Joginder Vs State of Haryana

The pe��oner apprehending arrest in the FIR cap�oned above has come up before this Court under Sec�on 482 of Bhara�ya Nagarik Suraksha Sanhita, 2023, [BNSS], seeking an�cipatory bail.

¶17

Per paragraph 11 of the bail applica�on and para 6 of the status report dated 11.01.2025, the accused has the following criminal antecedents:

¶18

Sr. No.	FIR No.	Date	Offenses	Police Sta�on
1.	53	15.04.2021	21 B of NDPS Act	DingSirsa
2.	351	30.04.2020	61/1/14 of Excise Act	HTM,Hisar
3.	50	05.03.2022	25 of Arms Act	Pallu, District Hanu- mannagar,Rajasthan
4.	545	22.07.2020	21-B of NDPS Act	HTM,Hisar
5.	1149	17.12.2021	20-B NDPS Act	Sadar HIsar

¶19

The facts and allega�ons are taken from the reply filed by the State. On Nov 30, 2024, the Police seized 12.266 KG of Ganja from co-accused Phool Singh’s possession. The Inves�gator claims to have complied with all the statutory requirements of the NDPS Act, 1985, and BNSS, 2023.

¶20

During custodial interroga�on, co-accused, Phool Singh, confessed before the Police officer that the Ganja belonged to his son, who had asked him to pick it up from a person from a designated place. Based on such confession before the police, the pe��oner was arraigned as an accused. Apprehending arrest, he filed for an�cipatory JYOTI bail from the Sessions Court, which denied him bail. Feeling aggrieved, he has invoked 2025.01.29 15:58 I attest to the accuracy and integrity of this order/judgment. 1

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the concurrent jurisdic�on of this Court under S. 482 BNSS, 2023.

¶23

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.

¶24

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

¶25

It would be appropriate to refer to the following por�ons of the reply, which read as follows:

¶26

“4. That a�er registra�on of the FIR, a fair and impar�al inves�ga�on was carried out by the local police and during inves�ga�on the place of occurrence was inspected and a map was prepared and statements of witnesses were recorded and the co-accused was arrested. In custody, the accused suffered a disclosure statement men�oning that recovered Ganja had been brought by him on the asking of his son (pe��oner/accused). He stated in his disclosure statement that he has 6 children, two sons and four daughters. The eldest son Jogender (pe��oner/accused) and two daughters are married. He is from a poor family and his son Jogender (pe��oner/accused) has been selling ganja for many days. On 01.12.24, his son Jogender (pe��oner/accused) sent him to Kashmiri Gate, Delhi and told me that he will meet a man there, he will give you ganja, bring it. His son Jogender (pe��oner/accused) handles the money transac�ons, he does not know how much this ganja is worth. He went to Kashmiri Gate, Delhi, a�er some �me a man came there and gave him this 12.266 kg ganja and he took the ganja back to Hisar Can3 by bus. From there he was going to his home in Mirzapur road, Kaushik Nagar by a three wheeler. When he got down from the three wheeler and was walking home, the police caught him near the bypass with the ganja. He also demarcated the place from where he had brought the ganja from an unknown person. Copy of the disclosure statement of the co-accused is annexed as Annexure R-1.”

¶27

Dealing in 12.266 kg of ganja is a punishable offense under the NDPS Act in the following terms:

¶28

Substance Name	Ganja
Quan�tydetained	12.266 Kg
Quan�tytype	Intermediate
Drug Quan�ty in % to upper limit of Intermediate	61.33%

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JYOTI

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2025.01.29 15:58 I attest to the accuracy and integrity of this order/judgment.

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CRM-M-63625-2024

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Specified as small & Comme	i rcial in S.2(viia) & 2(xxiiia) NDPS Act, 1985
No�fica�on No	S.O.1055(E)
dated	10/19/2001
Sr. No.	55
Common Name
(Name of Narco�c Drug and
Psychotropic Substance	Ganja
(Interna�onal non-proprietary name (INN)
Other non-proprietaryname	******
Chemical Name	******
SmallQuan�ty	1000 Gram(i.e. equivalent to 1 Kg)
CommercialQuan�ty	20000 Gram(i.e. equivalent to 20 Kg)

¶34

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

¶35

No�fica�on No	2(iii)(b)NDPS Act,1985,S.O.821(E)
dated	11/14/1985
Sr. No.	2(iii)(b)
Common Name (Name of Narco�c Drug and Psychotropic Substance (Interna�onal non-proprietary name (INN)	******
Other non-proprietaryname	******
Chemical Name	S.2(iii)(b) ganja, that is, the flowering or frui�ng tops of the cannabis plant (excluding the seeds and leaves when not accompanied by the tops), by whatever name they may be known or designated; S. 2(viiib)] “illicit traffic”, in rela�on to narco�c drugs and psychotropic substances, means— (i) cul�va�ng any coca plant or gathering any por�on of coca plant; (ii) cul�va�ng the opium poppy or any cannabis plant; (iii) engaging in the produc�on, manufacture, possession, sale, purchase, transporta�on, warehousing, concealment, use or consump�on, import inter-State, export inter-State, import into India, export from India or transhipment, of narco�c drugs orpsychotropic substances;

¶36

Given this, the rigors of S. 37 of the NDPS Act do not apply in the present case.

