Granting bail in cases involving small quantities of narcotic substances: Punjab and Haryana High Court

• For the Petitioner: Mr. Sudhir Rana, Advocate
• For the Respondent (State of Haryana): Mr. Aashish Bishnoi, Deputy Advocate General, Haryana

Introduction:

The Punjab and Haryana High Court, in Jogindro Bai v. State of Haryana (CRM-M-51218-2024), delivered a notable judgment on November 29, 2024, granting anticipatory bail to the petitioner under Section 482 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS). The ruling, pronounced by Hon’ble Justice Anoop Chitkara, addresses the considerations for granting bail in cases involving small quantities of narcotic substances under the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act).

Factual Background:

The case originated from FIR No. 11 dated January 9, 2024, registered at Model Town Police Station, Rewari, under Sections 20(a) and 29 of the NDPS Act. The petitioner, apprehending arrest, sought anticipatory bail on the grounds that continued pre-trial incarceration would cause undue hardship.

The police, acting on secret information, initially arrested Fateh Singh, from whom they recovered 2.28 grams of heroin. Based on his custodial interrogation, another accused, Heena, was arrested, leading to the recovery of 1.17 grams of heroin. Subsequently, Heena implicated the petitioner, Jogindro Bai, in her disclosure statement, resulting in her being named as an accused.

The petitioner had a history of prior criminal cases under the NDPS and Excise Acts, which the Sessions Court cited as a reason for denying her bail. Feeling aggrieved, she approached the High Court.

Legal Issues:

1. Applicability of Section 37 of the NDPS Act – Whether the restrictions on bail under Section 37 of the NDPS Act applied to the petitioner’s case.
2. Grant of Bail in Small Quantity Narcotics Cases – Whether an accused dealing with a small quantity of narcotics should be granted bail.
3. Consideration of Criminal Antecedents in Bail Matters – Whether the petitioner’s past criminal record should impact the bail decision.

Court’s Observations and Ruling

1. Section 37 NDPS Act Does Not Apply – The Court noted that the total recovered contraband (3.45 grams of heroin) was below the “small quantity” threshold (5 grams). As per legal precedents, including Sami Ullaha v. Superintendent Narcotic Control Bureau (2008) 16 SCC 471, the strict bail conditions of Section 37 do not apply to cases involving small quantities.
2. No Justification for Pre-Trial Incarceration – The Court emphasized that anticipatory bail should not be denied solely due to prior cases, especially when the offense is not of a grave nature.
3. Judicial Discretion in Bail Matters – The judgment underscored that bail decisions must be free from arbitrariness, balancing the accused’s rights with societal concerns. Prior criminal history should only be considered if there are convictions or pending cases where formal charges exist.
4. No Requirement for Custodial Interrogation – The Court observed that the police had not arrested the petitioner despite having sufficient time, suggesting that her custodial interrogation was unnecessary.

Conclusion:

The Punjab and Haryana High Court’s ruling in Jogindro Bai v. State of Haryana reinforces the principle that in cases involving small quantities of narcotics, the strict provisions of Section 37 NDPS Act do not apply, and bail should not be denied arbitrarily. The decision underscores the importance of judicial discretion and procedural fairness in bail matters.

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