arrived employee for further investigation. Control room and officer Sahiban are informed. Special reports prepared and are sending to the Illaqa Magistrate sahib and officer Sahiban. Compiled Rapat No.38, dated 05.10.2023.”
"187. Omission to assist public servant when bound by law to give assistance. Whoever, being bound by law to render or furnish assistance to any public servant in the execution of his public duty, intentionally omits to give such assistance, shall be punished with simple imprisonment for a term which may extend to one month, or with fine which may extend to two hundred rupees, or with both; and if such assistance be demanded of him by a public servant legally competent to make such demand for the purpose of executing any process lawfully issued by a court of justice, or of
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preventing the commission of an offence, or of suppressing a riot, or affray, or of apprehending a person charged with or guilty of offence, an or of having escaped from lawful custody, shall be punished with simple imprisonment for a term which may extend to six months, or with fine which may extend to five hundred rupees, or with both.
In fact, no efforts have been made by the prosecution to join any independent person during the entire proceedings i.e. seizure and arrest. Hence, there is a violation of Section 100 Cr.P.C., which renders the proceedings regarding search and seizure to be highly doubtful.
4. That bare reading of the FIR reveals that the arresting officer ASI Ashok STF PWL/complainant, himself has conducted the entire investigation, therefore the investigation/proceedings stands vitiated, having been conducted by the complainant himself. The contraband was allegedly recovered by SI Jagjit Singh. SI Jagjit Singh did not forward the information to other empowered officer nor called any empowered officer to carry investigation. Empowered officer was out further called only after the sealing and weighing of contraband allegedly recovered and this was just a mere eye wash.”
| Substance Name | ALPRAZOLAM |
|---|
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| Quantitydetained | 140 Gram |
|---|---|
| Quantitytype | Commercial |
| Drug Quantity in % to upper limit of Intermediate |
140.00% |
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. | 178 |
| Common Name | |
| (Name of Narcotic Drug and Psychotropic Substance (International non-proprietary name (INN) |
ALPRAZOLAM |
| Other non-proprietaryname | ****** |
| Chemical Name | 8-chloro-1-methyl-6-phenyl-4H-s-triazolo[4,3- a][1,4]benzodiazepine |
| SmallQuantity | 5 Gram |
| CommercialQuantity | 100 Gram |
Declared as punishable under NDPS Act and as per schedule defined in S.2(xi) & 2(xxiii)
| NDPS Act, 1985 | |
|---|---|
| Notification No | NDPS Act,1985(61 of 1985),S.O. 821(E) |
| dated | 11/14/1985 |
| Sr. No. | 30 |
| Common Name | |
| (Name of Narcotic Drug and Psychotropic Substance (International non-proprietary name (INN) |
ALPRAZOLAM |
| Other non-proprietaryname | ****** |
| Chemical Name | 8-Chloro-1-methyl-6-phenyl-4H-s-triazolo [4, 3-a] [1, 4] benzodiazepine |
no person accused of an offense punishable for offenses involving commercial quantity shall be released on bail unless- (i) the Public Prosecutor has been given an opportunity
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 under this Act shall be cognizable;
( b ) no person accused of an offence punishable for offences under section 19 or section 24 or section 27A and also for offences involving commercial quantity shall be released on bail or on his own bond unless—
( i ) the Public Prosecutor has been given an opportunity to oppose the application for such release, and ( ii ) where the Public Prosecutor opposes the application, the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail.
( 2 ) The limitations on granting of bail specified in clause ( b ) of sub-section ( 1 ) are in addition to the limitations under the Code of Criminal Procedure, 1973 (2 of 1974) or any other law for the time being in force on granting of bail.
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to oppose the application of release, and (ii) where the Public Prosecutor opposes the application, the Court is satisfied that there are reasonable grounds for believing that accused is not guilty of such offense and is not likely to commit any offense while on bail. Thus, the rigors of S. 37 of the NDPS Act apply in the present case, and the burden is on the petitioner to satisfy the twin conditions put in place by the Legislature under Section 37 of the NDPS Act. Given the legislative mandate of S. 37 of the NDPS Act, the Court can release a person accused of an offense punishable under the NDPS Act for possessing a commercial quantity of contraband only after recording reasonable satisfaction of its rigors.
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the accused under S. 37 of the NDPS Act. The petitioner has not stated anything in the bail petition to discharge the burden put by the stringent conditions placed in the statute by the legislature under section 37 of the NDPS Act. The investigation reveals sufficient prima facie evidence to connect the petitioner with the crime; thus, the petitioner fails to make out a case for anticipatory bail. Any detailed discussions about the evidence may prejudice the case of the petitioner, the State, or the other accused.
(ANOOP CHITKARA) JUDGE 20.09.2024 anju rani Whether speaking/reasoned: Yes Whether reportable: No.
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1 issue framed by the court
Whether the accused carrying 140 grams of Alprazolam powder (commercial quantity) satisfies the twin conditions of Section 37 NDPS Act for regular bail.
3 provisions across 2 enactments
Avtar Singh
State of Punjab
Anoop Chitkara
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