¶37

Sec�on 2 (vii-a) of the NDPS Act defines commercial quan�ty as greater than the quan�ty specified in the schedule. Sec�on 2 (xxiii-a) defines a small quan�ty as a quan�ty less than the quan�ty specified in the table of the NDPS Act. The remaining quan�ty falls in an undefined category, generally called an intermediate quan�ty. All sec�ons in the NDPS Act specify an offence and men�on the minimum and maximum JYOTI sentence, depending upon the quan�ty of the substance. The commercial quan�ty 2025.01.29 15:58 I attest to the accuracy and integrity of this order/judgment. 3

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mandates a minimum sentence of ten years of imprisonment and a minimum fine of Rupees One hundred thousand, and bail is subject to the riders mandated in S. 37 of the NDPS Act. When the quan�ty is less than commercial, the restric�ons of Sec�on 37 of the NDPS Act will not aSract, and the factors for bail become similar to the offence regular statutes.

¶40

Pre-trial incarcera�on should not be a replica of post-convic�on sentencing. The evidence might be prima facie sufficient to launch prosecu�on or to frame charges, but this Court is not considering the evidence at that stage but is analyzing it for the stage of an�cipatory bail. An analysis of the above does not jus�fy custodial interroga�on or pretrial incarcera�on.

¶41

The evidence collected might be prima facie sufficient to launch prosecu�on or even to frame the charges; however, for the purpose of bail, the evidence is insufficient. Given the penal provisions invoked, the quality of evidence, coupled with the prima facie analysis of the nature of allega�ons and the other factors peculiar to this case, pre-trial incarcera�on at this stage would be unjus�fiable.

¶42

Given the above, 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 an�cipatory bail.

¶43

Given above, provided the pe��oner is not required in any other case, the pe��oner shall be released on bail in the FIR cap�oned above subject to furnishing bonds to the sa�sfac�on of the Arres�ng Officer, and if the maSer is before a Court, then the concerned Court and due to unavailability before any nearest Ilaqa Magistrate/duty Magistrate. Before accep�ng the surety, the concerned Officer/Court must be sa�sfied that if the accused fails to appear, such surety can produce the accused.

¶44

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

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AADHAR number 2. Passport number (If available) and when the aSes�ng officer/court considers it appropriate or considers the accused a flight risk.

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Mobile number (If available) 4. E-Mail id (If available)

¶47

The bail order is subject to the pe��oner’s complying with the following terms.

¶48

The pe��oner is directed to join the inves�ga�on within seven days of uploading

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JYOTI 2025.01.29 15:58 I attest to the accuracy and integrity of this order/judgment.

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CRM-M-63625-2024

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this order on the ofcial webpage of the High Court of Punjab and Haryana and as andfi

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when called by the Inves�gator. The pe��oner shall be in deemed custody for Sec�on 27 of the Indian Evidence Act, 1872/ Sec�on 23 of BSA, 2023. The pe��oner shall join the inves�ga�on as and when called by the Inves�ga�ng Officer or any Superior Officer and shall cooperate with the inves�ga�on at all further stages as required. In the event of failure to do so, the prosecu�on will be open to seeking cancella�on of the bail. During the inves�ga�on, the pe��oner shall not be subjected to third-degree, indecent language, inhuman treatment, etc.

¶54

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.

¶55

Given the background of allega�ons against the pe��oner, it becomes paramount to protect 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 acquiSal. Consequently, it would be appropriate to restrict the possession of firearms. [This restric�on is being imposed based on the preponderance of the evidence of probability and not of evidence of certainty, i.e., beyond a 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 fiTeen days of release from prison and inform the Inves�gator of the compliance. However, subject to the Indian Arms Act, 1959, the pe��oner shall be en�tled to renew and reclaim them in case of acquiSal in this case, provided otherwise permissible under 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.

¶56

In case the Inves�gator/Officer-In-Charge of the concerned Police Sta�on arraigns another sec�on of any penal offense in this FIR, and if the new sec�on prescribes a maximum sentence that is not greater than the sec�ons men�oned above, then this bail order shall be deemed to have also been passed for the newly added sec�on(s). However, suppose the newly inserted sec�ons prescribe a sentence exceeding the maximum sentence prescribed in the sec�ons men�oned above; then, in that case, the Inves�gator/Officer-In-Charge shall give the pe��oner no�ce of a

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JYOTI 2025.01.29 15:58 I attest to the accuracy and integrity of this order/judgment.

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minimum of seven days, providing an opportunity to avail the remedies available in law.

¶61

In Md. Tajiur Rahaman v. The State of West Bengal, decided on 08-Nov-2024, SLP (Crl) 12225-2024, Hon’ble Supreme Court holds in Para 7, “It goes without saying that if the pe��oner is found involved in such like offence in future, the concession of bail granted to him today will liable to be withdrawn and the pe��oner is bound to face the necessary consequences.”

¶62

22. This bail is condi�onal, and the founda�onal condi�on is that if the pe��oner indulges in any non-bailable ofense, the State shall ff le an applica�on for cancella�oni of this bail before the Sessions Court, which shall have the liberty to cancel this bail .

¶63

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.

¶64

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 aSest it to be a true copy. If the aSes�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 aSes�ng bonds.

¶65

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

¶66

(ANOOP CHITKARA) JUDGE 29.01.2025 Jyo#-II Whether speaking/reasoned: Yes Whether reportable: No.

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JYOTI 2025.01.29 15:58 I attest to the accuracy and integrity of this order/judgment.

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Joginder v. State of Haryana

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Joginder v. State of Haryana

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